THE STATE OF NEW HAMPSHIRE

SUPREME COURT
No. 2014-0592
The State of New Hampshire
v.
Seth Mazzaglia

DIRECT APPEAL FROM A JUDGMENT OF THE

STAFFORD COUNTY SUPERIOR COURT

BRIEF OF AMICI CURIAE IN SUPPORT OF THE INTERVENOR

New Hampshire Coalition Against Domestic and Sexual Violence
New Hampshire Association of Chiefs of Police
New Hampshire County Attorneys Association
New Hampshire Legal Assistance
Prevention Innovations Research Center
AEquitas: The Prosecutors Resource on Violence Against Women
Futures Without Violence
The Joyful Heart Foundation
The National Alliance to End Sexual Violence
The National Center for Victims of Crime
The National Sexual Violence Resource Center
(RAINN) Rape, Abuse and Incest National Network
The Victim Rights Law Center

Claudia J. Bayliff
Pro Hac Vice
District of Columbia Bar ID No. 421403
Attorney at Law
101 Lounsbury Place
Falls Church, VA 22046
(703) 532-1134
cjbayliff@cox.net

COAKLEY & HYDE, PLLC

By: Steven F. Hyde, Esquire, NH Bar: 15147
The Gideon Walker House
154 Maplewood Ave.
Portsmouth, New Hampshire 03801
(603) 319-1731
(603) 319-1727 (fax)
shyde@coakleyhyde.com

TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
ISSUES PRESENTED.................................................................................................................... 1
CONSTITIONAL PROVISIONS, STATUTES, AND RULES .................................................... 1
STATEMENT OF INTEREST OF AMICI CURIAE ..................................................................... 1
STATEMENT OF THE CASE AND OF THE FACTS ................................................................. 5
SUMMARY OF ARGUMENT ...................................................................................................... 6
ARGUMENT .................................................................................................................................. 8
BACKGROUND ............................................................................................................................ 8
A. Sexual Violence: The Magnitude of the Problem .................................................................................. 8
B. The Critical Need for the Rape Shield Protections ............................................................................... 11
I. NEW HAMPSHIRES RAPE SHIELD LAW, AS CODIFIED IN RSA 632-A:6, II AND NEW
HAMPSHIRE RULE OF EVIDENCE 412, APPLIES THROUGHOUT THE ENTIRE CRIMINAL
PROCESS, INCLUDING THE APPELLATE PROCEEDINGS. ............................................................. 14
A. New Hampshires Strong Rape Shield Protections ............................................................................... 14
B. New Hampshires Rape Shield Protections Apply Throughout the Entire Criminal Process, Including
to Appellate Proceedings ............................................................................................................................ 16
II. THE RIGHTS AFFORDED TO CRIME VICTIMS BY THE NEW HAMPSHIRES VICTIMS
RIGHTS LAW, WHICH APPLY TO THE ENTIRE CRIMINAL PROCESS, INCLUDING ALL
APPELLATE PROCEEDINGS, WOULD BE VIOLATED IF THE SEALED RAPE SHIELD
MATERIALS WERE RELEASED TO THE PUBLIC. ............................................................................. 21
III. SINCE SEALED RAPE SHIELD PROCEEDINGS AND MATERIALS ARE NOT SUBJECT TO
PUBLIC ACCESS, PROPER BALANCING OF THE VICTIMS, DEFENDANTS, AND THE
PUBLICS CONSTITUTIONAL RIGHTS REQUIRES THAT RAPE SHIELD MATERIALS REMAIN
SEALED. .................................................................................................................................................... 24
A. The Publics Right to Open Courtrooms and Access to Court Proceedings in New Hampshire is Not
an Absolute Right ....................................................................................................................................... 25
B. Unsealing Private, Unproven Allegations about a Rape Victims Prior Sexual History, Protected by
the Rape Shield, Does Not Inform the Public About the Governments Actions ....................................... 27

C. Even if the Public Right to Access Attached in this Case, Which it Does Not, the Victims Right to
Privacy is a Compelling Interest that Outweighs any Public Right to Access ............................................ 28
D. This Courts Decision to Unseal the Rape Shield Materials Before It Rules on the Admissibility of the
Rape Shield Evidence is Premature ............................................................................................................ 29
E. The Rape Shield Materials Must Remain Sealed .................................................................................. 32

CONCLUSION ............................................................................................................................. 34

ii

TABLE OF AUTHORITIES
CASES
AP v. State, 153 N.H. 120, 134 (2005) --------------------------------------------------------------- 26, 31
Appeal of Naswa Motor Inn, Inc. (N.H. Dept of Labor), 144 N.H. 89 (1999)---------------------- 18
Dees v. State, No. 02-12-00488-CR, 2013 WL 627046 (S.D. Tex. App. Fort Worth, Feb. 21,
2013) -------------------------------------------------------------------------------------------------------- 20
Doe v. Bd. of Regents of Univ. Sys. of Ga., 452 S.E.2d 776 (1994) ----------------------------------- 29
Holmes v. Holmes, No. 00-M-0815, 2001 N.H. Super. LEXIS 18,
(N.H. Sup. Ct. Nov. 7, 2001) ----------------------------------------------------------------------- 27, 28
In re: Keene Sentinel, 136 N.H. 121 (1992) --------------------------------------------------------- 30, 31
In re: State (Bowman Search Warrants), 146 N.H. 621 (2001) ---------------------------------- 28, 29
Jenkins v. State, 627 N.E. 2d 789 (Ind. 1993) ------------------------------------------------------------ 16
Lamy v. N.H. Pub. Util. Commn., 152 N.H. 106 (2005) ----------------------------------------------- 27
N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437 (2003) ---------------------------- 28
People v. Bryant, 94 P.3d 624 (Colo. 2004) -------------------------------------------------------- passim
People v. Weiss, 133 P.3d 1180 (Colo. 2006) ------------------------------------------------------------- 9
Profl Fire Fighters of N.H. v. N.H. Local Govt Ctr., 163 N.H. 613 (2012) ----------------------- 28
State v. Berrocales, 140 N.H. 647 (1996)----------------------------------------------------------------- 16
State v. Clowney, 690 A.2d 612 (N.J. Super. Ct. App, Div. 1997) ------------------------------------ 16
State v. Craig, 853 N.E.2d 621 (Ohio 2006) ------------------------------------------------------------- 16
State v. Dean, 129 N.H. 744 (1987) -------------------------------------------------------------- 14, 15, 23
State v. DeCato, 156 N.H. 570 (2007) --------------------------------------------------------------- 25, 26
State v. Goulet, 129 N.H. 348 (1987)---------------------------------------------------------------------- 15
State v. Higgins, 149 N.H. 290 (2003) --------------------------------------------------------------- 14, 16

iii

State v. Howard, 121 N.H. 53 (1981) ------------------------------------------------------------ 14, 15, 22

