Opinion
No. CV 06 5001087 S
September 22, 2006
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO CONTINUE TO USE PSEUDONYM
At the commencement of the present action, the plaintiff filed an ex parte application for permission to use a pseudonym pursuant to Practice Book §§ 11-20A(h)(1) and (2). The court, Moran, J., granted the ex parte application on June 2, 2006. Presently before the court is the plaintiff's motion to continue to use the pseudonym of Jane Doe as permitted under Practice Book § 11-20A(h)(1). On July 5, 2006, the court, Fischer, J., granted the motion without prejudice, finding that the claim involved sensitive circumstances of sexual abuse; sexual exploitation and sexual assault against the plaintiff who was a minor during the alleged sexual abuse. On August 15, 2006, a motion for leave to reargue was granted due to the appearance of new counsel in the case. A hearing was held on this matter on August 28, 2006 and September 1, 2006, as required by Practice Book § 11-20A(h)(3).
The plaintiff brings this action against the defendants, Gregory A. Firn (Firn), superintendent of schools, Susanne Meyer-Farrell, social worker, Milford Board of Education and the city of Milford for negligence. The plaintiff alleges that from September 2001 until June 2005, she was enrolled as a student at Jonathan Law High School in Milford, Connecticut, where she participated in the school's basketball program, including fall, winter and summer leagues. She alleges that during the years of 2002 through 2005, Robert Dulin (Dulin) was acting as a coach for Jonathan Law High School girl's basketball summer and fall leagues. The plaintiff alleges that on numerous occasions during the years 2002 through 2005, Dulin sexually abused, sexually exploited and sexually assaulted her. The plaintiff also alleges that she was a minor during the alleged assaults. The plaintiff is currently nineteen years old. Dulin is forty-eight years old.
As a result of the defendants' negligence, the plaintiff claims the following injuries and damages, some of which may be permanent in nature: "(a) physical injuries resulting from the sexual abuse, sexual assault and molestation; (b) severe emotional injuries including emotional distress, anxiety, frustration, intimidation, disassociation, embarrassment, permanent psychological scarring; (c) two pregnancies; (d) two medical procedures related to the foreseeable risk of sexual abuse; (e) pain and suffering; (f) disruption and impairment of her education; (g) loss of enjoyment of life; (h) an increased risk of future psychological disorder; and (k) an increased risk of future harm."
By way of background, Dulin is the defendant in the criminal case of State of Connecticut v. Dulin, which is currently pending in Milford Superior Court. Dulin is not, however, a party to the present action. The plaintiff in this action is the alleged victim in the pending criminal matter. The plaintiff's name has not been publicly revealed or disclosed in the criminal matter pursuant to General Statutes § 54-86e.
The defendant, Firn, argues that good cause exists to set aside the pseudonym order on the grounds that (1) the plaintiff has voluntarily publicized her image, name and the circumstances of her case on an Internet website; and (2) the matter has received widespread publicity in the mass media. In response, the plaintiff argues that the "blog" on the MySpace.com website does not specifically identify anyone in this particular lawsuit nor does it make reference to any of the allegations which have been made by the plaintiff.
The defendant hereinafter refers only to Gregory A. Firn.
Practice Book § 11-20A outlines the procedure the court must follow in considering a motion to permit parties to proceed anonymously. Section 11-20A(h)(1) provides in relevant part: "Pseudonyms may be used in place of the name of a party or parties . . . only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in knowing the name of the party or parties. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest. The judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order. If any findings would reveal information entitled to remain confidential, those findings may be set forth in a sealed portion of the record . . . An agreement of the parties that pseudonyms be used shall not constitute a sufficient basis for the issuance of such an order." "The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." (Internal quotation marks omitted.) Doe v. Diocese Corp., 43 Conn.Sup. 152, 159, 647 A.2d 1067 (1994). In deciding whether to permit a party to proceed anonymously, the court employs its "informed discretion." Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 70, 818 A.2d 14 (2003). The burden is on the party requesting to proceed anonymously, in this case, the plaintiff. See Vargas v. Doe, 96 Conn.App. 399, 410, 900 A.2d 525 (2006).
