Thursday, September 4, 2014

Judge orders male student to reveal his name in suit against Temple University -- now how about we make it work both ways

An anonymous male sued Temple University claiming the school violated his rights when it expelled him for a sexual assault he claims he did not commit. Temple ran to court to force him to reveal his real name. Federal Judge Anita Brody in Philadelphia said yesterday the student will need to reveal his name if he wants to proceed with the suit. Doe v. Temple Univ., 2014 U.S. Dist. LEXIS 122427 (2014):
In this case, the potential harm to Doe and those similarly situated is not enough to outweigh the public's interest in an open proceeding. Sexual assaults on college campuses, and the measures universities are taking to respond to these incidents, are important issues commanding national attention.
Doe had claimed "the public has a strong interest in allowing those falsely accused of sexual assault to proceed anonymously. Those that have been wrongly accused will be dissuaded from vindicating their rights in court because of the increased publicity that accompanies a public proceeding." The court rejected this contention:
. . . this prediction appears unfounded. There are many examples of plaintiffs proceeding with suits in their own names protesting sexual assault discipline from universities. See, e.g., Johnson v. Temple Univ.-of Commonwealth Sys. Of Higher Educ., Civ. A. 12-515, 2013 WL 5298484 (E.D. Pa. Sept. 19, 2013), reconsideration denied, Civ. A. 12-515, 2014 WL 3535073 (E.D. Pa. July 17 2014); Dempsey v. Bucknell Univ., Civ. A. 4:11-cv-01679, 2012 WL 1569826 (M.D. Pa. May 3, 2012); Gomes v. Univ. of Me. Sys., 365 F. Supp. 2d 6 (D. Me. 2005); Fellheimer v. Middlebury Coll., 869 F. Supp. 238 (D. Vt. 1994); Ruane v. Shippensburg Univ., 871 A.2d 859 (Pa. Commw. Ct. 2005).
Judge Brody is correct that some suits are filed using the men's real names, but Doe is also correct that a lot of men likely will not pursue a legal action because it will only highlight the allegations against them. We've heard from men at this blog who ask us to remove even sympathetic stories about them because they are trying to put the ordeal behind them -- and they don't want people to see their names attached to accusations that they engaged in horrid sex acts.

What is troubling is not the idea that, as Judge Brody said, the public has an interest in open proceedings. What is troubling is that this doesn't always cut the other way when alleged victims of sexual assault file civil actions for money damages against their alleged perpetrator. As one powerhouse lawyer has explained, it is standard practice to withhold the names of potential victims of sex attacks. “I do it for all of my . . . clients who are victims of sexual assault,” he said. “I think it's malpractice to identify them (in a complaint). I'm leaving it up to the judge."

And even when the lawyer for the alleged sexual assault victim files under the plaintiff's real name, the press sometimes jumps in to protect her by shielding her identity. When an employee of Harrah's Lake Tahoe hotel in Nevada filed suit claiming that Pittsburgh Steelers quarterback Ben Roethlisberger sexually assaulted her in July 2008, the suit was filed under her real name, but the Pittsburgh Post-Gazette refused to reveal it -- even though it was just a civil action. It said simply: "The Pittsburgh Post-Gazette does not name alleged victims of sexual assault."

One news outlet initially revealed the plaintiff's name in the Roethlisberger case, but after she claimed she was subject to harassing phone calls, the news outlet swooped in and announced it would no longer use her name. The news outlet proceeded to chide the woman's lawyer for not filing the suit anonymously in the first place, and Roethlisberger for having the audacity to publicly declare his innocence.

If the news outlet wants to know what "harassment" is, it should speak to an innocent man forced to pack his belongings and leave campus under threat of criminal prosecution for a rape he didn't commit, then have to explain to others schools why they should take a chance on a "rapist," then have to explain to a prospective employer -- who will know he was accused of rape if he dares to sue the school -- not only that he's innocent but that it won't be a public relations problem for the employer to hire him.

This blog has many times dealt with the issue of anonymity in connection with criminal matters. The case against anonymity for rape accusers is even more stark in the civil context. Unlike a criminal case that is brought by the state on behalf of "the people," a civil dispute is a private one brought by private parties. A victory by the plaintiffs will not keep a sexual assaulter off the streets or protect a single potential victim from him. In fact, a victory will do nothing more than give two people a payday: the plaintiff and her attorney. Even if you believe that maintaining the anonymity of alleged rape victims in criminal matters fosters a culture that encourages other victims to come forward for the sake of society as a whole, society has far less interest in encouraging alleged rape victims to seek personal monetary gain. When people use public courts to seek a private monetary award, they generally should not be permitted to insist that they do so anonymously.

The double standard of protecting rape accusers but not the accused is not acceptable in the criminal realm, or anywhere else. If there are, indeed, plausible reasons for keeping the names of women anonymous, there are more plausible reasons for keeping the names of men accused of rape anonymous. Many rape victims' advocates claim that when it comes to rape accusers, rape is a different kind of offense warranting anonymity. Yet, when it comes to the accused who seeks to clear his good name, those same advocates claim the stigma of rape is no different than any other crime. It is disingenuous to want to have it both ways. In fact, the same stigma that purportedly keeps women from reporting their sexual assaults if they were not granted anonymity certainly maligns innocent men and boys, and too often destroys their good names, when they are not granted anonymity.

In the end, it is probably better to err on the side of openness -- for everybody.