Whats in a Pseudonym Confidentiality in Sexual Assault Cases
Whats in a Pseudonym Confidentiality in Sexual Assault Cases
Pseudonyms in an Open Justice System.
Ontario’s civil courts generally strive to provide an open justice system which limits the potentially detrimental effects of secrecy. There is a presumption that openness is preferable to adopting pseudonyms for participants or allowing complete publication bans.
How Would a Court Determine if a Pseudonym Is Appropriate in a Sexual Assault Case?
If a survivor wants to use a pseudonym as a plaintiff in civil proceedings, courts have used a three-part test to determine if such an exemption is justified.
First, the plaintiff must establish the matter before the courts is serious. There is a low bar for this part of the test, and a sexual abuse or sexual assault case would almost certainly be considered a serious matter.
Second, the plaintiff must submit evidence from an independent third party that offers compelling support for the position that the plaintiff would likely suffer irreparable harm if named. For example, in the case of sexual assault survivors, the opinion of a treating physician or therapist may be sought to explain the potential damage to the survivor’s recovery or general mental health and well-being.
Lastly, the plaintiff must satisfy the court that, on the balance of conveniences, protecting their identity would be more favourable to the parties involved in the action and the public interest than openness.
In sexual abuse and sexual assault cases, the plaintiff would have an interest in protecting their privacy. A defendant may object to the pseudonym, as it could limit public scrutiny and/or the possibility that unknown/unidentified witnesses could learn of the action and offer evidence favourable to the defence. Although there is usually a public interest in openness in civil proceedings, permitting sexual assault victims to have anonymity has been shown to increase the likelihood that such assaults will come to light and that victims will be more willing to co-operate with authorities.
Therefore, on balance, if a plaintiff has demonstrated they are likely to suffer irreparable harm by being named, the plaintiff’s interest in privacy and the public interest in ensuring harmful acts are reported to authorities tend to outweigh defence objections.
Why Would a Survivor Want to Remain Anonymous?
Pseudonyms and publication bans are automatic in criminal court cases.
Survivors may have particular concerns about attaching their name to publicly available court documents, including:
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A general desire for privacy and to avoid publicity which may re-traumatize them
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Not wanting certain family members to know about the assault or abuse
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Having school age children who could be adversely affected
If a civil court declines to grant protection to survivors who petition for it, some of them will ultimately decide not to proceed with their lawsuit. However, it’s important to know that it has become exceedingly rare for courts not to grant survivors a pseudonym request.
Your Well-Being Matters
If you or a loved one has experienced a sexual assault or sexual abuse and you want to know about your options, please contact our team for a free, no obligation initial consultation. We will listen to your story with great empathy, carefully explain your rights, and offer trusted legal advice. If we believe we can help you obtain compensation for the harm done to you, we would be honoured to offer to become your tireless advocate and trusted legal representative.
