VRLC Statement on Judicial Nominations

March 20, 2023

CONTACT:
Stacy Malone
(617) 401-8117
[email protected]

VRLC Statement on Judicial Nominations

Victim Rights Law Center (VRLC) is a nonprofit law center founded to represent and advocate for the rights of sexual assault survivors. The nomination of Michael Delaney to the U.S. Court of Appeals for the First Circuit highlights the need to ask all judicial nominees questions concerning their handling of cases involving sexual violence during their careers. During Attorney Delaney’s tenure at McLane Middleton in the course representing St. Paul’s School, he utilized the civil legal system to intimidate and silence Chessy Prout¹, a child-victim of sexual of assault. Attorney Delaney’s opposition to a high school student, proceeding under a pseudonym was in contravention to longstanding practices and laws that acknowledge and protect the privacy of sexual assault victims, especially minors. All judicial nominees should be required to answer questions about their treatment of victims of violence. Attorney Delaney’s push to expose a minor victim of sexual violence as a practicing attorney previews how he will wield his power from the bench.

Since VRLC’s inception in 2003, we have represented nearly 20,000 rape and sexual assault survivors. Our work in this context gives us a unique insight into the considerations that factor into a victim’s decision about whether to take any sort of legal action following an assault. Rape and sexual assault victims often present with a central concern – privacy. Their decision-making around what action to take is focused on who may find out about the assault. Fear of their name or experience becoming public often prevents victims from reporting to law enforcement, obtaining a protection order for their safety, asserting their educational rights at school, or notifying their employer.

Minor sexual assault victims have many of the same concerns as adult victims, but they frequently have the added fear of retaliation by the perpetrator or the perpetrator’s friends, social isolation from their peers, lack of support by their school, and both in-person and virtual harassment and bullying. For example, Ms. Prout, the 16-year-old victim Attorney Delaney tried to prevent from proceeding with a civil lawsuit under a pseudonym, received rape and death threats, pictures of her family were circulated online, and she was made to feel unsafe in her own home.²

Being named in a lawsuit and in the media has lifelong consequences for victims. Many of those consequences cannot be contemplated or even fully understood at such a young age.³ No child knows where their educational, professional, or personal path will take them. We do know that being named in a public space as a victim of sexual assault ensures that no matter where their lives take them, those around them may know, with a simple search of their name, about the most terrifying and personal experience of their life. The opportunity to choose whether and when to disclose a sexual assault should always be the choice of the survivor. An officer of the court should never take that choice away from a minor.

Accordingly, civil attorneys working on behalf of victims, especially minors, routinely file motions to proceed under a pseudonym. Those motions are rarely opposed. This practice is so widely accepted that these motions are consistently granted without a hearing. This comports with longstanding practices, laws, and established protocols that have been constructed to protect the identity of victims and minors in a variety of places. For example, despite being permitted to do so under the First Amendment, as a matter of internal protocol most established news outlets choose not to print the names of minors or sexual assault victims. Similarly, while police reports are generally made available to the public, state statutes exist that prevent dissemination in cases of sexual assault.⁴ These examples demonstrate a recognition under policies and law that if we want victims to come forward to hold perpetrators accountable and for greater public safety, their privacy must be protected. Attorneys can zealously advocate for their clients without exposing minor victims to public scrutiny, harassment, embarrassment, and potential further violence.

A nominee’s career must be examined and thoroughly reviewed when determining their character and aptitude as a federal judge. They should have a demonstrated commitment to using the law as a path to justice, not a tool to be weaponized against the very victims it is intended to protect. While the focus of this examination is Michael Delaney’s nomination before the Senate Judiciary Committee, probing questions must be asked of all judicial nominees who have handled cases involving sexual violence to explore, assess, and understand whether a nominee will pursue equity while on the bench.

¹ VRLC prioritizes survivor privacy and autonomy. We include the victim’s name here only after careful consideration of her role as an anti-sexual violence activist in the years after she was forced her to reveal her identity during the pendency of the civil case.
² Jen Sifferlen, Sexual Assault Survivor Chessy Prout On Taking Back Her Story, GBH, March 15, 2018
https://www.wgbh.org/news/2018/03/15/local-news/sexual-assault-survivor-chessy-prout-taking-back-her-story.
³ “The reasons for wishing to protect the identity of an adult are much different than the reasons for protecting children; we attribute significantly different psychological characteristics to adults. The law seeks to protect the child against the trauma, isolated or continuing, of premature sexual experience.” United States v. Bateman, 805 F. Supp. 1058 (D.N.H. 1992).
⁴ See Mass. Gen. Laws Chapter 41, § 97D, which states in part, “All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality.”