In the wake of the Me Too Movement, many sexual abuse survivors are finding the strength and courage to come forward and seek justice against their abusers. Some states, like New York, New Jersey, California, Arizona, Montana, Hawaii, and North Carolina, have recently enacted statutes that provide “look back” windows applicable to claims of child sexual abuse that would otherwise be barred by statutes of limitations. See Joseph H. Saunders, Eight States Have “Look Back” Windows Allowing Survivors of Priest Sex Abuse to Seek Justice, The Legal Examiner (Dec. 6, 2019), available at https://losangeles.legalexaminer.com/legal/eight-states-have-look-back-windows-allowing-survivors-of-priest-sex-abuse-to-seek-justice/.
Other states, like Florida, are presently considering similar legislation. See Stephanie Colombini, Bill Would Give Sexual Assault Survivors One Year ‘Look Back Window’ To File Cases, WLRN (Jan. 15, 2020), available at https://www.wlrn.org/post/bill-would-give-sexual-assault-survivors-one-year-look-back-window-file-cases#stream/0. Vermont has abolished the statute of limitations for child sexual abuse cases altogether and Ohio has introduced similar legislation. See Saunders, supra. The result is that more and more victims of sexual abuse are exploring their legal rights.
A threshold issue—and one of the primary concerns to victims of sexual abuse and sex trafficking in deciding whether to pursue a case against their abusers—is whether, and to what extent, they can maintain their anonymity during litigation. Sex trafficking and sexual abuse cases, by their very nature, necessarily involve extremely sensitive and intimate details about a very painful time in a victim’s life. Many victims of sexual abuse, although unwarranted, have intense feelings of self-blame, shame, and humiliation and do not want their identities made public or disclosed to other third parties.
Although Fed. R. Civ. P. 10(a) requires all parties to be listed in a case caption, courts have “approved of litigation under a pseudonym in certain circumstances,” in order to protect plaintiffs appearing in federal court. See, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 190 (2d Cir. 2008). When deciding whether a plaintiff may proceed under a pseudonym, many courts hold that a non-exhaustive, balancing test must be used to weigh the plaintiff’s need for anonymity against the countervailing public interests of disclosure and any prejudice to the defendant. See, e.g., id. at 189; Doe v. Megless, 654 F.3d 404 (3d Cir. 2011); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000); James v. Jacobson, 6 F.3d 233 (4th Cir. 1993).
Sexual abuse and sex trafficking victims have a substantial privacy right in guarding the sensitive and highly personal information that they must disclose in such litigation. It is well established that victims of rape, human trafficking, sexual assault, and sexual battery have a strong interest in protecting their identities for their own privacy, as well as advancing the interests of other victims, so that those victims will not be deterred from reporting such crimes. See Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997). This is especially true when minors are involved, who courts have determined are particularly vulnerable to the possible harm of disclosure. See Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981). Whether the disclosure of a plaintiff’s identity poses a reasonable risk of retaliatory physical or mental harm to that plaintiff, is another crucial factor that courts weigh in favor of allowing a plaintiff to proceed pseudonymously. Sealed Plaintiff, 537 F.3d at 190.
Although plaintiffs are often permitted to proceed using a pseudonym, and protection orders are commonly implemented to prevent disclosure of their identities to the public and other third parties, courts nearly unanimously hold that defendants are entitled to know the identities of their accusers in order to prepare their defense. In that context, the issue becomes at what stage of the litigation does the prejudice to the defendant outweigh the plaintiff’s need for anonymity. This issue is far less commonly addressed by the courts and case law on this issue is less robust.
Courts that have addressed the issue, however, have weighed the factors including, among others, the risk of retaliation, the plaintiff’s vulnerabilities, and the stage of the litigation, to determine when a plaintiff’s identity should be disclosed. In doing so, courts have held that there is no prejudice to the defendants by withholding the plaintiff’s identity until such disclosure is necessary for the defendants to adequately conduct discovery. See, e.g., Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th Cir. 2000) (“[D]efendants suffer no prejudice by not knowing the identities of named plaintiffs because the district court has not ruled on plaintiffs’ [motion], and discovery is stayed.”); Roe v. Aware Woman Center for Choice, Inc., 253 F.3d 678, 687 (11th Cir. 2001) (holding defendant’s argument that anonymity of plaintiff will prevent them from adequately conducting discovery was “eviscerated” by plaintiff’s offer to disclose her name during discovery); Doe v. Trump Corp., No. 18 Civ. 9936, 2020 WL 1808395, at Fn. 2 (S.D.N.Y. April 8, 2020) (“Shortly after the motion to dismiss was decided and the discovery stay was lifted…the parties agreed to a protective order, which provided that Plaintiffs’ identities would be disclosed only to defense counsel and their agents.”); John Doe I v. Four Brothers Pizza, Inc., No. 13 CV 1505(VB), ECF No. 4 (S.D.N.Y. March 6, 2013) (“The names and identities of the plaintiffs shall be maintained by the Court under seal and shall not be revealed to defendants, their counsel, or to the public” until such time as the court should otherwise direct).
The greater the risk of harm to the plaintiff—either mental harm, or the risk of physical or other harm brought about by the defendant’s retaliation efforts—the more likely the court is to permit the plaintiff to remain anonymous to the defendant during the pre-discovery stage of litigation. For example, in Jane Does Nos. 1-46 v. Nygard, et al., No. 20-cv-01288 (ER) (S.D.N.Y. Feb. 13, 2020), the parties had a dispute regarding the timing of the disclosure of the plaintiffs’ identities to the defendants. Shortly after the complaint was filed, the defendants asserted that they were entitled to immediately learn the plaintiffs’ identities—just like they otherwise would be entitled to if the plaintiffs were not using pseudonyms—to begin preparing their merits defense. The plaintiffs, in successful opposition to the defendants’ demand, asserted that the plaintiffs’ continued anonymity at this early, pre-discovery, stage of the litigation, posed minimal prejudice to the defendants, because the plaintiffs’ identities were not necessary for the defendants to make their dismissal-related arguments in the Rule 12 context.
The plaintiffs also successfully argued that the defendants had a well-documented history of intimidation, bribery, and retaliation against those who challenged them, as well as a history of litigation misconduct, including violating court orders, and, therefore, the risk of retaliatory harm to the plaintiffs outweighed any potential prejudice to the defendants. The court ordered that the defendants were not entitled to know the identities of the plaintiffs at the dismissal motion stage of the litigation and ruled that the issue would be revisited later on in the litigation.
While the circumstances of sexual assault and sex trafficking cases can differ widely, it is often of crucial importance to protect a client’s identity to the fullest extent possible. Understanding the balancing test used by the courts in deciding the propriety of continued plaintiff anonymity, as well as the factors that the courts consider in conjunction with that analysis, is critically important not only to whether your client is permitted to proceed pseudonymously at all, but also to the timing and scope of the eventual disclosure of the client’s identity to the defendant.
Greg Gutzler is a partner of DiCello Levitt Gutzler. Justin Hawal is an associate at the firm. Lisa Haba is a partner at The Haba Law Firm.