July 1, 2015 – Effective today, lawyers must comply with an administrative rule, adopted by the Wisconsin Supreme Court, which prohibits the identification of crime victims by name in appellate briefs in certain types of cases.
Policy behind the New Rule
The first right enunciated in the Wisconsin Crime Victims' Bill of Rights is the right of a victim “[t]o be treated with fairness, dignity, and respect for his or her privacy by public officials, employees, or agencies.”1
However, the Wisconsin Rules of Appellate Procedure currently offer few protections for crime victims, only requiring litigants to refer to someone by first name and last initial “when the record is required by law to be confidential.”2
The Wisconsin Judicial Council, which submitted the rule petition, received complaints from crime victim advocates and crime victims who felt revictimized when they discovered that the public could search appellate court documents available on the Wisconsin Supreme Court and Court of Appeals access website and learn the graphic details of the crimes committed against them.
In some cases, victims reported being so distressed that they considered suicide when they learned that such intimate information was widely available to the public via the Internet. In response to their concerns, the Judicial Council proposed Wis. Stat. § (Rule) 809.86 to help protect crime victims' privacy.
The new rule is narrowly drafted to apply only to information that is publicly available via the Internet. It is not a rule of confidentiality or privilege.
It is not intended to limit a defendant's right to a public trial, to limit the availability of any potential appellate argument or remedy, or to affect laws regarding public records or open court records that are available in the clerks of courts offices.
The rule does not remove victim information from the record, nor does it alter the record as it existed prior to an appeal. The new rule only changes the way victim information can be readily accessed on the Internet by preventing victims' names from being included in certain appellate documents that are publically available on the Internet.
Applicability of the New Rule
Rule 809.86 is limited to appeals in certain cases, including:
criminal cases;
chapters 938 (juvenile justice) and 980 (sexually violent person commitments) cases;
section 971.17 (commitment of persons found not guilty by reason of mental disease or mental defect) proceedings;
certiorari review of decisions or orders entered by the department of corrections, the department of health services, or the parole commission in any of the proceedings or case types previously listed; and
collateral challenges to judgments or orders entered in a any of the proceedings or case types previously listed.3
The new rule will not apply to most civil appeals, and it is not intended to affect any aspect of circuit court proceedings. The rule is intended to address only matters in which the state has alleged or proved that a party in the appeal or proceeding has committed criminal conduct against one or more victims in the matter. Accordingly, the rule is limited to appellate matters in which victims of crime are most frequently referenced and identified as victims or alleged victims.
The rule applies only to briefs. The rule does not extend to other appellate filings, including appendices, because those documents are not publically available via the Internet.
While the new rule does not apply to appellate court opinions and decisions, the supreme court's order adopting Rule 809.86 requires that “the Wisconsin Supreme Court and the Wisconsin Court of Appeals will, no later than the effective date of this order, revise their respective style manuals in a manner consistent with Wis. Stat. § (Rule) 809.86.”4
The court of appeals has already begun issuing opinions consistent with the new rule.5
Rule Permits a Variety of Alternate Ways to Identify a Crime Victim
While the new rule prohibits briefs of the parties in applicable cases from identifying a victim “by any part of his or her name,” parties may identify a victim “by one or more initials or other appropriate pseudonym or designation.”6
April M. Southwick, Hamline 1998, is the staff attorney for the Wisconsin Judicial Council, Madison.
The rule gives the parties ample discretion to select an appropriate alternate identifier to use in place of the victim's name. In addition to initials, parties can use generic descriptive references, such as “victim," "neighbor," "owner," or "child." The rule also specifically authorizes the use of a pseudonym such as Jane Doe or Jim Smith. When selecting an alternate identifier for a victim, parties should be mindful of the directive in the Judicial Council Note accompanying the rule, which states that the rule "does not prescribe or limit the use of other pseudonyms for victims, as long as they maintain sensitivity and respect for victims."
A party using an alternate identifier should consider inserting a footnote providing a brief explanation to the reader to avoid confusion. For example, if a party elects to use a pseudonym in lieu of the victim's name, it would be appropriate to include a footnote indicating that the victim's name appearing in the brief is a pseudonym and not the victim's real name, pursuant to Wis. Stat. § (Rule) 809.86.
The rule also permits the parties to use a victim's name in a brief, without leave of the court, if there is "good cause" to do so. For example, compliance with the new rule would not be required if the victim's identity is relevant to the proceeding. A party electing to use a victim's name would be wise to clearly set forth the reason for doing so in the brief. It would also be prudent to talk with the opposing party regarding the reason for using the victim's name, and discuss any potential objections prior to filing the brief.
As the saying goes, "You can't put the genie back in the bottle." Once information becomes available on the Internet, it can be very difficult to remove, so parties should use caution before making the victim's name public in an appellate brief. Subsection (5) of the new rule specifically authorizes appellate courts to excuse compliance, so when it doubt, seek guidance from the court.
"Victim" Defined
For purposes of the rule, " 'victim' is defined as a natural person against whom a crime, other than a homicide, has been committed or alleged to have been committed in the appeal or proceeding. 'Victim' does not include the person convicted of or alleged to have committed a crime at issue in the appeal or proceeding."7
The privacy issues addressed by the rule do not extend to a deceased victim in the same manner. Therefore, the definition permits the victim of a homicide to be recognized in an appellate opinion or brief.
Protective Orders
The new rule specifically authorizes an appellate court to make any necessary order to further protect the identity of victims or to protect the identity of other persons not otherwise covered by the rule. It also allows the court to excuse compliance with the rule.
The language regarding protective orders was specifically selected to be broad enough to allow a non-party to seek protection under this provision. It also permits the court to protect the identity of persons other than crime victims.
For example, the court could issue an order for good cause protecting the identity of witnesses who feel that their safety could be threatened by the public disclosure of their identity. As another example, the court could issue an order protecting the identity of family members of the victim if disclosure might reveal the victim's identity.
Changes to Protect Identity in Confidential Cases
During the public hearing regarding the new rule, the court observed that other appellate rules direct the use of a first name and last initial to protect identity in confidential cases.8 The Judicial Council suggested that an individual with a very unique first name may not be sufficiently protected if his or her first name appears in an opinion or brief, particularly if other facts necessary to the opinion make the victim's identity apparent.
The court deemed it appropriate to amend the confidentiality provisions in chapter 809 to make them consistent with the new rule. After the July 1, 2015 effective date, if the record is required to be confidential by law, parties should refer to individuals by one or more initials or other appropriate pseudonym or designation, instead of using first name and last initial.
Conclusion
A driving concern behind new Rule 809.86 is a desire to limit additional opportunities in which victims may be stigmatized by minimizing the likelihood that someone such as a potential employer, a first date, a neighbor, or a co-worker who enters a name in a search query on the Internet will find appellate documents that contain details of a crime in which the subject of the search is identified as the victim. In adopting the new rule, the supreme court declared its intent "to better protect the privacy and dignity interests of crime victims."9
Endnotes
1 See Wis. Stat. § 950.04.
2 See Wis. Stat. § 809.19(1)(g).
3 See Wis. Stat. § 809.86(2).
4 See 2015 WI 21.
5 State v. Robinson, 2014AP1575-CR (n. 2).
6 See Wis. Stat. § 809.86(4).
7 See Wis. Stat. § 809.86(3).
8 See Wis. Stat. §§ 809.19(1)(g), 809.19(2)(a), 809.19(2)(b), and 809.81(8).
9 See Wis. Stat. § 809.86(1).