O C F I T B L O G Legal Fourth Circuit on One-Sided Pseudonymity in Sexual Assault Cases

Fourth Circuit on One-Sided Pseudonymity in Sexual Assault Cases

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From today’s Fourth Circuit opinion in Doe v. Sidar, written by Judge Toby Heytens and joined by Judges Robert Bruce King and J. Harvie Wilkinson:

A woman sued a man for sexually assaulting her and used a pseudonym throughout discovery. After the man refused to comply with its discovery orders [including by failing to provide a DNA sample], the district court entered a default judgment against him and ordered the woman to use her real name going forward. The woman appeals the district court’s non-anonymity order …. [W]e hold the district court committed legal error by understating the woman’s interest in anonymity, appearing to announce a general rule that fairness considerations invariably cut against allowing a plaintiff to be anonymous at trial unless the defendant is also anonymous, and failing to recognize the significance of its default judgment on liability….

Because the district court entered a default judgment on liability, we treat it as conclusively established that Cenk Sidar raped Jane Doe in London in September 2017. As this Court has explained, “[t]he legal effect of a default judgment is that the defendant is deemed to have admitted the plaintiff’s well-pleaded allegations of fact … and is barred from contesting … the facts thus established.” …

The trial court refused to allow Doe to proceed pseudonymously, and the Fourth Circuit held that this decision was mistaken. The Circuit acknowledged that pseudonymity is an exception, available only in rare cases. But it noted that lawsuits brought by rape victims are one category of cases in which plaintiffs can often proceed pseudonymously, to protect their privacy. And it held that the trial court wrongly concluded, among other things, that one-sided pseudonymity—pseudonymity for plaintiff when the plaintiff has named the defendant—is impermissible:

[The] entry of a default judgment tipped powerfully in Doe’s favor…. That Sidar has already been found liable for raping Doe and that further proceedings will be limited to determining the damages he must pay significantly reduces any “risk of unfairness to” Sidar resulting from Doe’s continued anonymity.

To see why, consider two sources of potential unfairness when a plaintiff seeks to proceed anonymously while making allegations against a known defendant. For one, there is a concern that anonymity may serve as a “shield behind which” false or “defamatory charges may be launched without shame or liability,” thus creating the risk a blameless defendant will suffer embarrassment and reputational damage merely by being sued. There is also the one-sidedness of allowing a plaintiff to “have [their] cake and eat it too” by gaining the ability to stay anonymous if they lose—thus avoiding reputational harms from disclosing the underlying facts or bringing an unsuccessful lawsuit—while retaining the power to reveal their identity if they win.

Those risks evaporate once liability has been established. At this point, Doe is not seeking to keep her identity secret because she fears she might lose this case. There is also no risk Sidar’s reputation will be damaged by false accusations of wrongdoing. The district court’s default judgment conclusively establishes that Doe is a victim and Sidar raped her, and nothing that happens at a damages-only trial can change that.

The district court’s default judgment also reduces the risk that Sidar would suffer any unfair prejudice at trial. Where liability has not been established, there is at least some risk that jurors may view a decision to let one side proceed anonymously as suggesting that the anonymous party’s claims are valid or that it has the better case than the non-anonymous party. See James v. Jacobson (4th Cir. 1993) (recognizing the “concern that the jury’s very knowledge that pseudonyms were being used” could “tend to validate” the plaintiff’s claims); see also Doe v. Ayers (9th Cir. 2015) (noting “risk that the … use of pseudonyms might prejudice the jury” in the anonymous party’s favor). But any such concerns are weakened—if not eliminated—here because the jury will have no need to guess about the court’s view of the merits of Doe’s claims. Instead, the court will tell the jury that Doe’s claims succeed as a matter of law and that the jury may not revisit that issue. It is hard to see how Sidar will suffer any extra prejudice from letting Doe use a pseudonym in a case where the jury will be told it must take as a given that he raped her….

