Wednesday, May 9, 2012

Anonymous sexual assault lawsuit against Travolta raises troubling issues about anonymity in civil actions

Two unidentified massage therapists, represented by the same attorney, are suing John Travolta in federal court for a total of $2 million. The massage therapists are identified only as "John Doe No. 1" and "John Doe No. 2" in the civil complaint filed in federal court. They claim that in two separate incidents last January, Travolta masturbated in front of each of them while he received massages. In addition, Travolta supposedly exposed himself to the masseurs and grabbed their genitals in an attempt to make sexual advances toward them.

Travolta's attorney calls the claims "false and fabricated." He claims his client was out of town when the first assault supposedly occurred.  In addition, he noted that the plaintiffs' attorney is not permitted to shield the name of his clients.

The plaintiff's attorney defended his action of filing a complaint without actually naming his clients. He said it was standard practice to withhold the names of potential victims of sex attacks. “I do it for all of my female clients who are victims of sexual assault, and I'm not going to treat the men any different than the women,” he said. “I think it's malpractice to identify them (in a complaint). I'm leaving it up to the judge. If they think that's strange, they may not be familiar with the law.”

It is important to keep in mind that this is a civil action seeking only monetary damages. No criminal charges have been filed against Mr. Travolta. While judges in civil actions often do allow sensitive information to be filed under seal, we are aware of other recent high profile sexual assault civil actions that were not filed anonymously (e.g., the Ben Roethlisberger case and the Johan Santana case). 

Let's make another important distinction: when a sexual assault civil action is filed, it is generally the news media that shields the identities of the plaintiffs, even though the court docket contains their names. But note this disturbing case where two young men filed a sexual assault civil action: some news outlets shielded their identities, but others--in clear violation of their own policies--didn't bother (nor did they bother to explain themselves).

Of course there should not be a double standard for male and female accusers. But the bigger question is whether anyone should be anonymous in a civil action seeking money damage for sexual assault. We've previously noted that for criminal actions, the issue of anonymity is a difficult one that is anything but clear cut. Civil actions, we suggest, present an easier answer. 

Unlike a criminal case that is brought by the state on behalf of "the people," a civil dispute is a private one brought by private parties. In the Travolta case, even assuming for the sake of argument that the plaintiffs' claims can be proven by a preponderance of the evidence (the civil standard), a victory by the plaintiffs will not keep a sexual assaulter off the streets or protect a single other victim from him. Mr. Travolta's liberty is not at stake. In fact, a victory will do nothing more than give three people a nice payday: the two plaintiffs and their attorney.  While maintaining the anonymity of alleged rape victims in criminal matters arguably fosters a culture that encourages other victims to come forward for the sake of society as a whole, society has far less interest in encouraging alleged rape victims to come forward to seek personal monetary gain. When people use public courts to seek a private monetary award, generally, they should not be permitted to insist that they do so anonymously.

In our recent discussion about anonymity in criminal actions, we noted that Naomi Wolf and Prof. Alan Dershowitz criticized anonymity in the context of criminal cases. The argument to scrap anonymity is all the more compelling in civil actions.

8 comments:

  1. If you don't know who accuses you of sexual assault, how will you know whether you sexually assaulted them?

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  2. If it is appropriate for the plaintiffs to be anonymous it is far, far more important that the defendent be protected. The plaintiff's lawyers did not do this. God damn them.

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  4. Julian - ”If you don't know who accuses you of sexual assault, how will you know whether you sexually assaulted them?”

    I assume this some bit of snarky low-grade trolling?

    You can absolutely know that you never sexually assaulted anyone!

    Most men will never in their entire lives sexually assault anyone, thus, it does not come down to an issue of needing to know who is accusing you to know if you assaulted them or not (since if you never assaulted anyone, that’s a mute point), but rather to know who it is that is (falsely) accusing you so as to be able to defend yourself.

    Being denied details such as “when, where, and whom” makes it all but impossible to counter false allegations with exculpatory facts – alibis, evidence of personal motives, etc.

    Also, having the name of the plaintiff known means that they too will have some “skin in the game”, which would better serve to discourage false allegations in the first place.

    Note that while the women who sought to bring a civil suit against Ben Roethlisberger in Las Vegas maintained her anonymity, the public was generally inclined to believe her claim of rape. But, when her name got out (via her friends who absolutely DID NOT believe her, BTW), and it became known that she was an aging escort who’d had a long-running sexual relationship (multiple times when he was in Vegas over several years) with Roethlisberger, then public sentiment quickly changed away from the willingness to believe her story that had previously prevailed while the pertinent facts remained undisclosed.

    Likewise, the “slamdunk” case against Dominique Strauss-Kahn crumbled when it became known that his accuser was Nafissatou Diallo, and she came under scrutiny.

    In the current story involving John Travolta, one could well ask, if these two masseurs are being honest, why not reveal their names? Their “stories” could make them lots of money even without a civil trial ever taking place, since the media is always happy to pay for such salacious accounts.

    Travolta does not need to know who is accusing him so as to know if he actually assaulted that accuser, he needs to know so as to be able to defend himself, his reputation, his career, and his family.

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  5. @Slwerner: I assumed it was just poorly phrased, to correct it: "If you don't know who's accusing you, how can you prove your innocence."

    Seriously, can you (or anyone) *prove* that they didn't sexually assault any person on any particular day? If you don't know who your accuser is then you can't even begin to amass the evidence proving you didn't assault them.

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  6. Obviously, I cannot be sure, but my guess was that Julian as Julian Real, the pseudonym of the ass-clown who writes the Radical Profeminist blog.

    If so, then what he is likely implying is that most men do go around sexually assaulting women, so a man would only need to know who his accuser was so that he could remember that he did, in fact, assault that person.

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  7. Mhh, in criminal court everyone has the right to face their accuser- if a rape victim refused to do so the alleged rapist goes free... I assumed the same was true for civil court.

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