All too often, the theory of an open judicial system is tested by individuals seeking to draw a dark curtain around court proceedings for their own advantage. Closed hearings, sealed records, anonymous plaintiffs are among the ways in which the public is denied access to legal proceedings.
These maneuvers may well violate the First Amendment and the Fourteenth Amendment, as Harford County Circuit Judge William Carr noted in a recent ruling that refused legal anonymity to two women who claim they contracted infectious genital herpes from ex-boyfriends. The plaintiffs, in separate civil suits, are each seeking $40 million in damages.
That the plaintiffs could freely name the defendants, alleging that the men have an incurable sexually transmitted disease, and then seek to hide their own names from the court and public seems a distortion of the judicial process.
Even more disconcerting is the claim of the women's lawyer that she has been successful elsewhere in Maryland in persuading courts to uphold plaintiff anonymity and to seal legal records relating to the cases. Such inequitable rulings go against "the presumption of judicial openness and the public's right of access to court proceedings," Judge Carr held in his 14-page opinion.
There may be cases in which persons deserve the protection of anonymity, particularly in criminal proceedings and where children are involved. But this judicial power to shield one side while exposing the other to public judgment must be used with exceptional caution and discretion.
Without judging the merits of the two herpes cases in Harford County, it should be noted that both plaintiffs admitted to having longstanding intimate relationships with the accused men before being diagnosed with the disease. Each plaintiff claims that the infected partner knew he had herpes but failed to inform her, thereby committing fraud, inflicting emotional distress and other injury.
Lawsuits seeking damages from partners for contracting sexually transmitted diseases are properly becoming more common, particularly with the spread of AIDS. There may well be a public stigma attached to such infections, for both plaintiff and defendant.
But the law demands that both sides be fairly treated, both in the conduct of the proceedings and in the public disclosure of identities. We urge more courts to follow Judge Carr's example in requiring that accusers face the accused in the full light of public disclosure.