The court didn’t opine about how the privacy interests of the rape victim would stack up against the concerns about fairness to the defendant in the more typical scenario, where there was no judgment of liability against the defendant (as indeed there wasn’t for the first stage of this very case). But Judge J. Harvie Wilkinson’s concurrence made the argument against one-sided pseudonymity in at least many such cases:

I appreciate especially [the majority’s] recognition of the potential for pseudonymous litigation to “undermine[] the public’s right of access to judicial proceedings” and how “disclosing the parties’ identities furthers openness of judicial proceedings.”

Transparency is not only important for its own sake. It is integrally linked to the need of courts to maintain public trust. We are reliant in the first instance on the executive to enforce our judgments. And ultimately, we are reliant on the public’s trust in the process by which those judgments are reached.

To reduce litigants to “Does” and initials risks making of them stick figures and algebraic symbols. To forsake real names is to put the judicial process at one more remove from the flesh and blood of life.

In pointing out the virtues of transparency, I do not intend to downplay the privacy interests of those who have experienced sexual assault. There are few crimes so violative of human autonomy and dignity as rape. And insult compounds this injury as victims of this heinous crime are often stigmatized through no fault of their own. District courts must retain discretion to protect the privacy of those who have suffered such an offense.

But pseudonymity generally, and one-sided pseudonymity particularly, is not without its risks. Indeed, those accused of crimes can suffer reputational damage even when a court later finds that the accusations were unfounded. Allowing one party to proceed anonymously increases the potential for abusive suits that use the threat of reputational damage to exact revenge or to extract settlements from innocent parties. Having one party incognito but not the other can tilt the scales of justice in the direction of guilt by anonymous accusation, a prospect which would be just as abhorrent to civil litigation as it is to our criminal justice system.

In the criminal context, a third party, the government, must conclude there is enough grounding to an accusation to warrant prosecution. In the civil context, this third-party filter is generally absent. Pseudonymity may enhance the incentives for well-founded complaints to be filed, but it may also serve as a cover for actions that tarnish the innocent. Just as district courts must have the discretion to protect victims’ need for privacy, they must also retain the discretion to prevent pseudonymous abuse.

I concur in the majority opinion because it eschews a categorical approach to case- sensitive questions which cannot be answered categorically. The majority is also right to emphasize the importance of the default judgment here. Simply put, the defendant is a rapist in the eyes of the law. While a trial as to damages might reveal further details to the defendant’s detriment, the defendant has impaired his claim to reputational damage by defaulting on liability. These limiting features in the majority’s fine opinion persuade me that it has not locked the names of litigants behind closed doors to the disservice of that transparency that alone earns us public confidence and trust.

This is the first appearance of the phrase “one-sided pseudonymity” in any Westlaw-accessible document (other than my amicus brief on my own behalf in this case, which basically agreed with the approach set forth by Judge Wilkinson’s concurrence). I hope that it, and citations to Judge Wilkinson’s concurrence, will appear in many more such cases—I think it captures an important problem, for the reasons given in the concurrence and in the brief. Here again is the Summary of Argument from the brief, for those interested in the issue:

In deciding this case, this Court ought to be attentive to the costs of one-sided pseudonymity in sexual assault cases—generally, when a plaintiff seeks to sue pseudonymously, but names the defendant. This brief does not take a categorical position on whether such one-sided pseudonymity should always be forbidden in sexual assault cases, but it does seek to explain why there may be an especially strong presumption against it.

In particular:

[1.] While plaintiffs in many cases are understandably concerned that being identified as (for instance) an alleged sexual assault victim is stigmatizing, defendants’ being identified as an alleged sexual assaulter is at least as stigmatizing.

