Donna Kelly: Lawmakers should reject proposals that would harm victims of crime

It is already too difficult for victims to report crime.

Dear Utah senators:

I urge your opposition to Sen. Todd Weiler’s SB 87 and SJR 6. In brief, the proposed changes contained in these two measures allow deposition of victims by defense attorneys, a change that will further traumatize victims.

Notably, the changes are based on a faulty understanding of current rules of discovery and of the preliminary hearing process. These do not violate defendant rights, but the changes will harm victims, the courts and justice itself.

This change comes without adequate protections for victims, such as the guaranteed presence of a court-appointed victim’s attorney or a judge during these depositions. Thus, victims may be ill-equipped to object to traumatizing, inappropriate and often illegal questioning, going against current efforts to ensure that trauma-informed protocols are used when interviewing victims.

Victims are already reluctant to report and prosecute sex crimes and domestic violence in Utah. Between 2010 to 2018, 56% of victims of sexual assault chose not to pursue or participate in prosecution. Utah County only screened 27% of adult sexual assault cases and failed to charge 45% of those. In Salt Lake County, the respective rates were 35% and 65%. The proposed changes are likely to adversely impact this already abysmal record.

These changes also assume that Utah withholds relevant and available evidence from defendants. In reality, prosecutors explicitly must disclose evidence as soon as practical after charges are filed without waiting for the preliminary hearing. Unlike civil cases where both sides must share evidence equally, current Rules of Criminal Proceeding only require the defense to provide a piece of evidence to the prosecution if there is good cause to do so and then only under a court order. Thus, these changes will tip the balance further toward defendants and against victims and create a new right available to defendants in only 11 other states.

These changes will also distort Utah’s preliminary hearing process which narrowly focuses on two questions: Was a crime committed? Did the defendant commit it? The process begins when the prosecution files an information document, which can include evidence not admissible in court, including hearsay evidence. These changes would create a new right available to defendants in only 11 other states and will not address many of the common complaints about the existing processes. Instead, these expanded preliminary hearing processes will burden the courts and prosecuting attorneys while creating massive procedural log-jams.

Finally, a no vote on these two measures would not deprive defendants of constitutional protections, as they will still have the right to a jury trial, carry the presumption of innocence, have the right to a court-appointed attorney and can confront and cross-examine accuser(s) during trial.

Further, defendants can access victim testimony during the preliminary hearing process if need is shown. Rather, these proposed changes will burden the courts and serve to seriously harm traumatized victims, further discouraging their willingness to prosecute serious crimes.

Donna Kelly

Donna Kelly retired after serving for 32 years as a special victims prosecutor and now serves as an attorney for the Utah Crime Victims Legal Clinic.