Pleasant Grove • When she was 12, Rose says, she began receiving unwanted attention from her mother’s live-in boyfriend.
Over the next 13 months, he would pull her shirt up and kiss her breasts, she said. And on at least one occasion, he fondled her genitals.
Rose, a social, precocious extrovert, receded into the darkness. She spent her time alone in her room and, more specifically, in her head.
She became unrecognizable: losing 40 pounds and yelling and fighting with her mother. She stopped seeing friends. She attempted suicide three times.
Years later, as a 15-year-old, Rose’s light is back. She is chatty and social. Her grades, which had foundered to F’s, are again A’s.
The man accused of molesting Rose was arrested and charged in January 2016 with 10 counts of first-degree felony aggravated sexual abuse of a child in Provo’s 4th District Court. That summer, seven of the counts were dismissed.
But a component of Rose’s recovery — the closure she desires — is in limbo. In the past two years, the criminal case against her alleged abuser has gone dormant while attorneys have argued whether he should be able to force her to testify at a preliminary hearing, rather than just at trial.
On Monday, the Utah Supreme Court will hear arguments on the case.
The Salt Lake Tribune generally does not identify victims of sexual assault. Rose is a pseudonym. The Tribune also is not identifying the defendant in the case so as to not unintentionally identify Rose.
‘I don’t want to relive that’
Rose said she’s scared to testify. She thinks the defense attorney wants to use the testimony as a chance to twist her words or get her to slip up. She said sitting in front of her abuser would be traumatic.
“It’s plain wrong and cruel,” she said. “I don’t want to relive that.”
Spencer Banks, an attorney for the Utah Crime Victims Legal Clinic, represents Rose. He said testifying can be traumatic for a victim. He’s seen a victim testify during trial then subsequently go into a tailspin, falling into substance abuse and behavioral issues that last years.
“Children are incredibly resilient,” Banks said. “I think some of them are able to recover better than adults. But that is not to say we should force them into doing this and bank on them recovering.”
The defendant’s attorney, Joshua Baron, said he isn’t out to torment Rose. The entire case is built upon her credibility, he said, and the only way to examine that is to ask her questions.
“There is no one whose testimony is more germane than this witness’s testimony,” he said. “We will try to be sensitive and nonconfrontational.”
In a “friend of the court” brief, Banks, University of Utah law professor Paul Cassell and other attorneys argue that protecting child victims is one reason Utah voters amended the constitution in 1994 when passing the Victims’ Rights Amendment.
The amendment says in part that crime victims are “to be treated with fairness, respect and dignity, and to be free from harassment and abuse throughout the criminal justice process.”
After the amendment’s passage, Cassell and Banks said, the practice of subpoenaing victims to testify at preliminary hearings stopped. But, through the years, it has slowly picked back up.
“It’s sort of an amnesia on the part of defense attorneys,” Cassell said.
The law does not state that victims can’t be subpoenaed at preliminary hearings, and much of its wording is open to interpretation. Baron said that retroactively deciding the intent of the legislation is pointless. If lawmakers want the practice banned, Baron said, they should clearly change the law.
Cassell said different judges in Utah rule differently on subpoenas summoning child victims to testify at preliminary hearings, so a high court ruling will bring consistency.
In lieu of direct victim testimony, prosecutors usually rely on a video interview of the victim explaining the alleged abuse to a child psychologist. That happened in Rose’s case. But the defense argued — and continues to argue — it has a constitutional right to put Rose on the stand.
The video, recorded at the Utah Children’s Justice Center, was submitted into evidence. The judge at a July 2016 preliminary hearing ruled that Rose didn’t have to testify and dismissed seven of the 10 counts.
In August 2016, the defendant appealed the judge’s decision to not make Rose testify, and the case is now before the Utah Supreme Court.
Baron says he has issues with the way the video interview was conducted and plans to use that as part of his defense at trial.
At a preliminary hearing, the prosecution presents evidence and a judge decides if there is probable cause to advance the case to trial. The burden of proof isn’t as high as at a trial, and the judge weighs all evidence in a light most favorable to the prosecution — so inconsistencies between video testimony and that given at a preliminary hearing won’t carry as much weight with the judge, Banks said.
Rose would have to testify if the case goes to trial, and a judge or jury would have to find the defendant guilty beyond a reasonable doubt to convict him.
‘Like every other teenager’
When Rose was 8, she and her mother emigrated from El Salvador, one of the most dangerous countries in the world. Rose quickly showed promise in her new home, learning English and excelling academically.
Already a speaker of two languages, Rose is now learning French and German and dabbling in American Sign Language. She aspires to learn Portuguese and wants to be a general surgeon. But right now, she’s enjoying being a kid.
“I’m like every other teenager, honestly,” she said. “I like hanging out with my friends, I like texting.”
In her preteen years, she fell into a spell of depression. It happened during and after the 13-month period when she said her mother’s boyfriend, who lived with them for four years, molested her while she was 12 and 13 years old.
“While that was happening, I really hated myself,” she said. “I didn’t like one thing about myself.
“I thought that I was the reason that everything happened. It wasn’t him, it was me. So I was trying to change me.”
Sara, Rose’s mother, saw the despair. She took Rose to a psychologist. She tried to take her daughter shopping. Nothing helped, and Rose wouldn’t tell her why her previously bright light had dimmed.
But one day, when Sara was driving Rose to kickboxing class, Rose confided in her mother, telling her the man she had built a family with had betrayed her and molested Rose.
Sara turned the car around, went back to their Pleasant Grove apartment and kicked him out.
Looking back, Sara says, she never suspected it. In fact, she had been helping her boyfriend take care of his own daughter, who had been molested by another man.
“So I never thought with all the things going on with his daughter, he was going to do the same thing with my daughter,” Sara said.
Rose started attending therapy. She told her friends about the abuse and learned she wasn’t as “unnormal” as she thought.
“It opened up my eyes and I noticed that this is a really bad thing that happens to so many boys and girls out there,” Rose said. “It just made me realize I wasn’t alone.”
Doing her Children’s Justice Center interview was a profound experience. It was the first time she told someone what had happened in detail. It was relieving, she said. But she also was riddled with anxiety and broke down in tears.
Uttering those personal details — recounting the worst experience of her life — in a public courtroom in front of the man who touched her would be traumatic, Rose said.
Plus, while Rose speaks fluent English with little accent, it’s not her native tongue, she said. Unlike in the video interview, Rose worries the defense attorney will try to twist her words.
“In a courtroom, I feel like it wouldn’t be the same, especially with him watching me,” Rose said. “It’s very intimidating. I am young, I am not used to any of this.”
But Baron said his client is facing prison time in a case without a confession or physical evidence. As an attorney, it’s his job to do whatever he can to provide the best defense possible.
“These are the cases where the stakes are the highest — the penalties are just much much worse than any other case,” Baron said. “At the same time, this is the type of case with the least-reliable evidence.”
A precedent-setting decision
A ruling from the Utah Supreme Court will likely be months away.
Cassell said there is no real question as to the voters’ intentions in 1994: They didn’t think victims should have to relive their experiences twice in court. But having a final court ruling will be helpful, and not just for Rose — it would set a precedent.
Rose said she finds some solace in that. It’s not something she asked for, but she likes the idea of indirectly helping other victims.
And each day, she tries to heal a little more of her wounds. She wants to use this experience to empower and strengthen herself. But more than anything, she wants to put this behind her.
”It’s just stalling what I have to go through. It’s always in the back of my mind — maybe I’ll have to see him again, maybe I have to go in front of a judge and tell the whole story again,” Rose said. “After awhile, it gets tiring.”
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