the right to face your accuser is not the right to expose them
Tom Taylor, known to Roanoke Times readers for his periodic reminders of the dangers of historical cherry-picking, now finds it expedient to up the doses of victim-shaming and legal ignorance:
Your Oct. 13 editorial “Thou shall not persecute a child” forgets that the Constitution, for which you profess such passionate concern, guarantees defendants the right to confront their accusers in court. Plaintiffs in a lawsuit have no right to remain anonymous.
. . .
Your smug assertion that Giles County is violating the First Amendment is debatable and irrelevant as well. This case does not hinge on religion, but American history. The Judeo-Christian Scriptures formed English Common Law from whence came American law and liberty. That’s why, in the Supreme Court Building in Washington, over the head of the chief justice is — you guessed it — a carving of the Ten Commandments.
I won’t bother with the reach of the First Amendment and the “Christian nation” nonsense, which are both amply refuted elsewhere. The sly implication that outrage over the removal of the display was grounded in respect for American history is laughable on its face.
However, the principle that “defendants the right to confront their accusers in court” is generally true, and it merits some contextualization. Accordingly, here is Section 8.01-15.1 of the 2006 Virginia Code:
A. In any legal proceeding commenced anonymously, any party may move for an order concerning the propriety of anonymous participation in the proceeding. The trial court may allow maintenance of the proceeding under a pseudonym if the anonymous litigant discharges the burden of showing special circumstances such that the need for anonymity outweighs the public‘s interest in knowing the party’s identity and outweighs any prejudice to any other party. The court may consider whether the requested anonymity is intended merely toavoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a sensitive and highly personal matter; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or to innocent nonparties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and the risk of unfairness to other parties if anonymity is maintained.
B. If the court initially permits a party to proceed anonymously, the issue of the propriety of continued anonymous participation in the proceedings maybe raised at any stage of the litigation when circumstances warrant a reconsideration of the issue. In all cases, all parties have the right to know the true identities of all other parties under such provisions of confidentiality as the court may deem appropriate.
C. If the court orders that the anonymous litigant be identified, the pleadings and any relevant dockets shall be reformed to reflect the party’s true name, and the identification shall be deemed to relate back to the date of filing of the proceeding by the anonymous party.
D. In any legal proceeding in which a party is proceeding anonymously, the court shall enter appropriate orders to afford all parties the rights, procedures and discovery to which they are otherwise entitled.
There are several things i glean from this section, possibly imperfectly, but all of which obviate Taylor’s indignation:
- Anonymity, when allowed, is only with respect to the public — not to the defendants. The defendants — the School Board, in this case — will not be denied the right to face their accusers.
- The burden of showing that anonymity is warranted is on the plaintiffs. Doe 1 and Doe 2 made their case for anonymity in their complaint, and the very article Taylor cites makes it again for them.
- The conditions under which anonymity is warranted include, and are apparently limited to,
(a) issues of privacy (religion, for example),
(b) risk of violence (such as those incurred by plaintiffs in similar cases),
(c) risk of nonphysical abuse (such as harassment by peers, i imagine, which would also impede one’s education at school),
(d) age (presumably minors warrant greater consideration for privacy),
(e) whether the government or a private party is the defendant, and
(f) fairness to other parties in the proceedings.
How the student and parent’s anonymity would unfairly slant the case against the School Board is beyond me, but the board would have to make that case itself (and they appear to have simply refused to).
(Do i understand this correctly?)
Now, it strikes me that the School Board has more credibility to lose by exposing their accusers to the public (since
they’re Liberty Counsel is already guaranteed their identities during the proceedings), both for the sympathetic portrayal they would inspire through local media — certainly relative to the impersonal treatment they’ll endure as Doe 1 and Doe 2 — and for the likely demonstration by local residents of the real motivation behind public demands that the new display be posted, which the board desperately seeks to deny publicly.
I guess we’ll see.