FAYETTEVILLE -- A Washington County circuit judge will consider sealing a lawsuit that claims a fraternity should be held responsible for explicit images that were taken and shared without permission.
The lawsuit, filed in February by "Jane Doe," states that she was a student at the University of Arkansas, Fayetteville when explicit images were taken of her at a Feb. 28, 2017, party at the Lambda Chi Alpha fraternity house on the UA campus.
Nationally, a legal group is pushing states to allow people whose privacy is violated by the distribution of explicit images to have the option of filing lawsuits under a pseudonym.
Arkansas has no rule similar to a draft proposal from the Uniform Law Commission, which states that "fear of further notoriety or abuse deters many victims from pursuing legal remedies," and that "clear procedures allowing victims to use pseudonyms" can lessen these fears.
In the Washington County case, attorneys for the fraternal organizations named in the case opposed the use of a pseudonym, rebutting a claim made in the woman's lawsuit that a pseudonym would not affect the fairness of the proceedings.
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Doug Martin, the judge in the case, will decide on a joint motion filed July 27 by attorneys for both "Jane Doe" and the fraternal organization asking that the case be sealed.
The motion does not say that a trial should be closed but asks that "all pleadings, motions, and documents filed in this matter shall be categorized as being 'under seal' and that the Clerk of this Court shall so designate all past and future filings in this action as being 'under seal' and shall restrict all public access thereto."
In the original "Jane Doe" lawsuit, court documents state that there "is a high risk of retaliatory harm" to the woman and that the allegations are "of a highly sensitive and personal matter." The identity of the woman is known to the fraternity, according to her lawsuit.
Court documents state that a cellphone was used by an unnamed "Picture Pledge" to photograph sexual activity inside a locked bathroom stall involving the woman and an unnamed associate member of the fraternity, with images later distributed to an email network for fraternity members.
The lawsuit was filed against the national organization -- Lambda Chi Alpha Fraternity Inc. -- and the UA fraternity chapter -- Gamma Chi Zeta of Lambda Chi Alpha. Two other organizations related to Lambda Chi Alpha are also named.
In court documents, attorneys for the fraternal organizations have denied a claim that fraternity officers were involved in the actions of the unnamed "Picture Pledge."
Details in court documents match a separate criminal case now in a one-year "diversion period." University of Arkansas, Fayetteville student Garrett Wolff will avoid trial on a misdemeanor video voyeurism charge if he meets requirements that include 100 hours of community service.
The lawsuit states that "Jane Doe" lost educational opportunity, self-esteem and reputation, among other damages, and asks for unspecified damages and punitive damages "if warranted and appropriate."
The woman is being represented by Rogers-based attorney George Rozzell with the law firm Keith, Miller, Butler, Schneider & Pawlik PLLC. Attorneys for the UA chapter of the fraternity include Rodney Cook of Oklahoma City-based Phillips Murrah P.C.
Cook, in an email, declined to comment when asked why the fraternity opposed allowing the case to proceed as a "Jane Doe" lawsuit.
Rozzell on Monday said in an email that after the fraternity's opposition, he first asked the court to ratify, or allow, the case to proceed as a "Jane Doe" case.
"The Parties then engaged in significant discussions in an effort to resolve these issues. We agreed to remove the pseudonym conditioned upon the entirety of the case file being placed under seal," Rozzell said.
The case being placed under seal "would permit the parties to move forward with discovery and trial as in a normal case," he said.
State law may not have a clear rule on the use of pseudonyms, but the Arkansas Supreme Court discussed the topic in a 2010 opinion.
"We agree that some rules in this area are essential and, therefore, we refer this matter to the Civil Practice Committee," the court's opinion stated in a ruling, Doe v. Weiss. In the case, the court affirmed that a lower court did not abuse its authority by not allowing a particular pseudonymous complaint.
University of Miami law professor Mary Anne Franks has advised lawmakers about drafting legislation related to online privacy violations.
When it comes to anonymity in related legal cases, "this question keeps coming up," said Franks, who worked with the Uniform Law Commission committee that drafted a proposal for states to adopt on the general topic of how to address the needs of victims who have had intimate images distributed without their permission.
The nonpartisan commission promotes the adoption of laws designed to solve problems common to all states, and in July it approved its Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act.
Many states have yet to clarify rules for filing anonymously, Franks said.
Metro on 08/07/2018