The House, Thursday, May 4, 2017

Rep. J.R. Hoell (R - Merr 27)Thank you, Mister Speaker. Rarely do we get a chance to see someone who is a co-sponsor on a bill get to speak against their own bill, but this is one of those times. The bill as filed was very different than the bill that came out of the legislative process. The bill as filed made it very clear that evidence that was not admissible in the first court could not be admissible in subsequent appeals. That is not the bill that we have before us today. While I agree completely in terms of the evidence that was prohibited in admission during the first trial should not be included and it should not be included in any appeal and I support that, the further broadening of this to what it is today as a bill is not something I can support. So, as a co-sponsor of the legislation I feel I have the duty to at least say this is not the bill I saw, nor supported and I cannot support it going forward given the increase in the definitions. I urge you to oppose the committee recommendation.

Speaker JasperThe Chair recognizes the member from Hampton, Representative Cushing to speak in favor of the committee report.

Rep. Robert Renny Cushing (D - Rock 21)Thank you, Mister Speaker. Members of the House, on October 2012 Lizzi Marriott was a 19-year-old student at the University of New Hampshire who had her entire life ahead of her. Unfortunately she was lured by someone she thought was a friend to an apartment in Dover where she was sexually assaulted and murdered and then the killers went and took her body to Portsmouth and threw it in the Piscataqua River. The body has never been recovered and her parents, who are here with us in the gallery today, never had the opportunity to have a formal burial for their daughter. The person who killed Lizzi Marriott was arrested and went to trial and that's when what is almost inevitable in the criminal justice system happened. Some of the re-dramatization, re-victimization takes place amongst the victims. The killer attempted to raise questions about Lizzi's sexual past or alleged sexual past. In 1975, this House, this legislature passed what is known as a rape shield law. You know misogyny runs deep in our society and prior to 1975 there was almost an implicit assumption that if a woman, a person was not a virgin, that somehow they were fair game to be raped or assaulted and because of that being fair game, many people were reluctant to come forward who were victims of rape, lest their character or history be attacked. The legislature recognized that was an injustice and passed the rape shield law, which is the law that is the subject of this bill today. The rape shield law simply says that something that is irrelevant, whatever evolved in a person's sexual history, is not evidence. It wasn't part of the trial and shouldn't come into evidence. For 30 years that's worked very well. There is a provision because we trust the right; we cherish the right for someone to confront their accusers. There is a right if a defense attorney wishes to introduce evidence that might be somehow otherwise excluded under the rape shield law. They can go into chambers with the judge and present the evidence and the judge can rule whether or not that evidence is admissible. In the case of the killer of Lizzi Marriott, the defense attorney tried several times to open up allegations about activities of the victim and the judge ruled in that case, in that instance that no, that information was not relevant and it would remain under seal. The defendant in that case, as is his right after conviction, appealed to the New Hampshire Supreme Court and included in that appeal was the proceedings that took place in chambers involving the evidence that the defense wanted to introduce and when it got to the supreme court last summer, the supreme court made an interesting ruling. It's said that a matter on appeal that the evidence that was under shield could be open to the public. I will tell you that was a bit of a storm because of this situation. Had the individual been found not guilty the information would still remain under seal but here is somebody who was found guilty and when the case went to the supreme court, the supreme court somehow said initially that the information should become public. Well our supreme court decided to reconsider its ruling and it made a ruling that once information is considered sealed at any level of the court it would remain so. One of the things that was noted in the trial of this killer was that there was an allegation that the activities that the individual wanted to present that the victim had engaged in included some of her random thoughts that weren't clearly identifiable as sexual but really were by all intense meant to be included to protect the privacy of that victim under the rape shield law. The trial court ruled that in fact that information was not relevant. That was an appropriate ruling but what this legislation does very simply is make sure that the protections of the privacy of a victim are clearly more expansive. What this legislation defines as what sexual activity means is conduct or behavior related to sexual activities of the victim including but not limited to, previous or subsequent experience of sexual penetration or sexual contact, sexual predisposition, thoughts or expressions related to sexual issues, use of contraceptives, sexual activities reflected in medical and counseling records, living arrangements, and lifestyle. That's what this bill does. It makes it really clear what extraneous activities of the victim should not be included, should not be allowed to be introduced into evidence. This bill I think has been well received and supported by a number of individuals and organizations who are concerned about the rights of crime victims, who are concerned about seeking justice, and are concerned about privacy. This particular language that is included in this bill was vetted and agreed upon by the Department of Justice, the Coalition against Domestic and Sexual Violence and the American Civil Liberties Union. It is model legislation. I would ask that the body support this bill and honor ourselves and make sure that no other victim of sexual assault has to worry whether or not they should come forward and seek justice and be protected under the laws of the State of New Hampshire. Thank you.

Speaker JasperDoes the member yield to a question. The member yields, Rep. Wuelper you may inquire.

Rep. Kurt Wuelper (R - Straf 4)Thank you, Mister Speaker and thank you to the member for taking my question. Isn't it true that the defense in any case has the opportunity to bring any evidence they desire into the chambers and the judge will rule whether or not that can be entered into the case?

Speaker JasperFurther question? Does the member yield? You may inquire.

Rep. Kurt Wuelper (R - Straf 4)So, if we expand this definition, it will in fact exclude no evidence from the trial because all evidence, whatever the defense thinks is evidentiary, can still be brought into the chambers, will still be ruled on by the judge and if the judge so rules, it will become part of the trial. Is that correct?