State v. Miskell, 122 N.H. 842 (1982) ---------------------------------------------------------------- 15, 18
State v. Patnaude, 438 A.2d 402 (Vt. 1981)--------------------------------------------------------- 12, 13
State v. Walsh, 126 N.H. 610 (1985) ---------------------------------------------------------------------- 15
Sumner v. N.H. Secy of State, No. 2015-0340, 2016 N.H. LEXIS 28 ---------------------- 25, 27, 28
Ukwuachu v. State, No. 10-1500376-CR, 2016 Tex. App. LEXIS 997
(Tex. App. Waco, Jan. 28, 2016)------------------------------------------------------------------------ 20
Union Leader Corp. v. N.H. Ret. Sys., 162 N.H. 673 (2011) ------------------------------------------ 27
Union Leader Corp. v. New Hampshire Housing Finance Authority,
142 N.H. 540 (1997) --------------------------------------------------------------------------------- 19, 27
STATUTES
720 ILL. COMP. STAT. 5/2-16 (2016)----------------------------------------------------------------------- 19
IOWA CODE 801.4(13) (2016) ---------------------------------------------------------------------------- 19
RSA 21-M:8-k ------------------------------------------------------------------------------------------ passim
RSA 632-A:6-------------------------------------------------------------------------------------------- passim
RSA 91-A:5 --------------------------------------------------------------------------------------------------- 25
VT. STAT. ANN. 3255 -------------------------------------------------------------------------------------- 12
OTHER AUTHORITIES
Balancing Rights: Rape Shield Law Faces Challenge, New Hampshire Union Leader (June 19,
2016, 9:14 PM), http://www.unionleader.com/apps/pbcs.dll/article?avis=UL&date
=20160620& ----------------------------------------------------------------------------------------------- 33
Balancing Victims Rights with Public Access to Courts, Fosters Daily Democrat (June 29,
2016, 3:15AM), http://www.fosters.com/news/20160619/balancing-victims-rights-withpublic-access-to-courts?template=printart ------------------------------------------------------------- 34
Christopher Krebs et al., Bureau of Justice Statistics Research and Development Series: Campus
Climate Survey Validation Study Final Technical Report (2016). --------------------------------- 10
iv

Daniel M. Murdock, Commentary, A Compelling State Interest: Constructing a Statutory

Framework for Protecting the Identity of Rape Victims, 58 ALA. L. REV. 1177 (2007). ------- 12
David S. Ardia & Anne Kleinfelter, Privacy and Court Records: An Empirical Study,
30:3 BERKELEY TECH. L.J. 1807 (2015). -------------------------------------------------------------- 11
Dean G. Kilpatrick et al., Drug-facilitated, Incapacitated, and Forcible Rape: A National Study
(2007). ------------------------------------------------------------------------------------------------------ 10
Ilene Seidman & Susan Vickers, The Second Wave: An Agenda for the Next Thirty Years of Rape
Law Reform, 38 SUFFOLK UNIV. L. REV. 467 (2005) --------------------------------------------- 9, 11
Kimberly A. Lonsway & Joanne Archambault, End Violence Against Women International,
Effective Victim Advocacy in the Criminal Justice System: A Training Course for Victim
Advocates (2008). ----------------------------------------------------------------------------------------- 21
Kimberly A. Lonsway & Joanne Archambault, End Violence Against Women International,
Victim Impact: How Do Sexual Assault Victims Respond? And How Can Law Enforcement
and Other Community Professionals Respond Successfully? (2007) ------------------------------ 9
N.H. Coalition Against Domestic & Sexual Violence,
Sexual Assault in New Hampshire (2011) -------------------------------------------------------------- 9
N.H. Coalition Against Domestic & Sexual Violence, Violence Against Men In New Hampshire
(2009) -------------------------------------------------------------------------------------------------------- 9
N.H. Coalition Against Domestic & Sexual Violence, Violence Against Women In New
Hampshire (2007) ------------------------------------------------------------------------------------------ 9
Natl Ctr. for Prosecution of Child Abuse, Natl Dist. Attorneys Assn, Rape Shield Statutes
(2011) ------------------------------------------------------------------------------------------------------- 13
Natl Victim Ctr. & Crime Victim Research & Treatment Ctr.,
Rape in America: A Report to the Nation (1992) ----------------------------------------------------- 10
New Hampshire Judicial Branch, Guidelines for Public Access to Court Records, at II, at
http://www.courts.state.nh.us/rules/misc/ -------------------------------------------------------------- 25
Paul S. Grobman, Note, The Constitutionality of Statutorily Restricting Public Access to Judicial
Proceedings: The Case of the Rape Shield Mandatory Closure Provision,
66 B.U. L. REV. 271 (1986) ------------------------------------------------------------------------- 12, 13
Research Comm. of the Governors Commn on Domestic & Sexual Violence, The Reality of
Sexual Assault in New Hampshire (2009) ------------------------------------------------------------- 10

Viktoria Kristiansson, Walking A Tightrope: Balancing Victim Privacy and Offender

Accountability in Domestic Violence and Sexual Assault Prosecutions, Part II: Protecting
Privileges and Victims Who Assert Them, Strategies, THE PROSECUTORS NEWSLETTER ON
VIOLENCE AGAINST WOMEN, Vol. 10 (AEquitas, Washington, D.C.) May 2013---------------- 11
RULES
Cal. Ct. R. 8.45(c)(1) ---------------------------------------------------------------------------------------- 20
New Hampshire Rule of Evidence 101 ------------------------------------------------------------------- 17
New Hampshire Rule of Evidence 1101 ------------------------------------------------------------- 17, 18
New Hampshire Rule of Evidence 412 ------------------------------------------------------------- passim
New Hampshire Supreme Court Rule 12 ----------------------------------------------------------- passim
CONSTITUTIONAL PROVISIONS
N.H. Const. Pt. 1, Art. 8 ------------------------------------------------------------------------------------- 25

vi

ISSUES PRESENTED
I.

Whether and how New Hampshire Rule of Evidence 412, Evidence of Prior Sexual History, and
New Hampshire Rape Shield Law, RSA 632-A:6, II, apply to appellate proceedings.

II.

What appellate court proceedings, if any, are required by New Hampshires Victims Rights
Law, RSA 21-M:8-k.

III.