In Doe v. Connecticut Bar Examining Committee, supra, 263 Conn. 65, the Supreme Court recognized that "[t]he presumption of openness of court proceedings, which is implicated in applications to proceed anonymously, is a fundamental principle of our judicial system." See J. Steinman, "Public Trial, Pseudonymous Parties: When Should Litigants Be Permitted to Keep Their Identities Confidential?" 37 Hastings, L.J. 3-18 (1985). "The public and press enjoy a right of access to attend trials in civil as well as criminal cases . . . Though not as critical as access to the proceedings, knowing the litigants' identities nevertheless tends to sharpen public scrutiny of the judicial process, to increase confidence in the administration of the law, to enhance the therapeutic value of judicial proceedings, and to serve the structural function of the First Amendment by enabling informed discussion of judicial operations." (Citations omitted.) Doe v. Johnson, Superior Court, judicial district of New Haven, CV 03 0483186 (December 2, 2003, Arnold, J.) ( 36 Conn. L. Rptr. 101, 104). "The First Amendment, in conjunction with the Fourteenth, prohibits governments from abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. These expressly guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the function of government." (Internal quotation marks omitted.) Doe v. Diocese Corp., supra, 43 Conn.Sup. 156.
"Apart from any constitutional basis, there is a common law right for the public to have access to the courts and court proceedings. [O]ne of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access . . . appears to have been the rule in England from time immemorial . . . In Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 91 L.Ed. [1546] (1947), the court said: A trial is a public event. What transpires in the court room is public property . . . There is no special prerequisite to the judiciary which enables it, as distinguished from other institutions of democratic government to suppress, edit, or censor events which transpire in proceedings before it." (Citations omitted; internal quotation marks omitted.) Doe v. Diocese Corp., supra, 43 Conn.Sup. 157.
"Despite a presumption of open court proceedings, however, both the United States Supreme Court and [the Connecticut Supreme Court] have acknowledged that this right is not absolute. See, e.g., Globe Newspaper Co. v. Superior Court, [ 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)] ([a]lthough the right of access to criminal trials is of constitutional stature, it is not absolute); State v. Frazier, 185 Conn. 211, 230-31, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S.Ct. 3496, 73 L.Ed.2d 1375 (1982) ([A]n accommodation must sometimes be made between the individual's right to a public trial and other societal interests that might justify closing the courtroom to the public . . . We have indicated that closure of a courtroom should be limited to those situations where such action is demonstrably necessary to further the administration of justice." (Internal quotation marks omitted.) Doe v. Connecticut Bar Examining Committee, supra, 263 Conn. 66.
In Buxton v. Ullman, 147 Conn. 48, 60, 156 A.2d 508 (1959), appeal dismissed, Poe v. Ullman, 367 U.S. 497, 81 S.Ct 1752, 6 L.Ed.2d 989 (1961), the Supreme Court set forth the standard for use of pseudonyms by stating that "[t]he privilege of using fictitious names in actions should be granted only in the rare case where the nature of issue litigated and the interest of the parties demand it and no harm can be done to the public interest." In Buxton, the court allowed medical patients to proceed anonymously "because of the intimate and distressing details alleged in the complaint" concerning contraception. See id.
As discussed by the Appellate Court in Vargas v. Doe, supra, 96 Conn.App. 411, "[t]he most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party's] identity . . . There must be a strong social interest in concealing the identity of the [party]." (Internal quotation marks omitted.) The court recognized that "when allegations of sexual assault are involved, those who are alleged to be victims, especially minors, may have strong privacy interests in having the allegations and surrounding circumstances concealed from public scrutiny . . ." Id. 413. The court cautioned, however, that "the procedures that [Connecticut] rules of practice provide do not permit automatic approval of the use of pseudonyms by the party or parties involved." Id.
In Doe v. Diocese Corp., supra, 43 Conn.Sup. 160, the court allowed the plaintiff to proceed anonymously in an action against clergymen for past sexual abuse. In doing so, the court determined that the plaintiff had a substantial privacy interest at stake. Id. The court reasoned that "[o]ne's sexual history and practices are among the most intimate aspects of a person's life. When one has a sexual history falling outside the realm of the conventional, that privacy interest is enhanced greatly, whether one has created that history voluntarily or it is forced upon a person as a result of abuse." (Internal quotation marks omitted.) Id.
