referring to victim by her initials in light of New York Civil Rights Law § 50–b, which “provides that the identities of the victims of sex offenses be kept confidential by the State”
How later courts described this case
- referring to victim by her initials in light of New York Civil Rights Law § 50–b, which “provides that the identities of the victims of sex offenses be kept confidential by the State”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------x
ANTHONY McCORD, ORDER
20-CV-2005 (EK)
Petitioner,
v.
PATRICK REARDON et al.,
Defendants.
------------------------------------------x
ERIC KOMITEE, United States District Judge:
This case involves a petition for writ of habeas
corpus under 28 U.S.C. § 2254, which was filed on May 1, 2020.
On August 21, 2020, Respondent moved to seal the state court
record in its entirety pursuant to New York Civil Rights Law
§ 50-b(1). Petitioner opposed. For the reasons set forth
below, Respondent’s motion to seal is denied, without prejudice
to bring a more tailored motion (for example, to redact any
references to victims’ names, or replace those names with
initials).
I. Background
Respondent requests to seal the state court record
from Petitioner’s criminal case, including the pre-trial and
trial transcripts, appellate briefs, and other state court
filings, because the record includes references to two victims,
one of whom was allegedly the victim of a sex offense. See
Motion to Seal (ECF No. 10) (“Respondent’s Motion”) at 1.
Specifically, Petitioner was charged with robbing and assaulting
two women and raping one of them; following a jury trial, he was
convicted of robbery, burglary, and assault, and acquitted on
the charge of rape. Id. Respondent argues that the state court
record should be sealed pursuant to New York Civil Rights Law
§ 50-b(1), which provides, “The identity of any victim of a sex
offense . . . shall be confidential. No report, paper, picture,
photograph, court file or other documents, in the custody of any
public officer or employee, which identifies such victim shall
be made available for public inspection. No such public
official or employee shall disclose any portion of any police
report, court file, or other document, which tends to identify
such victim. . . .” See N.Y.C.R.L. § 50-b(1); see also Lucidore
v. New York State Div. of Parole, 209 F.3d 107, 109 n.4 (2d Cir.
2000) (referring to victim by her initials in light of New York
Civil Rights Law § 50–b, which “provides that the identities of
the victims of sex offenses be kept confidential by the State”).
Respondent also argues that this Court should seal the habeas
petition for the same reason, as it includes “numerous
references to the full names of the victims.” Respondent’s
Motion at 2.
Petitioner opposes the motion to seal on two grounds.
See Petition’s Opposition (ECF No. 11) (“Opposition”). First,
he argues that § 50-b(1) does not apply because he was acquitted
of the rape charge and was not convicted of any sex offense.
Petitioner distinguishes the cases cited by Respondent because
they all involved defendants who were convicted of a sex
offense. Id. at 2. Second, he argues that the relevant
victim’s name is already publicly available because she
testified at trial using her full name, and the parties both
publicly filed appellate briefs in state court that also
included her full name. Id. For these reasons, Petitioner
argues that any remaining privacy interests do not outweigh the
strong presumption of public access to his habeas petition and
the state court records from his criminal case.
II. Discussion
The Second Circuit has described both common law and
First Amendment rights of public access to the federal courts
for the purpose of monitoring judicial proceedings. See Lugosch
v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006).
There is a presumption of public access to judicial documents,
the weight of which is governed by “the role of the material at
issue in the exercise of Article III judicial power and the
resultant value of such information to those monitoring the
federal courts.” United States v. Amodeo, 71 F.3d 1044, 1049
(2d Cir. 1995). The presumption of public access applies to the
state court records of the criminal trial and direct appeal from
which a petitioner seeks habeas relief. See Winkfield v.
Duncan, No. 12-CV-3237, 2013 WL 360400, at *2 (E.D.N.Y. Jan. 24,
2013) (noting “the presumption of access is at its apex” where
“the court must rely directly on the state court record to
adjudicate the merits” of a habeas petition).
