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Salt Lake leaders hope ‘Start by Believing’ campaign, new legislation will encourage assault victims to make voices heard

Fox News 13 POSTED 5:49 PM, APRIL 3, 2019, BY AMANDA GERRY, UPDATED AT 08:03PM, APRIL 3, 2019

SALT LAKE CITY – The Salt Lake City Mayor’s Office said more can be done to battle sexual assault and we can start by believing victims and their stories.

“One of the most common reasons victims of sexual assault do not report the crime is a fear of not being believed and being blamed for the attack,” said Jennifer Seelig, director of community empowerment at the SLC Mayor’s Office.

Salt Lake City became a “Start by Believing” city Wednesday, joining a campaign that encourages the community to support assault victims and hear their stories.

“I’m here today to let them know that I support them, law-enforcement supports them, the City of Salt Lake, the Mayor of Salt Lake City supports them, and that they’ll be believed, and we’ll help them get the services and resources they need,” said Representative Angela Romero.

A member of the Utah Council of Crime Victims also highlighted a new bill that would be another option if victims feel like their voices have been silenced.

“That house bill authorizes the attorney general’s office to take a second look at cases that have been presented to a county or district attorney and have been denied for prosecution,” said Reed Richards, Utah Council of Crime Victims.

This bill will help victims like Tabitha Bell, who says although her experience with the police was relieving, once the district attorney took her case, things started going south.

“On the declination letter, they did not even have the respect to spell my name correctly,” Bell said.

She says when she reported being raped back in November 2017, prosecutors mishandled her report and did not show her and her family the empathy they deserved.

“Why did you think she wanted it when he shoved her face in the couch,” Tabitha said her dad had asked representatives in the District Attorney’s Office. “And they were like, well maybe she wanted it that way.”

One-in-3 Utah woman will be sexually assaulted in their lifetime, and Chief Mike Brown of the Salt Lake City Police Department says since his agency has become more sensitive to these incidents, more people have become comfortable enough to come forward.

“In the old days, they used to be just, you know, I need the facts. Well, those days are gone. You don’t investigate like that anymore. You go out, and you’re understanding, and you’re sympathetic,” Brown said.

Officials say they hope this awareness and new legislation will bring criminals of assault to justice.

“I feel like with this is helping me to prove to my high school community and to my attacker that they can’t get away with punishing me for coming out,” Bell said, “and I really hope that all the other victims who have not had the strength will be able to come out as well.”

Utah was the first to announce the first Wednesday in April as “Start by Believing” Day, which is nationally recognized.

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Salt Lake leaders declare a ‘Start by Believing’ city

Published by Deseret News April 3, 2019 6:51 pm
By Lauren Bennett & Annie Knox

SALT LAKE CITY — Four women seeking criminal charges for sexual assaults they reported but never saw go to court are now turning to a new Utah law that allows them more options for prosecution, stepping forward on the same day Salt Lake City leaders declared their commitment to believing victims.

With the passage of HB281 by the Utah Legislature, which gives certain rape and sexual assault victims a second chance to pursue criminal charges after a prosecutor declines their case, the four women, who previously asked the Utah Supreme Court to assign a new prosecutor to their cases, withdrew their petition Wednesday.

Tabitha Bell, one of the women who petitioned Utah’s high court in October after prosecutors from the Salt Lake County District Attorney’s Office declined to file charges, gripped her service dog Nox as she spoke Wednesday about her experience as a sexual assault survivor.

“Not every victim gets a great family like I do and I just want to make sure with this bill that every victim can be believed and get the justice they deserve,” she said at a news conference Wednesday.

According to the petition, Bell, who has a form of muscular dystrophy, was raped when she was 17 by a classmate of the same age. Bell said it was one week before she told her mother about the assault, and she said she wanted people to understand victims’ responses to assault.

She said she froze during her assault, and because of that, she said she was victim blamed by some. She shared her hope Wednesday that this campaign and the new law will enhance the experience for other sexual assault victims.

“Hopefully no other victim will have to go through this process of feeling not believed,” she said later Wednesday during a panel discussion before University of Utah law students.

The Deseret News typically does not identify victims of sexual assault but Bell agreed to identify herself as Jane Doe No. 1 in the case.

Bell spoke at a news conference Wednesday focused on supporting sexual assault victims in honor of Start by Believing Day, part of the national campaign geared toward supporting victims of sexual assault and removing the stigma surrounding it.

According to court documents, the four women have asked the Utah Attorney General’s Office to conduct a fresh review of their cases under the new law.

Gov. Gary Herbert signed HB281 last week, but it does not take effect until May.

The bill gives the Utah Attorney General’s Office authority to reconsider first-degree felony cases and possibly file criminal charges after a county attorney passes on the case or waits more than six months to evaluate it. First-degree felonies, considered the most serious offenses, include rape, object rape and murder.

Critics have said the secondary reviews may be unnecessary because prosecutors carefully weigh the cases in the first place, but supporters contend it is a fallback measure in rare instances where a well-founded criminal case is declined.

