Monday, September 17, 2012
Which is more important, one's day in court or preserving the privacy of one's menatal health status?
Most state and federal courts require a plaintiff to litigate a civil claim in his or her real name. In fact, Federal Rule of Civil Procedure 10(a) expressly requires a complaint to "name all the parties." This only makes sense because the plaintiff is seeking relief from a public, taxpayer funded institution to vindicate a right, resolve a dispute or pursue a claim for damages. The historical presumption of open judicial proceedings and the public's First Amendment right to know how our judicial branch is operating conflicts with allowing a plaintiff to proceed anonymously. Moreover, the use of a pseudonym by a plaintiff may seriously prejudice a defendant by making it more difficult to perform discovery, raise legitimate defenses and assert counterclaims if the defendant does not know the identity of the plaintiff or is otherwise precluded from identifying the plaintiff in defense of the lawsuit. In addition, anonymous plaintiffs may make accusations of wrondoing which receive widespread attention in the the court of public opinion. Fundamental fairness requires a defendant to be able to defend himself against the accusations, particularly when the accusations are defamatory, if false. The identity of the defendant is known to the public, why shouldn't the accuser's identity also be known?
Courts have recognized that there are exceptional circumstances which may warrant allowing a plaintiff to proceed anonymously. These exceptional circumstances usually implicate a strong privacy right. Examples include cases involving children who are the victims of sexual abuse or women who are the victims of rape. In these cases, courts employ a series of factors to balance the competing interests and determine that the privacy interests outweigh the interests of the public and the defendant. The line drawing is not often easy and there are some seemingly inconsistent results, depending on the jurisdiction. There is currently a debate in the country about whether the privacy rights of a plaintiff who is suffering from a mental illness should be accorded the same weight as a victim of a physical assault.
Consider this hypothetical fact situation:
Plaintiff is an attorney who is seeking admittance to the Utah state bar. She has recently moved to Utah from another state where she practiced law for many years. She previously has been diagnosed with an anxiety disorder and a post-traumatic stres disorder, but maintains that medication has properly managed the disorders. The state bar's three person Character and Fitness Committee asks her questions about her mental health that she believes violates the Americans With Disabilities Act. When she is denied admission based on the information solicited by the Character and Fitness Committee, she sues the state bar and the Character and Fitness Committee. She alleges, among other things, that she was asked the unlawful questions because she rebuffed the sexual advances of one of the male members of the Committee.
Several questions arise from this situation. Should plaintiff be allowed to sue in a fictitious name or must she choose between her privacy and her day in court? Would it be fair to the defendant accused of unethical conduct to preclude him from identifying the woman in his defense? Does he need to diclose the plaintiff's identity in order to defend himself? Would the analysis be different if there were no allegations of unethical conduct by one of the defendants?
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When I first started reading the post I thought it sounded unfair to allow plaintiffs to use a pseudonym; however, I eventually read the part about how allowance is given to those who are victims of rape or sexual abuse. I agree that it should be allowed in those cases. Clearly, the fact that it is allowed in those cases gives rise to other people thinking they should be afforded the same privilege for similar reasons.
ReplyDeleteAlthough I think there are cases that should allow for a pseudonym for obvious reasons, I think that generally speaking cases shouldn't allow for this. I think that if the plaintiff feels it is okay to make accusations against another person, opening that person up to public criticism, then the plaintiff should be willing to deal with the same public attention. I think that too much lenience in allowing a pseudonym would be problematic and ultimately unfair. I also think that in cases where a pseudonym is allowed to a plaintiff the same courtesy should be extended to the defendant. Consider, for example, a case in which a man is accused of rape by the plaintiff. If the man didn't actually commit the crime, then an innocent man has been forced to deal with public criticism whereas the woman is protected by her pseudonym. For this reason, I think that if a pseudonym is allowed to the plaintiff then the defendant should be given the same right. I don't want to sound like I am trying to protect rapists, but what about the ones that are actually innocent?
In terms of the theoretical case presented, I don't think the plaintiff should be allowed a pseudonym. If she goes going to accuse someone of sexual assault, then she better take that seriously and take responsibility for the accusation by using her real name. The defendant deserves to know the identity of his accuser. It wouldn't be fair for his name to be open to the public, but not hers. Consider that he might be innocent. I think that the identity of the plaintiff is absolutely relevant to his defense. Perhaps the plaintiffs will be deterred from making false accusations if they aren't allowed a pseudonym. I think that in this case I wouldn't make a different analysis even if it wasn't about unethical conduct. I think one needs to take responsibility for making an accusation, and part of that responsibility is being open about your identity. You shouldn't be ashamed to make an allegation if it is in fact a true one (of course there are exceptions, such as in cases of rape). Perhaps one of the lines that needs to be drawn is allowing a pseudonym to the defendant in cases that this allowance is given to the plaintiff.
