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.
Four women seek special prosecutor after DA declines to file sexual assault charges
Originally published at American Bar Association
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.