Previously, Utah’s attorney general could intervene, according to the law’s sponsor, Rep. Karianne Lisonbee. But that’s been possible only when there’s been an abuse of discretion by a district or county attorney, generally meaning a clear error or unreasonable conclusion, the Clearfield Republican has said in the past.

The first Wednesday in April was designated as Start by Believing Day by the 2015 Legislature, when Rep. Angela Romero, D-Salt Lake City, sponsored HCR1, a resolution aimed at supporting survivors of sexual violence and the End Violence Against Women International’s Start by Believing campaign.

Utah was the first to declare the annual day and the nonprofit later adopted the day as part of its Start by Believing campaign.

Also Wednesday, Salt Lake leaders declared it would be a “Start by Believing” city.

Jennifer Seelig, director of community empowerment with the Salt Lake City mayor’s office, read the proclamation on behalf of Mayor Jackie Biskupski, who was sick and unable to attend.

The proclamation cited data from the 2007 Utah Commission on Criminal and Juvenile Justice Rape study, which found 1 in 3 Utah women will be sexually assaulted in their lifetime, higher than the national average for sexual assault crimes.

“We encourage the people and organizations of Salt Lake City to provide support to survivors of rape and sexual assault,” Seelig read from the proclamation.

Reed Richards, of the Utah Council of Crime Victims, also spoke in support of the declaration, as well as Heidi Nestel, director of Utah Crime Victims Legal Clinic.

“This I think provides a wonderful right to our crime victims in the state of Utah,” Richards said of the new law. “A wonderful step forward in the Utah legal system.”

Alexandra Merritt, a victim advocate with the clinic, read a statement from the woman identified as Jane Doe No. 4 in the petition, who was unable to attend the event.

“I almost did not report my sexual assault because I knew the process would be scary and difficult and I was very afraid to make it a part of my life,” Merritt read from the statement. “The truth was my perpetrator already made sexual assault a part of my life, and it was up to me stand up for myself and fight for justice.”

Paul Cassell, a University of Utah law professor and former federal judge, represents the four women along with four other attorneys.

“It’s been an honor to represent these brave young women,” Cassell told the Deseret News Wednesday. “They’re sort of the test case, if you will, and what we’re very excited about is by pushing these four cases forward we’ve gotten legislation that’s going to hopefully make a difference.”

The Utah attorney general supports the law, according to a written statement from his office.

“Attorney General Sean Reyes is a fierce advocate of providing justice and a voice for those who have endured a violent crime and for punishing those responsible,” Rich Piatt, spokesman for the attorney general’s office, said in the statement. “This new law will provide backup support to Utah’s county and district attorneys who work hard to take criminals off the streets. We will continue to work with the legislature to make sure we have the resources we need to review these additional cases. Victims and their families deserve as much.”

Salt Lake County District Attorney Sim Gill did not respond to requests for comment, but said in October in response to the original petition that his office has “always supported victim rights and advocates for victims. And one of our challenges, of course, is this issue is not just simply an issue of our prosecution. It’s a broader issue of attrition rates systemically.”

Gill said at the time that if a case is declined, there can be “further investigation.” However, prosecutors “have an obligation” to meet their burden of proof and make sure there is enough evidence.

Following the news conference, the Women’s Law Caucus held a panel about the underprosecution of sexual assault cases with Cassell, Nestel and forensic nurse and BYU assistant professor Julie Valentine. Bell and Bethany Warr, attorney with the victim’s legal clinic who represent’s some of the women from the petition, also joined the panel.

Nestel noted that sexual assault cases are difficult to take to court.

“We know these prosecutors are dedicated to this process, we just have a lot of challenges sometimes convincing juries and educating them to victim behavior,” she said.

But she added she didn’t want people to think it’s all “doom and gloom,” when it comes to prosecution of sexual assault cases.

“What I am here to report is we are seeing some very creative and inspired prosecutors across the state who are trying to take some of these tough cases,”

Valentine spoke about her 2013 study, which examined prosecution rates for sexual assault cases in Salt Lake County between 2003 and 2011 and found that charges were not filed in 91 percent of cases — a larger number than the national number of about 82 to 84 percent.

Valentine said she is in the process of repeating the study to compare numbers and said she hopes to see a huge difference, one she credits to changes in how law enforcement handles sexual assault cases.

She challenged the audience to take what they heard Wednesday to heart and work to change the stigma surrounding sexual assault.

“I feel that this research and this movement is a spark, but it needs to be a bonfire and that bonfire needs to mean all of us working together and saying, ‘Tabitha, we believe you and we are going to do what we can as a society to support survivors with the goal of decreasing sexual violence,’” she said, a nod to Bell. “You all have heard the numbers about our high rates of sexual violence and we need to and I believe we can change this.”

Those who have experienced sexual abuse or assault can get assistance from Utah’s statewide 24-hour Rape and Sexual Assault Crisis Line at 888-421-1100.

