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Accuser in Jason Kidd Sexual Battery Case Loses Her Bid for Anonymity
New York Law Journal
February 29, 2008
An aspiring model's request to keep her identity under wraps in a sexual battery suit she filed against basketball star Jason Kidd has been denied by a Manhattan judge.
The woman's desire to avoid "embarrassment" is a "plainly insufficient" ground for invoking New York Civil Rights Law 50-b, which protects the privacy of alleged sexual offense victims, New York State Supreme Court Justice Carol Edmead held in Jane Doe v. Jason Kidd, 116541-07.
Using fictitious names "runs afoul" of the public's right of access to judicial proceedings, and anonymity should be restricted to situations where a plaintiff faces a "risk of retaliatory physical or mental harm," the judge said.
She noted that Kidd was not charged with a crime, and that the woman's representatives have themselves sensationalized her case by speaking to the press and "openly" disparaging Kidd.
"[P]laintiff's voluntary identification of a ... famous basketball player, in her pleadings, and to the press, undermines" her purported need for anonymity, the court ruled.
Kidd allegedly encountered the 23-year-old woman on Oct. 10, 2007, at Tenjune, a nightclub on Little W. 12th Street in the Meatpacking District of Manhattan.
According to the decision, the woman accused Kidd of grabbing her buttocks and "crotch."
The October incident came just three months before Kidd's rocky personal life attracted widespread media attention when he filed a restraining order against his estranged wife.
His career also has been in flux. Less than two weeks ago, he was traded from the New Jersey Nets to his original draft team, the Dallas Mavericks.
Following the nightclub encounter, the alleged victim filed suit, claiming Kidd acted "reckless[ly]" and caused her to reasonably fear that she would suffer "immediately harmful or offensive contact." The woman also maintained that the alleged battery caused her ongoing physical and mental damage, which has interfered with her employment and other activities.
The plaintiff argued that she should be permitted to bring the suit anonymously under New York Civil Rights Law §50-b, which prevents the "public inspection" of court files, photographs and other documents "that name a victim of a sexual offense."
Edmead disagreed. While legislative history generally only is used to resolve "ambiguous" statutory language, "in this case, the intent of the framers ... is critical as to the intended covered individuals," the judge noted.
Section 50-b "serves two important purposes," the judge wrote: to shield victims from the embarrassment of media coverage and to "encourage victims to cooperate in the criminal prosecution of sexual offenses."
PRESUMPTION OF OPENNESS
Here, however, the Manhattan District Attorney's Office has declined to prosecute Kidd for his conduct, and "the scale tips in favor of disclosure" in weighing the alleged victim's right to privacy against the "constitutionally-embedded presumption of openness in judicial proceedings," Edmead said.
This presumption guards against the potential for "injustice, incompetence, perjury and fraud," she added.
Since the use of "fictitious names ... run[s] afoul of the public's common law right of access to judicial proceedings," a plaintiff wishing to remain anonymous must show that a "substantial" privacy interest exists, Edmead wrote.
When considering requests to remain anonymous, a court should be guided by whether a party simply wants to "avoid the annoyance and criticism that may attend any litigation or to preserve privacy in a matter of a sensitive and highly personal nature" and if identification would result in "physical or mental harm" to the party or others, the judge wrote. James v. Jacobson, 6 F3d 233 (4th Cir. 1993).
"Embarrassment is plainly insufficient" to justify a request to withhold a litigant's identity, the court held.
"Instead, anonymity should be limited to 'compelling situations' involving 'highly sensitive matters' including 'social stigmatization'" or where a "'real danger of physical harm'" exists, the judge observed.
While the judge said she was "loath to weigh degrees of violation" and did not intend to make light of the allegations, the case law and legislative history of §50-b militated against keeping the plaintiff anonymous.
She ordered the alleged victim to amend her complaint, replacing "Jane Doe" with her real name, and scheduled a preliminary conference for April 8, 2008.
Russell S. Adler, of the Fort Lauderdale, Fla., firm Rothstein Rosenfeldt Adler, who represented the plaintiff, did not return calls for comment.
Paul R. Grand and Jerrold L. Steigman, of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, serve as counsel for Kidd.
"The court's decision is further indication that Jason Kidd did not do anything wrong," Grand said in a statement.
