Last year I wrote about one of these cases. Now I have more information so I thought I would ask the same question. Here’s my draft article. Pseudonymous Litigation: The Law—I’d love to hear people’s thoughts on it.
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Four cases have seen courts allow parties to keep their identities secret in order that sexual issues involved in these cases wouldn’t be stigmatized in religious communities. The most notable case in the Eleventh Circuit involved a Muslim women who claimed that she was raped.
“[C]When plaintiffs accuse them of sexual assault, ourts frequently deny protection of anonymity. Even if the plaintiff is embarrassed by her identity.[.]” … [But]Ms. Doe doesn’t just claim that sexual assault allegations made in this case could cause her “personal embarrassment.” Doe asserts instead that she was raised in a family of “devout Muslims” and her accusations would cause severe harm. [herself]Shame on her family for the cultural/religious practices that she follows.”
With her declaration she supported the claim. She attests she is attempting to move under a pseudonym because “come.”[s]A strict Muslim home where you are not allowed to be under [their]Cultural beliefs and customs such as a sexual assault could have the potential to cause shame and humiliation. [her] family.” District court mistakenly treated Ms. Doe’s motion only as an allegation of personal embarrassment without considering the social stigma claims or accounting for her actual allegations.[1]
The same was true in later cases for a Muslim plaintiff as well as a Baptist plaintiff who were both claiming sexual assault.[2]As did a previous case in which plaintiff was an erotica dancer and sought pseudonymity partly because her parents were religiously committed members of a Christian Church.[3]
This seems to me to an improper form of preference for the religious, given that many nonreligious people might also feel highly upset by revelation of similar information—whether about having been sexually assaulted or choosing to be erotic dancers.[4] And while in principle courts could diminish this preference for religion by adopting their reasoning to non-religiously-defined cultural groups as well as religious ones,[5]That too is a mistaken preference.[6]
A judge would have to consider the religious and cultural beliefs of all parties in any such decision. To illustrate, the judge might have to evaluate the “shame” and “humiliation” likely to be suffered by a Trinidadian Muslim female (the self-described identity the plaintiff). NeversonYou might experience shame, humiliation, and even death from being named as a victim to sexual assault.
A judge may also have to consider the humiliation and shame that a victim of sexual assault might feel. This case is not likely to be resolved by the court system.
[1]Doe, v. Neverson (820 F. Appx 984 (11th Circuit). 2020).
[2]Doe, v. Barr No. 1:10-cv-04553, 2020 Wl 12674163 (D.D.C. Dec. 4, 2020; Doe v. City of Dalton. 4:21-cv-00128-LMM, at 2–3 (N.D. Ga. July 12, 2021).
[3]Doe #1 against Deja Vu Consulting Inc. 3:17-CV-00040, 2017 WL 3837730, *5 (M.D. Tenn. Sept. 1, 2017).
[4]You should note that this cannot be justified under the Free Exercise Clause, or Religious Freedom Restoration Act. Religious exemptions in these regimes can only be granted when they “substantially burden” someone’s religious beliefs by forbidding their engaging in any religiously motivated behaviour. e.g., Holt v. Hobbs, 574 U.S. 352, 360–61 (2015), or compelling them to engage in behavior that “violates their religious beliefs,” e.g.Burwell, Hobby Lobby Stores, Inc., 573 U.S.682, 720 (2014). Here, having to litigate in one’s own name wouldn’t violate anyone’s religious beliefs—it would just reveal information that would cause condemnation from coreligionists.
[5]Take into account Wolfchild v. United States, 62 Fed. Cl. 521 (2004), Rejected for other reasons, 559 F.3d 1228 (Fed. Cir. Cir.
[6] Compare Doe v. Dordoni, No. 1:16-CV-00074-JHM, 2016 WL 4522672, *3 (W.D. Ky. August 29, 2016, which permitted pseudonymity on the basis of a reasonable fear or physical harm Supra Part II.B), in this case, was the fear that violent reprisal would be inflicted in Saudi Arabia due to a Saudi citizen’s conversion of Islam to Christianity. In that case, the court was applying a general rule—risk of physical harm can justify pseudonymity—that applied to people without regard to their religion or culture.