Proposed N.H. Bill Would Change Sex Assault Burden of Proof

Valley News Staff Writer
Tuesday, January 17, 2017

Lebanon — Advocates for victims of sexual assault are organizing opposition to a bill in the New Hampshire House that would require more than a victim’s testimony as evidence to convict a defendant of a sexual assault.

The House Criminal Justice and Public Safety Committee is scheduled to hold a hearing on the bill in Concord this morning. The legislation would increase the burden of proof that is needed to find someone guilty of sexual assault by requiring prosecutors to present corroborating evidence that an attack occurred, according to the language.

“We all view it as a very dangerous bill,” said Peggy O’Neil, the executive director of WISE, the Upper Valley’s support agency for sexual and domestic assault survivors. “This bill raises the burden of proof for a victim of sexual assault to an unrealistic level.”

Although the bill, at this stage, doesn’t define what constitutes corroborating evidence, O’Neil and other advocates said such evidence likely would include DNA testing or an eyewitness account.

DNA evidence is a “very complicated science” that isn’t as straightforward as some television shows portray it, O’Neil said, and sexual assault often happens behind closed doors.

“Justice is very difficult to get under the current laws,” O’Neil said. “(The bill) would be even more devastating for victims of this crime.”

The bill’s primary sponsor says the legislation could benefit defendants who might be falsely accused.

State Rep. William Marsh, a newly elected Republican from Wolfeboro, N.H., said he proposed the bill after a former Concord child psychologist was convicted in June of molesting a 12-year-old male patient. Though Marsh said he couldn’t be certain that Foad Afshar didn’t commit the crime, he said the threshold of what is needed to convict someone should be increased from a “low bar.” Doing so wouldn’t hold sexual assault victims to a different standard than victims of other crimes, he said.

“When other crimes come to trial, there are witnesses, scientific evidence, statements of the accused and other evidence,” said Marsh, a retired physician who attended Dartmouth College and what is now known as the Geisel School of Medicine. “Imagine a drug trial with no drugs or a murder case with no body.”

According to the legislation, corroborating evidence would not be required when a defendant has a prior sexual assault conviction.

Afshar, 56, of Bow, N.H., was sentenced last summer to three to six years in prison for touching a boy’s genitals during a session in 2015. Afshar contends he was wrongly convicted. He is seeking a new trial in Merrimack Superior Court and his case is also on appeal at the Supreme Court level, according to the Concord Monitor.

Marsh said he has heard from health care providers who are fearful that they could be falsely accused of doing something wrong while examining a patient.

“I can’t know for certain (Afshar) is innocent,” Marsh said. “What I do know for certain is I have psychologists and doctors who are afraid of doing their jobs properly.”

House Criminal Justice and Public Safety Committee Chairman David Welch, R-Kingston, said he doesn’t usually weigh in on bills before a hearing, but said he has heard a lot of controversy about the bill.

As of Monday afternoon, he was leaning toward not changing the state statute.

“Women have been reluctant to report in the first place,” Welch said.

He noted, however, that he sympathizes with people who feel they are getting “railroaded” by the current system.

“We will have to hear the testimony,” Welch said.

A second related bill also is scheduled to be heard by the same committee this morning. That bill, which has a different set of sponsors, would alter the instructions given to a jury in a sexual assault case, including changing the word “victim” to “complainant,” according to the text.

That bill, too, has drawn criticism from victim advocates. Individuals subjected to thefts, burglaries and other related crimes are referred to as “victims,” said Amanda Grady Sexton, a spokeswoman from the New Hampshire Coalition Against Domestic and Sexual Violence, of which WISE is a member. Why should victims of sexual assault be referred to otherwise, she said.

Grady Sexton referred to the primary bill, House Bill 106, as one of the most “mean-spirited pieces of legislation” she has seen since she started working for the coalition in 2001.

She said the bill goes after a “false idea” that victims “falsely report” sexual assaults more than any other crime.

She quoted a National Sexual Violence Resource Center report that states the prevalence of false reporting in sexual assault cases is between 2 and 10 percent, a rate that is consistent with the false reporting rates of several other crimes, she said.

“There is nothing to gain from lying about sexual assault,” Grady Sexton said.

The hearings on the bills are scheduled to begin at 10 a.m. in Room 204 of the Legislative Office Building.

Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.