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

Published in Washington Post

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.