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Obtaining a Civil Stalking Injunction

Stalking can be very difficult to prove when the stalker engages in clandestine methods to avoid detection, civil liability, and even criminal prosecution.  Ferbrache Law has the experience and understanding of how serious stalking can be, and the importance for the victim in obtaining a civil stalking injunction.

Stalking comes in many forms and it may not always be apparent to the casual observer.  In Utah, stalking is defined as “intentionally or knowingly engaging in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person (a) to fear for the persons own safety or the safety of a third person; or (b) to suffer other emotional distress.” U.C.A. 76-5-106.5.  This can be accomplished in any number of unique and covert methods employed by the stalker  

To demonstrate stalking, the victim must establish that the stalker’s conduct would cause emotional distress to a reasonable person in the [victim]’s circumstance.   The Court will also consider the context surrounding defendant’s conduct that may include acts that seem perfectly innocent or even well intentioned.  Utah Courts have included factors such as victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking and its proximity to the victim’s children, if any, and the cumulative effect of the defendant’s repetitive conduct.

The stalkers conduct can also include emotional abuse if the stalker’s conduct causes a reasonable person to experience emotional distress and fear for the safety of themselves and others.  “Even if relationships never get physically abusive, emotional abuse can escalate over time with devastating consequences, even death.”  What Emotional Abuse Really Means, by Emily DeSanctis, One Love Foundation.  Examples of emotional abuse are: intimidation, manipulation, blaming, shaming, sabotage, and forced isolation. 

Moreover, “[e]motional abuse is rarely a single event.  Instead, it occurs over time as a pattern of behavior that’s “sustained” and “repetitive”.  The particular characteristic of emotional abuse helps explain why it’s so complicated and so dangerous.”

“Regardless of how emotional abuse unfolds, experts agree that it has devastating effects on those who are subjected to it.  Unfortunately, these effects as well as each harmful act of abuse are largely invisible.  This makes it difficult for most people to comprehend the very real risks and damage of emotional abuse.”

“While describing physical wounds is pretty straightforward, it’s much harder to articulate emotional trauma.  The parts of a person that sustained emotional abuse destroys- identity, dignity, and self-worth- are abstract, almost impossible to picture or measure.”  

  “Emotional abuse, like any other form of cruelty, thrives in the darkness when no one understands, discusses, or recognizes it.”   

Even when the stalker has not directly threatened victim with words such as “I will kill you”, or “I will ruin you financially” or “I will not stop until your dead, sustained and repetitive course of conduct toward the victim, her immediate family, and those around her, the stalker’s disregard for continuing his conduct in a clandestine manner are significant factors of lethality.  Domestic Violence Lethality Factors, PCADV, www.pcadv.org.      

Lethality factors can include a recent separation. “More than half of the victims of domestic violence homicides were estranged from their abuser or planning to leave the relationship at the time they were murdered”.  Id.  Another lethality factor is controlling a victim’s daily activities, even through consuming the victim with texts, emails, and phone calls on a daily basis wherein the victim is not able to hide from her stalker in spite of his proximity can equate to stalking.  “When the partner controls the victim’s daily activities, homicide is five times more likely.”   

“95 percent of attempted homicide victims believed the reason to kill them was ‘to punish me’.” 

Many times, the victim has no way of knowing the lethality of the stalker and what he may be capable of should the victim not submit to the stalker’s desire, which contributes to elevated fear.   “Perpetrator unemployment combined with a history of domestic violence can be a significant risk factor for murder-suicide in intimate partner domestic violence cases.”  

Most importantly, “[s]talking is highly prevalent in cases of actual or attempted female homicide.  Women who reported that an intimate partner followed or spied on them were more than twice as likely to be attempted or actual homicide victims.”  If you or someone you love is being stalked, call an experienced attorney today.

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A court’s secrecy order blocks access to the investigation into a BYU police lieutenant who shared info with the Honor Code office

-Jessica Miller Salt Lake Tribune Originally published Friday, March 8, 2019

A lieutenant with Brigham Young University’s police department took information
from private records created by other Utah County law enforcement agencies and
passed it on to university officials investigating students for breaking school rules.
His actions sparked a criminal investigation that lasted more than two years and has
been done for months.
So, how many records involving how many students did Lt. Aaron Rhoades access?
That information is not public.
Neither are the answers to questions like these: At whose direction did he look at the
nonpublic police databases? What kind of information did he share? How did the
university use that information?

Greg Ferbrache — a former prosecutor with the attorney general’s office who is now in private practice — said the secrecy orders are not intended to keep the public from knowing about what happened. He said it is most often used to protect the constitutional rights of those who are accused.
“Its purpose is not to keep an investigation under secrecy forever,” he said.
But in the investigation into BYU police, it’s not clear why the records would remain under seal.