Rep. Robert Renny Cushing (D - Rock 21)This will provide explicit guidance to the judge about what constitutes sexual activity and what previous acts by a victim of rape are to be under the umbrella protection of the rape shield law. It's true and remains that the defense attorney has a right to go into chambers and to ask that this information be allowed to be introduced, but when the judge rules no, then it remains separate and not part of the case. It is done to protect the reputation of the victim and to prevent that person to be further victimized by the defense attorneys, by those in the process of criminal justice.

Speaker JasperWill the member yield to a follow up question? The member yields you may inquire.

Rep. Kurt Wuelper (R - Straf 4)Thank you for your patience. So, the first part of this bill is the same language that we passed with HB 439 long ago. It protects anything that is protected by the first judge throughout the judicial process and if this redefinition doesn't stop anything from being brought before the judge, how does it actually accomplish anything?

Rep. Robert Renny Cushing (D - Rock 21)Thank you for your question. It provides guidance and provides a statement of what activity, what information specifically is to be excluded from being introduced as evidence.

Speaker JasperThe Chair recognizes the member from Belmont, Representative Sylvia to speak against the committee report.

Rep. Michael Sylvia (R - Belk 4)Thank you, Mister Speaker. I have to first start with expressing my greatest sympathy for the victims of rape, sexual violence and murder. I can't tell you how much I feel. I can't even imagine the pain. I hope that victims will find empowerment in coming forward to testify and put rapists in jail. I brought with me a metaphorical box of my opinions of rapists. I had to leave it in the anteroom. It is full of expletives. This bill has been difficult and emotional. Members of our committee are closely touched by this issue. We have to think not only of past victims but we have to look to the future also and we need to separate this, somewhat the best we can and put it into legal terms. The court reads the words of our statutes and takes them at their clear meaning. In this case, the meaning in this definition is unclear. As it applies to 632-A:6 II, the statute itself has a constitutional issue with it and the courts generously worked their opinion around what the actual words say because we do have to protect the innocent accused and they use what they call `The Howard Ruling' to determine which evidence is admissible and which is not. We have gone through the definition on this, which is what you'll find in the blurb is my greatest objection, but in thinking of this, very recently, it has stayed with me and I have come to see another problem which does apply to the other part of the bill. The portion that was passed in HB 439, which sits on the other side of the wall, and the exclusion of evidence and the way that this is going to reach the supreme court in an appeal and there will be appeals on many of these cases and the victims will be unfortunately made to endure those also. The way that the supreme court will have to deal with this now will be to hear the appeal outside of the public view, which is of course good for the victims. But it becomes an issue when, let's say, the court upholds the admissibility of the evidence and it is never seen and they need to make a ruling without siting the evidence that they have excluded. This becomes a very large problem in that you have no way for the public, with our right to know what our government is doing, including the courts. The people cannot necessarily know what it is and how the court made its decision and whether or not that decision is correct. So this is where I have come to question even the first part of this bill. If the definition is unnecessary and undefined clearly then that portion certainly is not needed. The bill, HB 439, with the first part which I am currently raising an objection to, is already passed so I would say that this bill creates problems, it creates a constitutional issue and there is a fairly substantial chance that this will go to the United States Supreme Court at some time in the future and that's a very difficult decision so I would ask you to vote against this bill. Thank you.

Speaker JasperDoes the member yield to a question? The member yields. Representative Baldasaro, you may inquire.

Rep. Al Baldasaro (R - Rock 5)Thank you, Mister Speaker and thank you Representative for taking my question. I pulled the bill here and of course I am not a lawyer. Where it says under line 3, section II-a(a), proffered evidence excluded under this section and related pleadings shall remain under seal and exempt from public exposure but it has to go to the supreme court. Does that mean the judge has no say on this here, that it is automatically excluded or does the judge make that decision? Rep. Sylvia: Thank you for the question. So at the trial court, the trial judge outside from public view evaluates the evidence that is presented and decides whether or not it is included or excluded. If it is excluded, then the defendant has a right to appeal based on that excluded evidence so they would go to the New Hampshire Supreme Court. Under this law, when it goes to the Supreme Court of New Hampshire it would not be heard in public. It would be heard by the court closed from the public and if the supreme court decided that the trial court made an error and that information should be, that evidence should be evaluated, it would be sent back to the trial court and then it would be open to the public.

Speaker JasperThe Chair recognizes the final speaker of the debate, the member from Chester, Representative Hagan to speak in favor of the committee report.

Rep. Joseph Hagan (R - Rock 4)Thank you, Mister Speaker. Mister Speaker, this is clearly a victims rights bill but one that does not limit the due process rights of the alleged perpetrator. As you remember, this is a response to a recent appeal process of a notorious and vicious crime. Gratefully, ultimately that New Hampshire's Supreme Court got it right and protected the privacy of the victim and the victim's family. This bill would seal proffered evidence and subsequent pleadings until the New Hampshire Supreme Court overturns the trial court evidentiary hearing at which point public disclosure would be limited to that dealt with as admissible by the court. This would have the effect of not victimizing the victim and their family during the appellate process. This bill is necessary to continue having victims come forward without fear that their private lives will be made public. RSA 632-A:6 states under II that prior consensual activity between the victim and any person other than the actor shall not be admitted into evidence in any prosecution under the sexual assault and related offenses criminal code. This bill if passed will improve the law by clearly and comprehensively defining what sexual activity is. Remember that the perpetrator has due process rights which are protected by the constitution, by our excellent judges in this state, by judicial processes, supreme court decisions, etc. Doesn't fundamental fairness require that we get some balance by increasing the rights of victims? Please support the bipartisan position of the Judiciary Committee and press the green button supporting OTP. Thank you, Mister Speaker.