Wyoming could become `model for the nation' for rape case policy

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CHEYENNE - Almost 30 years ago, Bonnie Young, assistant director of the Advocacy & Resource Center in Sheridan, was raped by somebody she knew.

"For a long time, when someone would lean over me in a certain way it would make me jump," Young said. "It was so hard to believe it had even happened."

Young said 30 years later, the rape influences her current relationships: "It affects what I think someone will want from me."

Now she counsels victims of violent crimes, but despite her own story, she doesn't push them to press charges.

"We try to be as honest as we can with what will happen to them in the system," Young said, adding that many victims worry their own sex lives will be exposed in court. "There can be a lot of unpleasantness with bringing a case to trial."

She estimates two-thirds of the roughly 150 sexual assault victims she sees each year don't report the incidents.

House Bill 36 going before a Senate committee this week seeks to change that.

Wyoming could become a "model for the nation," a national feminist organization said, if the Senate approves a measure to amend the state's rape shield law.

The bill, sponsored by Rep. Keith Gingery, R-Jackson, unanimously passed the House of Representatives. It would ban most of a victim's sexual history from becoming a part of the trial. Current Wyoming law calls for "judicial discretion," which means it's up to a judge to decide what parts of a rape victim's sexual past can be discussed in the courtroom.

"Judicial discretion is a scenario in which a woman bringing a rape case is rolling the dice as to how much information about herself and her sexual past will be brought into trial," Justine Andronici, legal adviser for the Feminist Majority, said. "Anything that we can to do prevent unnecessary, embarrassing and irrelevant information from being brought into a rape trial is good."

Andronici wasn't aware of any other state considering such an extensive change in its rape shield law: "It looks like Wyoming may very well be leading the nation on this," she said. "This may be a model for the nation."

However, Kerri Johnson, senior assistant public defender for Natrona County, said she doesn't think the changes to the law are necessary. Johnson says victims' sexual histories rarely come into play during rape trials.

Gingery disagreed. A deputy county attorney for Teton County, he said he was inspired to draft the bill after seeing many alleged rape victims decide against taking a case to trial.

"One of the biggest problems we have in the U.S. is that there is a huge difference between the number of sexual assaults that happen and how many cases go to court," Gingery said. "The victims are worried about how much information from their prior life will become a part of the trial. And I wanted to fix that so victims would be more active and more likely to come forward."

In certain cases, under Gingery's proposal, a victim's sexual history would still be admissible:

- if information suggests that semen, an injury or a sexually transmitted disease came from someone other than the defendant;

- if prostitution or some other negotiated consent is involved; or

- if the victim has a history of making false rape allegations, or there's reason to believe the victim would have a motive for making up the rape charge.

"The primary evidence that most people agree is necessary so a defendant gets a fair trial, yeah that should come in," Gingery said. "But the other stuff, like if a victim was perhaps promiscuous two years ago, should not come in. We're trying to move toward a more modern-day statute."

Gingery's bill is based on suggestions made in a 2002 George Washington University Law Review article written by Michelle J. Anderson, the former policy chair for the National Alliance to End Sexual Violence.

Anderson, who now is dean of City University of New York School of Law, said the Wyoming bill is unique because it would prohibit discussion of prior and subsequent sexual relations between the victim and the rape defendant.

"It narrows the admissible evidence to the specific act in question," Anderson said. "The Wyoming proposal takes away the presumption that if two people have an ongoing sexual relationship, that all sex is consensual. We know from the literature that a large percentage of sexual assaults happen in circumstances in which a victim has had sex with the defendant before."

Anderson said she wrote the article because she worried that rape shield laws, typically designed in the 1970s and 80s, were not fully protecting rape victims from invasive and unnecessary scrutiny about their sexual lives.

"Rape shield laws have too often functioned as sieves that allow irrelevant information in," Anderson said. "The best laws are supposed to protect the victim from fishing expeditions that go on about their sexual lives, and also protect the defendants from violations of their constitutional rights."

Johnson, the defense attorney, said current Wyoming law already does that. "Our judges do a pretty good job at (balancing the two)," Johnson said.

"If it's not broken, it doesn't need to be fixed," Johnson added. "Each case brings with it its own set of facts and … legislating what evidence is or is not relevant interferes with judicial function."

But Young believes the system is broken. "The problem for the system - and the problem for all of us - is that when people don't want to report a crime, that means there are rapists out there that no one knows about."

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