How the New Hampshire Supreme Court should balance the constitutional rights of the victim,
the defendant, and the public as they pertain to the sealed portion of the trial court record and the
parties unredacted briefs and appendices.
The parties were directed to address these specific issues. Supreme Court Order (June 15, 2016).
CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES
The constitutional provisions, statutes, and rules cited in this brief are included in the Appendix
to this brief, at pp. A-1 to A-23.
STATEMENT OF INTEREST OF AMICI CURIAE
The New Hampshire Coalition Against Domestic and Sexual Violence (NHCADSV)
is a not-for-profit organization committed to creating safe and just communities through
advocacy, prevention, and empowerment of anyone affected by sexual violence, domestic
violence, and stalking in New Hampshire. This mission is accomplished by the Coalition, along
with its 13 independent community-based member programs, which in 2015, provided services
to nearly 14,000 victims. NHCADSV member programs are listed in the Appendix, at p. A-24.
NHCADSV has an interest in this case because it is committed to ensuring that rape shield
protections in New Hampshire are fully and fairly applied during all phases of a criminal
prosecution, to protect victims against the admissibility of irrelevant and prejudicial information.

Amici also include twelve other New Hampshire and national organizations, each of
which is mentioned here and then described in greater detail in the Appendix, at pp. A-24-A-28.
All of these organizations have joined together to file this brief in support of Robert Marriott (the
Intervenor), who has intervened in this appeal on behalf of his daughter, Elizabeth Marriott (the
victim), who was raped and murdered by defendant Seth Mazzaglia.
Other New Hampshire Organizations
New Hampshire Association of Chiefs of Police (NHACP) is a non-profit organization
comprised of the majority of municipal police departments in the State of New Hampshire. The
New Hampshire Association of Chiefs of Police joins this brief to support all the protections
afforded by the rape shield law to guarantee victims privacy and security throughout the entire
court process in New Hampshire.
New Hampshire County Attorneys Association (NHCA) is a group comprised of the ten New
Hampshire county attorneys. The County Attorneys have an interest in this case because, as the
primary prosecuting agencies for sexual assault cases, they know first-hand the critical
importance of rape shield protections. Rape shield protections allow the courts to fairly balance
the rights of the defendant with New Hampshire's goal of holding offenders accountable, while at
the same time protecting victims. Rape shield laws ensure that private information is not
broadcast to the public and are essential to prosecuting these cases and ensuring access to justice.
New Hampshire Legal Assistance (NHLA) is a state-wide non-profit law firm that represents
low income and elderly people in civil legal cases related to basic needs. NHLAs Domestic
Violence Advocacy Project, created in 1998, has served over 3,000 victims of domestic, sexual,
and stalking violence in New Hampshires courts. NHLA supports protecting a victims private,
confidential, and privileged information in criminal and civil cases in our state. Such protection

encourages and allows crime victims to seek the assistance of law enforcement, courts, and other
social services they need to overcome the impact of abuse and to hold offenders accountable.
Prevention Innovations Research Center (PIRC) is a research center at the University of New
Hampshire that is committed to developing and evaluating prevention and response strategies to
end sexual and relationship violence and stalking. The current challenge to the rape shield law
conflicts with everything research tells us about the revictimization of sexual assault victims. At
a time when victims are more willing to report sexual assault and the criminal justice system is
more prepared to adjudicate cases in trauma informed ways, unsealing and releasing these
documents will stand in the way of all the progress we have made toward developing capacities
for trauma informed responses by the criminal justice system.
National Organizations
AEquitas: The Prosecutors Resource on Violence Against Women (AEquitas) is a technical
assistance provider for prosecutors, law enforcement, advocates, and allied professionals who are
called upon to respond to crimes of violence against women, including domestic violence, sexual
violence, stalking, human trafficking, and related offenses. Where a trial court has determined
that personal details of a victims life are insufficiently relevant to a criminal case to be
admissible at trial, there is no overriding public interest in disclosure of those details at the
appellate level. To permit disclosure at that juncture would seriously undermine the important
public policy embodied in the rape shield and victims rights provisions.
Futures Without Violence (FUTURES) is a national nonprofit organization that has worked for
over thirty years to prevent and end violence against women and children around the world.
FUTURES joins in this amici curiae brief because the preservation of rape shield protections is
paramount to the safety and dignity of sexual assault victims in New Hampshire and throughout

the country. The erosion of such protections would cause a chilling effect on victim reports of
sexual violence, exacerbate victim-blaming in the courts and in society, and thoroughly
eviscerate the legislative intent of rape shield statutes.
The Joyful Heart Foundation, a national nonprofit organization founded by actress, director,
and advocate Mariska Hargitay, seeks to transform societys response to sexual assault, domestic
violence, and child abuse, support survivors healing, and end this violence forever. We strongly
support upholding existing safeguards under New Hampshire's rape shield protections, and stand
in opposition against any new changes that could undermine a survivor's safety, confidentiality,
privacy, and willingness to engage in the criminal justice process.
The National Alliance to End Sexual Violence (NAESV) is the voice in Washington, D.C. for
the 56 state and territorial sexual assault coalitions and 1,300 rape crisis centers working to end
sexual violence and support survivors. Confidentiality is a prime concern of survivors and their
families, and as such, has been and will remain a critical component of our advocacy work.
The National Center for Victims of Crime (National Center) a nonprofit organization based
in Washington, D.C., is the nations leading resource and advocacy organization for all victims
of crime. The National Center is particularly interested in this brief because of its commitment to
survivors of sexual assault and their legal right to privacy and confidential communications.
The National Sexual Violence Resource Center (NSVRC) provides leadership in preventing
and responding to sexual violence through collaboration, research, and creating and sharing
resources and best practices. NSVRC is joining this brief because we are committed to
protecting the intent and integrity of rape shield laws. We strongly believe that rape shield
protection rules should apply throughout the entire court process, including appeals. A persons
prior sexual history has no bearing whatsoever on considerations about a specific incident. It

should not be the victims behavior that is in question.

