It was sad to read Dennis Romboy's columns in last week's Deseret News. (Salt Lake woman accuses federal judge of raping her as a teenager — Wednesday, March 16, 2016, and D.C. judge resigns on same day Utahn accuses him of decades-old rape).
Many of us remember the horrible event in 1980 when racist Joseph Paul Franklin shot and killed two black male joggers in Salt Lake's Liberty Park ostensibly because they were jogging around the park with two white female friends. The civil rights trial took place in federal court in Utah in 1981 and the state murder trial commenced shortly thereafter, both resulting in convictions and multiple life sentences for Franklin.
One of those female friends, Terry Mitchell, recently revealed that she and one of the federal prosecutors in that trial, Richard W. Roberts, a young up and coming Justice Department prosecutor from Washington, D.C., were engaging in sexual relations at the time of the trial. Roberts was subsequently appointed as the chief federal judge in Washington, D.C. He resigned that position last Thursday, shortly after these allegations were made public.
An apparently exhaustive investigation of the incident was recently conducted by the Utah Attorney General's Office and the results of that investigation paint a picture of just how far the state of the law has come in Utah as it relates to sexual conduct with minors. In short, if the same conduct were to occur today, Mr. Roberts would likely be convicted of a serious felony, would certainly be placed on the Sex Offender Registry, would have lost his license to practice law and obviously could not have qualified to be a federal judge.
In making the decision whether or not to prosecute an individual, prosecutors are bound by the law as it existed at the time the offense is alleged to have occurred; not the law as it stands during the investigation or prosecution. In 1981, there was no law in Utah that made sexual contact between a 28-year-old prosecutor and a 16-year-old witness a crime. In saying that I acknowledge that Utah has long had several mid-level misdemeanor offenses that make certain "consenting adult" sexual crimes illegal, but those offenses are rarely, if ever prosecuted, and I applaud Sean Reyes' staff at the Attorney General's Office for not taking the bait and filing those charges with that knowledge, notwithstanding the offensive nature of that conduct as we see it today.
Utah law has developed extensively in the 36 years since these sexual assaults. The age of consent has been raised to 18. Our Legislature has enacted offenses that increase in severity for crimes against victims under 18, under 16 and under 14, progressively. We have also changed the definition of consent itself. The very nature of the relationship between a perpetrator and his victim can create a lack of consent. Certain individuals are now defined to be in a "Position of Trust," which alone negates consent. We also now have laws that take into account the vulnerability of the victim when assessing the concept of consent.
Certainly there are other, more sensible remedies. A referral to the Department of Justice for possible ethical and disciplinary violations, a report to the various prosecuting agencies to assess whether a disclosure should be made to the courts and perhaps even contact with Congress to determine if impeachment is in order.
As an attorney, I applaud the fact that the Attorney General's Office had the courage to take on this investigation, knowing that the allegations were very old, the physical evidence was lacking, and the perpetrator is a man of honor and distinction such that the findings could be devastating to his career. As a criminal practitioner, I also admire that the decision was made not to file minor criminal charges when others similarly situated would not have been prosecuted.
Greg Skordas is the former chief deputy Salt Lake County attorney, where he worked as a prosecutor from 1987 until 1995. He is also a past president of the Salt Lake County Bar Association and Criminal Law Section of the Utah State Bar. He currently serves on the Utah Commission on Criminal & Juvenile Justice, the Utah Sexual Violence Council, and the Boards of the Children's Justice Center at the Utah Law Related Education Project, as well as serving as attorney for the Board of the Rape Recovery Center and Intermountain Specialized Abuse Treatment Center.