Critics: Sex assault law changes 'dangerous'

By Shawne K. Wickham
UniLeader
January 14, 2017

http://www.unionleader.com/Critics:-Sex-assault-law-changes-dangerous

Foad Afshar of Bow was convicted last year of molesting a 12-year-old patient. Friends and colleagues have rallied to support him, and his conviction inspired a bill to change how sexual assault cases are handled in court.

The testimony of victims would have to be corroborated in most sexual assault cases, under a bill coming up for a hearing this week.

Proponents say the measure would better protect those falsely accused of such crimes.

But victim advocates and law enforcement officials say the bill is "dangerous" and would reverse decades of progress that New Hampshire has made on victims' rights.

Under current law (RSA 632-A:6), "the testimony of the victim shall not be required to be corroborated in prosecutions" in sexual assault cases.

House Bill 106 would change that to read: "The testimony of the victim shall be corroborated in prosecutions under this chapter only in cases where the defendant has no prior convictions under this chapter."

And that would be the vast majority of such cases, says Amanda Grady Sexton, director of public policy for the New Hampshire Coalition Against Domestic and Sexual Violence. "What this does is it sends a message that victims of sexual assault are not to be believed," she said.

Passing the bill, Grady Sexton said, would have "a chilling effect" on offenders being held accountable. And, she warned, "the savviest of all sexual predators would certainly be getting a pass."

House Bill 106 is one of two measures to change how sexual assault cases are handled in court that come before the House Criminal Justice and Public Safety Committee on Tuesday. Recent cases at St. Paul's School in Concord and Phillips Exeter Academy, and a court battle over victim privacy rights in the Lizzi Marriott murder case, have brought the issue under intense public scrutiny.

Rep. William Marsh, R-Wolfeboro, says he sponsored the bill after a Bow psychologist was convicted last year of sexually assaulting a 12-year-old male patient in 2015.

Foad Afshar, 56, a father of three and a licensed psychotherapist, is serving a 3-to-6-year sentence in a Massachusetts prison. He is appealing his conviction and seeking a new trial, based in part on the discovery that two jurors disclosed during deliberations that they had been childhood victims of sexual abuse.

Colleagues and former patients have rallied to support Afshar, and the state Supreme Court has agreed to hear his case.

Marsh, a retired ophthalmologist, said Afshar is "a personal friend" of his daughter, who met him in an art class Afshar taught at New Hampshire Institute of Art.

When he looked into the case at her request, Marsh said, he was "shocked that we've actually been putting people behind bars with no other evidence than the testimony of a single person."

"Requiring corroborating evidence only for people who've never had convictions is a very small amount to move the bar, but it's enough, I think, to give people a little bit of protection," he said.

But the bill doesn't define what constitutes corroborating evidence, Grady Sexton said. Physical evidence in such cases is rare, because often there's a delay in reporting the crime, she said.

Under Marsh's bill, "In order for a sexual predator to be convicted, there would have to be an eyewitness who viewed the sexual assault," she said, adding that would be "very rare."

"The majority of the time, these are crimes that happen behind closed doors, with trusted individuals."

New Hampshire Association of Chiefs of Police, New Hampshire Police Association and the county attorneys all oppose the bill, according to Grady Sexton.

Concord Police Det. Sgt. Sean Ford plans to testify against House Bill 106 at Tuesday's hearing. He called the measure "dangerous" and said it "would almost destroy the ability to investigate and bring these people to justice."

"The sex offenders are cheering for this one," he said.

Det. Lt. Nicole Ledoux is supervisor of the domestic violence/sexual assault and juvenile units for Manchester police department. She said sexual assault, whether against an adult or a child, is a crime "like no other."

It's very difficult for a victim to come forward, and even more difficult for them to testify about what happened in front of 12 jurors, a judge and their abuser, she said.

"And what we want to say to them is you're less believable because your perpetrator was never convicted?" she asked.

Ledoux said she believes the bill would violate the equal protection clause of the 14th Amendment. "You can't hold the victims of a sexual assault perpetrator that's never been convicted to a different standard of proof than victims of any other sexual assault," she said. "It doesn't make sense."

Ford said sexual assaults are "the most horrifying" crimes to investigate. "These are evil things that these people do," he said. "These people are predators. They're chameleon-like and they walk among us."

Both investigators said police always strive to find corroborating evidence in every case.

And Ford said the most "heart-wrenching" cases are those in which police can't make the case and bring the attacker to justice. "These things are done in places where there are no fingerprints, there's no DNA; there's no store video," he said.

Marsh said he understands his bill may make it more difficult to get a conviction in some cases. But he said, "Generally, in our judicial system, we've always tried to have a bias that we would rather see a guilty person go free than to put an innocent person in jail."
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Psychologist Michael Kandle, who has known Foad Afshar professionally for 15 years, started the website Justice for Foad. He plans to testify in favor of Marsh's bill.

Kandle said he treats victims of both childhood and adult sexual abuse and is a strong advocate for victims' rights. He's convinced of Afshar's innocence.

"Those who know him know him to be compassionate, caring, competent, ethical, devoted, and if he has any personal fault, for lack of a better word, it's that he puts the welfare of his clients ahead of his own," he said.

The New Hampshire Psychological Association opposes the bill. In a statement, the organization said it understands the desire to reduce wrongful convictions for sexual assault but does not support the proposed changes to the law.

"Sexual assault victims already face significant challenges when seeking justice, and corroborating evidence is not always available. This proposed change places a higher onus on victims and may especially disadvantage children," the NHPA said.

Requiring corroborating evidence for those without prior convictions also "provides added protection to first time offenders and could lead to unintended and very harmful consequences," the statement went on.

"The NHPA understands that wrongful convictions do sometimes occur and the harm they cause is also very real. We support individual rights to appeal such convictions and the legal right to redress in those cases. The issues embedded in this struggle for justice, both for victims and the wrongly accused, are complex and deserve more thorough consideration."

Many of Afshar's supporters are expected to attend Tuesday's hearing.

Grady Sexton also predicts opponents of the bill will pack the hearing room on Tuesday. "I think the bravery of so many of the victim survivors that have come forward has resonated, and it's really empowered a lot of other survivors in the state to speak up and speak out," she said.

The hearing on House Bill 106 starts at 10 a.m. in Room 204 of the Legislative Office Building.