Rape, Abuse, and Incest National Network (RAINN) is the nation's largest anti-sexual
violence organization. RAINN joins this amici curiae brief because rape shield protections are
absolutely critical. Diluting New Hampshire's rape shield law goes directly against legislative
intent and national standards. It is in the public interest to do everything possible to encourage
more victims to report. Robust rape shield laws are a vital component of that effort.
The Victim Rights Law Center (VRLC) is non-profit legal organization with offices in
Boston, Massachusetts and Portland, Oregon. The mission of the VRLC is to provide legal
representation to victims of rape and sexual assault to help rebuild their lives. Privacy is the
number one concern for sexual assault victims and, therefore, an integral part of our practice on
the ground and nationally. VRLC joins this brief to support the protections provided by the rape
shield statute to ensure victims privacy throughout the entire court process in New Hampshire.
STATEMENT OF THE CASE AND OF THE FACTS
Defendant Seth Mazzaglia raped and murdered 19-year-old University of New
Hampshire student, Elizabeth Marriott (the victim), stuffed her body in a suitcase, and dumped it
into the water. Her body was never found. He was convicted of first-degree murder and two
counts of conspiracy and sentenced to life in prison. States Redacted Brief, pp. 2, 10, 13 (May
11, 2016)1. His only issues on appeal, which is still pending in this Court, relate to rape shield.
On June 10, 2016, on its own motion, this Court ordered that all of the materials related
to the victims prior sexual history, which were hotly contested at the trial and sealed by the trial
court as inadmissible under New Hampshires rape shield protections, were to be released to the

Refers to Brief for the State of New Hampshire (Redacted Copy), filed with this Court on May 11, 2016.

public.2 Supreme Court Order (June 10, 2016). The State filed an emergency motion for a stay,
requesting the opportunity to fully address the implications of this Courts order to release the
material to the public prior to ruling on the rape shield issues the defendant raised on appeal.
The victims father also filed a motion to intervene, on behalf of his deceased daughter, to try to
protect her privacy interests. This Court granted the States request, ordering the parties to
address four specific issues in their briefs. Supreme Court Order (June 15, 2016). The fathers
motion to intervene was also granted. Supreme Court Order (July 13, 2016). The victims
attorney, the State, and the defendant have consented to amici curiae filing this brief in support
of the victim and her family to address the critical privacy and victims rights involved.
SUMMARY OF ARGUMENT
I. The New Hampshire rape shield protections, provided by RSA 632-A:6 and New
Hampshire Rule of Evidence 412, apply throughout the entire criminal process, including the
appellate proceedings. The term prosecution, as used by the statute and the rule, means the
entire criminal process. Otherwise, the purpose of rape shield would be completely eviscerated.
The purpose of rape shield is to protect sexual assault victims from unnecessary embarrassment,
protect their privacy, and spare them from courtroom procedures that exacerbate the trauma of
the assault. New Hampshires rape shield statute is one of the most restrictive in the country. It
is grounded in the victims constitutional right of privacy and has been interpreted by this Court
to give victims a testimonial privilege. No other privilege vanishes when a convicted rapist
appeals his conviction.

The complex procedural history of this Courts decision to unseal the rape shield materials is set forth in detail in
the States Brief, Procedural History (Aug. 22, 2016), at pp. 5-8, filed in response to this Courts June 15, 2016
Order. Amici adopt the States summary.

The New Hampshire rules of evidence and case law support the conclusion that the
protections apply throughout the entire criminal process. Further support for this conclusion
comes from case law and statutes in other jurisdictions. Other states interpret the term
prosecution to mean the entire criminal process. Rape victims are entitled to rely on the
protective provisions of the rape shield statute and rule. To hold otherwise would defeat the
purpose of the rape shield protections, discourage victims from coming forward, and have a
terrible impact on the States ability to prosecute sexual assault crimes.
II. In ordering the release of the sealed rape shield materials, this Court violated the
victims rights in this case. The rights afforded to crime victims by the New Hampshire victims
rights law, which apply to the entire criminal process, including appellate proceedings, would be
violated if the sealed rape shield materials are released to the public. By its very terms, RSA 21M:8-k applies throughout the appellate process. Victims rights are afforded to crime victims
and, in homicide cases, to their immediate family. These rights include the right to be treated
with fairness and respect for their dignity and privacy throughout the entire criminal process.
Victims also have a right to confidentiality with respect to their personal information. In
addition, the victims family has the right to be informed about the criminal process and how it
progresses. The victims family has not been afforded their right to notice and a meaningful
opportunity to be heard on the release of the rape shield materials.
III. Sealed rape shield proceedings and materials are not subject to public access. The
publics right to open courtroom and access to court proceedings, although a strong tradition in
New Hampshire, is not an absolute right. Instead, it must yield to reasonable restrictions. The
first step in the constitutional analysis is to determine whether a right of access even attaches to
rape shield proceedings. It does not. The purpose of allowing the public open access to court

proceedings is to hold the government accountable. That purpose is not fostered by the
disclosure of private, unproven allegations about a rape victims prior sexual acts.
Even if the public right of access attached in this case, which it does not, the victims
right of privacy is a compelling interest that outweighs any public right of access. The decision
about access is best left to the trial courts discretion. Both times the trial court has considered
whether the rape shield materials should be sealed (at trial and on remand from this Court), it
held that they should be.
This Courts decision to order the public release of the rape shield materials, before it has
even ruled on the defendants appeal concerning the admissibility of the rape shield allegations,
is premature. All of New Hampshires open access jurisprudence, including State Constitutional
provisions, statutes, court rules, and case law, is premised on the assumption that someone is
actually asking for the material. No one has done so here. As a result, this Court did not have
the benefit of a full briefing on the complex legal and constitutional issues involved when it
decided to unseal the records on its own motion. This material must remain sealed.
Therefore, amici curiae respectfully request that this Court: (1) reverse its Order of June
15, 2016, and hold that the rape shield materials shall remain sealed; (2) create a process by
which victims are entitled to notice and an opportunity to be heard when courts are considering
whether to unseal records that may implicate victims rights; and (3) refrain from ordering the
release of any sealed records during the pendency of an appeal.
ARGUMENT
BACKGROUND
A. Sexual Violence: The Magnitude of the Problem
Rape is a hostile crime of violence and domination. It is among the most intimate and
personally-devastating invasions a person may experience in his or her lifetime. People v.
8

Weiss, 133 P.3d 1180, 1185 (Colo. 2006). Rape causes a tidal wave effect on a victims life,
creating profound emotional, physical, economic, and social harm. Ilene Seidman & Susan
Vickers, The Second Wave: An Agenda for the Next Thirty Years of Rape Law Reform, 38
SUFFOLK UNIV. L. REV. 467, 471 (2005). Approximately one in three sexual assault3 victims
suffers from depression. One in three contemplates suicide and one in eight actually attempts it.
Kimberly A. Lonsway & Joanne Archambault, End Violence Against Women International,
Victim Impact: How Do Sexual Assault Victims Respond? And How Can Law Enforcement and
Other Community Professionals Respond Successfully? (2007).
Nearly one in four, or 22.7%, of New Hampshire women has been a victim of sexual
assault; 19.5% of New Hampshire women have been raped. New Hampshires rates of sexual
violence are significantly higher than the national rates, which are 17.6% for sexual assault and
14.8% for rape. N.H. Coalition Against Domestic & Sexual Violence, Sexual Assault in New
Hampshire, 1 (2011). In statewide surveys, 83% of New Hampshire women who were sexually
assaulted reported that they were assaulted before their 25th birthday; 41% were under the age of
18. Id. at 2. In New Hampshire, women aged 18 to 24 were at the highest risk for sexual
violence. N.H. Coalition Against Domestic & Sexual Violence, Violence Against Women In New
Hampshire, 2 (2007). One in twenty New Hampshire men has also been sexually assaulted;
more than two-thirds of these men were assaulted before they were eighteen years old. N.H.
Coalition Against Domestic & Sexual Violence, Violence Against Men In New Hampshire, 1
(2009). The number of women and men combined who have been the victim of a sexual assault
could fill Fenway Park almost three and a half times. Sexual Assault in NH, at 1.

