Ari Ezra Waldman | Hawaii | Law - Gay, LGBT | News

Who are Mrs. and Mrs. Jane Doe?

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Hawaii I recently had the honor of delivering written testimony before the Hawaii legislature about a bill that would allow certain harassment victims to sue under the names "Jane Doe" or "John Doe" rather than their real names. It is a classic women's rights bill that is aimed primarily at female victims of domestic violence, but my testimony focused on the law's applicability to gay Hawaiians, men and women who are increasingly likely to emerge from the margins of society and assert their domestic rights.

We should all be familiar with the general concept. Cases like Roe v. Wade-- brought by a woman named Norma McCorvey who used the pseudonym "Jane Roe" -- and other cases involving minors, like the recent bullying case of J.C. v. Beverly Hills School District, usually shield the names of certain plaintiffs because of their tender years, privacy issues and safety concerns. The other side of the coin is the long-standing and highly valued concept of open courts and the right of confrontation.

After we discuss the bill and arguments on both sides, let me know where you come out AFTER THE JUMP...

The proposed legislation in Hawaii began because a court refused to balance personal privacy and personal hardship that would result from publicity, on the one hand, and the presumption of open courts, on the other. Admittedly, that this problem exists surprised me, given the relative ease with which I was able to seal plaintiff names and use pseudonyms in federal court during my years as a practitioner. But, the more I researched the problem, the more I realized that many state courts -- domestic abuse and harassment cases are almost always in state court -- either never allow pseudonyms or require the party requesting anonymity to pass exceedingly high hurdles.

Domestic_violence The Hawai'ian bill would, in certain circumstances, permit "John Doe" or "Jane Doe" filings in the district court on any petitions, complaints, motions or other legal documents in cases of alleged domestic abuse.

The arguments against this are four-fold. First, the Hawaii Office of the Public Defender opposes the bill on the grounds that the measure "violates the rights of a criminal defendant under the Sixth and Fourteenth Amendment" to the Federal Constitution. The Sixth Amendment guarantees to accused the right to be informed of the nature and cause accusations against him, to call witnesses in his favor, to have the assistance of counsel and to confront his accuser. By filing complaints under pseudonyms, defendants can neither investigate a plaintiff's background nor research whether his or her accuser has filed these claims before. This means that a defendant would be unable to adequately prepare a defense and, therefore, would be unable to confront his accuser. The argument is that the right of confrontation -- one of the strongest rights in modern criminal justice after Crawford v. Washington in 2004 -- would be impinged where a defendant is accused by a faceless entity.

Second, various leaders testified against the bill, noting that complaints with "John Does" and "Jane Does" lead juries to erroneously assume that pseudonyms were used because the defendant is dangerous. There is some evidence to support this, based on various studies done in the late 1990s. Lawyers call this "prejudice" -- it unfairly turns the judge and jury against the defendant -- and when one lawyer tries to sneak in information that is otherwise inadmissible, but would crucify the other party in the jurors' minds, like evidence of past unrelated bad acts that were never charged or uncorroborated hearsay, the prejudiced party may have grounds for a mistrial. A jury must be able to judge the credibility of all witnesses based on evidence. If jurors assume that the defendant is dangerous from the get-go, their credibility judgments would be impaired without evidence.

Third, the American Civil Liberties Union of Hawaii opposes the bill because courts are presumptively open to the public and only showings of "strong counterveiling reasons" could overcome the public's interest in access.

Fourth, some have suggested that this bill is unnecessary because courts already have the power to apply an appropriate balancing test to determine whether and when to seal portions of family court proceedings and records.

These are weight arguments against the bill. But, they are unconvincing.

First, "John Doe" and "Jane Doe" filings do not prevent defendants from investigating and preparing defenses. It is a fallacy to suggest that such complaints are clouded in mystery until the moment trial begins and the plaintiff is sitting in his or her chair. Filings with pseudonyms shield identification and private information from the public, not the parties involved in the case.

Second, while some evidence suggests that pseudonym filings make fact-finders wonder what would cause the plaintiff to hide his or her identity, judges can head this off at the pass by issuing clear jury instructions that the "John Doe" or "Jane Doe" filing means nothing with respect to the credibility of the defendant or his witnesses. Jurors are surprisingly smart when it comes to compartmentalizing inadmissible nonsense when given clear instructions from a judge.

Third, open access to the courts is indeed an important value, but it is not absolute. Even if we require "strong counterveiling reasons" to insert some measure of anonymity into the process, those reasons exist. Domestic abuse is a grave problem, both in straight and gay relationships, and coming forward knowing that you will be identified as a victim of domestic violence is emotionally daunting and physically dangerous. 