[2.] Some plaintiffs may be deterred from filing even meritorious lawsuits, for fear that being publicly identified will damage their reputations—for instance, stigmatize them as litigious employees—or, especially in sexual assault cases, will compromise their privacy. Pseudonymity for plaintiffs is sometimes defended as diminishing this risk. But defendants may be equally deterred from raising even meritorious defenses (such as “I did not do it,” or “any sexual behavior was consensual”), for fear that being publicly identified will damage their reputations—especially when defending the lawsuit, rather than settling before it is filed, stigmatizes them as alleged rapists. The case for pseudonymity for sexual assault defendants thus stands on roughly the same footing in this respect as the case for pseudonymity for sexual assault plaintiffs.

[3.] One-sided pseudonymity can also be unfair to the nonpseudonymous sexual assault defendant because of how it affects the process of litigation. One-sided pseudonymity can change the settlement value of a case. Party-witnesses’ pseudonymity may diminish their incentives to tell the whole truth. Party pseudonymity may also prevent other witnesses from coming forward. And allowing one party to proceed pseudonymously may signal to the jury that the other party is dangerous and thus perhaps culpable.

To be sure, one possible solution to the problem—mutual pseudonymity—interferes with the public’s right of access to court proceedings even more than one-sided pseudonymity does. But on balance, the unfairness of one-sided pseudonymity should generally cut against allowing such pseudonymity, whether or not the optimal solution for a case would be mutual pseudonymity or no pseudonymity.

[4.] In this particular case, where defendant Sidar has already been determined to be liable because of his refusal to provide a DNA sample, there may be reason for this Court to be less concerned about his interests than about Jane Doe’s interests. But if this is the basis for this Court’s decision, this Court should stress that it is relying specifically on this unusual feature of the case, and is not deciding in favor of one-sided pseudonymity more broadly.

And the Argument:

[I.] Being identified as a litigant risks stigma to defendants as well as to plaintiffs

There is of course a strong presumption against pseudonymity, which can be overcome only “in exceptional circumstances.” Doe v. Public Citizen, 749 F.3d 246, 273 (4th Cir. 2014). When such circumstances are present is a complicated question, on which court decisions are unsettled. See generally Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353 (2022). Indeed, court decisions are sharply split even on the specific question whether sexual assault plaintiffs may proceed pseudonymously. See id. at 1430-37 (cataloging cases).

But to the extent that courts are concerned that naming a party should be avoided, because such naming would cause stigma, that concern often arises for defendants as much as for plaintiffs. That is especially so in sexual assault cases. Regrettably, being identified as an alleged sexual assault victim does indeed stigmatize the plaintiff in some measure (though one hopes this is less so today than it was in past decades). But of course being identified as an alleged sexual assault perpetrator stigmatizes the defendant at least as much, and likely more. Indeed, it may spell professional ruin for a defendant, even if the defendant is ultimately vindicated.

Of course, when defendants are indeed sexual assault perpetrators, then they deserve to be stigmatized. But while the case is being litigated, they are generally merely accused. They are not presumed guilty; indeed, the burden of proof even in a civil case remains on the accuser. Some of the defendants may well be innocent. And in any event, to remain impartial, the civil justice system cannot just assume away their privacy interests on the theory that they are likely guilty while their accusers are likely correct.

[II.] The presumption that parties must be named deters defendants’ meritorious defenses as much as plaintiffs’ meritorious claims

One reason sometimes given for pseudonymity is that requiring plaintiffs to be publicly identified can undermine the public policy that the civil causes of action are aimed to serve. See Volokh, supra, at 1394-95. Plaintiffs faced with the prospect of these harms might choose not to litigate: People who were sexually assaulted, for instance, might be reluctant to continue with their lawsuits once pseudonymity is denied; likewise for people who have been libeled, or who have been pretextually fired by their employers. They might decline to sue or might decline to continue with their lawsuits once pseudonymity is denied. See id.

But lack of pseudonymity for defendants can likewise undermine the presentation of meritorious defenses. Defendants—especially ones accused of an extremely serious offense such as sexual assault—might equally settle before complaints are filed, if they are facing a lawsuit where they would be publicly identified as defendants, even if they have sound legal or factual defenses. Someone who is being accused of rape might feel unable to publicly defend himself if he knows that the very filing of the lawsuit would publicly label him as an accused rapist. And that is so even if he did not actually commit a sexual assault, for instance because the sexual activity did not happen, or happened but was actually consensual.

