U law professor: Child victims of sexual abuse should not be forced to testify in preliminary hearings

A new amicus brief filed in the Utah Supreme Court today by University of Utah S.J. Quinney College of Law Professor Paul Cassell argues that child victims of sexual abuse should not be forced to testify during preliminary hearings.

In addition to Cassell, the brief was filed by Spencer Banks of the Utah Crime Victim’s Legal Clinic and Meg Garvin of the National Crime Victims’ Law Institute, on behalf of a sex abuse victim. The girl, referred to pseudonymously as “Rose,” was 12-years-old when she was sexually abused by her mother’s live-in boyfriend. S.J. Quinney College of Law students provided research support behind the brief.

University of Utah S.J. Quinney College of Law Professor Paul Cassell. Photo by Benjamin Hager.

The case arose from alleged sexual abuse in Utah County that started in 2014, according to police documents.  During the preliminary hearing in the case, the trial court received a detailed and video-recorded statement from Rose describing in detail the sex abuse she had suffered at the hands of the defendant in the case.

Thereafter, the district court granted the state’s motion to quash a subpoena seeking to force Rose to be cross-examined by defendant regarding the abuse.  The district court concluded that the recorded statement from the Children’s Justice Center provided probable cause to bind the case over for trial and that any further questioning of the victim at such an early stage of the proceedings would be inappropriate.  The Utah Supreme Court granted the defendant permission to appeal the issue and the case remains pending. Arguments are expected to be heard in the case in early 2018.

Cassell’s brief filed on behalf of Rose argues that the district court’s decision should be affirmed by the Utah Supreme Court for two reasons: First, because the defendant had no legitimate reason for questioning Rose at the preliminary hearing, enforcing a subpoena to compel her to testify would violate her state constitutional rights under the Victims’ Rights Amendment “to be treated with fairness . . . and to be free from harassment and abuse throughout the criminal justice process.”  Utah Const., art. I, § 28(1)(a).

Cassell also argues that forcing Rose to testify violates the preliminary hearing reform provisions contained in Utah Const. art. I, § 12, which were specifically designed to prevent victims from being forced to testify at preliminary hearings.  Cassell’s brief also provides a summary of social science literature establishing the harmful effects on minor victims of sexual abuse from being forced to provide in-court testimony.