As Eugene Volokh notes, the Title IX accuser suing Liberty University for being indifferent to her accusation that another student raped her, retaliation, and the now-former student who she accused. Plaintiff sought to sue pseudonymously. Under most circumstances, this would be a gimme motion, but not this time.
This decision concerns Plaintiff’s request to proceed anonymously as “Jane Doe,” at the same time she has repeatedly, publicly identified the accused student-defendant—whom she alleges is a “rapist.” Thus, on account of Plaintiff’s drafting of her complaint, the student-defendant cannot be afforded privacy in defending against this suit.
While Title IX and sexual assault cases often proceed with anonymous litigants, typically both the alleged accuser and alleged accused are afforded those privacy protections. The Court finds, upon consideration of the relevant factors, that Plaintiff has not established her request for anonymity that would only apply as to her while the student defendant would be publicly named. The Court will deny Plaintiff’s ability to proceed under a pseudonym but will afford her the opportunity to amend her complaint to include her name.
While FERPA precludes schools taking federal funds from revealing the names of the students involved in a Title IX proceeding, it does not preclude the accuser from shouting the accused’s name from the highest tower. And the accuser in this suit, while giving herself a Jane Doe ‘nym, was not so kind to the man she accused.
While the accuser certainly has a strong argument for pseudonymity under the relevant factors, and, indeed, the court took little issue with the ordinarily common motion to proceed as Doe, the issue was that she named the accused. If you want it for yourself, must you give it to your unproven “rapist”?
Plaintiff’s litigation posture and framing of her complaint establish that Plaintiff has sought to avail herself of the protections of anonymity (without prior Court order), all the while single-handedly precluding the Named Defendant from the ability to avail himself of similar protections. She named him as a Defendant in the caption of the case; identified the Named Defendant nearly 60 times in the complaint; and called the Named Defendant a “rapist” right in the introduction of the complaint. Equity does not support parties’ strategic use of litigant anonymity as both sword and shield.
There’s little a court or litigant can do to put the cat back in the bag after an accused, neither held responsible under Title IX nor convicted under criminal law, for the heinous crime of rape is publicly revealed. And it’s unfortunately understandable why an accuser would do as much as possible to assure that her accused is publicly revealed so that he can be socially punished and his reputation tainted as a rapist.But the court refused to acquiesce in this conduct.
The Court further notes … that the ages of the litigants may provide some additional support for anonymity for both parties, and that even though they are not minors, they were college-age students at the time of the alleged rape. Finally, the Court has taken into account Plaintiff’s arguments concerning whether there is a risk of retaliatory physical or mental harm, on account of her identification …. Concerns about stigma in cases such as this are not lightly brushed aside, especially given the substantial authority recognizing privacy interests.
What the accuser sought for herself but failed to give to her accused was fundamentally unfair. Accordingly, the court gave plaintiff 2 weeks to amend her complaint by including her name or to filed a voluntary dismissal.
While refusing to allow Jane Doe to enjoy pseudonymity while denying it to the former student she accused, the remedy seems unsatisfying. The accused had already been fired from his job because of the suit, and the taint of being a rapist will follow him in perpetuity. Requiring plaintiff to out herself won’t undo the damage done to the male accused, This smacks more of “an eye for an eye” that leaves both students blind.
At the very least, it would seem that dismissing the suit against him even if she was given the option to amend and proceed against Liberty University would be somewhat fairer, and yet it’s still inadequate to address the harm she caused the accused while hiding behind a ‘nym.
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