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Editorial: The harmful consequences of a bad bill

Published: 1/13/2017 12:05:06 AM

Editor's note: All sexual assault charges against former Concord psychologist Foad Afshar, who was accused of molesting a patient, were dropped by the Merrimack County Attorney's Office in October 2018.

In the 1760s, English jurist William Blackstone wrote in the Commentaries on the Laws of England that “it is better that ten guilty persons escape than that one innocent suffer.” The principle, which became known as Blackstone’s formulation, is that government should always err on the side of innocence.

We were reminded of that ratio when reading the text of a perhaps well-intentioned but definitely misguided bill introduced by Rep. William Marsh, a Wolfeboro Republican, and co-sponsored by Reps. Jess Edwards, an Auburn Republican, and Mary Heath, a Manchester Democrat, which would require corroborating evidence in sexual assault cases where the defendant has no prior convictions.

Marsh says the case of psychologist Foad Afshar of Bow, who was sentenced to three to six years in prison for sexually assaulting a young patient in 2015, was the impetus for the bill. Marsh’s daughter was a student of Afshar’s at the New Hampshire Institute of Art, and told her father that she didn’t believe the man she knew was capable of the crime for which he was convicted. That was enough, it seems, for Marsh to file legislation that would weaken the state’s sexual assault laws. It’s not enough for us, and should not be enough for the members of the House Committee on Criminal Justice and Public Safety, which will hold a hearing on the bill Tuesday.

As Amanda Grady Sexton of the N.H. Coalition Against Domestic and Sexual Violence says, the deck is already stacked against victims of sexual assault in the criminal justice system. In fact, she told us, it’s extremely difficult to find someone to prosecute any sexual assault case that isn’t a slam-dunk. HB 106 would codify “the false assumption that sexual assault victims are less credible” than victims of other crimes, she said, and it is a false assumption: The number of false reports in sexual assault cases is in line with other crimes – a rate of 2 to 8 percent, according to the National Sexual Violence Resource Center. Grady Sexton also correctly points out that the bill violates the Equal Protection clause of the 14th Amendment, which says that no state can “deny to any person within its jurisdiction the equal protection of the laws.” HB 106 would hold victims of sexual assault to a different standard than victims of other crimes.

Legal arguments aside, there is an even more compelling case to be made against HB 106: It sends the absolute wrong message to victims of sexual assault.

Even one of the bill’s sponsors sees that now. Heath said she signed on to the bill because she worried that the Afshar case would affect the availability of mental health treatment. She has since decided the bill would take too great a toll on victims and said she can no longer support it.

Marsh, a retired ophthalmologist, said he sees the Afshar case as a “sentinel event.” Because he believes Afshar to be innocent, the process that led to his incarceration requires review and reparative action.

We take no position on Afshar’s guilt or innocence but see HB 106 as a reckless action far outside of Blackstone’s formulation and an inappropriate response even to a “sentinel event.” We also believe that legislation weakening the state’s sexual assault laws is a poor way to start a conversation, which Marsh says was his intent, about evidentiary thresholds in sexual assault cases.

One of the bill’s co-sponsors has disavowed it completely and the prime sponsor is holding out hope that somebody who knows more than he does about criminal justice will make it better. We ask the Criminal Justice Committee and the rest of the House to recognize HB 106 as the harmful bill that it is.

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