MIAMI (CN) — A Florida university asked an 11th Circuit panel Wednesday to allow the school to reveal the name of an alleged rape victim to jurors during an upcoming Title IX discrimination trial.
The rare move by Florida Agricultural and Mechanical University in Tallahassee upends the common practice of allowing sexual assault victims to remain anonymous.
The alleged victim, a woman referred to as S.B. in court documents, sued FAMU in 2016, claiming the school did not properly investigate three rapes allegedly committed by fellow students against her in 2012 and 2013.
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex for all schools receiving federal aid.
The university has twice asked a federal judge to dismiss the case or reveal the woman’s identity.
FAMU attorneys opposed the use of the woman’s initials in the jury trial, arguing it implies the assaults occurred. FAMU also objected to allowing the woman to remain anonymous when the other parties’ names, including school employees and the alleged rapists, were made public.
U.S. District Judge Mark Walker, a Barack Obama appointee, did not agree.
“Outing an alleged rape victim simply because other parties or individuals involved in the lawsuit are not proceeding anonymously serves no legitimate public interest,” the Tallahassee judge wrote in his March 2019 order.
The university appealed to the 11th Circuit.
In oral arguments Wednesday, held via teleconference due to the Covid-19 pandemic, FAMU’s attorney criticized the lower court’s decision.
“The district court flipped the strong, customary and constitutionally imbedded presumption of open judicial proceedings on its head,” Hayes Hunt told a three-judge panel of the Atlanta-based appeals court.
The judges immediately pounced on Hunt, questioning why he did not appeal the plaintiff’s original motion to remain anonymous.
“Her motion did not specify she just wanted to proceed through discovery anonymously, she wanted to proceed in the case anonymous,” U.S. Circuit Judge Beverly Martin, a Barack Obama appointee, said. “You failed to appeal it and you want to come back later and file a motion that she needs to be deposed at trial. I think you lost your opportunity.”
Senior US. Circuit Judge Bobby Baldock, a Ronald Reagan appointee sitting by designation from the 10th Circuit, questioned why the appeal did not come after the resolution of the case.
Hunt said court precedent has allowed appeals in the middle of proceedings to preserve anonymity.
“There’s very little reason to think that the converse of that isn’t true as well,” said Hunt, of the Philadelphia-based law firm Cozen O’Connor. “You really cannot put that rabbit back in the hat.”
“When you can’t put the rabbit back in the hat is if they denied [anonymity] to her,” the judge said. “Then that’s immediately appealable. The reverse is not necessarily true.”
Hunt also indicated the school had no interest in releasing the name to the public or spectators in the courtroom.
“Florida A&M has never been interested in disclosing the plaintiff’s name to anyone beyond the jury itself,” he said.
Michael Dulce, who is representing the alleged victim, told the panel there has been “no indication whatsoever” the court intended for his client’s anonymity to end after discovery.
Dulce referenced the deposition of Carrie Gavin, the Title IX coordinator at FAMU.
“She testified the mental health and safety of the victim is risked when forced to disclose her identity to the public after having already been assured of confidentiality,” he said. “The fact that her testimony is at odds with the legal position taken by the appellant is something that I don’t think should be taken lightly.”
In addition, Dulce argued, the university “has not given any reason why giving my client’s full name to the jury impacts the defense.”
Dulce also dismissed the idea of creating a precedent where all Title IX cases could allow for anonymous plaintiffs.
“There are different degrees of trauma,” he said. “Sexual harassment would not be affected.”
“Would we have to hold that every rape Title IX case proceed anonymously or at least allow the plaintiffs to proceed anonymously?” asked U.S. Circuit Judge Kevin Newsom, a Donald Trump appointee.
Dulce said the courts would still have discretion.
“There are factors the court can consider on a case-by-case basis,” he said.
S.B. attended FAMU, a historically black university in Tallahassee, as a freshman in the fall of 2012. According to her complaint, the first rape occurred in October 2012 at the alleged assailant’s off-campus home. She reported the assault to campus police and the Tallahassee Police Department. S.B. claims the university did not fully investigate the assault or prevent the alleged rapist from contacting her.
In April 2013, S.B. was allegedly raped by another student she met at an event organized by two student groups. S.B. claims after she reported the assault, university officials said the assailant was no longer an enrolled student. In December 2013, a third student allegedly raped S.B. during a study session.
“Those FAMU officials again failed and refused to conduct a timely investigation and a mandatory administrative hearing to evaluate the need for action against the perpetrator,” the complaint states. “In fact, FAMU repeatedly canceled and re-scheduled hearing dates at the request of the perpetrator for his ‘convenience,’ pushing the date into the next semester.”
S.B. left the school that spring.
It is unclear when the 11th Circuit panel will issue a ruling in the case.