Senate bill seeks to enhance protections for rape shield victims

  • The State House dome is seen on Nov. 18, 2016, as the restoration project nears completion. (ELIZABETH FRANTZ / Monitor staff) Elizabeth Frantz

Monitor staff
Wednesday, March 29, 2017

A House committee is considering a Senate bill that would clarify the definition of sexual activity under the state’s rape shield law and, in doing so, extend further privacy protections to victims.

The House Judiciary Committee previously considered a similar bill sponsored by Rep. Renny Cushing, a Hampton Democrat. However, at that time, committee members rejected an amendment to Cushing’s bill that would have made it identical to the Senate proposal now before them.

During a public hearing Tuesday on Senate Bill 9, committee member Rep. Paul Berch, a Westmoreland Democrat, again questioned whether the expanded definition of sexual activity is necessary, and whether adding the language to the law jeopardizes a defendant’s due process rights.

Approximately a dozen proponents of the bill testified, including several attorneys who said the bill does not limit a defendant’s legal rights, but, rather, writes into the law protections for rape victims that are already being carried out in practice.

The bill’s definition of sexual activity includes not just prior acts, but thoughts and expressions, too. The bill also specifies that a victim’s sexual history should remain under seal on appeal unless the New Hampshire Supreme Court overturns the lower court’s ruling.

Sen. Kevin Avard, a Nashua Republican, filed SB 9 following the highly publicized appeal of convicted murder Seth Mazzaglia to the Supreme Court.

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. He challenged on appeal whether a victim’s thoughts about certain sexual practices are protected under the state’s rape shield law.

Assistant Attorney General Geoff Ward, who served as a prosecuting attorney on the case, testified in support of SB 9 Tuesday, saying Mazzaglia’s defense team used the lack of specificity in the rape shield law to its advantage and made a creative argument that other attorneys could, too.

In the end, the Supreme Court denied Mazzaglia’s appeal and maintained a seal on Marriott’s record, but left a number of legal questions unanswered.

Sexual activity is not currently defined in the state’s rape shield law, and the Supreme Court did not provide one, Ward said. The writers of SB 9 looked to state and federal laws for guidance on how to best amend New Hampshire’s rape shield statute.

“Had this (proposed) definition existed, that certainly would have bolstered our argument ... that a victim’s prior statements to someone, other than the defendant, about what they may or may not think is interesting sexually has no bearing on whether consent was given to that particular person at some point down the road,” he told the House committee.

Attorney Rus Rilee, who represented the Marriott family during Mazzaglia’s appeal, agreed, saying the rape shield law is designed to encourage victims to come forward without fear that their sexual history will be aired in open court. He said SB 9 clarifies protections for victims that were always intended to exist.

“Lizzi’s tragic case highlights both the need for clarification of New Hampshire’s rape shield statute and the importance of rape shield protections that are broad in both duration and scope,” Rilee testified.

If courts begin allowing the release of previously sealed information, victims will be even more unwilling to report. Sexual assault is the most underreported crime in New Hampshire and nationally, prosecutors and law enforcement officials said.

Greenland police Chief Tara Laurent said that in her 20-year law enforcement career she has learned a lot about how victims are overlooked by the criminal justice system.

“We’re aware that it’s a human system and that mistakes are made,” she said. “Victims unfortunately get lost in the cross fire.”

Anything that can be done, within reason, to make the reporting process easier for a victim should be done, Laurent said.

“We do so much for defendants, we owe it to our victims to do the same.”

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