In addition to Doe v. Diocese Corp., other Superior Courts have granted the privilege of proceeding anonymously in cases arising out of sexual abuse or assault. See, e.g., Doe v. Super 8 Motels, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5004427 (August 3, 2006, Pittman, J.) (mentally disabled minor child and mother allowed to proceed anonymously in action alleging sexual assault by three unknown males at motel); Adgers v. Doe, Superior Court, judicial district of Hartford, Docket No. CV 05 4014657 (December 22, 2005, Bryant, J.) (victim of sexual assault in spousal relationship allowed to substitute name with pseudonym); Boe v. Coe, Superior Court, judicial district of New Haven, Docket No. CV 05 4005684 (March 18, 2005, Pittman, J.) (minor child's parents and defendant allegedly falsely accused of sexual abuse were allowed to use pseudonyms); Doe v. East Haven Asso., Superior Court, judicial district of New Haven, Docket No. CV 04 0490161 (August 4, 2004, Pittman, J.) (minor plaintiff and her mother entitled to maintain lawsuit using pseudonyms wherein alleged tort involved sexual assault); Doe v. Johnson, supra, Superior Court ( 36 Conn. L. Rptr. 101) (minor plaintiff and her father permitted to proceed anonymously in action arising out of repeated acts of sexual assault and abuse).
Of particular note and relevance to the present case is the fact that in Doe v. East Haven Asso., Superior Court, judicial district of New Haven, Docket No. CV 04 0490161 (August 4, 2004, Pittman, J.), a criminal proceeding involving sexual assault allegations was pending at the same time the civil case was commenced, and the minor's name had not been publicly revealed during the course of the criminal case.
In weighing the privacy interests of the plaintiff against the public interest in disclosing her identity, the court must examine the particular circumstances of the plaintiff in this case. Doe v. Diocese Corp., supra, 43 Conn.Sup. 152. Here, the plaintiff was a minor when she allegedly became the victim of sexual assault. The incidents of sexual assault continued for more than two years. The testimony of the plaintiff revealed that she has received psychological and psychiatric treatment related to the alleged assaults on fifteen or twenty occasions, and that she continues to receive such counseling. The plaintiff testified that she would be devastated if her name became public. She has a younger brother still in the Milford school system.
The court finds there is a strong social interest in concealing the identity of the plaintiff. Vargas v. Doe, supra, 96 Conn.App. 411. "The legislature has mandated the anonymity of sexual assault victims in [criminal] court proceedings." Adgers v. Doe, supra, Superior Court, Docket No. CV 05 4014657. General Statutes § 54-86e provides in relevant part: "The name and address of the victim of a sexual assault . . . and such other identifying information pertaining to such victim as determined by the court, shall be confidential and shall be disclosed only upon order of the Superior Court . . ." Several Superior Courts have applied the language in § 54-86e to civil cases. Adgers v. Doe, supra, Superior Court, Docket No. CV 05 4014657; Doe v. Johnson, supra, 36 Conn. L. Rptr. 101; Doe v. Minor Female One, Superior Court, judicial district of New Haven, Docket No. CV 02 0466081 (October 25, 2002, Silbert, J.) ( 33 Conn. L. Rptr. 359).
In Doe v. Minor Female One, supra, 33 Conn. L. Rptr. 359, the court relied on the plain language of § 54-86e and its legislative history to find that § 54-86e is not limited to criminal trials. The court specifically held that "[g]iven the plain language of the statute, the clear intention of the legislature to protect victims of sexual assault from having their names made public, and the sweeping remarks in the legislative history, it does not appear that the legislature intended to limit § 54-86e's protections to criminal cases." Id. 360.
The court agrees with the reasoning of the aforementioned cases that the social policy engendered in § 54-86e should apply no less in a civil case. As articulated by the plaintiff's counsel, "[t]he law is designed to encourage victims, especially minor victims of sexual abuse in coming forward and disclosing complaints of sexual abuse. The use of proceeding wider the pseudonym helps assure that future alleged minor victims of sexual abuse will come forward without having to worry about the stigma attached to such a complaint."
Given this strong social interest, the court rejects the defendant's contention that the plaintiff's MySpace.com postings should prohibit her from remaining anonymous. While the court acknowledges that "[w]here the public is aware of the circumstances sought to be kept private and readily can identify the individuals involved in those circumstances, the privacy interest at stake may become substantially less weighty"; Vargas v. Doe, supra, 96 Conn.App. 414, n. 11; the court finds that the public cannot readily identify her as the individual involved in this matter. Moreover, the public has not been made aware of her name. Furthermore, the postings on MySpace.com do not specifically identify anyone in this action nor does it refer to any of the allegations made by the plaintiff.