When will Utahns get to know these answers? Possibly never.
Since authorities began investigating BYU police in 2016, the state Department of
Public Safety and the Utah attorney general’s office have remained tight-lipped, and
have blocked The Salt Lake Tribune’s records requests seeking that information.
Officials publicly acknowledged for the first time this week their reason why: A Utah
judge issued a secrecy order in the investigation nearly three years ago at the request
of prosecutors — an order that remains in place to this day.
What judge is keeping the investigation behind closed doors?
That, too, is a secret.
“This cannot stand,” said Tribune Editor Jennifer Napier-Pearce. “This investigation
was conducted by the state of Utah and should be available to the public.”
She said the newspaper is exploring its options, including possible legal action, to get
access to records it has been fighting for since 2016.
“While we’re happy to finally know why they haven’t turned over their findings to us,”
she said, “we’re very concerned to learn that a secrecy order is in place.”
The Tribune on Wednesday received a response to a records request in which the
attorney general’s office explained why it can’t release information on the completed
investigation.
“Beginning in July 2016, secrecy orders have been entered at the request of the state
of Utah,” the denial reads. “These secrecy orders entered at the request of the state of
Utah remain in place.”
The Tribune asked BYU for comment and a spokeswoman said all they could do is
A report released last week gave a hint at the scope of the investigation — that state
authorities believe Rhoades accessed private police reports from Orem police, the
Utah County Sheriff’s Office and Provo police over a two-year period. He took
information from those reports and shared them with BYU’s Dean of Students Office,
the Title IX office and the Honor Code Office.
State prosecutors could not speak about the court action, citing the secrecy order. But
Criminal Deputy Craig Barlow, with the attorney general’s office, explained the
process generally, saying a prosecutor’s request for secrecy is not all that unusual. He
estimated that investigators make dozens of these secrecy requests every year —
usually to not alert a potential suspect to the police’s efforts.
Secrecy orders are also often used in financial crimes, Barlow explained, where
investigators may want a bank to hand over records without telling a suspect. They
are also frequently used in investigating drug-trafficking operations.
There are no expiration dates on these orders.
This means some investigations could remain under seal indefinitely, though Barlow
said investigations are most often made public if prosecutors decide to file charges.
The law “is almost silent about what happens when you get to the end,” Barlow said.
“There really is no guidance about how to go about an exit strategy.”

Greg Ferbrache — a former prosecutor with the attorney general’s office who is now in private practice — said the secrecy orders are not intended to keep the public from knowing about what happened. He said it is most often used to protect the constitutional rights of those who are accused.
“Its purpose is not to keep an investigation under secrecy forever,” he said.
But in the investigation into BYU police, it’s not clear why the records would remain
under seal.

There is no pending investigation, and the attorney general’s office announced in
October that prosecutors had decided months earlier to not file criminal charges
against Rhoades. A panel of prosecutors had decided the case against him “lacks a
reasonable likelihood of conviction,” the office said.
The Tribune obtained BYU documents in 2016 that showed Rhoades accessed a
countywide database to collect information from another police department for an
Honor Code investigation of an alleged sexual assault victim.
The documents show an Honor Code investigator contacted Rhoades in 2015 asking
him for information in the rape case. The lieutenant looked at the records that same
day, and relayed intimate details back to the investigator.
The Honor Code at BYU — which is owned by The Church of Jesus Christ of Latterday Saints — is a set of administrative rules that forbids alcohol and coffee, restricts
contact between male and female students, imposes a strict dress code, and bans
expressions of romantic affection between people of the same gender.
Rhoades retired from the BYU police department last fall, according to his attorney,
and later gave up his police certification after the state’s Peace Officer Standards and
Training (POST) began its own investigation. He had been a police officer in Utah for
34 years, according to POST records.
The criminal investigation is at the heart of why BYU may lost its police force entirely,
after it was announced last week that state officials are seeking a historic
decertification.
In a letter to BYU, state officials say they want the university to lose its policing
powers because the department did not conduct an internal investigation into
allegations of misconduct by a specific BYU police officer during a two-year period
ending in April 2018. The letter doesn’t name the officer or the specific misconduct
allegations, but the timeframe covers the same period DPS was investigating
Rhoades.
DPS officials also say that BYU police failed to respond to a subpoena that was issued
as state regulators were investigating an officer for misconduct. A December letter to
BYU police instructed the agency to allow DPS access to all “records, personnel and
electronic data” so investigators could assess how its officers use a police records
database, the command structure at BYUPD and “the powers, authority and
limitations” of BYU police officers.
BYU has said it plans to appeal the state’s decision to decertify its police force, which
would take effect Sept. 1.
An issue also at play is the ongoing debate about whether BYU police should be
subject to Utah’s record laws like every other police department in the state. The
Tribune has sued to force BYU police to abide by the Utah Government Records
Access and Management Act, or GRAMA. The newspaper received a favorable ruling
from a state district judge, but BYU has appealed to the Utah Supreme Court. A
hearing has not been scheduled.
Attorneys for the campus argue in court papers that as a private institution, BYU
should not be subject to records laws meant for government agencies.
But BYU officials have supported legislation that would require its police
departments to be subject to open records laws. That bill, if passed, would not be
retroactive and wouldn’t necessarily settle the ongoing litigation.