The term rape is used to refer to crimes of sexual penetration, called aggravated felonious sexual assault in
New Hampshire. The term sexual assault refers to the broad range of sexual crimes, including penetration and
improper touching.

Rape remains the most underreported violent crime in America. Natl Victim Ctr. &
Crime Victim Research & Treatment Ctr., Rape in America: A Report to the Nation, 5 (1992). In
1992, the National Womens study found that only 16%, or approximately one out of every six
rapes, was ever reported to law enforcement. Id. Fifteen years later, another well-respected
national survey still found that only 16% of women who were raped reported to law
enforcement. Dean G. Kilpatrick et al., Drug-facilitated, Incapacitated, and Forcible Rape: A
National Study, 44 (2007). For college students, the reporting rates are even lower. A recent
study of 23,000 undergraduate students across the country reported that only 4.2% of students
who were raped reported to any law enforcement agency. Christopher Krebs et al., Bureau of
Justice Statistics Research and Development Series: Campus Climate Survey Validation Study
Final Technical Report, 107 (2016). In New Hampshire, reporting rates are also low. See, e.g.,
Research Comm. of the Governors Commn on Domestic & Sexual Violence, The Reality of
Sexual Assault in New Hampshire (2009). Because reporting rates are so low, unreported rapes
remain a serious threat to public safety in this country. Rape in America, at 6.
Victims often do not report to law enforcement because they are afraid of being blamed
and they are worried about protecting their privacy. Key barriers to reporting rape include not
wanting others to know about the rape, being blamed by others, and fear of retaliation.
Kilpatrick, at 2 & 39. Victims are particularly concerned about their names being made public
and media coverage. Rape in America, at 4. In the national study of 23,000 undergraduate
students, when asked why they did not report to law enforcement, students reported key concerns
about confidentiality and fear that others might think what happened was at least partly the
victims fault. Krebs, at 111; Kilpatrick, at 40.

10

For most sexual assault victims, privacy is like oxygen; it is a pervasive, consistent need
at every step of recovery. Within the context of the legal system, if a victim is without privacy,
all other remedies are moot. Seidman & Vickers, at 473. Victim privacy laws are the pillars
upon which the safe disclosure of abuse and the receipt of services have been built. Viktoria
Kristiansson, Walking A Tightrope: Balancing Victim Privacy and Offender Accountability in
Domestic Violence and Sexual Assault Prosecutions, Part II: Protecting Privileges and Victims
Who Assert Them, Strategies, THE PROSECUTORS NEWSLETTER ON VIOLENCE AGAINST WOMEN,
Vol. 10 (AEquitas, Washington, D.C.) May 2013, at 7.
Protecting sexual assault victims privacy is even more important now, with the advent of
the Internet and social media. In an important study of privacy and court records, researchers
found that criminal court records contained disproportionately more sensitive information than
other types of court records. David S. Ardia & Anne Kleinfelter, Privacy and Court Records: An
Empirical Study, 30:3 BERKELEY TECH. L.J. 1807, 1808 (2015). Although court records have
been open to the public for centuries, they were often difficult to access. As a result, sensitive
and private information could often remain unnoticed in court records. This practical
obscurity has vanished with the Internet and electronic access to court documents. Id. at 1826.
There is a huge difference between traditional in-person access to court records at a courthouse
and Internet access through Google and electronic filing systems. Id. at 1814. The ease in which
sensitive information can be accessed and widely distributed raises even more important issues
with respect to victim privacy in sexual assault cases.
B. The Critical Need for the Rape Shield Protections
While rape victims are suffering from the severe emotional and physical trauma from the
rape, they are also often being scrutinized and judged by their communities. Consequently,

11

rape victims are often subject to sharp scrutiny and unfair criticism regarding their sexuality and
sexual lifestyle. Daniel M. Murdock, Commentary, A Compelling State Interest: Constructing
a Statutory Framework for Protecting the Identity of Rape Victims, 58 ALA. L. REV. 1177, 1179
(2007). Before jurisdictions enacted rape shield protections, two trials were in progress at the
same time. In nearly every rape case, the prosecutor put the assailant on trial and the defense
counsel put the rape victim on trial. State v. Patnaude, 438 A.2d 402, 406 (Vt. 1981). Rape
victims were faced with the likelihood of grueling cross-examination on the intimate details of
[their] past sexual conduct. Paul S. Grobman, Note, The Constitutionality of Statutorily
Restricting Public Access to Judicial Proceedings: The Case of the Rape Shield Mandatory
Closure Provision, 66 B.U. L. Rev. 271, 275 (1986). A victim was often forced to choose
between keeping her sexual life private and reporting the crime to the police. Many victims
decided that the emotional and psychological costs of prosecuting the crime outweighed the
benefits of seeing the perpetrator brought to justice. Id. The prospect of having their past
sexual conduct revealed in open court also had an impact on victims decision to participate in
the legal process. Many victims dropped out of the process; the result was that few rapists were
held accountable by the criminal justice system. Id. at 276-77.
As part of the rape law reforms that were enacted beginning in the 1970s, jurisdictions
began passing rape shield laws. These statutes, which also contained mandatory hearing closure
provisions, were enacted to provide rape victims with greater protection from humiliating and
embarrassing public fishing expeditions into their past sexual conduct, without first having a
preliminary showing that evidence thus elicited will be relevant to some issue in the pending
case. Id. at 277. Evidence of a victims past sexual conduct is presumptively inadmissible,
except in certainly narrowly defined circumstances. Id. at 277-78. In passing the rape shield

