New Hampshire Sexual Assault Evidence Bill Meets Strong Opposition

By Alyssa Dandrea
Concord Monitor
January 17, 2017

http://www.concordmonitor.com/Bill-proposing-corroboration-in-sexual-assault-cases-aired-before-House-committee-7500204

No one witnessed the repeated sexual abuse of Angie Semertgakis at the hands of her stepfather, beginning when she was just 9 years old.

Semertgakis, now in her 30s, testified Tuesday before the House Committee on Criminal Justice and Public Safety that she lived in “hate, fear, and shame,” and for years was afraid to tell her story. The abuse took place when no one was home and under the darkness of night, she told lawmakers in her plea for them to shoot down a bill that would require more proof in certain sexual assault cases.

When prosecutors filed the sexual assault case against Semertgakis’ abuser decades ago, he had no criminal record. If the case had gone to trial, jurors would have decided the man’s fate based on the girl’s testimony alone. In the end, he took a plea deal.

Existing law in New Hampshire does not require corroboration of a sexual assault. A bill introduced by a Wolfeboro Republican is proposing to change that by requiring corroboration in cases where the defendant has no prior convictions. The bill, however, leaves the definition of corroboration open-ended.

Semertgakis and many other opponents called the bill “dangerous” for New Hampshire.

“This bill is an abolishment to the empowerment of a child who finally breaks free from their offender and finds their voice and courage to talk about their abuse,” she said.

New Hampshire is one of 36 states that does not require corroboration, according to Roger Canaff, a legal expert on the investigation and prosecution of child abuse and sexual assault cases. Canaff, who has practiced law in New York and Virginia, said in a phone interview Tuesday that 13 states require corroboration in limited circumstances, such as if there are questions about a victim’s mental competency.

“What New Hampshire is considering, requiring corroboration in all cases where the defendant has not been convicted previously, goes far beyond the requirements of any state I can think of,” Canaff said. “Requiring corroboration where there is no challenge to the witness seems to me to be an onerous step, and one that will prevent many victims from seeking justice within the criminal courts.”

HB 106 was introduced by Rep. William Marsh and co-sponsored by Rep. Jess Edwards, an Auburn Republican, both of whom testified in support of its passage Tuesday. Mary Heath, a Manchester Democrat, initially co-sponsored the bill as well, but recently withdrew her support, saying on deeper review, she recognized the “far-reaching consequences” of it.

“As a lifelong educator, I have spent my whole career trying to protect and educate children; this bill does not do that,” Heath wrote in a statement to the committee.

Several law enforcement officials and area prosecutors spoke in opposition to the bill Tuesday, saying it would protect sexual predators and cause more children harm as more cases go unprosecuted. Conversely, proponents of the bill said an amendment to the law would prevent wrongful convictions.

Many of the bill’s supporters cited the recent case of Foad Afshar, a Concord psychologist sentenced to three to six years in prison for molesting a young patient. Afshar has maintained his innocence and is appealing his conviction.

Marsh, a retired ophthalmologist, said that if it’s true someone who did nothing wrong was sentenced to prison, then it is the duty of the legislature to take a closer look at existing laws and fix what’s broken. A “simple statement” should not be enough to send someone to prison, and better protections need to be in place for doctors, teachers and others who work with children, he said.

“If the person charged is innocent, they will have little ability to defend themselves, as the only testimony is that of a young child who may not be able to provide a reliable story,” Marsh said.

Rep. Edwards said in a written statement to the committee that although the bill does not identify types of corroborating evidence, “one can imagine text messages, physical examination results, the testimony of the accused and many other telltale facts as potentially being available for a jury to consider.”

The committee posed a limited number of questions to those testifying Tuesday. However, one question from Rep. Frank Sapareto, vice-chairman of the committee, resurfaced time and time again. He asked law enforcement officials about the percentage of sexual assault cases that aren’t corroborated. Investigators said they typically uncover some kind of supporting evidence, but they couldn’t give further specificity.

During Tuesday’s hearing, Deputy Rockingham County Attorney Patricia LaFrance was one of several opponents of the bill to cite the Equal Protection clause of the 14th Amendment. She argued that HB 106 is in violation of that amendment, as it would hold sexual assault victims to a different standard than victims of other crimes. The clause reads that no state can “deny to any person within its jurisdiction the equal protection of the laws.”

Semertgakis said she fears to think about the outcome of her case had HB 106 been law when she came forward with her story of abuse. Prosecutors may have never filed charges against her stepfather, citing a lack of physical evidence to support her testimony.

She said she hopes that, moving forward, new laws won’t silence survivors of sexual abuse, but rather empower them to tell their stories and seek justice.

Semertgakis asked House committee members: “Are you expecting a little child who is being molested to get out of bed and go to the police station and say, ‘Excuse me, can you scrub my body for evidence?’ ... Or the woman walking home from work who was raped by the man who took all precautions to not leave his DNA and not have a witness. ... What should she do?”