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Commentary: Justice for the Jane Does — and other rape victims — is our goal

Originally published at Salt Lake Tribune Online 

October 23, 2018

By Paul Cassell, Greg Ferbrache, and Bethany Warr

Last week, the three of us – joined by three other attorneys located both inside and outside Utah – filed a petition in the Utah Supreme Court on behalf of four “Jane Does.” The Jane Does had all been sexually assaulted, promptly reported their cases to law enforcement, and ultimately seen their cases declined by the Salt Lake County District Attorney’s Office for prosecution. Our petition to the Supreme Court asked for the appointment of prosecutor to pursue these well-founded criminal cases to their logical conclusion.

Last Friday, Robert Gehrke wrote an op-ed piece (“There’s no escaping the politics hanging over the allegations that Gill neglected sexual assault cases”) in which he supported the Jane Does. Gehrke concluded that, “The women deserve to be heard. Period.” But Gehrke also wondered about the timing of our petition, filed with a local election a few weeks away.

The Jane Does’ petition to raise a broad national issue: How should our nation’s criminal justice system respond when sexual assault victims come forward and present viable cases for prosecution that prosecutors ultimately decline? The idea for the petition first crystalized for the three of us on June 18, when (following a rape case hearing) we all discussed the fact that non-prosecution of sexual assault cases was one of the biggest challenges facing crime victims in Utah today.

On that day, we began working on a novel state constitutional theory challenging non-prosecution decisions. Over the next several months, on behalf of our four victims, we were proud to see the legal and factual arguments come together, based on pro bono efforts of more than six attorneys and four expert witnesses on such complex topics as low filing rates of rape cases in Salt Lake County, “rape myths,” and “institutional betrayal” of victims.

Ultimately, we completed a first draft of the petition on Sept. 26. After additional police materials became available, we filed the 150-page petition and 300-page supporting appendix with the Utah Supreme Court on Oct. 16.

Our petition is supported by local and national anti-sexual violence organizations and fits into a broader national pattern of litigation surrounding under-enforcement of the laws prohibiting sexual violence against women and girls. In just the last year or so, sexual assault victims have filed private civil lawsuits in San Francisco, Austin, and elsewhere. Those lawsuits have proceeded under federal civil rights theories – and have been (thus far) unsuccessful because of barriers existing in federal law. The Jane Does’ petition raises the same under-enforcement facts as these other lawsuits but relies on a new legal theory: that Utah state constitutional law allows appointment of a prosecutor to bring justice to victims.

Our petition was filed to look forward to the Utah Supreme Court achieving justice for sexual assault victims through appointment of a prosecutor. It was not filed against the Salt Lake District Attorney’s Office with an intent to look backwards at its non-charging decision. We simply handled our legal work in the ordinary course of affairs, filing the petition when it was ready to file. In doing so, we had our clients’ interests foremost in our minds.

The Jane Does wanted their voices heard and their petition filed immediately when it was ready, as they remained understandably anxious about what the next steps would be. We did not want to be accused of altering our filing’s timing — one way or the other — for political reasons.

Under-prosecution of sexual assault cases has been documented not just in statistics from Salt Lake County, but in Los Angeles, Baltimore, St. Louis, New York, Philadelphia, and Missoula, Mont., (among others), which is why our petition has received national attention. How our nation will respond to under-prosecution remains to be determined. The Jane Does’ petition deserves a serious discussion that is long overdue.

 

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Four women seek special prosecutor after DA declines to file sexual assault charges

Originally published at American Bar Association

BY DEBRA CASSENS WEISS

POSTED 

Four women are asking the Utah Supreme Court to appoint a special prosecutor to pursue their sexual assault allegations after the Salt Lake County District Attorney’s Office declined to bring charges.

The women are basing their request on a state constitutional provision that authorizes the appointment of a special prosecutor when a county attorney fails to prosecute “according to law,” the Salt Lake Tribune reports.

“The plight of these victims is hardly unique,” their Oct. 16 petition says. “In this country today, an intense debate is raging about how women who have been raped or sexually assaulted can make themselves believed by a criminal justice system that all too often seems ready to ignore their pleas.”

One woman said she was 17 years old when she was assaulted by a classmate while at his home to work on a school project, the petition says. She has a form of muscular dystrophy that affects her strength and balance, and she relies on a German shepherd to walk.

The woman says she allowed the classmate to kiss her, but then he became aggressive and raped her. She says she became scared and froze during the assault, and her physical limitations made her unable to resist. The prosecutor who evaluated the case said in a letter that he and four other prosecutors didn’t think they could prove a rape case because she “failed to say or physically manifest any lack of consent.”

A second woman who had cerebral policy said she met her attacker, a convicted rapist, on the way to a medical appointment. She says the man sexually assaulted her multiple times at his home on two occasions. The first time she accompanied him to his home, and when he began making demands she felt she had to comply. The second time, she says, she went to his home because he threatened her. The man’s DNA was found in the woman’s vagina, but prosecutors said there wasn’t enough evidence to prosecute.

