Forced into the Spotlight

By Reynolds Holding

Most judges would look heroic for defending the people's right to know what goes on in court. Gerard Lynch just looks mean.

The federal district judge in New York City ruled last month that Jane Doe, a pseudonym for publicity-shy litigants, would have to put her real name on her lawsuit if she wanted to pursue the case. "The press and public," explained Lynch, "can hardly make an independent assessment of the facts underlying court cases ... without knowing who the litigants are." Now that sounds like a judge with his head on straight--until you hear Doe's story.

On a February night in 2005, Doe and her husband John, also a fake name, were walking when, they say, three plainclothes policemen demanded John's ID. The Does claim the stop was unprovoked. The cops say John was urinating on the street.

Fearing a robbery, the Does demanded to see badges. They contend the cops hurled John against a wall and hauled him cuffed and bleeding to the station house in Chinatown. Left behind, Jane made her way to the station and, with no money and a jailed husband, accepted a ride home from a police sergeant.

The two entered the Does' apartment, where, according to the sergeant's lawyer, "no wrongdoing went on." (The lawyer refused to comment further.) But according to Jane, the sergeant attacked: he kissed her and rubbed her breasts. She resisted, and he finally left, but the next day he put "threatening" messages on her voice mail.

The charges against John were dropped, but the Does wouldn't let go. Last May, after their complaints to the department went nowhere, the Does sued the cops for brutality and abuse.

Now think about this: you say you've been sexually molested--by a police sergeant, no less. You drag him into a case that spreads details of a humiliating attack all over the public record, a record accessible online in court databases available to millions of readers. You say the attack wasn't your fault, for Pete's sake, so why should you put your name on the lawsuit?

That's a tough question, and the law offers few good answers. In criminal prosecutions for rape or sexual assault, about half a dozen states require that an adult victim's identity be kept secret (others require anonymity only if the prosecution or court requests it). That's because the state assumes that the promise of anonymity will encourage victims to come forward. When a woman accused basketball star Kobe Bryant of rape in Colorado, for example, the world was told his name but officially not hers. To this day, only 38% of rapes or sexual assaults are reported in the U.S., putting rape among the nation's least reported crimes, according to the Department of Justice.

The rules are different in civil cases. Since the government isn't a party, it cares less whether the victim comes forward, and so it leaves the issue of anonymity up to the judge. When Bryant's accuser sued him for damages, she was told she had to use her real name. Like Lynch, the judge in that case decided "public confidence in the results of court proceedings require[s] that they be open to observation," accuser's privacy be damned.

So how do judges make these decisions? They don't exactly wing it, but they pick and choose among factors that lead to a muck of inconsistency. Plaintiffs have a better chance of proceeding anonymously if they are minors or might face retribution. Anonymity is a long shot if it would limit the defendant in challenging the accuser's claims (How do you attack the credibility of a pseudonym?), or if the plaintiff's name is already known.

Even in cases of rape, anonymity may not help the victim. People often feel they have lost control of their lives after a sexual attack, and identifying themselves publicly can revive a sense of control, says Lynn Parrish of the Rape, Abuse and Incest National Network, which counsels victims. "It allows them to say, 'This is who I am, this happened to me, and I am not going to allow [the attacker] to victimize me again by making me keep this inside,'" she explains.

But the biggest problem with anonymity is how it can damage a defendant. Since ostensible victims need not disclose their names, they may feel less constrained from making bogus accusations. The sergeant accused of attacking Jane Doe has been portrayed in court documents as a sexual thug. Maybe he deserves it. But maybe he did nothing wrong.

We'll probably never know. In the aftermath of Lynch's decision, the parties are talking settlement. Doe will get compensated, while the sergeant will pay with his name. If that makes the judge look mean, then maybe it's the sergeant, not Doe, who should complain.