I don't understand why plaintiffs are allowed to sue in a fictitious name. I think that it really should be a matter of privacy vs a day in court. Though there may be some cases of rape or sexual assault where the plaintiff should be allowed anonymity, I still don't understand why they would need to be anonymous. No one should be ashamed to make an allegation if it is fact. Even rape victims should not be embarrassed, as it is never the victim's fault. The fact that being raped is considered embarrassing, in a way, shows how twisted some aspects of our society can be.
ReplyDeleteDefendants should have the right to know who is suing them. After all, our law is based on the concept of innocence until proven guilty, right? And doesn't it seem a little unfair to sue anonymously? It turns a fair court case into a one sided battle against the defendant. And it would make it much easier for people to make false allegations.
I think that in sexual abuse cases the victim should be able to use a pseudonym. A sexual abuse case is a very private matter that most people would not want to share with the public. On the other hand in the case that Professor Dryer presented, I don't think a pseudonym should be allowed. The plaintiff's mental state was obviously a factor in the Character and Fitness Committees decision. Also the plaintiff claims to have her anxiety and PTSD under control. If that is the case she should comfortable telling her story of how the medication she is taking has helped her cope with her mental disorders. She should be comfortable showing the court that she has overcome her mental disorder to the extent that she is able to practice law.
ReplyDeleteI think that in any civil case the plaintiff should have to use their real name. Civil cases aren't always necessary and if someone is comfortable enough to take a case to civil court they should be comfortable enough to use their real name. Their is always going to be a major gray area in topics like this. There will probably always be some exception to each rule but as things stand now I think on victims of sexual abuse should be able to use pseudonyms in court.
I like the idea of using a pseudonym and the protection it gives. If it were more practical for the situations it occurs I would say it is a great thing, but that is not the case. Almost all cases involve arguments regarding the plaintiff. Not knowing who they are takes those potential arguments away from the defendant and unfairly weakens their stance. I can see with things such as rape, if the victim really was raped, it shouldn't matter who the victim is so much if it can be proved they were raped without their name coming into play. I would think in most cases where it is not obvious the defendant is guilty, knowing the name of the plaintiff is essential to discovering the truth of the situation. Defendants have a right to a fair trial, and like Bobby said, with pseudonyms it is no longer a fair court case.
ReplyDeleteIf there was a complicated case that involved many other things along with rape, would the plaintiff's name have to be known then? Then it is a mixture of rape among other things so maybe it is necessary to the defendant's argument that their name be know. But rape was also involved so can the victim still use a pseudonym? I'm not sure when it gets more complicated.
The difficult thing about allowing plaintiffs to sue under fictitious names is that it directly challenges the principles- the right of an accused to know his or her accuser and the right of public access to court documents and proceedings. Allowing a plaintiff to be anonymous seems to contradict the very public nature of the court system and doesn’t allow the defendant to adequately prepare for trail. I find it slightly troubling that there is hardly a guideline for courts to use when deciding who should/shouldn’t be allowed a fictitious name. The “Balancing Test” that many of the courts use could probably use some objectivity since the subjective nature of it seems to hold too much weight. The plaintiff should own up to the accusations they make and the option to utilize a fictitious name should be an option less warranted. Even in the case of a defendant being accused of unethical conduct he should still have the right to know who’s going after him in order to build a fair case for himself.