A third woman says she was assaulted by her massage therapist. A fourth says she was 24 years old when she was raped by “a prominent law enforcement officer” when she was volunteering with a citizens advisory board. The Salt Lake Tribune identifies the man as a former police chief who was forced out of a police department in Maryland after a sexual assault allegation. She was among five women who obtained a settlement based on sexual assault allegations against the man when he worked in Utah.

The women are represented by several lawyers, including University of Utah law professor Paul Cassell, a former federal judge.

Salt Lake County District Attorney Sim Gill defended the decisions not to file charges in an interview with the Salt Lake Tribune. He said his office has filed charges in about 39.5 to 45.5 percent of the sexual assault cases presented to his office over the past two years, about the same as state and federal averages.

His office has an ethical obligation not to prosecute when the evidence is insufficient, Gill said.

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These Four Women Are Hoping To Find Justice Through A Little-Known Law After Prosecutors Failed To Charge Their Attackers

Originally published on Buzzfeed News: https://www.buzzfeednews.com/article/skbaer/utah-sexual-assault-petition-court-prosecutor

“I did everything I was supposed to do,” one of the women said. “Reporting is not easy.”

Crystal Madill

Crystal Madill Photo by Crystal Madill

 

When prosecutors in Utah said there was “insufficient evidence” to file charges against a massage therapist who allegedly sexually assaulted her, Crystal Madill met with them to see if they would reconsider.

Madill had documented evidence from her assault. The nurse who examined her for a rape kit test found a laceration in Madill’s anus presumably from when the therapist allegedly stuck his fingers inside her during a massage in February 2017.

But when she brought up the laceration in the meeting, prosecutors told her, “‘that could have happened in a bowel movement,’ so it means nothing to my case,” Madill told BuzzFeed News.

“It was made clear to me that the district attorney’s office did not want to take my case,” the 30-year-old Salt Lake City woman said. “They didn’t feel they could convince a jury.”

Now she and three other women are challenging the Salt Lake County District Attorney’s Office’s decision not to file charges against their alleged attackers under a little-known state law that could set a precedent for victims of crimes across the country.

On Tuesday, the women filed a petition in Utah Supreme Court asking the court to appoint a prosecutor to file criminal charges in their cases, citing a provision in the state’s constitution that allows the court to appoint a special prosecutor “if a public prosecutor fails or refuses to prosecute” a case.

University of Utah law professor Paul Cassell, one of the attorneys representing the women, said the petition likely marks the first time anyone in the state has ever tried to use the provision as an avenue for what he called “victim-initiated prosecution.”

“There is tremendous outcry in this country when prosecutors have not filed charges,” Cassell told BuzzFeed News, adding that he hoped the petition would shed light on similar provisions in other states or encourage other states to adopt one like Utah’s.

If their petition is successful, Cassell said it “might pave the path for similar lawsuits in other states” and give victims an opportunity “to review what are currently regarded as essentially unreviewable prosecutorial decisions.”

Cassell, a former federal district court judge, argued that in each of the cases there was enough evidence to file charges. Prosecutors declined the women’s cases because of evidence issues or prosecutors deemed conviction was unlikely or both, according to court documents.

Salt Lake County District Attorney Sim Gill.

Rick Bowmer / AP Salt Lake County District Attorney Sim Gill.

 

Salt Lake County District Attorney Sim Gill said his office was still gathering information on the four cases in the petition, but that in two of the cases there were “contradictions and concerns from an evidentiary perspective to overcome our responsibility for reasonable doubt.”

“That does not mean that the incident didn’t happen. That does not mean that a crime did not occur,” Gill told BuzzFeed News. “It means that we cannot meet the legal burden by which to present this case and that’s our challenge that we have to go through.”

Gill said he thought the idea to use the constitutional provision was “intriguing,” but said the petition was bypassing other known avenues for the women to be heard and have their cases reconsidered.

“If this is a secondary review it can go to my division chiefs,” Gill said, adding that he is also willing to meet with victims, and the Utah Attorney General’s Office can also review cases. “If you’re not happy with any of that at least in Utah you can also petition for a grand jury.”

In at least one of the cases, the attorney general’s office declined to prosecute the case, but its review was based only on whether the district attorney’s decision constituted “an abuse of discretion,” noting that “a high degree of deference” is given to local prosecutors, according to documents.

The district attorney’s office reviewed three of the cases a second time and the parents of one of the victims even met with Gill himself, the family told BuzzFeed News. The additional reviews did not change prosecutors’ decisions.

One of the women, identified as Jane Doe 1 in the petition, said prosecutors’ decision not to file charges against her attacker made her feel unsafe.

“It made me frightened because it made him more empowered,” Jane Doe 1, who did not want to be identified, told BuzzFeed News.

The now 18-year-old college freshman alleged that a family friend and classmate raped her in the basement of her family’s home when she was 17. The attack and the lack of action made it difficult for Jane Doe 1 to finish her senior year of high school.

