New York Criminal Lawyer Blog
Plaintiff alleges that on October 10, 2007 at the nightclub “Tenjune,” in the Meatpacking District of New York City, defendant, an NBA basketball player “grabbed the plaintiff’s buttocks and `crotch’ area on multiple occasions without her permission and consent.” A New York Criminal Lawyer said that, plaintiff, now moves by order to show cause to proceed anonymously to avoid the possibility of unwanted publicity and the exacerbation of the emotional distress suffered from the alleged incident.
According to the complaint, plaintiff and defendant were within the premises known as Tenjune, located on Little West 12th Street, New York, New York. Plaintiff alleges that defendant “willfully and intentionally verbally threatened her after grabbing her buttocks and `crotch’ area.” It is claimed that the “battery and assault which was committed upon the plaintiff, was not in any way brought on by nor provoked by the plaintiff.” A Bronx Sex Crime Lawyer said that, plaintiff alleges that defendant’s actions amounted to a series of harmful or offensive contacts to the plaintiff’s person, all of which were done intentionally by the defendant, without her consent. Plaintiff also alleges that defendant’s actions were reckless, extreme and outrageous, and created a reasonable apprehension in plaintiff of immediate harmful or offensive contact. As a proximate result of defendant’s actions, plaintiff has allegedly sustained “physical injury, serious psychological and emotional distress, mental anguish, embarrassment and humiliation.” Plaintiff also has allegedly incurred medical expenses and other economic damages, continues to be “sick, sore, lame and disabled” and is unable to pursue her usual activities and employment.
In support of her application to proceed anonymously, plaintiff argues that Civil Rights Law § 50-b was enacted to provide a limited right of privacy to a specific class of individuals, namely, victims of alleged sex crimes. Plaintiff further argues that, based upon the allegations set out in the complaint, it is clear that she is an intended beneficiary of this statute. Plaintiff contends that this is potentially going to be a high-profile case due to defendant’s status as a professional athlete. Therefore, plaintiff should be allowed to proceed anonymously.
A Queens Criminal Lawyer said that, defendant argues that Civil Rights Law § 50-b provides no authority for plaintiff to proceed anonymously in this case. Anonymity under section 50-b has been maintained in civil actions relating to a criminal case where substantial evidence existed that a sex offense had been committed. Such evidence exists, for example, where an assailant has been indicted or convicted of a sex offense, or where probable cause exists to believe he has committed a sex offense. In this case, the office of the Manhattan District Attorney has indicated that no charges arising from plaintiff’s accusations have been nor are anticipated to be filed against the defendant, and the investigation of plaintiff’s complaint determined that insufficient evidence existed to warrant prosecution. Therefore, defendant argues, section 50-b provides no basis for anonymity.
Additionally, plaintiff does not identify any substantial privacy right sufficient to overcome the presumption of openness that attends judicial proceedings in New York. The public has a constitutional and common-law right of access to court proceedings. Defendant contends that the instant action does not concern a “matter of sensitive or personal nature,” and that plaintiff is “merely attempting to avoid annoyance and criticism.” Plaintiff’s allegations amount to a single, brief, public encounter between two fully clothed adults at a nightclub. And, these alleged actions contrast sharply with the “highly personal and intimate matters” that historically have been protected by party anonymity. Thus, plaintiff’s desire to avoid the possibility of unwanted publicity and emotional distress is insufficient to warrant this protection.
A New York Sex Crimes Lawyer said that, defendant also points out that the County Clerk has issued instructions to parties seeking privacy protection on how to file and caption an action. Such instructions explain how an anonymous caption may be obtained and provide for the use of pseudonyms for one party and/or both parties. Plaintiff disregarded these instructions and, by so doing, plaintiff has violated defendant’s privacy. Further, it would be unfair and prejudicial to allow plaintiff to sue defendant in his real name, while allowing plaintiff to proceed anonymously. In fact, plaintiff has flouted the practice of the court, which calls for complete anonymity, by subjecting defendant to such publicity and reputational damage. By disregarding this practice, plaintiff has forfeited any claim she might have otherwise had to the relief she is seeking.
Further, on October 18, 2007 and December 14, 2007, plaintiff’s counsel, made statements to the press about the alleged incident. On both dates, the counsel made accusations against defendant while shielding plaintiff’s name. As a result of plaintiff’s statements, and the publishing of defendant’s name, defendant claims he has suffered adverse publicity. Plaintiff also failed to demonstrate that defendant will not be harmed if her request is granted.
The issue in this case is whether plaintiff may be allowed to proceed anonymously in this case, to avoid the possibility of unwanted publicity and the exacerbation of the emotional distress suffered from the alleged incident.
