Four women who say the Salt Lake County District Attorney’s Office mishandled their sexual assault reports are asking for an unprecedented step: They want the Utah Supreme Court to assign a special prosecutor to bring their cases to court.
One woman was 17 years old when she says another student sexually assaulted her while they worked on a school project. Another says she was abused by a former coworker. A third says the former Provo police chief raped her
. And the fourth reported she was assaulted by a massage therapist.
Salt Lake County District Attorney Sim Gill’s office has declined to file charges against each of the accused men, their petition said.
University of Utah law professor Paul Cassell said the petition filed Tuesday highlights a troubling gap in the criminal justice system: Alleged victims have limited ways to challenge decisions by prosecutors.
“If prosecutors don’t file charges, victims don’t get rights at all,” he said.
The petition is based on a provision in Utah’s original constitution that allowed for the appointment of a lawyer if a county attorney failed to prosecute “according to law.” That appointment power was transferred from district courts to the state supreme court in 1984.
Multiple sexual violence prevention groups issued statements in support of the request for a special prosecutor, calling it an innovative remedy to what they describe as systemwide reluctance to charge sex crimes.
But Gill and attorneys in his office argue the petition ignores multiple options that victims have, and they criticize its timing — three weeks before the general election. Gill is facing a challenger
from within his office, deputy district attorney Nathan Evershed.
Gill said Cassell, a former federal judge representing the women along with other attorneys, didn’t try other avenues — including seeking a meeting to ask prosecutors to reconsider — before filing the petition.
Cassell’s strategy “is as irresponsible as it is self-serving,” Gill said in a statement.
Cassell said lawyers had been working on the petition for months and filed it when it was complete. And three of the four women petitioning the state supreme court said they did meet with prosecutors after their cases were declined, asking the office to re-evaluate.
Crystal Madill said she and the officer investigating her case repeatedly asked prosecutors to reconsider and file charges.
Madill, now 30, told police she was assaulted by a massage therapist in Salt Lake City during a February 2017 appointment. She said prosecutors’ refusal to file charges made her feel “unsafe.”
“It made me feel like anything bad could happen to me anywhere and I’d have to have my own back because the justice system doesn’t,” she said.
She and a second woman in the group told The Salt Lake Tribune they unsuccessfully sought help from Utah Attorney General’s Office, another option listed by Gill.
Madill reported her alleged sexual assault to Salt Lake City police two days after her appointment. As she was lying on a table, naked with a sheet over her, she said, the therapist repeatedly touched her genitals and pressed his genitals against her arm.
“I just froze because I didn’t know what to do,” Madill said. “I was naked on a table with a man bigger than me.”
She said she didn’t plan to file a report at first, but then decided to, hoping to prevent the therapist from hurting another client.
A nurse who specializes in sexual assaults found a laceration in Madill’s anus, she said, and prosecutors had that report. Madill said she repeated her account to several prosecutors, reliving the painful experience each time.
“It was almost harder than the assault,” said Madill, who agreed to the use of her name.
Two months after Madill’s initial report, prosecutors concluded there was “insufficient evidence” to move forward, she said.
“I did everything that I needed to do and I did it as strongly as I could and there was nothing,” she said. “I didn’t realize how disappointing and heartbreaking it would be.”
Prosecutors questioned why she sought a massage that would be performed while she was nude, and asked her to think about the impact of charges on the man’s future, she said.
“It was like they were trying to find a vulnerability in me to just accept that I shouldn’t go forward with this,” she said.
The officer she was working with pushed back and met with a senior deputy district attorney, who told him in an email that a prosecution likely wouldn’t be successful, she said. The officer tried again, noting that Madill had a rape kit pending, but prosecutors said even a positive result wouldn’t be enough proof for a conviction, she said.
Madill said she called the Utah Attorney General’s Office, hoping it would pursue charges, but never received a response.
Filing the petition, Madill said, has been encouraging because she’s felt part of a team of women trying to change the process.
‘It’s discouraging, frustrating’
The woman who reported being sexually assaulted as a 17-year-old initially didn’t want to go to police, she told The Tribune, because she was afraid her classmate would retaliate. She said only made a report because she was worried about pregnancy, and she believed she couldn’t tell her pediatrician without mandatory reporting laws forcing a police investigation.
Sure enough, she said, her classmates found out.
“It turned everybody against me,” said the woman, now 18. “I lost all of my friends.”
The Tribune generally does not identify alleged victims in sex crimes.
A Sandy police detective interviewed the teen. The teen’s mother said she asked the detective what her conclusion was.
“She looked at me in the eye and said, ‘She was violently raped,’” the mother recounted.
But the accused classmate refused to interview with police, and the prosecutor’s office declined to file charges, the petition said.
In a six-page letter, the prosecutor who evaluated the teen’s case wrote that he and four other prosecutors agreed that they couldn’t prove a rape case. The teen had told police she froze in fear when her classmate began kissing her in her basement and then rapidly and aggressively removed her clothes.
“However, she failed to say or physically manifest any lack of consent at this time, other than not actively participating,” the letter states.
It is “reasonably possible,” the prosecutor concluded, that the teen’s classmate “liked” her and “wanted to have sex, began kissing her, didn’t notice her giving any indication that she didn’t consent, quickly moved into sex, and still never noticed any lack of consent, as [she] simply didn’t participate.”