ReplyDeleteI understand and can sympathize with the need for certain plaintiffs to utilize pseudo-names in court proceedings. However, I do believe the ability to do so should be strictly controlled and evaluated on a case-by-case basis. In extenuating circumstances, i.e. in cases which the use of actual plaintiff names would cause extensive public harm and shame due to the circumstances associated with the case. Yet, in cases in which withholding the plaintiff's name has the potentiality of harming others involved in the case unjustly, the use of pseudo-names must be prohibited. In the hypothetical case regarding the lawyer with the history of mental illness, the use of a fictitious name in place of hers should not be allowed. If, for example, the basis for her claim did not rest upon allegations of sexual advances, not to be confused with allegations of rape or sexual crimes of a more violent nature, then I do believe the use of a pseudo-name may be permissible. However, due to the non-violent nature of the allegations, coupled with the risk they pose to the defendant's reputation, I would not agree that the plaintiff's expectations of privacy should outweigh the potential harm such privacy may inflict upon the defendant who, given the fact that he cannot name and thoroughly research his accuser, would be unable to adequately defend himself against the potentially defamatory public claims against him. In the case of allegations regarding unethical conduct, it is unjust to deny the defendant's right to name his accuser, and in doing so, establish his own defense, if only on the basis of the nature of the plaintiff's character alone. It is difficult to establish a defense against non-violent allegations of unethical conduct without being able to acknowledge the character of your accuser, as more than not, such cases usually involve he-said, she-said arguments that require character analysis to adequately establish innocence or guilt.
ReplyDeleteI definitely agree with Kateira's view on pseudonym use. Overall, I feel that transparency in the court is paramount to other factors in that, the duty rests with either the Judge/Jury to aggregate the available information in order to come to a verdict. The beneficial utilization of pseudonyms, especially in this hypothetical suit, do not outweigh the problems that could arise from using legal identities. The defendant of a non-violent, non-sexual assault case should be able to know who is bringing a suit to the attention of the court. If, however, a situation arises whereby the plaintiff could receive further harm as a direct result of their name being used, then I too find it permissible for pseudonyms to be utilized. I believe that this situation would arise more prevalently in criminal cases, such as those involving rape, assault/battery, attempted murder, etc, where there would be a greater chance for the defendant to seek revenge/retribution against the victim, or even witnesses, who's identities are often protected in cases of whistle blowing, or confidential informing. Going back to the original point though, I don't see necessary reason for identities to be concealed in the majority of cases, especially in civil suits, where it is essentially given that the defendant should know the identity of the plaintiff.
DeleteI do not think pseudo-name should be allowed in many cases. I do not think there is a great way to determine when a pseudo-name should or should not be used. For example, how can you say that the plaintiff's reputation is more important than the defendant's reputation in either the legal system or the court of public opinion. There are so many sexual assault/abuse/rape cases each year - which is very sad - however I do believe that the defendant is innocent in a number of cases. I believe if the plaintiff had to put her reputation on the line as much as the one being accused, then most likely a higher number of the cases would only be in regards to cases where sexual mistreatment was factual. I believe the more strict use of pseudo-names could lower the amount of court cases and hinder people from falsely accusing. On the other side, with rape and incest being such a huge issue where only a percentage of the aggressors are convicted, maybe there should be an exception for all sexual abuse type of lawsuits. In protection of the victim and perpetrating the "innocent until proven guilty" ideas - I think we should be very careful with the use of pseudo-names.
ReplyDeleteI do not think that not allowing a plaintiff who is a victim of sexual abuse to use a pseudo-name would increase the number of truthful allegations but rather possibly decrease it. Given that a large number of sexual abuse cases go unreported each year because the victims are too embarrassed or ashamed to admit what happen and put such a private matter on display for many to know, I think that making it necessary for the plaintiff to reveal his/her identity would only deter more victims from taking the appropriate legal action so that the perpetrator is punished for the crime he/she committed. I believe the desire in these cases to mask ones’ identity would come much more from the embarrassing and violating nature of what occurred than a desire to falsely accuse someone of a horrible crime and remain anonymous yourself as to not get caught. Plus if one were falsely accusing someone of the crime, then his/her embarrassment and desire to remain anonymous in the matter would probably be a lot less because they wouldn’t have the real psychological trauma due to actually being the victim of the crime.
DeleteI have a few problems (well i have many problems but that is besides the point)but here specifically.
ReplyDeleteSo there are are always going to be exceptions to every rule - that is why the justice system is run by people and not by robots,so that those calls can be made, and also we simply do not have the technology - and i see the sense in allowing this especially in the case of minors but I not have enough information to make a call on this case.
A "sexual advance" could be anything from a side comment that she "looks very good in that dress" to this guy trying to pull her into the closet to have sex with her, and if this was a big enough deal that could think that it had something to do with her not getting the job then why did she not report it earlier?
Look I have more disabilities then this hypothetical women and I could understand being asked questions to make sure that I am capable of doing my job, but hey she is a lawyer and she would know more about the Americans with disabilities act then I would and for all I know they asked her " hey, are you a retard!?" to with I could understand the need for a fake name to protect her image. Though in the case I just described i would insist on using my real name so that when they got to hell they could tell them that Mary sent them.
