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Public, courts lose when sex offender wins right to hide identity

By Douglas Lee
Special to the First Amendment Center Online

The decision in John Doe v. Town of Plainfield calls to mind Abraham Lincoln’s description of an argument made by Stephen A. Douglas: “a specious and fantastical arrangement of words by which a man can prove a horse-chestnut to be a chestnut horse.”

The issue in Doe was whether the plaintiff could proceed anonymously in his lawsuit against Plainfield, Ind., the town in which he lived. This right, most courts recognize, usually is reserved for people — like sexual abuse victims — who unwillingly find themselves involved in sensitive court proceedings.

In Doe, however, the plaintiff was not a victim of sexual abuse. Rather, he was a perpetrator of it. Nevertheless, the Indiana Court of Appeals allowed him to sue the town under a fictitious name.

In 2001, Doe was convicted of child exploitation and possession of child pornography. As a result of his conviction, his name is listed on Indiana’s Sex Offender Registry.

In 2002, the town of Plainfield adopted an ordinance prohibiting registered sex offenders from using its parks. Doe and his son used two Plainfield parks several times in violation of the ordinance before a police officer in 2005 informed him he was not allowed in the parks. Doe, who was then using his real name, wrote Plainfield’s chief of police and threatened to sue the town if the ordinance was enforced against him.

Doe made good on his threat in November 2005, when he sued Plainfield in state court to obtain a declaratory judgment that the park prohibition was unconstitutional. With his complaint, Doe filed a motion asking the court to allow him to proceed anonymously. The judge initially granted Doe’s motion but required Doe to provide his real name to Plainfield’s attorney.

In early 2006, the town asked the judge to reconsider his earlier order. The judge granted the town's request but allowed Doe to challenge the order on appeal.

In its February 2007 opinion, the Indiana Court of Appeals acknowledged the “powerful presumption in favor of open proceedings” and said that, in light of this presumption, “the use of fictitious names is disfavored.” The rules requiring parties to use their real names, the court noted, “protect the public’s legitimate interest in knowing which disputes involving which parties are before the ... courts that are supported with tax payments and that exist ultimately to serve the ... public.”

As a result, the court said, fictitious names are permitted only “in exceptional cases where the party has a privacy right so substantial as to outweigh the customary and constitutionally-embedded presumption of openness in judicial proceedings.”

At that point, however, the court began to transform the horse-chestnut of openness into the chestnut horse of secrecy.

First, the court identified nine factors it said have been used in determining whether a plaintiff’s privacy right can outweigh the presumption of openness:

  1. Whether the plaintiff was challenging a governmental action.
  2. Whether the plaintiff would be required to disclose intimate information.
  3. Whether the plaintiff would be required to admit an intent to engage in illegal conduct.
  4. Whether the plaintiff risked injury if identified.
  5. Whether the defendant would be prejudiced by the requested anonymity.
  6. Whether the interests of children were at stake.
  7. Whether other means existed to protect the plaintiff’s anonymity.
  8. The extent to which the plaintiff’s identity has been kept confidential.
  9. The public interest in knowing the plaintiff’s identity.

Amazingly, however, the court then completely ignored three of the factors in favor of openness. The court failed to mention, for example, that requiring Doe to sue under his real name would not require him to disclose intimate information. The court also ignored that Doe in his lawsuit was not required to admit any intent to engage in illegal conduct. Even more troubling, the court failed to even mention the significant interest of children in whether registered sex offenders are allowed in Plainfield’s parks.

In addition to ignoring these factors, the court misapplied the fourth, eighth and ninth factors. The court, for example, found Doe risked injury if he were identified, citing threats and vandalism that had been directed at him. The evidence, however, was undisputed that these incidents related to Doe’s conviction and listing on the registry. No evidence existed that the lawsuit would lead to renewed violence, making the court’s conclusion on this factor entirely speculative.

The court similarly disregarded Doe’s listing on the registry when it considered whether his identity had been kept confidential. However one feels about the scarlet-letter nature of sex-offender registries, one of their primary purposes is to strip offenders of confidentiality. Sex offenders thus have no expectation of privacy in matters related to their sex crimes.

The court, however, viewed the eighth factor narrowly, asking only whether Doe’s prior contacts with town officials waived his ability to proceed confidentially. This was not the appropriate inquiry, as Doe had no confidentiality to waive, at least as to his sex offenses. Moreover, the court’s narrow inquiry incorrectly suggests it would be worse for Doe to be known for challenging the park prohibition than for sexually exploiting children.

Finally, the court — despite earlier recognizing the public interest in knowing who was accessing the courts — found the public had no interest in knowing Doe’s identity. Rather, the court said, the public’s interest was only in following the progress and outcome of the case. If this truly were the only public interest involved, however, almost all parties would be able to litigate anonymously.

As erroneous as the decision in Doe appears to be, the greatest danger posed by the court’s opinion is not that residents of Plainfield will be uninformed as to who is challenging their park ordinance. Rather, the true threat of Doe is that other judges will use it to justify further secrecy in the courts. And why wouldn’t they? If a registered sex offender is legally entitled to hide behind a fictitious name, isn’t just about everyone else?


Child molester can be banned from city parks

7th Circuit rules 8-3 that Indiana city didn't violate First Amendment because John Doe's behavior was neither protected speech nor pure thought. 08.02.04

2nd Circuit allows anonymous lawsuit over alleged sexual assault
Court: Judges must balance interest of plaintiff seeking to remain anonymous against public interest in disclosure, potential prejudice to defendants. 08.13.08

N.Y. county revises online 'Wall of Shame' anti-DWI initiative
Day after judge rules that posting arrests violates due process, Nassau County executive says he'll wait until suspects are convicted before listing them on Web page. 10.22.08

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