The petition for a special prosecutor argues that the district attorney’s office downplayed an important factor: The woman suffers from muscular dystrophy, and her classmate knew that she couldn’t physically fight him or run away.
“She’s delayed physically, she’s home alone in the basement with this individual, and she also has delayed speech as well, so her physical limitations are [significant] in all regards,” said Greg Ferbrache, the woman’s attorney.
Ferbrache asked the Utah Attorney General’s Office to review the case; it found prosecutors had not abused the discretion they have to decide whether to file cases. The woman’s parents met with Gill and another prosecutor to ask why charges were declined. The mother said, “Sim Gill had no answers.”
Gill said his prosecutors reopened the case and re-examined the evidence. They asked the parents for medical records, he said, and when the family refused to provide them, prosecutors couldn’t move forward.
The woman’s mother said collecting hundreds of pages of medical records after years of surgeries and therapies wasn’t realistic, and the family was dubious that prosecutors would take the case seriously, even with those documents. They told Gill they believed enough information about the woman’s disability already had been provided and referred prosecutors to Ferbrache, who said he has received no further contact.
“It didn’t seem to matter to anybody, because a male wanted to do something,” the mother said. “How do you put ‘He liked her’ into a declination [letter]? … She did everything that was asked, and basically was told, ‘Yeah, it happened and we’re not going to do anything.’”
The woman said it’s dangerous for a prosecutor to hold that someone may lawfully escalate sexual contact as long as he or she moves “too fast to notice” signs that a person does not consent — especially from a victim with a disability.
“It’s discouraging, frustrating … and it’s making me regret my decision [to report],” she said.
After her experience, she said, she’d encourage victims to report “only if it were more productive, and not just humiliating.”
Two additional cases declined
The petition also describes the case of a woman who accused former Provo police chief John King of raping her in 2017, when she was volunteering with the department. She was one of five women who this summer settled a lawsuit with the city over sexual misconduct allegations against King, who was asked to resign in March. King had been forced out of the Baltimore Police Department in 2012 after a report that he had sexually assaulted
Salt Lake County prosecutors reviewed the woman’s case and declined it because of “evidence problems,” the petition states.
The fourth woman, a 38-year-old who has cerebral palsy, said she was assaulted by a former coworker multiple times in his apartment in 2016. According to the petition, he told her he was a sex offender; he later made inconsistent and evasive statements to police; and DNA samples from the woman’s sexual assault exam matched him. Prosecutors would not charge him, “citing an alleged lack of evidence,” the petition said.
Gill noted that of the sexual assault cases presented to his office by Salt Lake County police agencies over the past two years, his office has filed charges in roughly 39.5 to 45.5 percent, similar to state and federal averages.
(Trent Nelson | The Salt Lake Tribune)
Salt Lake County District Attorney Sim Gill speaks at a news conference in Salt Lake City announcing Salt Lake County's lawsuit against big pharma, Tuesday April 10, 2018.
His office is ethically obligated to not prosecute if there is insufficient evidence, in order to protect taxpayer resources and to respect the due process rights of the accused, he said.
"The biggest disservice we could do is file every case that’s brought to us and let the system figure it out,” Gill said.
Appointing a special prosecutor for these four cases raises “a bunch of questions and potential problems that I don’t see the answers to right now,” said Steve Burton, president of the Utah Association of Criminal Defense Lawyers.
“How do you remove a special prosecutor who oversteps his bounds or abuses his power? How is the person funded? Can a judge remove a special prosecutor?” Burton asked. “It sure seems like it has the potential to create grave disparities between suspects. Everybody else’s case in Salt Lake County is handled the same except for a handful of cases that this one attorney is asking to be looked at and handled differently.”
Sometimes, Burton said, cases simply aren’t provable beyond a reasonable doubt.
“For the D.A.’s office to decline cases, there really must be a dearth of evidence," Burton said. He added: “It seems unethical to accuse someone of a crime, force them to get an attorney, bring public allegations against them … if you as prosecutor believe there’s simply not enough evidence to prove the case.”
But groups supporting the petition said often, the quality of evidence is not the problem.
“We know too well that the analysis that leads prosecutors to the decision that a sexual assault case is ‘unlikely to succeed,’ despite sufficient evidence, is rooted in the myths and misconceptions which decades of research has debunked,” wrote leaders of Legal Momentum, a national women’s legal defense and education nonprofit.
The low prosecution rate for sex offenses “denies victims of these life-altering and devastating crimes from having any type of justice; likely contributes to a public perception of a prevalence of false reports; and prevents other victims from reporting similar crimes,” wrote Karen Baker, CEO of the National Sexual Violence Resource Center.
“As a result, public safety is compromised, perpetrators continue to victimize people, and victims are further silenced and traumatized,” her statement said.
Gill defended his prosecutors and said they make themselves available if a survivor wants to challenge a decision. He said those dissatisfied with a charging decision can talk to him, or the Utah attorney general, or can petition for a grand jury. He noted the attorney general pursued a rape case in 2017 after Gill’s office declined to file charges, adding it was later dismissed by a judge.
He critiqued Cassell’s approach of seeking a special prosecutor from the Supreme Court as too expensive, making that kind of aid “available only to victims of wealth" with connections to lawyers or the money to hire them. Gill said he’s willing to work with the professor and lawmakers to draft other solutions.