[III.] One-sided pseudonymity can be unfair to the nonpseudonymous party in the litigation process

[A.] Generally

Protecting only one party from the possible stigma or chilling effect that pseudonymity causes can also unfairly affect the other party’s litigation position. This Court and others have recognized this, noting that pseudonymity can create a “risk of unfairness to the opposing party,” James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993); In re Sealed Case, 931 F.3d 92, 97 (D.C. Cir. 2019), even when the defendant knows the plaintiff’s identity. “[F]undamental fairness suggests that defendants are prejudiced when ‘required to defend [themselves] publicly before a jury while plaintiff[s] make accusations from behind a cloak of anonymity.'” Rapp v. Fowler, 537 F. Supp. 3d 521, 531-32 (S.D.N.Y. 2021) (alteration in original) (sexual assault case) (quoting Doe v. Delta Airlines. Inc., 310 F.R.D. 222, 225 (S.D.N.Y. 2015)).

If plaintiff were permitted to prosecute this case anonymously, [defendant] would be placed at a serious disadvantage, for he would be required to defend himself publicly while plaintiff could make her accusations from behind a cloak of anonymity. See Southern Methodist Univ. Ass’n of Women Law Students, 599 F.2d at 713 (Because “the mere filing of a civil action against … private parties may cause damage to their good names and reputation,” “[b]asic fairness” dictates that plaintiffs who publicly accuse defendants in civil suits “must [sue] under their real names.”

Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996) (sexual assault case) (quoting S. Methodist Univ. Ass’n of Women L. Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979)). “[A]nonymity provides a shield behind which defamatory charges may be launched without shame or liability.” Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005).

[B.] Skewed effect on settlement

One particular way that one-sided pseudonymity can be unfair to the nonpseudonymous party is by skewing the settlement value of a case. “While a publicly accused defendant might be eager to settle in order to get its name out of the public eye, a pseudonymous plaintiff might hold out for a larger settlement because they face no such reputational risk.” Doe v. Fedcap Rehab. Servs., Inc., No. 17-CV-8220 (JPO), 2018 WL 2021588, at *2 (S.D.N.Y. Apr. 27, 2018). “Allowing Plaintiff to proceed anonymously would put Defendants at a genuine disadvantage [and cause significant prejudice], particularly when it comes to settlement leverage.” Id. at *3; see also Doe v. Zinsou, No. 19 Civ. 7025 (ER), 2019 WL 3564582, at *7 (S.D.N.Y. Aug. 6, 2019); Doe v. McLellan, No. 20-CV-5997 (GRD) (AYS), 2020 WL 7321377, at *3 (E.D.N.Y. Dec. 10, 2020).

This is particularly true in a sexual assault case, for reasons similar to those discussed in Part II. In a sexual assault case, both sides will often risk stigma from exposure. While, regrettably, sexual assault victims do face stigma, accused rapists also face stigma, even before any verdict is rendered (and may remain stigmatized even if they eventually prevail in the case). One-sided pseudonymity is thus quite likely to skew the settlement value of the case in favor of the pseudonymous party, even entirely apart from who is actually in the right and who is in the wrong.

[C.] Difficulty of public defense

A plaintiff’s pseudonymity may also make it hard for defendants to defend themselves in public:

The defendants … have a powerful interest in being able to respond publicly to defend their reputations [against plaintiff’s allegations] … in … situations where the claims in the lawsuit may be of interest to those with whom the defendants have business or other dealings. Part of that defense will ordinarily include direct challenges to the plaintiff’s credibility …. [Plaintiff] cannot use his privacy interests as a shelter from which he can safely hurl these accusations without subjecting himself to public scrutiny, even if that public scrutiny includes scorn and criticism.

