Rule change would omit crime victims’ names from N.H. Supreme Court appeals

  • Members of the New Hampshire Supreme Court listen to oral arguments in the appeal of convicted murderer Seth Mazzaglia. GEOFF FORESTER / Monitor file

Monitor staff
Published: 6/3/2018 11:28:10 PM

An advisory committee received public comment Friday on whether crime victims’ identities should be obscured in public documents filed with the state’s highest court, but a vote on the rule change was delayed until next week.

The proposal to protect crime victims’ names, addresses, places of employment and other personal information has been before the Advisory Committee on Rules since summer 2017, but last week was the first time attorneys, victims’ advocates and members of the New Hampshire media had the chance to be heard in the debate.

The New Hampshire Press Association voted in May to oppose the rule change, arguing that it violates the public’s fundamental right to know as established in the state Constitution and right-to-know law, RSA 91-A. Conversely, leaders in the victim-advocacy community and the state’s top prosecutors have continued to express their support for the adoption of the rule, saying it shields victims from revictimization and exploitation, especially when Supreme Court decisions are easily accessible at any time online.

The 16-member committee, which includes judges, attorneys and legislators, is considering whether crime victims should have anonymity in all briefs, petitions, motions or memorandums filed at the Supreme Court, or whether anonymity should be granted on a case-by-case basis, which is present practice. The committee meets quarterly to consider changes to rules that govern the state courts and first discussed several versions of the rule on victim identification at its September meeting.

Under the latest proposal, “an alias, pseudonym, appropriate designation, or initials may be used in lieu of a crime victim’s name.” However, it does allow for crime victims to be identified in documents filed under seal and in public records when the court determines there is “good cause” to do so.

Those who oppose the rule change cite concerns over restrictions to public access in governmental proceedings, while also noting the proposed wording fails in its “vague” definition of crime victim.

“To qualify as a victim a person need only be ‘threatened’ with ‘physical, emotional, psychological or financial harm,’ and not only by the ‘actual’ commission of a crime, but also by the ‘attempted’ crime,” Vanessa Palange, president of the New Hampshire Press Association, wrote in a letter to the committee. “With such loose language, it’s difficult to imagine who wouldn’t qualify as a victim entitled to anonymity.”

Attorney Greg Sullivan, legal counsel for the Union Leader, agreed with Palange that the proposed rule change includes an “unconstitutionally broad” definition of crime victim. In his letter to the committee, he acknowledged that there are cases where anonymity is warranted, but he spoke against a blanket omission of all crime victims’ identities.

“The cases that the rule would apply to have presumably been adjudicated in the trial court during proceedings open to the public,” Sullivan said.

As written, the proposed rule applies only to motions and pleadings filed at the Supreme Court, and consequently leaves open the question of whether the appealing party should redact victims’ names in any supplemental attachments, to include lower court orders and public records related to those proceedings, Attorney Bill Chapman told the committee Friday.

More often than not, someone interested in viewing a case file in New Hampshire must drive to the appropriate court and view the paper file. Only in very high-profile cases do the lower courts proactively make court records available online. However, Supreme Court decisions are automatically published to the web and are therefore more easily accessible by everyone.

In supporting the adoption of the rule change, the New Hampshire Coalition Against Domestic and Sexual Violence said the age of “instant online sharing” demands a new layer of victim privacy.

“Keeping a victim’s name out of the media and off the Internet in no way impedes the public’s right to know that our court system is functioning fairly,” Director of Public Affairs Amanda Grady Sexton and Public Policy Specialist Jessica Eskeland said in a joint statement to the Monitor. “The media and the public do not have an absolute right to irrelevant information about victims of crime.”

Grady Sexton said by phone Friday that one of the main reasons sexual assault victims cite for not reporting is fear of a significant loss of privacy – something they’ve seen play out firsthand in other cases.

“No victim should have to choose between making a report and getting justice and their privacy,” she said.

Advocates also expressed concern about how such a significant rule change has gone largely under the public radar despite the breadth of people it could affect if adopted. Three people spoke at Friday afternoon’s public hearing, and three letters were submitted to the committee in the days prior.

The committee is expected to vote on the proposed rule change during a special meeting on June 8 at noon.

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

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