12

statutes, legislators sought to achieve two specific objectives: (1) to encourage victims of rape to
report and prosecute the crime without fear of having their past sexual history exposed to the
public; and (2) to prevent evidence which is both irrelevant and highly prejudicial from reaching
the jury. Id. at 278. Currently, all 50 states, several territories, the federal government, and the
United States military have all enacted rape shield statutes and/or rules. Natl Ctr. for
Prosecution of Child Abuse, Natl Dist. Attorneys Assn, Rape Shield Statutes (2011); VT.
STAT. ANN. 3255.
In addition to protecting sexual assault victims privacy, states also have a strong interest
in the reporting and prosecution of sexual assault cases. People v. Bryant, 94 P.3d 624, 636
(Colo. 2004). Rape shield protections play a significant role in the functioning of the criminal
justice system. Grobman, at 298-99. Without rape shield protections, courts run the risk of
turning the trial from an impartial examination of the incident in question to an inflammatory and
titillating inquiry into irrelevant pages of the victims life, confusing the issues and misleading
the jury. Patnaude, at 409. The states interest in prosecuting sexual assault cases cannot be
protected unless the information deemed irrelevant remains sealed from the public. Revealing
the in camera rape shield evidence would not only destroy the utility of this very important
legal mechanism, but would also demonstrate to other sexual assault victims that they cannot
rely on the rape shield statute to prevent public airing of sexual conduct testimony the law deems
inadmissible. Bryant, at 636. This would directly undercut the legislative purpose of
encouraging the reporting and prosecuting of sexual assault cases. Id.

13

I.

NEW HAMPSHIRES RAPE SHIELD LAW, AS CODIFIED IN RSA 632-A:6, II

AND NEW HAMPSHIRE RULE OF EVIDENCE 412, APPLIES THROUGHOUT
THE ENTIRE CRIMINAL PROCESS, INCLUDING THE APPELLATE
PROCEEDINGS.
A. New Hampshires Strong Rape Shield Protections
The purpose of New Hampshires rape shield statute is to protect the victims of rape

from being subjected to unnecessary embarrassment, prejudice and courtroom procedures that
only serve to exacerbate the trauma of the rape itself. State v. Howard, 121 N.H. 53, 57 (1981).
When the statute was being debated, Senator Bradley, a member of the Committee on Judiciary,
stated that courts do have the responsibility to protect the rape victim from questions not within
the proper bounds of cross-examination and which are designed only to harass, annoy or
humiliate. Id. As one trial court aptly put it, the purpose of these types of questions is to
portray this victim before the jury as some sort of a masochistic tramp. State v. Dean, 129 N.H.
744, 749 (1987).
New Hampshires rape shield statute has been recognized as being one of the most
restrictive statutes in the country. Howard, at 58. New Hampshire, like jurisdictions
throughout the United States, upheld the rape shield statutes constitutionality against a challenge
that it violates a criminal defendants constitutional right to confrontation. Id. at 57-59. The
defendant bears the burden of proving that rape shield protections do not apply in a particular
case. Dean, at 748. In State v. Higgins, 149 N.H. 290 (2003), the defendant claimed that the
victim had previously consented to acts of anal intercourse, bondage, and sadomasochism, and
sought to question her about her alleged prior conduct. This Court affirmed the trial courts
decision to deny defendants request, holding that questioning the victim about these specific
acts or types of sexual conduct would have exposed her to further and more exacting
embarrassment. Id. at 297. This Court also recognized the importance of closing hearings that
14

address a victims prior sexual history, in order to enable the court to balance and safeguard the
rights of all partiesand avoid unnecessary prejudice to either the victim or the accused.
Howard, at 59. This Court has regularly affirmed the importance of an in camera hearing, now
called a Howard hearing in New Hampshire, when defendants raise rape shield issues. See, e.g.,
State v. Goulet, 129 N.H. 348, 351 (1987). In Goulet, at 351, this Court held that a trial court
runs a serious risk of error in admitting evidence of a victims prior sexual history without
following Howards procedure. Id.
In upholding the constitutionality of rape shield protections, this Court has addressed on
numerous occasions how a persons consensual sexual activity is a right of personal privacy
which is afforded a measure of protection under the United States Constitution. Howard, at 59.
In New Hampshire, this privacy right rises to the level of a personal privilege. As this Court held
in Dean, at 748, The rape shield law authorizes a victim to claim a privilege of personal
privacy. (Emphasis added). Goulet, at 351. This right is so significant that this Court
specifically held that, for rape shield issues, a rape victim is the real party in interest, whose
interests may differ from those of the State. State v. Miskell, 122 N.H. 842, 845 (1982). In
Miskell, the defendant sought to ask the victim questions about her prior sexual history during a
discovery deposition. The victim objected and the trial court ordered her to answer the
questions. She filed an interlocutory appeal to this Court and the defendant objected, claiming
that the victim lacked standing to appeal an adverse ruling of the trial court. However, this Court
rejected the defendants argument, holding that the victim was the real party in interest under
these circumstances and that the interlocutory appeal was appropriate. Id. at 845. This Court
again reached a similar conclusion in State v. Walsh, 126 N.H. 610, 611 (1985), holding that the
rape shield statute affords a victim a limited testimonial privilege and reaffirming that the

15

victim is the real party in interest under these circumstances. What makes these cases so
important is that they were decided well before New Hampshire enacted its Rights of Crime
Victims statute in 1991, which explicitly grants victims the right to be treated with fairness and
respect for their dignity and privacy throughout the criminal justice process. RSA 21-M:8-k,
II(a).
Rape shield statutes make no exception where, as in this case, the victim is deceased. If
the statute is not applied to victims who ultimately are murdered, then perpetrators of sex crimes
will be encouraged to kill their victims. Jenkins v. State, 627 N.E. 2d 789, 795 (Ind. 1993).
The statutory goals of protecting the victims privacy and seeking to avoid her character
assassination are no less consequential when the rape victim is killed. State v. Clowney, 690
A.2d 612, 619 (N.J. Super. Ct. App, Div. 1997). The states interests underlying the rape shield
statute are not eliminated when the victim has died. State v. Craig, 853 N.E.2d 621, 636-37
(Ohio 2006).
New Hampshire trial courts are given a great deal of discretion in making rape shield
determinations. The trial court retains the discretionary authority to rule on pretrial discovery
matters, even where a defendants constitutional rights are implicated. Higgins, at 296. This
Court will not reverse a trial courts decision on a rape shield issue unless the defendant
demonstrates that the trial courts ruling was clearly untenable or unreasonable to the prejudice
of his case. State v. Berrocales, 140 N.H. 647, 649 (1996) (internal citations omitted). The
defendant must also prove that any error is prejudicial to his substantive rights. Higgins, at 296.
B. New Hampshires Rape Shield Protections Apply Throughout the Entire
Criminal Process, Including to Appellate Proceedings
In its June 10, 2016 Order, this Court held, Both New Hampshire Rule of Evidence 412
and RSA 632-A:6, by their express terms, apply only to proceedings in the trial court. Neither
16