Such documents may be sealed, however, when there are
countervailing factors such as privacy interests at stake, and
where “specific, on the record findings are made demonstrating
that closure is essential to preserve higher values and is
narrowly tailored to serve that interest.” Lugosch, 435 F.3d at
121. Courts have recognized the privacy interests of crime
victims as a countervailing factor that must be balanced against
the presumption of access to determine whether sealing is
appropriate. See United States v. Amodeo, 44 F.3d 141, 147 (2d
Cir. 1995).
The importance of safeguarding a sexual assault
victim’s identity is a “compelling reason” to limit the general
public’s access to documents filed in a case. Scott v. Graham,
No. 16-CV-2372, 2016 WL 6804999, at *1 (S.D.N.Y. Nov. 17, 2016);
see also Winkfield, 2013 WL 360400, at *3 (“Our society has
undoubtedly recognized that victims of sexual assault have a
strong interest in keeping their identities private.”).
Accordingly, “[i]n habeas proceedings seeking relief from
convictions for sex offenses, numerous courts . . . have entered
sealing orders, or have excluded the rape victim’s name from
judicial documents, to protect the victim’s identity.” Scott,
2016 WL 6804999, at *1 (collecting cases in which documents were
sealed and/or victims’ names were withheld in order to protect
their privacy).1 However, even in such cases, courts may still
require that a redacted version of the state court record be
made available to the public. See id. at *2 (granting motion to
seal but directing the respondent to publicly file copies of the
state court record and trial transcripts with victim’s name
redacted).
Respondent does not explain why it is appropriate to
seal the entire state court record as opposed to proposing
narrowly tailored redactions to address the specific privacy
interests at issue. For example, Respondent does not “provide
1 Petitioner argues that N.Y.C.R.L. § 50-b does not apply to the victims in
this case at all because - unlike petitioners in the cases cited above - he
was not convicted of a sex offense against either victim. The Court need not
reach this distinction because, even assuming § 50-b does apply, Respondent’s
motion to seal the state court record in its entirety is deficient for other
reasons. The Court observes, however, that New York state courts have
applied § 50-b protection in “circumstances under which the victim’s
cooperation during the course of a prosecution of an alleged sex crime was
necessary.” See Doe v. Kidd, 19 Misc. 3d 782, 786, 860 N.Y.S.2d 866, 870
(Sup. Ct. 2008) (collecting cases). A victim who testifies about an alleged
sex crime at trial thus would fall within the protection of the statute.
Petitioner’s reliance on Brown v. New York City Police Dep’t, 264 A.D.2d 558
(1st Dep’t 1999), is misplaced, given that the alleged victim there testified
that the petitioner had not raped her. See id. at 561.
an estimate of the number of pages on which the information
sought to be protected appears in the state-court documents
sought to be filed under seal, or the total number of pages that
would need to be reviewed to obtain such information, or the
estimated amount of time required to conduct such a review and
the redactions.” Thomas v. Colvin, No. 15-CV-948, 2015 WL
4240721, at *2 (S.D.N.Y. July 13, 2015). The privacy protection
afforded by § 50-b prohibits a public official or employee from
disclosing “any portion” of a document that tends to identify
the victim of a sex offense, but it is not necessarily a basis
for withholding the document from the public in its entirety.2
Accordingly, Respondent’s motion to file the state
court record under seal is denied without prejudice. Respondent
may move to redact the victims’ names from the court files and
documents for this case. That renewed motion setting forth the
legal and factual bases for that request and proposing tailored
redactions should be filed by September 11, 2020. In the
meantime, to protect confidentiality, Petitioner’s habeas
petition, supporting memorandum and appendix (ECF Nos. 1, 1-1,
and 1-2) and the state court records attached to Respondent’s
2 Courts often refer to victims of sex offenses using a pseudonym, such as
their initials, in judicial documents. See, e.g., Lucidore v. New York State
Div. of Parole, 209 F.3d 107, 109 n.4 (2d Cir. 2000). Implicit in this
approach is a balancing of the victim’s privacy interest, on one hand, and
the public interest in access to the judicial proceedings, on the other.
September 3 filing (ECF Nos. 12-1, 12-2, and 12-3) shall be
placed under seal pending the Court’s review of any proposed
redactions.
SO ORDERED.
_/s/ Eric Komitee__________________
ERIC KOMITEE
United States District Judge
Dated: Brooklyn, New York
September 4, 2020