Doe v. Indiana Black Expo, Inc., 923 F. Supp. 137, 142 (S.D. Ind. 1996); see also Smith, 429 F.3d at 710; Doe 1 v. George Washington Univ., 369 F. Supp. 3d 49, 68 n.9 (D.D.C. 2019). A defendant may have information that provides support for his position—and that helps recuperate his reputation—but that he cannot reveal without disclosing the plaintiff’s identity. Even if no formal gag order accompanies the pseudonymity order (see Volokh, supra, at 1375-76, for examples of such gag orders), defendants likely would not feel fully comfortable publicly identifying an adversary as to whom the judge had issued a pseudonymity order. They might worry that doing so, even if not a violation of the letter of the order, would be seen as defying its spirit. And a litigant whose case is before that judge might be reluctant to engage in anything that can be perceived as defiance.

[D.] One-sided effect on the candor and availability of witnesses

Pseudonymity can also make the fact-finding process less reliable because “pseudonymous witness[es]” may feel less inhibited “from fabricating or embellishing an account.” Doe v. Delta Airlines Inc., 310 F.R.D. 222, 225 (S.D.N.Y. 2015), aff’d, 672 F. App’x 48 (2d Cir. 2016). When one side is pseudonymous and the other is not, that side will thus be given something of an edge in the litigation process.

Pseudonymity also makes it less likely that valuable witnesses will come forward. See, e.g., id. (denying pseudonymity partly because “witnesses, upon the disclosure of Doe’s name, [may] ‘step forward [at trial] with valuable information about the events or the credibility of witnesses'” (quoting Doe v. Del Rio, 241 F.R.D. 154, 159 (S.D.N.Y. 2006) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 596-97 (1980) (Brennan, J., concurring) (“Public trials come to the attention of key witnesses unknown to the parties.”))). In a case such as this, for instance, witnesses who hear about the case could come forward to (for instance) help Doe by offering negative information about Sidar. But witnesses could not come forward to help Sidar by offering negative information about Doe, precisely because they do not know who Doe is. The nonpseudonymous party is thus handicapped in some measure in litigation relative to the pseudonymous party.

[E.] Risk of giving pseudonymous party’s claim greater weight

Letting a party testify pseudonymously might also pre­judice the jury (in those cases that go to trial) by “‘risk[ing] … giv­ing [the party’s] claim greater stature or dignity,'” Lawson v. Rubin, No. 17-cv-6404 (BMC) (SMG), 2019 WL 5291205, *3 (E.D.N.Y. Oct. 18, 2019) (quoting Doe v. Delta Airlines, 310 F.R.D. 222, 225 (S.D.N.Y. 2015)), or by implicitly “tarnish[ing]” a defendant by conveying to the jury “the unsupported contention that the [defendant] will seek to retaliate against [the plaintiff].” Tolton v. Day, Civil Action No. 19-945 (RDM), 2019 WL 4305789, *4 (D.D.C. Sept. 11, 2019). “De­fend­ant might well be prejudiced in defending against a complaint by being perceived as a wrongdoer by the very fact of anonymity alone.” A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 504 (App. Div. 1995).

[F.] Risk of witness and juror confusion

Pseudonyms can also confuse witnesses (at trial or in depositions) and jurors. For example, in a student lawsuit over a medical school’s disciplinary actions, a court rejected pseudonymity at trial partly because witnesses called by the defendant, “who know Plaintiff by her true name, may come across as less credible if they are struggling to remember to use Plaintiff’s pseudonym,” which would create “a risk of prejudice to Defendant.” Doe v. Elson S Floyd Coll. of Med. at Washington State Univ., No. 2:20-cv-00145-SMJ, 2021 WL 4197366, *3 (E.D. Wash. Mar. 24, 2021).

