The Conflict Between Revenge Porn And Defense

In October, 2022, a new federal statute, 15 U.S.C. § 6851, went into effect that provided for both a civil cause of action by a “revenge porn” victim and the right of the victim to proceed pseudonymously. In the case of Doe v. Crawford, the defendant moved to seal with entire record because, he alleged, his defense would require both the disclosure of the plaintiff’s identity and intimate details of their relationship.

By design, claims brought under this statute concern intimate, personal and private evidence. Further, because of the sensitive subject matter, § 6851 allows plaintiffs to use a pseudonym to protect their privacy. The use of a pseudonym is subject to the discretion and injunction power of the Court. Here, Doe has chosen to use a pseudonym, expressing her desire to remain anonymous.

However, Doe’s pseudonym and her allegations against Crawford work together to mischaracterize the relationship between Doe and Crawford. Doe’s identity and actual relationship with Crawford are material elements to Crawford’s defense. In other words, Crawford must disclose Doe’s identity and her relationship to Crawford in conjunction with disclosing other intimate and sensitive details to defend himself.

The solution proposed by the defendant was the sealing of the entire case record, thus protecting Doe’s identity as the statute expressly provided without impairing the defendant’s ability to defend against her claims. Eugene Volokh, who has become deeply embroiled in the issue of pseudonymity and sealing, argues that sealing the record is not the right answer.

Here’s my thinking: I appreciate that, when defendant necessarily explains his relationship to the plaintiff (e.g., if he is her former husband, just to give one possible example), that may end up making plaintiff’s identity clear to those who know the defendant. And 15 U.S.C. § 6851(b)(3)(B) does provide that, “[i]n ordering relief …, the court may grant injunctive relief maintaining the confidentiality of a plaintiff using a pseudonym.”

But I don’t think this privacy concern suffices to justify fully secret judicial processes, just as the concern for the privacy of, say, rape victims (or even child rape victims) doesn’t justify total secrecy in litigation (even when the identity of the victim could be inferred from the identity of the defendant).

Granted, Eugene takes a more extreme view toward both sealing and pseudonymity than most, attributing a value to it far greater than most people, for whom these are not existential problems. In fact, few take notice of such matters at all and most cases proceed without any outside interest in the identities of the parties.

More broadly, plaintiff chose to name the defendant in her lawsuit; she could have sought to sue him pseudonymously, but didn’t so. (Pseudonymity is also presumptively forbidden in the civil justice system, but it is sometimes allowed in part because it is a less restrictive alternative to total sealing.) If as a result her identity can be inferred by people who know the defendant, that stems from her litigation decision.

As a general rule, it’s disingenuous for one party to seek to litigate pseudonymously while naming the other party. But in this action, the pseudonymity of the plaintiff, the putative “victim” of revenge porn even if that is part of the ultimate issue to be decided, putting the cart before the horse, is protected by statute. It never occurred to Congress when it decided that the putative victim deserved pseudonymity that revealing the identity of the defendant, about whom Congress cared little, created an inherent conflict.

I don’t think the federal statute would preclude Crawford from saying what he needs to say about the relationship to defend himself. (If there’s some question about that, or some need to redact the information about the relationship from all the filings, Crawford could seek a court decision clarifying that, by moving to file the information in the open record.) And I don’t think federal law authorizes total sealing of a case in this sort of situation.

This is where Eugene’s good intentions run head first into the brick wall of reality in litigation. Crawford has a right to defend himself against the plaintiff’s accusations, even if Congress wasn’t particularly concerned about the defendant’s due process rights. To be expected to defend while constantly dancing around the facts needed to defend places a severe and constant burden on the defense’s ability to assert, clearly and forcefully, the facts necessary.

Nor are constant motions about what may or may not be said, what should or should not be redacted, a viable solution. Law profs often fail to appreciate that motions take time and cost money that the defendant has to pay for or his lawyers have to eat. While they get paychecks and can spend the rest of their free time tinkering with amicus litigation for kicks, litigation is business for lawyers and the cost of litigation is a huge burden on a defendant.

As with Title IX litigation, the federal revenge porn statute was drafted in such a way as to presume the accuser is a “victim” and the accused is “guilty.” never giving serious consideration to the possibility that the defendant is entitled to be able to proffer a robust defense against the accusations that will necessarily mandate that the identity, and perhaps some nasty intimate details that the victim would prefer be concealed under the euphemistic “romantic relationship,” be put on public display.

Eugene’s not wrong that the total sealing of a federal civil action is the most extreme solution and defies the presumption of court proceedings being available to the public. But given Congress’ decision to allow putative victims to conceal their identity, any dance that either impairs or burdens the defense leaves the court with little choice. The problem isn’t that the solution of total sealing is extreme, but that Congress drafted yet another bad law that favors one side at the expense of the other.