“While at school there was always the possibility of running into her perpetrator,” her attorney Greg Ferbrache said. “For her emotional benefit, [she had] to stay off campus and focus on graduating so she could move forward.”

The decision not to prosecute cases like these is not unique to Salt Lake County.

Experts in sexual violence say under-prosecution of adult sexual assault is a significant problem nationwide, and the reasons why prosecutors decide not to file charges in adult sexual assault cases vary.

Julie Valentine, an assistant professor at Brigham Young University’s College of Nursing and a certified sexual assault nurse examiner, said the belief in myths about rape, like that false reports are common that victims fight back during attacks, can make it difficult for prosecutors to take on cases.

“With rape cases, we get all this questioning of the victim which leads to victim blaming,” Valentine told BuzzFeed News. “You often do not have witnesses because it’s usually just the two people so they’re very difficult cases to investigate and to prosecute.”

Madill said that when she met with prosecutors about her case they asked questions that felt very judgmental and like they “seemed to know nothing about trauma.”

“They were just, like, I don’t understand why you would be naked under a sheet in a room with a stranger,” Madill said. “I did everything I was supposed to do. Reporting is not easy. Going to the hospital to have [a rape kit test] done is not easy. … To just see all of that effort just to have literally nothing done just doesn’t make sense.”

Northwestern University law professor Deborah Tuerkheimer said the credibility of an alleged victim is critical in criminal cases and jurors aren’t good at judging credibility.

The result is prosecutors rely on an informal “convictability standard” when determining whether to file charges, Tuerkheimer, an expert in gender violence and sexual violence, told BuzzFeed News.

“What is the likelihood I’m going to get a conviction and convince 12 jurors — that’s where these biases come into play,” she said.

Tuerkheimer said there needs to be more of a willingness to move cases that may trigger long-standing biases and myths about sexual assault forward.

“There are ways to educate the jury about the myths that we’re talking about,” she said. “Some of that can come through expert witnesses some of that can come through testimony of the victim herself.”

Tuerkheimer and Valentine agreed it is valuable for sexual assault victims to have the chance to get a criminal conviction against their alleged attackers, and prosecuting more of these cases could help reduce the overall problem of sexual violence.

“To decrease sexual violence we have to do two things: First we have to encourage victims to come forward to report, second when they report we need to support them and prosecute the cases,” Valentine said.

Madill and Jane Doe 1 said the petition has given them hope that justice is possible for them and for other victims of sexual assault.

“I just want this petition to be able to make it easier for girls to come forward in the future and be backed up by the law,” Jane Doe 1 said.

CORRECTION

Greg Ferbrache’s name was misspelled in an earlier version of this post.

Stephanie Baer is a reporter with BuzzFeed News and is based in Los Angeles.

Contact Stephanie K. Baer at stephanie.baer@buzzfeed.com.

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Utah refused to prosecute four sexual assault cases, so the alleged victims set out to do it themselves

Published in Washington Post

By Deanna Paul

October 22 at 5:03 PM

One petitioner was a 17-year-old high school senior when she alleged that a classmate had raped her. Another claimed her co-worker had assaulted her. The third petitioner accused a police chief of raping her several times while she was volunteering in his department. And the fourth, now 30, said she was assaulted by a massage therapist.

All four cases were reviewed by the local prosecutor’s office, which declined to file charges.

Now the four Utah residents are using a novel approach to make their voices heard: a provision in the state’s constitution that permits alleged crime victims to request that the state Supreme Court appoint a prosecutor if a district attorney refuses a case.

The constitutional clause is unique to Utah, but the concept of victim-initiated prosecution is available in other states.

Attorneys for the women are optimistic that if they succeed in Salt Lake County, the ruling will create a viable blueprint for other states.

Salt Lake County District Attorney Sim Gill called the petition an “intriguing thing that’s never been challenged.” Still, Gill joins a number of lawyers who worry that a successful lawsuit will pave the way for thousands of frivolous petitions in many types of cases.

In the past two years, all four women — known in their recently filed lawsuit as “the Jane Does” — said they were attacked by someone they knew and reported the assault within days.

Jane Doe 1, now 18, told The Washington Post that she hopes to help other victims be heard.

After the Salt Lake County District Attorney’s Office declined to prosecute the case, the teenager’s high school allowed her alleged rapist back on campus.

“It made me feel so vulnerable and scared,” she said. “We think the law will protect those who have been wronged. I don’t want another girl going through this again. I want to make it easier to get help and to have the law believe you.”

The lawsuit is the first time in Utah’s 120-year history that anyone has approached the issue this way, Paul Cassell, a former federal judge and professor at the University of Utah’s S.J. Quinney College of Law, told The Post.

Historically, the nation rarely questions a law enforcement decision to decline bringing charges. “The sexual assault under-prosecution problem is forcing people to reevaluate that,” he said.

Instead of requesting sweeping interference with law enforcement decisions, the lawsuit asks for a specific ruling on a case that has been turned down for prosecution.

