Wednesday, May 9, 2012

Anonymous sexual assault lawsuit against Travolta raises troubling issues about anonymity in civil actions

Two unidentified massage therapists, represented by the same attorney, are suing John Travolta in federal court for a total of $2 million. The massage therapists are identified only as "John Doe No. 1" and "John Doe No. 2" in the civil complaint filed in federal court. They claim that in two separate incidents last January, Travolta masturbated in front of each of them while he received massages. In addition, Travolta supposedly exposed himself to the masseurs and grabbed their genitals in an attempt to make sexual advances toward them.

Travolta's attorney calls the claims "false and fabricated." He claims his client was out of town when the first assault supposedly occurred.  In addition, he noted that the plaintiffs' attorney is not permitted to shield the name of his clients.

The plaintiff's attorney defended his action of filing a complaint without actually naming his clients. He said it was standard practice to withhold the names of potential victims of sex attacks. “I do it for all of my female clients who are victims of sexual assault, and I'm not going to treat the men any different than the women,” he said. “I think it's malpractice to identify them (in a complaint). I'm leaving it up to the judge. If they think that's strange, they may not be familiar with the law.”

It is important to keep in mind that this is a civil action seeking only monetary damages. No criminal charges have been filed against Mr. Travolta. While judges in civil actions often do allow sensitive information to be filed under seal, we are aware of other recent high profile sexual assault civil actions that were not filed anonymously (e.g., the Ben Roethlisberger case and the Johan Santana case). 

Let's make another important distinction: when a sexual assault civil action is filed, it is generally the news media that shields the identities of the plaintiffs, even though the court docket contains their names. But note this disturbing case where two young men filed a sexual assault civil action: some news outlets shielded their identities, but others--in clear violation of their own policies--didn't bother (nor did they bother to explain themselves).

Of course there should not be a double standard for male and female accusers. But the bigger question is whether anyone should be anonymous in a civil action seeking money damage for sexual assault. We've previously noted that for criminal actions, the issue of anonymity is a difficult one that is anything but clear cut. Civil actions, we suggest, present an easier answer. 

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. In the Travolta case, even assuming for the sake of argument that the plaintiffs' claims can be proven by a preponderance of the evidence (the civil standard), a victory by the plaintiffs will not keep a sexual assaulter off the streets or protect a single other victim from him. Mr. Travolta's liberty is not at stake. In fact, a victory will do nothing more than give three people a nice payday: the two plaintiffs and their attorney.  While maintaining the anonymity of alleged rape victims in criminal matters arguably 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 come forward to seek personal monetary gain. When people use public courts to seek a private monetary award, generally, they should not be permitted to insist that they do so anonymously.

In our recent discussion about anonymity in criminal actions, we noted that Naomi Wolf and Prof. Alan Dershowitz criticized anonymity in the context of criminal cases. The argument to scrap anonymity is all the more compelling in civil actions.