The court finds that the plaintiff has met her burden of establishing the existence of a substantial privacy interest that outweighs the public interest in open judicial proceedings. In particular, the court finds that this action involving the plaintiff's claim of sexual abuse while a minor by her basketball coach for a period of more than two years is of a highly sensitive and personal nature. The details of the alleged sexual abuse are not only intimate and distressing but are likely to subject her to social stigmatization if her name were disclosed. To force the plaintiff to proceed without the protection of the pseudonym Jane Doe could only subject the plaintiff to additional psychological harm and emotional distress. Doe v. Johnson, supra, 36 Conn. L. Rptr 105; see, e.g., Doe v. Diocese Corp., supra, 43 Conn.Sup. 161. Of significance is the fact that in the pending criminal case against Dulin, the plaintiff's name has not been disclosed pursuant to statute. Given the facts of this case, the court finds that the statutory grant of anonymity to sexual assault victims, the highly sensitive and extremely personal nature of the subject matter of this action, together with the social stigmatization involved here outweigh the public's interest in knowing her identity.
The court has followed the intricate procedure set forth in Practice Book § 11-20A(h)(1) that is required prior to permitting the use of a pseudonym. The court has also followed the guidance of the Appellate Court in Vargas v. Doe, supra, 96 Conn.App. 399. In doing so, the court has considered the possibilities of reasonable alternatives and finds that the use of a pseudonym for the plaintiff is the most reasonable alternative. The use of a pseudonym in this case is no broader than necessary to protect the privacy interests of the plaintiff as balanced against the public's interest in open judicial proceedings. The public's interest is still served by access to the file except her name and other information leading to her identification. The court will not be permanently sealing any parts of the file.
The Vargas court used language similar to Practice Book § 11-20A(h)(1) when it stated: "In particular, the court must consider any reasonable alternatives available and ensure that its ultimate order is no broader than necessary to protect the overriding privacy interest. This overriding privacy interest that the court finds must be protected must be articulated . . . and the court must specify (1) its findings underlying its order and (2) the duration of its order. The order, including the time, date, scope and duration, must be reduced to writing, signed by the judicial authority and entered into the court file. Additionally, the court must order a transcript of its decision or prepare a separate, written memorandum detailing the reasons underlying its order." (Footnote omitted.) Vargas v. Doe, 96 Conn.App. 399, 413-14, 900 A.2d 525 (2006).
Accordingly, the plaintiff is hereby permitted to proceed anonymously by use of the pseudonym Jane Doe. Pursuant to Practice Book § 11-20A(h)(1), the court enters the following order, which shall remain in effect until further order of the court:
1. All parties are required to use the pseudonym of Jane Doe when referring to the plaintiff in all documents filed with the court as required by Practice Book § 11-20A(h)(4).
2. The court orders the defendant's counsel to file with the clerk of the court a copy of all documents filed in this case with the plaintiff's name redacted and the pseudonym Jane Doe substituted therefore within fifteen days of the date of this decision. The defendant is ordered to remove any pictures of Jane Doe from the documents.
3. The motion filed on August 9, 2006, sealed by the court on September 1, 2006 and coded in the clerk's office as document numbers 109 and 109.50 shall remain sealed only until the defendant has provided this court with copies of the redacted documents. The following documents also shall be sealed only until the defendant has filed redacted versions: (1) document coded as number 116 and filed on August 23, 2006; and (2) document coded as numbers 117 and 117.50 and filed on August 24, 2006. No other parts of the file are sealed.
4. All parties shall refer to the plaintiff by her pseudonym in all court proceedings until further order of the court.
ORDER CT Page 17385
It is hereby ordered that the plaintiff is permitted to proceed anonymously by use of the pseudonym Jane Doe. The findings of the court and the reasons underlying this order are set forth in the attached memorandum of decision entitled Doe v. Firn, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 06 5001087 (September 22, 2006, Judge Brian T. Fischer), which is hereby incorporated by reference.Pursuant to Practice Book § 11-20A(h)(1), the court enters the following order, which shall remain in effect until further order of the court:
1. All parties are required to use the pseudonym of Jane Doe when referring to the plaintiff in all documents filed with the court as required by Practice Book § 11-20A(h)(4).
2. The court orders the defendant's counsel to file with the clerk of the court a copy of all documents filed in this case with the plaintiff's name redacted and the pseudonym Jane Doe substituted therefore within fifteen days of the date of this decision. The defendant is ordered to remove any pictures of Jane Doe from the documents.
3. The motion filed on August 9, 2006, sealed by the court on September 1, 2006 and coded in the clerk's office as document numbers 109 and 109.50 shall remain sealed only until the defendant has provided this court with copies of the redacted documents. The following documents also shall be sealed only until the defendant has filed redacted versions: (1) document coded as number 116 and filed on August 23, 2006; and (2) document coded as numbers 117 and 117.50 and filed on August 24, 2006. No other parts of the file are sealed.
4. All parties shall refer to the plaintiff by her pseudonym in all court proceedings until further order of the court.