Advocates ask court to keep details of Lizzi Marriott’s sexual history sealed

  • Seth Mazzaglia gets escorted out of the courtroom as Judge Steven Houran gave his case to jurors for deliberation at Strafford County Superior Court in Dover, N.H., on Thursday, June 26, 2014. Mazzaglia is accused of killing University of New Hampshire student Elizabeth "Lizzi" Marriott. (AP Photo/Union Leader, David Lane, POOL) David Lane

Monitor staff
Published: 8/22/2016 11:58:44 PM

State and national advocacy groups jointly called upon the state Supreme Court on Monday to vacate a June order that they say would have detrimental and far-reaching consequences for rape and murder victims.

Twelve organizations have united with the New Hampshire Coalition Against Domestic and Sexual Violence in support of the family of Lizzi Marriott, a 19-year-old University of New Hampshire student who was killed in Dover in 2012. They are asking the Supreme Court to maintain a seal on records detailing Marriott’s sexual history in the wake of an appeal filed by her killer.

Seth Mazzaglia was convicted of first-degree murder and sentenced to life in prison without parole in 2014 for strangling and raping Marriott. Mazzaglia has since 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.

Rape shield laws exist in every state and limit or prohibit a defendant’s ability to introduce evidence about a victim’s sexual history to undermine his or her credibility.

But an administrative rule change made this year in New Hampshire threatens to dismantle those protections by allowing confidential material to be made public. The Supreme Court ruled that rape shield protections do not apply to appeals before the high court and that public transparency trumps victims’ privacy rights.

The decision prompted the state attorney general’s office to ask the justices to reconsider their order and to halt any disclosure of sensitive materials until the matter is fully vetted in court. The justices granted the state’s request, as well as a motion from the Marriott family to intervene as a third party in the Mazzaglia case. Many have called the latter decision unprecedented.

“I’m unaware of this having happened in Supreme Court before,” said the Marriott family’s attorney, Rus Rilee, in a phone interview Monday. “The family can assert its own voice and has a seat at the table.”

Mazzaglia is arguing that appellate proceedings should take place in open court. The sealing of documents and the closure of the courtroom during oral arguments would leave the “public ignorant” of the evidence in support of Mazzaglia’s appeal, wrote his attorney, Christopher Johnson.

The public will know only that “Mazzaglia has claimed that certain evidence about Ms. Marriott’s other sexual relationships, interests, and experiences should have been admitted. It will not know, though, what that evidence was, why the defense thought it should have been admitted, what the State argued in response, or why the trial court excluded it,” Johnson wrote.

But victims’ rights groups say Marriott’s prior sexual history is irrelevant to the case at hand.

In a brief he filed with the court Monday, Rilee wrote that Mazzaglia’s right to a fair trial was not jeopardized as a result of the trial court’s decision to keep sealed Marriott’s sexual history. Further, he said, public disclosure of those records would cause irreparable harm to Marriott’s family.

“If the records are unsealed, in this age where information is readily shared with a single click via email and social media, it would take just one person with access to the public court records to share intimate and inadmissible details and allegations about Lizzi’s disputed sexual history with an untold number of people,” Rilee wrote. “No law or policy supports destroying Lizzi’s and her family’s privacy and dignity interests simply because the convicted murderer and rapist has appealed his conviction.”

The coalition agreed, saying the victim’s rape shield privilege applies at all levels of the court process and doesn’t simply disappear when a convicted rapist or murderer appeals. The public disclosure of confidential records only on appeal is illogical, the advocacy group said.

“Surely, the Legislature did not intend that rape victims would lose their privacy once the defendant was a convicted rapist. This would have a terrible impact on the State’s ability to prosecute rapists,” the coalition said.

The advocacy group’s brief in support of the Marriott family is co-signed by 12 state and national organizations with an interest in victims’ protections. Those include: the New Hampshire Association of Chiefs of Police, New Hampshire Legal Assistance, the National Center for Victims of Crime, the New Hampshire County Attorneys Association, the National Alliance to End Sexual Violence and the Victim Rights Law Center.

The New Hampshire chapter of the American Civil Liberties Union filed a separate brief Monday, also in support of the family.

Franklin police Chief David Goldstein spoke on behalf of the chiefs association Monday, saying law enforcement is concerned about losing its ability to offer protections to victims who have the courage to come forward. If fewer victims share their stories, more accused rapists will go unprosecuted, he said.

And for the victims who do come forward, the fight for justice could be even harder if the Supreme Court upholds its decision, said Elliott Berry, an attorney with New Hampshire Legal Assistance. It could, in part, encourage and open the door to appeals from convicted murders and rapists on similar grounds, he said.

In addition to their call for victims’ sexual histories to remain sealed, the coalition and its supporters are also asking the Supreme Court to create a process by which victims are notified of requests to unseal records.

“The process was not transparent,” said Amanda Grady Sexton, public policy director for the coalition. “We’re grateful that the justices changed course in allowing everyone, including the family, an opportunity to be heard.”

Sexton said national eyes are on New Hampshire as this case moves forward.

“I think people have an acute understanding that this is a slippery slope and this decision will have consequences that are far beyond this one case,” she said.

Sexton noted that the coalition has heard from at least two sexual assault victims who are concerned about the public release of Marriott’s sexual history and the ripple effect of that decision on their own cases.

Should the Supreme Court not reverse its ruling, Sexton said, the coalition will move to strengthen and clarify through amendments the laws that protect victims.

Oral arguments are scheduled for Sept. 21 at the Supreme Court in Concord.

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

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