SALT LAKE CITY — The Utah Supreme Court has ruled that children don’t have to testify against those charged with sexually abusing them before it comes time for a trial.
The decision is being hailed as a victory for victims that will spare them from revisiting traumatic events when it’s not needed.
The court’s unanimous Tuesday decision is “so important for victims,” said attorney Paul Cassell, who represented a girl prosecutors say was 12 years old when a Utah man raped her in 2018.
“That’s been of particular concern for the victims movement in sexual assault cases and especially child sexual assault cases, because it’s very traumatizing for the victim to have to come in and be cross-examined and recount the whole thing,” Cassell said.
Most cases end in plea deals and don’t go to trial, so the decision means many won’t need to testify at all, he added. The ruling comes in response to the case Cassell worked on and another similar case in Utah.
Defense attorneys argued that the men accused in the two cases have a right to have the children brought to the stand for questioning at a preliminary hearing. They said nothing grants victims the right to ignore a subpoena.
Preliminary hearings take place at an early stage to determine whether prosecutors have enough evidence to go to a trial. A judge determines whether there is enough “probable cause” to believe a person committed a crime and can send the case to a jury trial. The probable cause standard is the same threshold police have in arresting a person.
It’s not enough for a conviction, however. In order to reach a guilty verdict, a jury must find there is proof beyond a reasonable doubt that a crime occurred and the defendant committed it.
No one disputes that a defendant has a right to confront an accuser at trial. But lawyers for the girls argued that a judge can instead consider interviews with police, sworn statements and other evidence in the early portion of the case.
While defendants have a right to obtain more information in the case against them and poke holes in the allegations, they argued that’s not the point of the preliminary hearing. When the other evidence is available, forcing a person to testify amounts to harassment, prohibited in a 1995 victim rights amendment to the Utah Constitution, they said.
Justice Thomas Lee wrote in the court’s opinion that research has shown that forcing victims to revisit their abuse can connect children with painful memories and reinforce their guilt and shame. He didn’t bar the testimony altogether, however.
Lee wrote that there are limited circumstances where it could be appropriate, including when certain defendants give specifics about how exactly the testimony is likely to help them prove that the case against them isn’t strong enough for them to stand trial.
But the two men made no such argument, Lee said.
“These cases arise at the difficult intersection between the rights of defendants and the rights of alleged victims in preliminary hearings,” Lee wrote.
Victim rights attorney Bethany Warr, who worked with Cassell, said appeals courts in several others states, including Missouri, Wisconsin, Wyoming and Kansas, have issued similar decisions.
The state Supreme Court opinion has implications for adult victims, not just children, but seemed to apply only to sexual offenses and not other sorts of crimes, Warr said.
She noted several Utah judges have said they would like the guidance from the Utah Supreme Court in recent years as more defense attorneys have sought to compel victims to testify.
Warr said she believes 3rd District Judge James Blanch, who ordered her client to take the stand, did so knowing that his ruling would be appealed and in an attempt to get the question in front of the justices.
She said her now 15-year-old client and the girl’s mother are happy with the court’s ruling.
“They’re excited. They are glad the court obviously did the right thing,” Warr said.
An attorney for one of the men did not return a message. A lawyer for the other declined comment.