At PrawfsBlawg, Ari Ezra Waldman announces with some pride that he’s given testimony to the Hawaii Senate in support of a bill to conceal the names of “harassment victims so they could bring lawsuits against their attackers.”  While this suggests civil actions, it apparently covers criminal prosecutions as well.

The bill currently being considered allows certain domestic abuse victims to sue as “Jane Does” or “John Does.” It is an important bill and one, I must admit, I was surprised to learn was not already an option in every jurisdiction.

On the other hand, the surprise might come from the fact that Waldman, a teaching fellow at California Western Law School, lacks a passing familiarity with the concept of confrontation, not to mention his ascription of victimhood in advance of the evidence.

He notes the arguments against his position, described as “weighty” but “unconvincing.”

First, “John Doe” and “Jane Doe” filings do not prevent defendants from investigating and preparing defenses. It is a fallacy to suggest that such complaints are clouded in mystery until the moment trial begins and the plaintiff is sitting in his or her chair. Filings with pseudonyms shield identification and private information from the public, not the parties involved in the case.

it’s unclear what he means here, whether this is to suggest that the defendant, being guilty and all, obviously knows who he harassed, or that the defense will be given names while public documents will have the names concealed.  If the former, then Waldman is, well, nuts.  If the latter, then the law is either a sham as far as having any real purpose, since the defense can disclose the names publicly, or, assuming the defense doesn’t do so, the purported victim will be able to conceal their victimhood from the next person who attempts to research how many times a person raised allegations of harassment.

Second, while some evidence suggests that pseudonym filings make fact-finders wonder what would cause the plaintiff to hide his or her identity, judges can head this off at the pass by issuing clear jury instructions that the “John Doe” or “Jane Doe” filing means nothing with respect to the credibility of the defendant or his witnesses. Jurors are surprisingly smart when it comes to compartmentalizing inadmissible nonsense when given clear instructions from a judge.

Note the strong empirical basis for asserting that jurors can’t be prejudiced because they are “surprisingly smart” about this sort of thing.  I assume this comes from Waldman’s vast jury experience and the fact that all juries are the same anyway.

Third, open access to the courts is indeed an important value, but it is not absolute. Even if we require “strong counterveiling reasons” to insert some measure of anonymity into the process, those reasons exist. Domestic abuse is a grave problem, both in straight and gay relationships, and coming forward knowing that you will be identified as a victim of domestic violence is emotionally daunting and physically dangerous.

Physical danger is one thing, and the protection of the accuser from harm is a strong countervailing reason to conceal someone’s identity.  But from whom?  If it’s domestic violence, “a grave problem,” does the defendant not already know who his domestic partner is, whether or not the accusation is true?  Certainly, threats of physical violence aren’t going to come from the public, so who’s left to threaten the accuser?

But the trick isn’t the threat of physical violence, but the “emotionally daunting” nature of accusing someone of a crime.  No doubt it is emotionally daunting.  As it is in many allegations of crime.  As it is supposed to be in order to prevent false accusations. 

Finally, as to the unnecessary point, I am normally sensitive to this argument. Unnecessary laws are bad laws. But, this law is not unnecessary. In Hawaii, judges have routinely denied “Jane Doe” or “John Doe” filings without even considering a balancing of the harms. In fact, the drive for this bill came from a woman’s case where a judge rejected the premise of pseudonym filings out of hand.

And once again, a single case gives rise to a new law.  While Waldman neglects to mention the impetus for this bill, the ongoing theme of a law developed because of one bad outcome has become a meme in the law.  Omitted from his analysis is that judges have the power to conceal a purported victim’s identify.  That they don’t use it to Waldman’s satisfaction isn’t a reason to enact a law to conceal it, but a reason to appeal if the judge rejects the application improperly.  Of course, defendants don’t get interlocutory appeals, so if the judge granted it inadvertently, the defendant is screwed.

Of course, not everybody is in favor of this law.  The Hawaii Office of the Public Defender, the American Civil Liberties Union of Hawaii and practicing lawyers oppose it.  But what would they know, compared to a lawprof? 

And lest I be unfair to Waldman, he’s not alone in his support of the bill.  Standing beside him is my old pal, Professor Danielle Keats Citron, of the University of Maryland Law School, who invited Waldman to the party.

Professor Citron’s testimony focused on female victims of cyberharassment — a growing problem indeed.

Come on.  You had to guess that Danielle had her finger in a law that was so fundamentally wrong and ill-conceived.  After all, the delicate teacup ladies of the internet can’t possibly survive without their advocate of cyber civil rights.