The precise prevalence of domestic violence among gay and lesbian couples is unknown, but estimates range from 20 to 25 percent. It is generally as common as it is in heterosexual relationships, despite what the far right would have you believe. Same-sex batterers use forms of abuse similar to those of heterosexual batterers, and have an additional weapon in the threat of "outing" their partner to family, friends, employers or community. There are thousands of shelters and safe houses for battered women, yet many of these shelters routinely deny their services to victims of same-sex battering. When they take a stand, either at home or in court, gay victims, like their straight counterparts, risk further physical and emotional violence. These victims' needs may outweigh an esoteric desire for the public's access to the courts.

Finally, as to the unnecessary point, I am normally sensitive to this argument. Unnecessary laws are bad laws. But, this law is not unnecessary. In Hawaii, judges have routinely denied "Jane Doe" or "John Doe" filings without even considering a balancing of the harms. In fact, the drive for this bill came from a woman's case where a judge rejected the premise of pseudonym filings out of hand. It happens and it happens a lot.

While there is more to bill and more arguments on either side, I have given you the groundwork. What do you think? Should we make it easier for domestic violence victims to file anonymously despite what such anonymous filings might do to the rights of the defendant and the public?

Feed This post's comment feed

Comments

  1. @Ari, can you tell us why the 9th District hasn't lifted the stay on gay marriage in california yet? I thought for sure after the Attorney General of CA and the CA Supreme case was extended another 9 months that it would be lifted. Is anything expected there?

    Posted by: me | Mar 16, 2011 5:26:50 PM


  2. @me: thanks for your comment. AFER and the state of California have made their arguments in favor of lifting the stay. their arguments have a lot of merit, both legally and emotionally. stays are supposed to be extraordinary measures, but because this is such a controversial topic, a stay was much more likely. unfortunately, i do not expect anything from the 9th circuit lifting the stay. its rare that an appellate court would reverse course that way. that said, the fact that California has come out in favor of lifting the stay makes it more likely that the stay will be lifted, but i still doubt that it will be in the end.

    Posted by: Ari Ezra Waldman | Mar 16, 2011 5:31:36 PM


  3. Totally support being able to file anonymously in those sorts of cases. As with many things in the law, you have to balance rights on one side with rights on the other. But I think it's pretty clear these sorts of laws are super important for some clearly already disadvantaged people.

    Thanks for doing these columns Ari! :)

    Posted by: robert78 | Mar 16, 2011 5:41:45 PM


  4. @Ari, thank you for the reply. It's surprising to me that Judge Walker would issue a stay when the case didn't meet any of the reasons to issue a stay, and it's also surprising that the District Court would keep the stay even when the case gets extended by over a year. I had expected the stay to be lifted after the AG's letter and the extension of the case, but at least now I know not to expect it. Thanks again.

    Posted by: me | Mar 16, 2011 6:31:50 PM


  5. @me: well, we could both be surprised. i like to stay optimistic. it seems to me that reason the stay was put in place here is because of the hot potato that is marriage equality. many people think this is a political matter and courts are loathe to step into highly politically charged issues.

    Posted by: Ari Ezra Waldman | Mar 16, 2011 6:36:25 PM


  6. Secrecy of any kind in our public institutions, particularly our judicial system, has extraordinary potential for abuse. The potential for harm on a vast scale is so great that anonymity should be permitted except in clearly defined life-or-death situations or those involving minors. Without transparency, it is impossible to ensure that our institutions can be held accountable by the people they allegedly serve. The social cost of this is difficult to overestimate, and outweigh any individual's need for privacy.

    The argument that victims will suffer social disapprobation by publicly stating the wrong done them supports a vicious circle: shame isn't mitigated by hiding in the dark. For example, committing rape is shameful; suffering it is not. Secrecy is one of the reasons such stigma endures.

    As for the safety of those bringing suit for domestic violence, anonymity provides limited protection at a very high social cost. Damaging our judicial system is one of any number possible solutions to the problem of ensuring the safety of the plaintiff, and far from the wisest.

    Finally, despite the fact that our judicial system is based on the premise that the accused is innocent until proven guilty, those who are alleged to have committed rape, domestic violence, child abuse, and other heinous crimes suffer social stigma and threats to their physical safety as well. Shall we allow them anonymity? Given that no one involved in such disputes is guilty until a judge or jury says so, how can we justify allowing the plaintiff anonymity while denying it to the defendant?

    We need more transparency; not less. History is full of attempts to achieve justice behind closed doors. Private justice is justice for sale. The degree of corruption that ultimately results is beyond anything Americans can easily imagine. It should remain so.

    Posted by: Bryan | Mar 16, 2011 7:20:40 PM


  7. I must disagree, Ari. The courts are a tool, and nothing more. Given the power that they can wield, it's critical to ensure that they are operating correctly, and that can only happen with transparency (which is one reason I also oppose the US Supreme Court's rules against televising proceedings). I completely oppose things like anonymity, secret testimony, and the like, in any and all cases. The goal was never unattainable perfection. The goal is a system you can see is working properly.

    Posted by: Randy | Mar 16, 2011 9:55:38 PM


Post a comment







Trending


« «News: Anderson Cooper, Libya, Carl Kruger, Grateful Dead« «