Court Permits “Child Victims Act” Plaintiff to Proceed Under Pseudonym

In Doe v. Macfarland, 2019 NY Slip Op 29380 (NY Sup. Ct. Rockland County Dec. 10, 2019), the court addressed an issue that comes up in the context of, among other types of cases, those involving claims under New York’s newly-enacted Child Victims Act – namely, whether the plaintiff may proceed anonymously.

The Child Victims Act, codified at CPLR § 214-g, provides a limited extension of the statute of limitations for certain claims arising from alleged sexual abuse of children, permitting them to be brought decades after the complained-of events.

After summarizing and balancing the applicable factors – which, for the sake of brevity, I will not list here; if interested the reader can consult the decision – the court applied them, finding that the plaintiff may proceed under the pseudonym “Jane Doe”:

[T]he Court finds that allowing plaintiff to proceed under a pseudonym is appropriate. Here, the tipping point in favor of allowing plaintiff to proceed as Jane Doe is the potential impact to her children, both of whom attend school in the School District. The Court is particularly mindful of the impact of social media and the extent to which children can be readily exposed to taunting and harassing behaviors through such medium. In this Court’s view, placing plaintiff into a Hobson’s choice of proceeding under a pseudonym or discontinuing her action would negate the intent of the Child Victims Act. Here, issues which are sensitive and intimate have been raised and there is arguably a significant risk of harm to innocent third parties and little chance of prejudice to the only defendant who has opposed the application. Hence, the balance is tipped in favor of pseudonymity. Further, revealing plaintiff’s identity now is a bell which cannot be un-rung. Allowing plaintiff to proceed under a pseudonym while the case develops imposes minimal burdens.

Continuing, the court noted that plaintiff’s right to proceed under a pseudonym is not absolute, and may be subject to future qualification or rescission:

Significant questions will arise as this case makes its way to trial. If plaintiff opts to publicize her claims as the case proceeds, clearly she should not be permitted to continue to use a pseudonym. Similarly, if defendant demonstrates that the grant of pseudonymity has resulted in significant prejudice to him during discovery, the Court may have to revisit the issue. These and other nascent issues remain to be addressed in this case and other cases brought as a result of the Child Victims Act in which a party has been permitted to proceed under a pseudonym. For example, if a jury trial is requested, will plaintiff seek to conceal her true identity from the jurors? Will plaintiff seek permission to testify as “Jane Doe”? If so, the Court will have to consider whether the grant of pseudonymity to plaintiff can be mitigated by an appropriate jury charge or whether allowing plaintiff to do so visits other prejudice to defendant. See e.g. James, supra, (the Court instructed the jury that plaintiffs were being permitted to proceed under pseudonyms to protect the interests of the children irrespective of the merits of the action). Those issues await later determination.

Finally, the court denied plaintiff’s application to the extent it is predicated on New York Civil Rights Law § 50-b, noting that that statute is inapplicable to actions – such as this one – where there has been no criminal proceeding.