Opinion
No. X10-UWY-07-5006716-S
April 2, 2008
This is a action against the Hartford Roman Catholic Diocesan Corporation a/k/a the Roman Catholic Archdiocese of Hartford ("Archdiocese of Hartford") and Daniel McSheffery, a Roman Catholic priest, in which it is alleged that the Plaintiff was sexually abused by the Defendant McSheffery. The Plaintiff has filed a motion to prosecute this case in a fictitious name. He has also moved to file under seal a lodged document in support of his motion, pursuant to Practice Book § 7-4C(a). A hearing on the motions was scheduled and held in accordance with the provisions of Practice Book § 11-20A(e) and (j) on March 31, 2008. Only counsel for the Plaintiff and counsel for the Defendant McSheffery appeared. The Defendant Archdiocese of Hartford did not appear or file any objections to the motions.
As to the request to prosecute this case in a fictitious name, pursuant to Practice Book § 11-20A(h)(1), "Pseudonyms may be used in place of the name of a party or parties only with the prior approval of the judicial authority and 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. The time, date, scope and duration of any such order shall forthwith be reduced to writing and be signed by the judicial authority and be entered by the court clerk in the court file. The judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order. An agreement of the parties that pseudonyms be used shall not constitute a sufficient basis for the issuance of such an order. The authorization of pseudonyms pursuant to this section shall be in place of the names of the parties required by Section 7-4A. (2) The judicial authority may grant prior to the commencement of the action a temporary ex parte application for permission to use pseudonyms pending a hearing on continuing the use of such pseudonyms to be held not less than fifteen days after the return date of the complaint. (3) After commencement of the action, a motion for permission to use pseudonyms shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs, so that notice to the public is given of the time and place of the hearing on the motion and to afford the public an opportunity to be heard on the motion under consideration. Leave of the court may be sought to file the motion under seal pending a disposition of the motion by the judicial authority. (4) Any order allowing the use of a pseudonym in place of the name of a party shall also require the parties to use such pseudonym in all documents filed with the court."
The Defendant notes that the Plaintiff did not follow this procedure and instituted this suit in a fictitious name without prior court approval. Since the Defendant is aware of the identity of the Plaintiff, this failure has not prejudiced him. In a similar situation, Judge Silbert noted that: "Clearly, our rules of practice require that a plaintiff is to seek approval to proceed using a fictitious name before the commencement of the action, that is, before the placing of the summons and complaint in the hands of the marshal, and that the court is to have a hearing on the continuance of the use of such fictitious name within 15 days of the return date" but concluded that the failure to follow these procedures did not deprive the court of subject matter jurisdiction to subsequently decide a motion to proceed using a pseudonym. Jacobs v. NAFI, Connecticut, Inc., Superior Court Judicial District of New Haven at New Haven, Docket No. CV 07 5012305-S (Silbert, J., Nov. 2, 2007) [ 44 Conn. L. Rptr. 458].
The Plaintiff argues that he should be allowed to proceed anonymously because of the sensitive nature of the case and the privacy interests of the Plaintiff. The Defendant McSheffery objects on the grounds that the Plaintiff has failed to demonstrate that he has a strong social interest in proceeding anonymously or that the protection of his identity outweighs the public interest in knowing how and by whom our judicial process is being utilized.
The Defendant also argues that by using the Defendant's true name, if the court were to allow the Plaintiff's identity to be kept secret, members of the public may judge the court's protection of the Plaintiff's identity as a prejudgment of the issues in favor of the Plaintiff. If the court were to accept this argument the use of pseudonyms by a plaintiff or any party, where the privilege is not accorded to all parties, would be prohibited. Such is not the law. The court, if this matter proceeds to trial before a jury, may certainly caution the jury that the inference suggested by the Defendant cannot be made.
At oral argument, the Plaintiff claimed that the provisions of General Statutes § 54-86e are sufficient reasons enough to allow the Plaintiff to use a pseudonym in this case. Pursuant to that statute: "The name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, 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 . . ." The allegations in the complaint here, at a minimum, would constitute a sexual assault in the fourth degree as provided for in General Statutes § 53a-73a. "The purpose underlying § 54-86e is clear. It aims to protect victims of sexual assault by reducing unnecessary harassment and embarrassment in court, and by encouraging the disclosure of sexual assaults." State v. Bennett-Gibson, 84 Conn.App. 48, 69, cert. denied, 271 Conn. 916 (2004). In Doe v. Johnson, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV03 04831 86 (Arnold, J., Dec. 2, 2003) [ 36 Conn. L. Rptr. 101], in considering an application by the Plaintiff to use a pseudonym, the court stated: "The social policy engendered in this statute should apply no less in a civil case where a minor child has alleged that she has been sexually abused by her stepfather over a period of years. The social stigmatization attached to a sexual assault, especially at such a young age, is obvious. Protecting the privacy of the plaintiff Jane Doe in no sense will harm the public interest. The details of the defendant's alleged wrongful conduct are extremely intimate and distressing. To force the plaintiff to proceed without the protection of the pseudonym Jane Doe could only subject the plaintiff to additional psychological harm and distress." See also, Doe v. Firn, and cases cited therein, Superior Court, judicial district of Ansonia-Milford at Ansonia, Docket No. CV 06 5001087 (Fischer, J., Sept. 22, 2006); and Doe v. Town of Fairfield, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 06 5004042 (Gildari, J., Oct. 24, 2006). Similarly here the details of the alleged conduct, as set forth in the complaint, in particular in paragraphs 19, 20, and 21, are extremely intimate and distressing in that they involve allegations of forced sexual contact between a minor and his priest. In fact, in another civil action involving allegations of sexual abuse of a child by a priest, the Appellate Court identified the Plaintiff as "John Doe," noting that: "In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victims' identity may be ascertained. See General Statutes § 54-86e." Doe v. Hartford Roman Catholic Diocesan Corporation, 96 Conn.App. 496, 497 fn 1, cert. denied, 280 Conn. 938 (2006).
