Commentary: Justice for the Jane Does — and other rape victims — is our goal

Last week, the three of us – joined by three other attorneys located both inside and outside Utah – filed a petition in the Utah Supreme Court on behalf of four “Jane Does.” The Jane Does had all been sexually assaulted, promptly reported their cases to law enforcement, and ultimately seen their cases declined by the Salt Lake County District Attorney’s Office for prosecution. Our petition to the Supreme Court asked for the appointment of prosecutor to pursue these well-founded criminal cases to their logical conclusion.

Last Friday, Robert Gehrke wrote an op-ed piece (“There’s no escaping the politics hanging over the allegations that Gill neglected sexual assault cases”) in which he supported the Jane Does. Gehrke concluded that, “The women deserve to be heard. Period.” But Gehrke also wondered about the timing of our petition, filed with a local election a few weeks away.

The Jane Does’ petition to raise a broad national issue: How should our nation’s criminal justice system respond when sexual assault victims come forward and present viable cases for prosecution that prosecutors ultimately decline? The idea for the petition first crystalized for the three of us on June 18, when (following a rape case hearing) we all discussed the fact that non-prosecution of sexual assault cases was one of the biggest challenges facing crime victims in Utah today.

On that day, we began working on a novel state constitutional theory challenging non-prosecution decisions. Over the next several months, on behalf of our four victims, we were proud to see the legal and factual arguments come together, based on pro bono efforts of more than six attorneys and four expert witnesses on such complex topics as low filing rates of rape cases in Salt Lake County, “rape myths,” and “institutional betrayal” of victims.

Ultimately, we completed a first draft of the petition on Sept. 26. After additional police materials became available, we filed the 150-page petition and 300-page supporting appendix with the Utah Supreme Court on Oct. 16.

Our petition is supported by local and national anti-sexual violence organizations and fits into a broader national pattern of litigation surrounding under-enforcement of the laws prohibiting sexual violence against women and girls. In just the last year or so, sexual assault victims have filed private civil lawsuits in San Francisco, Austin, and elsewhere. Those lawsuits have proceeded under federal civil rights theories – and have been (thus far) unsuccessful because of barriers existing in federal law. The Jane Does’ petition raises the same under-enforcement facts as these other lawsuits but relies on a new legal theory: that Utah state constitutional law allows appointment of a prosecutor to bring justice to victims.

Our petition was filed to look forward to the Utah Supreme Court achieving justice for sexual assault victims through appointment of a prosecutor. It was not filed against the Salt Lake District Attorney’s Office with an intent to look backwards at its non-charging decision. We simply handled our legal work in the ordinary course of affairs, filing the petition when it was ready to file. In doing so, we had our clients’ interests foremost in our minds.

The Jane Does wanted their voices heard and their petition filed immediately when it was ready, as they remained understandably anxious about what the next steps would be. We did not want to be accused of altering our filing’s timing — one way or the other — for political reasons.

Under-prosecution of sexual assault cases has been documented not just in statistics from Salt Lake County, but in Los Angeles, Baltimore, St. Louis, New York, Philadelphia, and Missoula, Mont., (among others), which is why our petition has received national attention. How our nation will respond to under-prosecution remains to be determined. The Jane Does’ petition deserves a serious discussion that is long overdue.

Paul Cassell

Paul G. Cassell is the Ronald N. Boyce Presidential Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah.

(Francisco Kjolseth | The Salt Lake Tribune) Bethany Warr

Bethany Warr is an attorney at the Utah Crime Victims Legal Clinic.

Gregory Ferbrache

Greg Ferbrache is an attorney in private practice at Ferbrache Law PLLC.