The Court said that, plaintiff asserts a right to proceed anonymously under Civil Rights Law § 50-b. Pursuant to Civil Rights Law § 50-b (1), “The identity of any victim of a sex offense, as defined in article one hundred thirty of the penal law shall be confidential. No report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim, shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim except as provided in subdivision two of this section.”
While plaintiff’s order to show cause does not specify which “sex offense” applies so as to trigger section 50-b protection, the allegations of the complaint and plaintiff’s counsel’s oral argument indicate that she claims that she was an alleged victim of a sex offense as defined under Penal Law article 130, section 130.55, “sexual abuse in the third degree.” Pursuant to section 130.55, a person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent. “Sexual contact” means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.
It cannot be disputed that, as alleged, the sexual act committed against the plaintiff was personal and offensive to the plaintiff, and, arguably, falls within the definition of section 130.55. Thus, at first blush, it would appear that plaintiff is a person covered under the anonymity provision of Civil Rights Law § 50-b. However, the language of Civil Rights Law § 50-b does not exist in a vacuum. The First Department held that Civil Rights Law § 50-b was inapplicable where a sex offense charge against a defendant in an underlying criminal case was dismissed, combined with the victim’s testimony that petitioner did not rape her, led to a conclusion that there is “in fact no victim of a sex offense whose identity needs protection. Notably, court which has afforded victims of a sexual offense protection under section 50-b involved circumstances under which the victim’s cooperation during the course of a prosecution of an alleged sex crime was necessary.
This observation is not inconsistent with the legislative history of Civil Rights Law § 50-b. Although resort to legislative history is usually warranted only when the language of the statute is ambiguous, in this case, the intent of the framers of the statute is critical as to the intended covered individuals of an “offense.” In this regard, justification for section 50-b is found in the Senate Memorandum in Support of chapter 643 of the Laws of 1999, where it is expressed that “a victim of a sex crime who is required to testify in a criminal proceeding against a defendant who allegedly committed the crime, is entitled to protection from public disclosure. Thus protection serves two important purposes: one, it spares the victim the embarrassment of being publicly identified in the news media; and two it encourages victims to cooperate in the prosecution of sexual offenses because they are assured of privacy.” The legislative history reveals that the “victim of a sex offense” contemplated by the statute is one whose cooperation is necessary toward the prosecution of a sex crime. Here, it is uncontested that the Manhattan District Attorney’s Office declined to bring any charges against defendant, and no prosecution of the defendant is contemplated in the future.
In any event, when balancing the plaintiff’s claimed right to privacy against the presumption of openness in judicial proceedings, the scale tips in favor of disclosure. Anonymity is warranted where there is “`a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings'” The constitutionally-embedded presumption of openness of the judicial process operates to diminish the possibilities for injustice, incompetence, perjury and fraud. And, the very openness of the process serves to “ensure that the proceedings are conducted efficiently, honestly and fairly”. This openness includes the revelation of the names of the parties. The use of fictitious names has been noted to run afoul of the public’s common-law right of access to judicial proceedings, a right that is supported by the US Constitution First. Therefore, to obtain anonymity, there must be a showing that the privacy interest involved is substantial so as to overcome the presumption of openness that attends judicial proceedings.
Embarrassment is plainly insufficient. Instead, anonymity should be limited to “compelling” situations involving “highly sensitive matters” including “social stigmatization,” real danger of “physical harm,” or “where the injury litigated against would occur as a result of the disclosure of the plaintiff’s identity”. Plaintiff’s allegations herein reflect an intent to merely avoid the annoyance and criticism that may attend to this type of proceeding from sources including, but not limited to, the press. There is no indication that the disclosure of plaintiff’s identity will pose a risk of retaliatory physical or mental harm to the plaintiff. Notably, instead of declining comment to the press’s inquiries concerning this action, plaintiff’s representatives undermined her purported interest to keep her personal matters “private.” The record indicates that, in response to news reporters’ queries, plaintiff’s representatives reasserted the allegations in the complaint, and openly identified and criticized the defendant, thereby sensationalizing this case even more. Here, plaintiff’s voluntary identification of a widely-recognized and famous basketball player, in her pleadings, and to the press, undermines her claimed need to protect her privacy and identity.
Thus, for the foregoing reasons, plaintiff’s request to proceed anonymously pursuant to Civil Rights Law § 50-b is denied. In accordance with the above, it is hereby ordered that plaintiff’s order to show cause is denied; and it is further ordered that plaintiff shall amend the complaint, replacing “Jane Doe” with her true name.
Anonymity is warranted where there is “`a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings’. If you are involved in case similar with the case at bar, you will need the assistance of a Bronx Sex Crime Attorney and/or Bronx Criminal Attorney. Call us at Stephen Bilkis and Associates for free legal advice.