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With over a decade of criminal law experience, and previously as a Salt Lake County Deputy District Attorney, Assistant Utah Attorney General, and Special Assistant United States Attorney for the District of Utah, call Greg Ferbrache for an appointment.
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I’ve worked with Greg Ferbrache on a number of tough cases. Some high profile, some not so much. I appreciated Greg’s consistent careful analysis coupled with compassion for crime victims and an unflinching commitment to doing the right thing. His clients in his new adventure as a solo practitioner will soon learn tht they’re getting quality legal representation by someone who knows the law and knows how the wheels of justice really turn.
Greg Ferbrache is a driven and passionate attorney with a deep understanding of criminal law and application of the statutes of the State of Utah and the U. S. Constitution. Mr. Ferbrache always provided our team with meaningful and valuable opinions and application of the law in the cases we worked together.
Latest News
Win for Utah Families
The pro transparency/pro family bill version of SB-99 passed the House unanimously and unopposed!
Utah SB 99 Proposed Revision
Utah Senate Bill 99 would allow DCFS to withhold critical information from parents and their representatives. I testified against it. Here’s my testimony.
$10 Million Lawsuit Against The Waterford School for Failure to Protect Female Student With Disabilities Raped by Male Classmate
Febrache Law with Sanford Heisler Sharp LLP, filed a lawsuit for Tabitha Bell against The Waterford School. Tabitha was subjected to bullying, shunning by other students, consistent mistreatment by faculty and ignoring a traumatic rape by a male classmate. The male a student, a member of the lacrosse team has a known history of sexual […]
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.
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.
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.
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.
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.
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.
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.
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.
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.