applies to appellate court proceedings. Supreme Court Order, (June 10, 2016), at 2. Although
this Court has not directly addressed this issue before, there is ample support in the New
Hampshire rules, New Hampshire case law, and cases and statutes from other jurisdictions to
support the conclusion that New Hampshires rape shield protections apply throughout the entire
criminal process, including during the appellate proceedings.
New Hampshires rape shield statute specifically provides, Prior sexual activity between
the victim and any person other than the actor shall not be admitted into evidence in any
prosecution under this chapter. RSA 632-A:6, II (emphasis added). New Hampshire Evidence
Rule 412 states, Except as constitutionally required,evidence of prior consensual sexual
activity between the victim and any person other than the defendant shall not be admitted into
evidence in any prosecution or in any pretrial discovery proceeding undertaken in anticipation of
a prosecution under the laws of this state. (Emphasis added). While the term prosecution is
not defined in Rule 412 or the rape shield statute, the case law and rules in New Hampshire, as
well as in other jurisdictions, do not support this Courts narrow application of the rape shield
protections.
Support from New Hampshire Case Law and Rules: New Hampshire Rule of
Evidence 101, which defines the Rules scope, states, These rules govern proceedings in the
courts of the State of New Hampshire, to the extent and with the exceptions stated in Rule 1101.
By its very terms, the Rule applies to all New Hampshire courts, not just trial courts. New
Hampshire Rule of Evidence 1101(a) indicates that the evidentiary rules apply to the
proceedings in the district and probate divisions of the circuit court, the superior court, and the
supreme court. (Emphasis added). The Rule goes on to state, These rules apply generally to
all civil and criminal proceedings unless otherwise provided by the constitution or statutes of the

17

State of New Hampshire or these rules. N.H. R. Evid. 1101(a) (emphasis added). Once again,
the Rule specifies broad application to all proceedings.
This Court provided further support for the conclusion that rape shield protections are not
limited to the trial court in Appeal of Naswa Motor Inn, Inc. (N.H. Dept of Labor), 144 N.H. 89
(1999). In Naswa Motor Inn, at 89, the issue was whether the Department of Labors assessment
of civil penalties constituted a prosecution under the Youth Employment Law. There, as in
this case, the term prosecution was not defined. This Court unequivocally held, Given its
plain and ordinary meaning, however, prosecution can refer to either a criminal or civil action,
or both. In its broadest sense, prosecution means to follow up or carry forward a judicial
action, be it civil or criminal, from its beginning to its final determination. Id. (internal citations
omitted & emphasis added).
New Hampshire Rule of Evidence 1101 also provides that, The rule with respect to
privileges applies at all stages of all actions, cases, and proceedings. N.H. R. Evid. 1101(c).
Although Rule 1101 provides certain exceptions to the general rule that the rules of evidence
apply to all proceedings in all courts, it specifically states that the exceptions do not apply with
respect to privileges. N.H. R. Evid. 1101(d). As explained above, this Court held that the
legislature intended to create a testimonial privilege by passing the rape shield statute. Miskell,
at 845. This Court has also applied the rape shield privileges during pretrial stages in criminal
cases. In Miskell, at 846, this Court specifically held, [W]e believe that the same policies are
served by prohibiting questions concerning unrelated prior sexual activity in a deposition as are
served by prohibition at trial. The exact same reasoning should apply to appellate procedures.
Testimonial privileges apply until the privilege holder, the victim here, waives her rights. See,
N.H. R. Evid. 1101(c). No other statutory privilege disappears once a case has been appealed.

18

To hold that the victims rape shield privilege, based on a constitutional right of privacy, applies
pretrial and during trial, but disappears once a convicted rapist and murderer appeals his
conviction, is illogical and incongruous with the intent of these safeguards.
Support From Other Jurisdictions: When addressing issues of first impression, this
Court looks to other jurisdictions. As this Court explained in Union Leader Corp. v. New
Hampshire Housing Finance Authority, 142 N.H. 540, 546 (1997), We also look to decisions of
other jurisdictions since other similar acts, because they are in pari materia, are interpretively
helpful, especially in understanding the necessary accommodation of the competing interests
involved. Other jurisdictions provide a great deal of support for the proposition that rape
shield protections apply throughout the entire criminal process, including appellate proceedings.
For example, Iowa defines the term prosecution to mean the commencement,
including the filing of a complaint, and continuance of a criminal proceeding, and pursuit of that
proceeding to final judgment on behalf of the state or other political subdivision. IOWA CODE
801.4(13) (2016) (emphasis added). Illinois enacted a similar definition, which states,
Prosecution means all legal proceedings by which a persons liability for an offense is
determined, commencing with the return of the indictment or the issuance of the information,
and including the final disposition of the case on appeal. 720 ILL. COMP. STAT. 5/2-16 (2016)
(emphasis added). In interpreting Colorados rape shield protections, the Colorado Supreme
Court held, [T]he statute contemplates that contents of the in camera hearing and any
transcripts thereof will remain confidential and under seal in the future, with the possible
exception of use at the trial to impeach a witness credibility or for some other admissible
purpose. Bryant, at 631.

19

California courts have a specific court rule that addresses how sealed materials are to be
handled on appeal. The rule states that sealed or confidential records that are part of a record on
appeal must be kept separate from the rest of a clerks or reporters transcript, appendix,
supporting documents, or other records sent to the reviewing court and in a secure manner that
preserves their confidentiality. Cal. Ct. R. 8.45(c)(1).
Courts in Texas take the rape shield protections so seriously on appeal that they have
even imposed strict restrictions on defense counsels access to the sealed material. Texass rape
shield rule requires that records from the in camera rape shield hearing be sealed for delivery to
the appellate court. Dees v. State, No. 02-12-00488-CR, 2013 WL 627046, 2 (S.D. Tex. App.
Fort Worth, Feb. 21, 2013). In Dees, the court held that the sealed portions of the record could
only be unsealed for the attorneys of record to prepare their parties briefs. In addition, the
attorneys could only review the materials at the Clerks office and they were not allowed to
remove or copy any of the records. While the attorneys were permitted to take notes, they were
ordered to destroy them once the court issued its mandate. The attorneys were also prohibited
from disclosing or disseminating any of the information contained in the record. The court also
ordered the attorneys to file their briefs under seal and in paper format only. Id. at 20. In
another Texas case, the defendant retained new counsel on appeal, who then sought access to
sealed rape shield information. Ukwuachu v. State, No. 10-1500376-CR, 2016 Tex. App. LEXIS
997 (Tex. App. Waco, Jan. 28, 2016). The court put similar restrictions on defense counsel and
held that any disclosure in violation of the restrictions imposed may be punishable by contempt
of court. Id. at 4.
Problems with This Courts Order that Rape Shield Only Applies to Trial Court
Proceedings: If rape shield protections only apply to trial court proceedings, the purpose of the

