In Re: Petition for Appointment of a Prosecutor Pro Tempore by Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4 : Petition for Appointment of Prosecutor Pro Tempore

175 Pages Posted: 24 Oct 2018 Last revised: 13 Nov 2018

See all articles by Paul G. Cassell

Paul G. Cassell

University of Utah - S.J. Quinney College of Law

Heidi Nestel

Utah Crime Victims' Legal Clinic

Bethany Warr

Utah Crime Victims' Legal Clinic

Margaret Garvin

Defense Advisory Committee on Investigation, Prosecution, and Defense or Sexual Assault in the Armed Forces (DAC-IPAD)

Gregory Ferbrache

Ferbrache Law, PLLC

Aaron H. Smith

Strong & Hanni

Date Written: October 23, 2018

Abstract

This is a petition filed in the Utah Supreme Court on behalf of four women (Jane Does 1, 2, 3, and 4) who were sexually assaulted, and yet the public prosecutor with jurisdiction refused to file criminal charges against their attackers. The petition relies on Utah Constitution, article VIII, § 16, which anticipates situations where a crime victim might need her own avenue for initiating criminal prosecution. Accordingly, this constitutional provision provides that “[i]f a public prosecutor fails or refuses to prosecute, the Supreme Court shall have power to appoint a prosecutor pro tempore.” Indeed, to underscore the fact that other ways to initiate a prosecution are available, the provision specifically states that public prosecutors in this state shall have the “primary responsibility” for prosecuting crimes. “Primary” responsibility is, of course, not the same as exclusive responsibility.

This petition explains why the Utah Supreme Court to use its power to appoint a prosecutor, both to bring justice for these four particular sexual assault victims and, more broadly, to help protect a class of victims – women and girls who have been sexually assaulted – who are under-protected by current prosecutorial practices in our country. The petition argues that the Court can address systemic under-prosecution of rape cases through its power under the Utah Constitution, not only under the Court-Appointed Prosecutor Provision, art. VIII, § 16, but also to protect rights contained in Utah’s Victims’ Rights Amendment, art. I, § 28, the Utah Uniform Operation of Laws Clause, art. I, § 24, and the Utah Equal Rights Provision, art. IV, § 1. It also has power to act through the federal Equal Protection Clause, U.S. Const., amend. XIV.

The petition concludes by asking for the Court to appoint a prosecutor to prosecute the sexual assaults committed against the four Jane Does.

Suggested Citation

Cassell, Paul G. and Nestel, Heidi and Warr, Bethany and Garvin, Margaret and Ferbrache, Gregory and Smith, Aaron H., In Re: Petition for Appointment of a Prosecutor Pro Tempore by Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4 : Petition for Appointment of Prosecutor Pro Tempore (October 23, 2018). University of Utah College of Law Research Paper No. 289. Available at SSRN: https://ssrn.com/abstract=3271926 or http://dx.doi.org/10.2139/ssrn.3271926

Paul G. Cassell (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States
801-585-5202 (Phone)
801-581-6897 (Fax)

Heidi Nestel

Utah Crime Victims' Legal Clinic ( email )

3335 South 900 East, Suite 200
Salt Lake City, UT
United States

Bethany Warr

Utah Crime Victims' Legal Clinic ( email )

3335 South 900 East, Suite 200
Salt Lake City, UT
United States

Margaret Garvin

Defense Advisory Committee on Investigation, Prosecution, and Defense or Sexual Assault in the Armed Forces (DAC-IPAD) ( email )

Washington, DC
United States

Gregory Ferbrache

Ferbrache Law, PLLC ( email )

UT
United States

Aaron H. Smith

Strong & Hanni ( email )

Salt Lake City, UT
United States

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