The suit comes amid heated national dialogue about sexual abuse, as the #MeToo movement has emboldened more women to speak out. It was further fueled by the confirmation hearings of Supreme Court Justice Brett M. Kavanaugh, which were shadowed by outrage over decades-old allegations of sexual assault.

The consensus, according to attorney Bethany Warr, who represents three of the Jane Does, is that sexual assault cases are under-prosecuted, though there are places where it’s more pronounced than others.

“They have a tendency to be declined by district attorneys, and fairly so — they’re difficult cases,” Warr said. The lawsuit aims to further the dialogue about why juries are so hard on sex-crime victims and why society has such a hard time believing them, she said.

Sex-crime prosecutions are widely accepted as some of the most challenging in the criminal justice system.

Sexual assaults rarely happen with other witnesses present, and anything that deviates from the cliche of a masked, armed man committing a rape in an alleyway adds a variable that must be explained to frequently judgmental juries.

In Salt Lake County, Cassell said, assistant district attorneys operate under outdated notions of what cases are winnable, saying that prosecutors who are fearful of losing are the real barrier to successful prosecutions.

Gill, who is up for reelection this year, agreed that these are difficult cases for prosecutors. But, he said, that doesn’t mean his office refuses to prosecute them.

An average of 44 percent of violent crimes are reported to law enforcement and result in arrest, according to a statement released by Gill on Tuesday. Sexual crimes, he said, vary dramatically.

In Utah, 12 percent are brought forward — meaning 88 of 100 people fail to report sexual assault claims, Gill told The Post. He also said that last year, his office filed charges in 39 to 40 percent of 600 sexual assault reports, consistent with the national average.

Gill said there’s a social stigma associated with sexual assault, and because only a small percentage are reported, a systemic attrition happens.

“We need to figure out what the balance is — to reassure victims that we see and hear them, while asking if the interests of justice will be met by bringing the case forward. Can we meet the legal burden in good faith?”

Gill pointed out that sexual assault cases have nuanced complexity. One major consideration, he said, is whether to re-traumatize a victim by having her testify in a case that would be challenging to win.

Deborah Tuerkheimer, a professor at Northwestern University’s School of Law and a former prosecutor, said, “The problem with prosecutors is that they’re not just thinking about legal sufficiency, they’re thinking about convictability” — the likelihood that 12 jurors can be convinced beyond a reasonable doubt. “Often, jurors are unpersuaded because of biases and rape myths. When prosecutors take that into account in charging decisions, even anticipatorily, they’re embedding them into the system.”

The #MeToo movement heightened awareness of the prevalence of sexual assault. Part of the benefit is that people better understand what sexual violence looks like, which mitigates assumptions about the type of person who perpetrates these crimes and how a survivor “should” behave, Tuerkheimer said.

The petitioners remain hopeful that the Utah Supreme Court, which has the petition under advisement, will direct the attorney general’s office and other government agencies to file briefs in response.

Each of the Jane Does wants to fight for the right to hold her alleged abuser accountable. Jane Doe 4 told the Salt Lake Tribune: “I did everything that I needed to do and I did it as strongly as I could,” she said. “I didn’t realize how disappointing and heartbreaking it would be.”

By putting their stories into circulation, they hope to challenge old injustices and forge change within the criminal justice system.

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Protecting Right of Assembly and Free Speech

Ferbrache Law is fighting for your right to assemble. My client, Josh Cameron, a combat veteran, citizen of the State of Utah, and spokesperson for Our Voice USA was arrested at a Mia Love event on August 24, 2018. He was charged with criminal trespass and disorderly conduct despite his lawful presence at ‘Mia Runs With Mitt,’ despite having a ticket for the venue at Thanksgiving Point.

During the rally, Lt. Governor Spencer Cox said Mia Love indicated they are here to save babies. From the crowd, Mr. Cameron responded by yelling out to “Abolish ICE”, “Save Babies From Cages” and “Reunite Families”.

The government alleges Mr. Cameron exercised his free speech at a private venue held open to the public, his presence was considered unlawful by the political operatives hosting the rally. At their request, Mr. Cameron was cited for criminal trespass and disorderly conduct. Mr. Cameron is now forced to assert his innocence in a court of law in accordance with the Constitution of the United States.

Mr. Cameron believes you have a right to know of these vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. For this reason and until that time when Mr. Cameron’s voice can be heard, and his innocence asserted.

Mr. Cameron asks each of you to stand as Americans in support of these inalienable rights, and that you vote now to elect governmental representatives who will ensure peaceful assembly, free speech, and an appreciation for those who have honorably served our County. Mr. Cameron has demanded a trial that is now set for January 22, 2019 to face the criminal charges of criminal trespass and disorderly conduct as alleged by Lehi City. Mr. Cameron is to be presumed innocent until and unless convicted
by a jury in a court of law.

You can read the press release here: JC Media Release

Gregory Ferbrache believes in the right of all American’s to freely assemble and exercise their right of free speech. If you find yourself cited or arrested for protected political speech, call Greg Ferbrache at 801-440-7476 or here:

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