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National Crime Victim Law Institute

Fighting for Victim Privacy

September 22, 2016

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Most jurisdictions have passed laws that limit or prohibit the use of evidence of a victim’s past sexual history to undermine that victim’s credibility- commonly referred to as rape shield laws. These laws are meant to protect victims from disclosure of private information. Courts have recognized that a victim’s sexual history has little relevance and that the prospect of being questioned about past sexual conduct may reduce reporting. This year, we became involved in one such case.

In June of 2016, NCVLI was contacted about a homicide and rape case on appeal before the New Hampshire Supreme Court after the court decided, on its own motion pursuant to a new court rule, to unseal the deceased victim’s disputed rape shield records.  The court had determined that, in light of the state’s strong constitutional right to access public court records and the lack of an explicit law or other compelling interest requiring that the records remain sealed, it would unseal them.  The court reached this decision even though the trial court had twice determined that the victim’s disputed rape shield records should remain sealed.  

NCVLI partnered with the New Hampshire Coalition Against Domestic and Sexual Violence and co-counsel Cyrus Rilee on a landmark privacy case before the New Hampshire Supreme Court. In this case, the Defendant was convicted of murdering and raping a 19 year old New Hampshire college student in 2012 and sentenced to life in prison. During pretrial proceedings at the trial court many allegations were made about victim and her private life.  The trial court twice ruled that the allegations were irrelevant to the proceedings and sealed all of the documents related to the allegations. This year, the perpetrator appealed his conviction, arguing, in part, that the trial court erred in excluding some of the information and during the pendency of that appeal, the New Hampshire Supreme Court, in a June decision unrelated to the merits of the appeal, issued an order to unseal the information and make it available to the public. 

We formally intervened in the appeal to fight for the victims, arguing that to allow unfettered public access to this information in this Internet Age would mean that information protected by various privacy laws, including rape shield, will enter and remain in the public domain, forever haunting the victim’s family. The court ruled in September that the records sealed by the trial court shall remain sealed and unredacted briefs shall remain confidential. Unfortunately, this is only a partial victory for the victim’s family as the court also ruled that the defendant’s oral arguments shall remain public and replacement public briefs with fewer redactions than presented to the trial court have been filed.  Read the full ruling here.

For years, NCVLI has been fighting in state and federal courts to protect the privacy of victims. This case, heard before the New Hampshire Supreme Court could have long ranging impacts for victims of rape and sexual assault. We will keep you posted.