Addition to rape shield law sees opposition

  • FILE - In this Aug. 14, 2014, file photo, Seth Mazzaglia looks back at his mother as he is escorted out of the Strafford County Superior Court in Dover, N.H. Mazzaglia was sentenced to life without parole for killing University of New Hampshire student Elizabeth Marriott. On Wednesday Nov. 16, 2016, Mazzaglia's appeal was heard before the state's Supreme Court. (AP Photo/Jim Cole/FILE)

Monitor staff
Tuesday, April 25, 2017

A bill meant to protect rape victims from having their sexual histories used in court is facing opposition from House committee members who say it doesn’t address defendants’ rights.

“Defendants have a right to put forward evidence that might exonerate them if they are innocent,” said Republican Rep. Michael Sylvia, a member of the House Judiciary Committee.

Advocates say the bill is needed to strengthen the state’s rape shield law, and the change is endorsed by prosecutors and the American Civil Liberties Union of New Hampshire. On Monday, a day before the committee is scheduled to act on the bill, Republican Gov. Chris Sununu urged representatives to support it.

New Hampshire’s rape shield law already bars from evidence a victim’s past sexual activity with people other than the accused. But it doesn’t define what that could include, leaving a gray area that the was recently challenged by convicted murderer Seth Mazzaglia in his high-profile appeal.

Republican Sen. Kevin Avard filed the bill, Senate Bill 9, defining sexual activity to include not just prior acts, but a victim’s thoughts or expressions related to sex and the use of contraceptives, among other topics. 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.

The bill’s authors looked to state and federal laws for guidance on the definition, but some committee members and at least one attorney argued it’s too broad.

“How can our judicial system fairly exclude evidence of a person’s ‘thoughts or expressions related to sexual issues?’ ” Lebanon attorney Gary Apfel wrote in a recent letter to lawmakers.

The bill has already cleared the state Senate, but it’s not clear what the House Judiciary Committee will do. The group has already rejected an amendment to similar legislation that sought to define sexual activity included in the rape shield law. Sylvia said he’s concerned the change would amount to a “blanket prohibition” on admissible evidence.

While the rape shield law sets guidelines, a defendant can still argue before a judge that certain pieces of a victim’s sexual activity are relevant and should be admitted. The legislation wouldn’t change that, advocates say.

“There is nothing in this bill that in any way limits the accused’s ability to defend himself in court, and nothing that would skew the outcome of a fair trial,” said former GOP chairwoman Jennifer Horn in a post on the blogging website Medium supporting the bill.

Avard filed the bill in response to Mazzaglia’s high-profile court appeal. Mazzaglia was sentenced in 2014 to life in prison without parole for strangling and raping 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. The Supreme Court denied Mazzaglia’s appeal and maintained a seal on Marriott’s record, but left a number of legal questions related to the rape shield’s application unanswered.

Marriott’s father, Bob Marriott, wrote to the committee Monday asking they approve the legislation.

“I have always been amazed at the strength it takes a victim to report a sexual assault and believed the Rape Shield law enabled many victims to come forward believing that non-relevant details would be protected,” he wrote. “I urge you eliminate any ambiguity and clarify the protections afforded to victims in the criminal justice process by passing the bill.”

(Alyssa Dandrea contributed to this report. Allie Morris can be reached at 369-3307 or amorris@cmonitor.com.)