However reliance on the statute alone is insufficient to support a determination that a Plaintiff may proceed anonymously. In Vargas v. Doe, 96 Conn.App. 399, 411-23 (2006), released only six days before the decision in Doe v. Hartford Roman Catholic Diocesan Corporation, the Appellate Court does not reference General Statutes § 54-86e and states: "The language of the memorandum of decision suggests that the court addressed the motion on the basis of the implicit assumption that because the present proceeding arose from a prior criminal case involving allegations of sexual assault of a minor child, the use of pseudonyms to protect the child's privacy would be proper as a matter of course. That is not the procedure established in § 11-20A. Rather, § 11-20A contains a presumption in favor of open judicial proceedings in order to protect the public interest. Thus, in using the implicit assumption, the court improperly placed the burden on the plaintiff to show why he and members of the public would be harmed if the defendants' names were not part of the public record. More significantly in light of the procedural posture of this case, the court failed to determine the existence of a substantial privacy interest that outweighs the public interest in open judicial proceedings and to articulate any factual findings that would support such a conclusion. Such a conclusion and the articulation of factual findings to support it are necessary prerequisites under the rule for permitting a party to proceed anonymously. Section 11-20A(h)(1) provides that `[t]he judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order . . .' (Emphasis added.) . . . Although we recognize 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, the procedures that our rules of practice provide do not permit automatic approval of the use of pseudonyms by the party or parties involved. Rather, the rules of practice provide an intricate procedure that the court must follow prior to permitting the use of pseudonyms in any given case. 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." Thus the court must consider not only the allegations of the complaint, the public policy set forth in General Statutes § 54-86e, but the particular facts of this case. Therefore the court will consider the Plaintiff's affidavit. The Plaintiff's affidavit supports the allegations of the complaint. It also indicates that the alleged assaults have left him severely traumatized physically and emotionally. The publication of his identity, and the personal and sensitive nature of the allegations, would obviously increase the risk of further harm. As Judge Corradino found in Doe v. Diocese Corporation, 43 Conn.Sup. 152, 160 (1994) [ 11 Conn. L. Rptr. 519], a plaintiff alleging sexual abuse appears to have a substantial privacy interest at stake. "One'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. The plaintiff's privacy interest is also underlined by his claim that the abusive relationship he alleges to have suffered involved the illegal use of alcohol and controlled substances." Here the Plaintiff alleges not only sexual abuse but claims that he was forced into prostitution and provided alcoholic beverages while under age.
As Judge Silbert found in a very similar case where the Plaintiff had alleged he was sexually assaulted by a priest over 20 years ago, "The ultimate test for permitting a [party] to proceed anonymously is whether the [party] has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings . . . The 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] . . . our Supreme Court established the standard for use of pseudonyms in cases as follows: `The privilege of using fictitious names in actions should be granted only in rare cases where the nature of issue litigated and the interest of the parties demand it and no harm can be done to the public interest.' The first of these bases is determinative of the outcome of this motion. This case involves a person who alleges that, as a young man, he was sexually abused by the defendant priest. This, certainly, is a sensitive issue that carries with it the possibility of negative social stigmatization. Many of those cases in which permission to use a pseudonym has been granted, including some of those previously cited, involve precisely such allegations. The fact that the abuse is alleged to have occurred more than 20 years ago and is only being made the subject of a lawsuit now, does not detract materially from the notion that the alleged event was socially stigmatizing and that revealing the plaintiff's true identity now would promote or increase that stigmatization. The court concludes that the interest of the plaintiff in keeping his identity private overrides the interest of the public in knowing his real name, and that no harm will be suffered by the public by merely keeping his real name from being disclosed . . . The court is open to the public so that anyone who wishes may review the file with all of its pleadings and attend any courtroom proceedings. The subject matter of the proceedings is open to public scrutiny, and the court has been presented with no evidence, nor is it aware of any reason, why knowledge of the true identity of the plaintiff would enhance public appreciation of this case. The court finds that permitting the use of the pseudonym is the least restrictive way to preserve the plaintiff's privacy while keeping the business of the court open to the public." Doe v. Hartford Roman Catholic Diocesan Corporation, Superior Court, judicial district of New Haven at New Haven, Docket No. CV07-4026864s (Nov. 5, 2007). (Internal quotation marks and citations omitted.) This court agrees with these conclusions and adopts them in this case.
In sum, the court finds that the use of a pseudonym by the Plaintiff is necessary to preserve his privacy interests which override those of the public in light of the intimate and distressing nature of the allegations in this case. The use of a pseudonym is the least restrictive alternative to protect that interest. The court therefore grants the Plaintiff's Motion to Prosecute Suit in a Fictitious Name (#114) and orders that the pseudonym "John Doe" shall be used, in place of the Plaintiff's true name, in all documents filed with the court. For the same reasons the court grants the Motion to File under Seal (#115) and orders that the Plaintiff's affidavit, identifying the Plaintiff's true identity, shall be sealed. However a redacted version of the affidavit shall be filed by the Plaintiff using the pseudonym "John Doe" within 10 days. In light of the court's order granting the Plaintiff's use of a pseudonym, and the fact that the contents of the Plaintiff's affidavit, other than his name, does not reveal information through which his identity could be ascertained, a reasonable alternative to a complete sealing of the affidavit is the redaction of the Plaintiff's true identity and the filing of a redacted version. The Defendant's objections (#108 and #116) are overruled. These orders will remain in effect until further order of the court.