She Who Seeks Pseudonymity Must Provide Pseudonymity

Today’s Judge Elizabeth Dillon decision (W.D.) Va. Doe v. Virginia Polytechnic Inst.:

Jane Doe, an undergraduate student at Virginia Tech was where she met Jill Roe. Doe and Roe started a relationship. Doe met Roe on multiple occasions over the next several weeks. They also spent considerable time together. Roe offered Doe a place at her apartment for the night on September 20, 2020 after they had been out.

Roe then accused Doe, claiming that Doe had taken advantage of Roe. Roe filed a complaint to the Virginia Tech Office of Equity and Accessibility alleging Doe had sexually assaulted Roe at an apartment off campus after she’d been drinking. Kristin Barrnett, a university investigator, looked into Roe’s claim.

Barnett brought up a second case against Doe during the investigation. This was a complaint by Joy Smith, Doe’s first roommate. Smith claimed that Doe and her had been in a relationship during the previous year and Doe was involved with Smith’s non-consensual sexual activities. Smith became acquainted with Roe, and she filed her complaint against Doe shortly after Roe filed her own complaint against Doe….

Doe received from McCrery & Sloan, on January 20, 2021, a note stating they had found Doe guilty of violating Virginia Tech’s policies regarding rape, sexual battery, as well as being responsible for stalking and assault. In addition, Doe was dismissed from the university…. Doe also filed suit against Virginia Tech [and Virginia Tech officials]They claim they have violated (1) Title IX and the Due Process Clauses of the Fourteenth Amendment. Doe specifically claims Virginia Tech should have tried Roe and Smith separately. They should also have followed Title IX procedures. In addition, Doe claims that “Virginia Tech’s decision to render the harshest available sanction against Ms. Doe—expulsion—is significantly harsher than comparably similar student conduct cases involving male students accused of sexual assault involving heterosexual activity at Virginia Tech, who were on average suspended, but not expelled.[“]

Next, the question was whether Doe could continue pseudonymously. The court answered no.

In recent years, Doe v. Virginia Polytechnic Inst. & State Univ.The undersigned ruled that students may sue Virginia Tech under pseudonyms for violating their due process rights in relation to an investigation by the university into allegations of him committing dating-related violence. Id. According to the court, litigation is “sensitive and personal in nature.” [the plaintiff was]A domestic violence perpetrator is being accused.

Like sexual misconduct, domestic violence allegations or abuse dating relationships can be highly sensitive facts and subject to ridicule. [See] Doe v. The Rector & Visitors of George Mason Univ. (E.D. Va. 2016. Plaintiff has been accused of sexual misconduct, the mere accusation of which, if disclosed, can invite harassment and ridicule.”)…. Additionally, Doe’s identification could expose him to physical and mental harm by others who know he was a victim of domestic violence.” Virginia Tech’s anonymity will not be affected because Doe is already known.

Here, and unlike the case discussed above, … plaintiff … is not seeking to preserve her own privacy in any legitimate way. Instead, she seeks privacy while naming two non-parties—one is named approximately 91 times and the other approximately 36 times—who assert that they are plaintiff’s victims. In the complaint, plaintiff also embedded photographs of herself with one of non-parties.

As this court has stated previously, “… the trial court must ‘carefully review all the circumstances of [the]a case, and decide whether it is appropriate to disclose the plaintiff’s identity in order to protect her privacy. Given the fact that plaintiff decided to name others repeatedly and include photographs of herself and another, the court cannot, and does not, find that her motion to proceed under a pseudonym is genuinely for the purpose of preserving her privacy or avoiding retaliatory harm….

Virginia Tech was granted the motion by the court to redact (in essence) the names of the accused from the Complaint.

Names of third parties were given in highly personal and sensitive matters. They did not disclose their identities or include photographs in any pleading. There is risk that their identity will be revealed by them being identified as victims of sexual violence. The court grants the motion of third party to seal.

You can also see Doe, v. Kidd, 19 Misc. 3d 782, 789 (N.Y. Sup. 3d 782 and 789 (N.Y.Sup.

However, there have been some instances, but not all, of these cases being considered by courts when victims of sexual assault sue their alleged attackers. Some courts, however, have decided that it is fair to let both sides be pseudonymous.[I]f the plaintiff is allowed to proceed anonymously, … it would serve the interests of justice for the defendant to be able to do so as well, so that the parties are on equal footing as they litigate their respective claims and defenses.” Doe V. Doe, No. 20-CV-5329(KAM)(CLP), 2020 WL 6900002, *3 (E.D.N.Y. Nov. 24, 2020); See also Doe v. Am. Fed. Fed., No. 1:20-cv-01558-JDB, at 6 n.2 (D.D.C. June 19, 2020); Doe v. City of New York, 201 F.R.D. 100, 102 (S.D.N.Y. 2001); Doe V. Doe, No. CV146015861S. 2014 WL 40576717 (Conn. Ct. Ansonia-Milford Dist.); Doe, v. Anonymous #1, No. 520605/‌‌2020E (N.Y. Sup. Ct. Kings Cty. Feb. 24, 2021); Doe v. Moravian College, No. 5:20-cv-01377-JMG at 2 n.2 E.D. Pa. Jan. 11, 2021); Doe V. Smith, 105 F. Supp. 2d 40, 44 (E.D.N.Y. 1999); Doe v. Tenzin Masselli, No. MMXCV145008325, 2014 WL 6462077, *2 (Conn. Super. Ct. October 15, 2014. (leaving the door open to Roe v. Doe These cases may result in lawsuits). Bike v. Sollene, No. CV126027065S, 2012 WL 5476887, *2 (Conn. Super. Ct. October 15, 2012. (discussing Connecticut cases in which pseudonymity was permitted to such defendants). I’m not saying this to endorse categorical mutual pseudonymity in such cases, but to note the tendency  in some cases to favor treating the parties equally with regard to pseudonymity—and, as we see in this case, to bristle at plaintiffs who seek pseudonymity for them but not for their adversaries.

Professor KC Johnson thanks for the tip.