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I think it’s unfair. Unless the case involves something such as sexual abuse in children or the rape of women where privacy of the plaintiff is understandable, I think that defendants have the right to know who is accusing them. In the hypothetical example from the post, it is necessary for the defendant to know the identity of the plaintiff; without the identity of the plaintiff, how could he accurately give his account of the event. By having an unidentified plaintiff, the defendant is at a disadvantage. Furthermore, if more leniency in optioning for anonymity in a case was allowed, people would begin to abuse it by purposefully disclosing as little evidence to the defense as possible to gain a better foundational argument during the trial. Thus, it is my opinion that it must be a choice between privacy and a fair trial in most cases.
Deletebut this woman is a public figure, she has a reputation to withhold. Though it may not make much sense in cases such as rape charges the court of public opinion may look down on the victim. Some people would rather let their rapist go free then to let people know that they had been raped.
DeleteMental illness, if completely under control by use of medication, is nothing to be ashamed of (just look at the statistics of how many people deal with mental illness of some sort in the US). I believe that the plaintiff should have to provide his/her real name unless doing so would somehow threaten their well-being, physically (such as witness testimony of a shooting in a gang neighborhood) or mentally-accusation that is tied to a very embarrassing situation such as a physical sexual advance (situation described) or an act such as rape or molestation. In many cases, I'm sure the defendant would have a general idea of who the plaintiff could be, so the usefulness of hiding the person's name is questionable. If plaintiff A cheated on their spouse with defendant B and plaintiff A is suing for theft of something, pseudo-names should not be used (what I'm trying to get at is a mere dislike of information getting out because it might hurt your reputation falls short in terms of importance to other more serious situations). And once again there isn't a large enough stigma on a mental illness such as anxiety to prompt a pseudo-name.
ReplyDeleteI agree wholeheartedly that in cases of rape, and sexual assault plaintiffs should be allowed to sue with a pseudo-name. Whether or not our generation has a stigma attached to rape (I think it does) society as a whole has a stigma attached to rape. Victim blaming is more prevalent than it should be. Sexual assault is completely scarring to some people and they should be allowed their bit of justice in a way that will give them more relief than stress (like seeing their names in headlines.) In this hypothetical situation stated above I believe that she should have to sue with her own name but I did not come to this conclusion without reservations. "she was asked the unlawful questions because she rebuffed the sexual advances of one of the male members of the Committee." That is sexual harassment. Probably from the sounds of it Quid Pro Quo, that is illegal. Should sexual harassment be treated the same as sexual assault? I came to the conclusion of no. Though I think this lawyer may feel embarrassed I don't think the severity of the event was strong enough to allow a pseudo-name. I took this "severity dependent" idea to the metal illness category as well. I think this post depicts how contextual the law is already. I think the determination of whether or not someone should be allowed a pseudo-name should also be based on context. It should be up to the determination of the judge based on the severity of the situation.
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ReplyDeleteIn the fictitious circumstance presented, I think that the circumstances of the case would not actually be severe enough to warrant the use of a pseudo-name. Due to the lawyer's claim that her anxiety and PTSD have been completely under control with the use of medication and her mental health does not really appear to be that fragile, than I would think that the situation would not warrant the special circumstances of a pseudo-name. In this case in particular that deals with workplace discrimination, I think that the defendant needs to know the woman's identity in order to form a defense- such as other appropriate and lawful reasons she may not have been hired, which they would not have any capacity to do without knowledge of who the plaintiff is.
ReplyDeleteKnowing who the plaintiff is does seem very necessary for a defendant to form a fair (or any defense) no matter the circumstances of the case. Regardless of whether the plaintiff sues under a pseudo-name, I think there needs to be some way for the defense to know who their accuser is so that a fair trial can occur.
This is a difficult question. It seems to me that the judicial system can't really function properly unless everyone is on the same page and are treated equally. This leads me to believe that it is necessary to "name all parties" so that both the defendant and the plaintiff are on the same level. If the plaintiff keeps their name a secret, it seems unlikely that the defense would be able to build a case that could properly defend the individual in question. On the other hand, I can understand why it might be preferable to keep one's name private when dealing with cases of rape or sexual assault. So I suppose that anonymity could be okay, but only in these types of outstanding circumstances (when the plaintiff feels there is a real physical threat from the defendant).
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