Two bills aim to strengthen New Hampshire’s rape shield law

  • The State House dome as seen on March 5, 2016. (ELIZABETH FRANTZ / Monitor staff)

Monitor staff
Wednesday, January 25, 2017

State legislators in the House and Senate have proposed similar bills to strengthen the state’s rape shield law after its application in the Supreme Court was challenged recently by convicted murderer Seth Mazzaglia.

Both bills seek to accomplish the same goal: to ensure that a victim’s sexual history remain confidential in all criminal prosecutions regardless of the court hearing the case.

A hearing before the Senate Judiciary Committee was held Tuesday morning to garner public testimony on Senate Bill 9, whose prime sponsor is Republican Sen. Kevin Avard of Nashua. A hearing before the House Judiciary Committee on related House Bill 439, which will be introduced by Renny Cushing, a Hampton Democrat, has not yet been scheduled.

The New Hampshire Coalition Against Domestic and Sexual Violence is supporting both bills, although advocates, the bills’ sponsors and attorneys are going back and forth about how to best word a proposed amendment to the law.

Fifty states, several territories, the federal government and the United States military have all enacted rape shield laws and/or rules. New Hampshire’s law has historically covered all courts until the final disposition of a case, although it recently came under scrutiny during Mazzaglia’s appeal.

Mazzaglia was sentenced to life in prison without parole in 2014 for strangling and murdering Elizabeth “Lizzi” Marriott, a 19-year-old University of New Hampshire student. On appeal, he questioned whether a Strafford County Superior Court judge erred in ruling twice that Marriott’s prior sexual history was inadmissible at trial under the state’s rape shield protections.

The Supreme Court upheld Mazzaglia’s first-degree murder conviction, but not without first adopting an administrative rule change months earlier that could have suddenly made Marriott’s records public. The disclosure of those records was halted until a full briefing on the issue in September.

The Supreme Court reversed its earlier opinion and held that information about Marriott’s past would remain confidential. However, the court did not specifically address the broader question of whether the state’s long-standing rape shield protections apply in every appeal.

At Tuesday’s Senate hearing, the coalition’s Executive Director Lyn Schollett cited several reasons for amending New Hampshire’s rape shield law. She noted that similar protections for victims are in place under existing evidentiary rules that apply to all courts: the district and probate divisions of the circuit court, as well as the superior and supreme courts. The statutory language of the rape shield law should mirror that of the existing court rules, she said.

“This bill is imperative to ensure that no other victims experience the uncertainty, fear and denial of rights experienced by Lizzi’s family,” Schollett told the Senate committee.

Attorney Rus Rilee, who fought on behalf of the Marriott family in Supreme Court, echoed that point in an emailed statement Tuesday.

“What Lizzi’s family had to endure through her rapist and murderer’s appeal is something that no other sexual assault victim or family should ever have to go through, so the New Hampshire legislature must clarify the rape shield statute to prevent this from ever happening again,” he wrote.

During Mazzaglia’s appeal, prosecutors interpreted the rape shield law to mean that both specific instances of sexual conduct and a person’s thoughts about certain sexual practices are protected. The defense repeatedly challenged that position, while arguing that Marriott died during a consensual sexual encounter with Mazzaglia and his then-girlfriend, Kathryn McDonough.

Schollett said Tuesday, “This troubling argument is directly contrary to the clear legislative purpose of New Hampshire’s rape shield protections. It violates victims’ privacy and discourages sexual assault victims from reporting these crimes.”

Rep. Cushing agreed, saying the state has made a lot of progress on this issue, but that there’s more work to be done. He said lawmakers must be aware of how the actions of the criminal justice system can have a re-traumatizing effect on victims and their families.

“I agree with the need to amend the law given the actions of our Supreme Court last summer,” he said. “I think it’s an opportune time to consider it.”

Of the handful of people who spoke Tuesday, no one opposed the bill’s intent, but several noted issues with its proposed language.

Katherine Cooper of the New Hampshire Association of Criminal Defense Lawyers in Manchester and Assistant Attorney General Elizabeth Woodcock said the intent of the bill is well-taken, but as written it doesn’t achieve its purpose and could cause confusion.

Woodcock welcomed lawmakers to work with the Attorney General’s Office to draft a more comprehensive proposal. She said she would also research how other states have handled the issue.

In an interview Tuesday afternoon, Schollett said other states have addressed the issue, more so through case law than legislation. For example, Illinois and Iowa have taken steps to define prosecution, whereas New Hampshire’s rape shield law does not include a definition. California and Texas have specific rules and restrictions that govern how sealed materials are handled on appeal.

(Alyssa Dandrea can be reached at 369-3319, adandrea@cmonitor.com or on Twitter @_ADandrea.)