[G.] This unfairness may cut in favor of either mutual pseudonymity or absence of pseudonymity

Concerns such as those given above have often led to courts insisting that plaintiffs proceed under their real names. At the same time, those concerns might counsel in favor of mutual pseudonymity, in those situations where the plaintiff has not identified the defendant at the outset. “[I]f the plaintiff is allowed to proceed anonymously, … it would serve the interests of justice for the defendant to be able to do so as well, so that the parties are on equal footing as they litigate their respective claims and defenses.” Doe v. Doe, No. 20-CV-5329 (KAM)(CLP), 2020 WL 6900002, at *4 (E.D.N.Y. Nov. 24, 2020); see also Roe v. Doe, Civil Action No. 18-666 (CKK), 2019 WL 1778053, at *3 (D.D.C. Apr. 23, 2019); Doe v. Smith, No. 1:19-CV1121 (GLS/DJS), 2019 WL 6337305, at *2–3, *3 n.1 (N.D.N.Y. Nov. 27, 2019). “If we are to have a policy of protecting the names of individual litigants from public disclosure, there is a very substantial interest in doing so on a basis of equality.” Doe v. City of New York, 201 F.R.D. 100, 102 (S.D.N.Y. 2001). But see Doe v. Purdue Univ., No. 4:18-cv-89, 2019 WL 1757899, at *3 (N.D. Ind. Apr. 18, 2019) (rejecting mutual pseudonymity). This preference for mutual pseudonymity suggests that, had Ms. Doe sued Mr. Sidar as a Richard Roe at the outset, she could have properly remained pseudonymous, though her choice to name Mr. Sidar now leaves that avenue unavailable.

To be sure, such mutual pseudonymity, while providing more protection to the parties’ privacy and reputations, also undermines public access to information about the lawsuit even more than one-sided pseudonymity does. See Volokh, supra, at 1383. Nonetheless, on balance, the concerns about unfairness outlined above should cut against allowing one-sided pseudonymity, whether the court’s preferred alternative is to allow pseudonymity to both sides or to deny it to both sides.

[III.] Even if one-sided pseudonymity might be proper here because defendant has defaulted as to his culpability, such a holding should then be limited to such unusual cases

Of course, the unfairness described above is especially stark when the plaintiff and defendant are both merely presenting their claims, and either might be correct. When the defendant has been found to be guilty of the underlying sex offense, the unfairness may be absent. See, e.g., Doe v. Tenzin Masselli, No. MMXCV145008325, 2014 WL 6462077, at *2 (Conn. Super. Ct. Oct. 15, 2014) (endorsing mutual pseudonymity in principle but rejecting it when the defendant had already pleaded no contest to a criminal charge arising out of the same facts). Likewise, when the defendant has defaulted as to liability, as the lower court ruled Sidar had done, it might be fine to treat the defendant—who has been concluded to be guilty—worse than the innocent plaintiff.

Amicus takes no stand on this narrow question, which arises in this case but relatively few others. But amicus asks that, if this Court is inclined to rule in Doe’s favor as to pseudonymity because of the default judgment against Sidar, the Court would expressly stress that factor as a basis for its decision. That way, District Courts and future panels of this Court would remain free to consider the arguments about the unfairness of one-sided pseudonymity in the more typical cases: cases where either the plaintiff or the defendant might yet prove to be correct on the merits.


Though there are powerful reasons to allow sexual assault plaintiffs to remain pseudonymous, there are also powerful reasons to treat sexual assault plaintiffs and sexual assault defendants similarly with respect to pseudonymity. For those reasons, a plaintiff who chooses to name the defendant in a sexual assault complaint should generally not be allowed to proceed pseudonymously, even if pseudonymity would be proper if the Doe plaintiff sues the defendant as a Roe.

To be sure, the analysis might be different in a case such as this one, where the defendant has either been found guilty in a separate proceeding or has defaulted as to liability in this very case. But if this Court is inclined towards Doe on this particular ground, amicus asks this Court to limit such a decision in favor of pseudonymity to this unusual factual situation.

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