20

protections will be completely eviscerated. It will lead to the anomalous result that if a
defendant is acquitted of rape charges, the rape shield material will remain sealed, but if the
defendant is convicted and appeals his conviction, the materials will be unsealed and released to
the public. Surely, the legislature did not intend that rape victims would lose their privacy once
the defendant was a convicted rapist. This would have a terrible impact on the States ability to
prosecute rapists. In highly publicized cases such as this one, any details of the victims sexual
conduct reported from the in camera transcripts will be instantaneously available world-wide and
will irretrievably affect the victim and her reputation. Bryant, at 635-36. Rape victims are
entitled to rely on the protective provisions of the rape shield statute. Id. They must be able to
predict with some degree of certainty whether particular discussions will be protected. An
uncertain privilege, or one which purports to be certain but results in widely varying applications
by the courts, is little better than no privilege at all. Kimberly A. Lonsway & Joanne
Archambault, End Violence Against Women International, Effective Victim Advocacy in the
Criminal Justice System: A Training Course for Victim Advocates, 26 (2008). This is
particularly true in this case where the defendant murdered, as well as raped the victim; the
information he attempted to introduce at trial was hotly contested and never proven; and her
family has deliberately avoided learning about the allegations in order to protect the memory of
their daughter. States Brief (Aug. 22, 2016), at 5.
II.

THE RIGHTS AFFORDED TO CRIME VICTIMS BY THE NEW

HAMPSHIRES VICTIMS RIGHTS LAW, WHICH APPLY TO THE ENTIRE
CRIMINAL PROCESS, INCLUDING ALL APPELLATE PROCEEDINGS,
WOULD BE VIOLATED IF THE SEALED RAPE SHIELD MATERIALS WERE
RELEASED TO THE PUBLIC.
In its June 10, 2016 Order, this Court recognized that crime victims are entitled to certain

rights, but held that New Hampshires right to open courts and access to court proceedings

21

required that the sealed portion of the trial courts record and the parties unredacted briefs must
be unsealed and made available to the public. Supreme Court Order, (June 10, 2016), at 2.

In

response to the States and the victims familys request, this Court issued an order on June 15th,
ordering the parties to address, inter alia, what, if any, appellate procedures are required by New
Hampshires victims rights statute. Supreme Court Order (June 15, 2016).
The New Hampshire victims rights statute establishes what rights are afforded to crime
victims in this state. RSA 21-M:8-k. The term victim includes the immediate family of a
homicide victim where, as in this case, the victim has been murdered. RSA 21-M:8-k, I(a).
The statute, enacted in 1991, provides that to the extent that they can be reasonably guaranteed
by the courts and by law enforcement and correctional authorities, and are not inconsistent with
the constitutional or statutory rights of the accused, crime victims are entitled to certain
enumerated rights. RSA 21-M:8-k, II (emphasis added). By its terms, the crime victims rights
statute applies to all courts. The statute applies throughout the appellate process, and beyond,
through the defendants entire interaction with the criminal justice system, including parole,
prison release, and other post-conviction actions. For example, crime victims are specifically
afforded the right to be notified of an appeal, an explanation of the appeal process, the time,
place and result of the appeal, and the right to attend the appeal hearing. RSA 21-M:8-k, II(q).
The Marriotts, as crime victims and on their daughters behalf, are entitled to be treated with
fairness and respect for their dignity and privacy throughout the criminal justice process. RSA
21-M:8-k, II(a). They also have the right to confidentiality with respect to their personal
information. RSA 21-M:8-k, II(m). As explained more fully above, a rape victim has a right of
privacy to her consensual sexual activity, which is entitled to some measure of protection under
the U.S. Constitution. Howard, at 59. In interpreting rape shield protections, this Court held that

22

rape shield authorizes a victim to claim a privilege of personal privacy. Dean, at 748 (internal
citation omitted). In this case, these strong constitutional protections afforded to rape victims
through New Hampshires rape shield protections must be considered in interpreting a crime
victims right of privacy and confidentiality, as set forth in New Hampshires Rights of Crime
Victims legislation.4 The victims rights statute requires that the rape shield materials in this case
remain sealed throughout the entire criminal process.
In ordering that the rape shield materials be released to the public, this Court also violated the
victims familys right to be informed about the criminal process and how it progresses. RSA
21-M:8-k, II(b). When this Court remanded the case to the trial court on September 1, 2015, for
the trial court to determine whether the rape shield materials should remain sealed, the victims
family was not notified or given an opportunity to be heard. Supreme Court Order (Sept. 1,
2015). Nor was the victims family given notice or an opportunity to be heard when this Court
ordered the State and the defendant to address the impact of the revision to New Hampshire
Supreme Court Rule 12(2)(a). Supreme Court Order, (May 13, 2016). Because the State had
requested time to notify the victims family of an adverse ruling to unseal the rape shield
material, the victims family was told that this Court intended to release the information on its
own motion. However, the victims family was not given any meaningful opportunity to be
heard. Supreme Court Order (June 10, 2016).
Furthermore, New Hampshire Supreme Court Rule 12(3) provides a detailed procedure to
allow the public, including the press, to seek access to sealed case records. The rule provides no
such procedure for someone, whose rights might be violated by the release of confidential

In the Intervenors Brief, the victims father fully addresses his daughters privacy rights and how they will be
violated if the rape shield materials are released to the public. Therefore, amici curiae will just address them briefly
here.

23

material, to obtain notice and be given an opportunity to be heard in order to protect those rights.
The State, in its brief, provides a thorough and thoughtful analysis about why this violates a rape
victims rights to due process, as well as her rights provided by New Hampshires victims rights
statute, and amici adopt the States argument. See States Brief (Aug. 22, 2016), at 20- 21.
III.

SINCE SEALED RAPE SHIELD PROCEEDINGS AND MATERIALS ARE NOT

SUBJECT TO PUBLIC ACCESS, PROPER BALANCING OF THE VICTIMS,
DEFENDANTS, AND THE PUBLICS CONSTITUTIONAL RIGHTS
REQUIRES THAT RAPE SHIELD MATERIALS REMAIN SEALED.
In its June 10, 2016 Order, this Court held that while victims are entitled to certain

enumerated rights under New Hampshires victims rights law, we must also consider other
important interests, such as the publics right to open courtrooms and access to court
proceedings, citing the New Hampshire Constitution. Supreme Court Order (June 10, 2016), at
2. This Court also held, Under the circumstances of this case, we conclude that the publics
constitutionally-protected right to open courtrooms and access to the court proceedings requires
that the sealed portions of the trial court record and the unredacted briefs and appendices be
available for public review. Id. This Court ordered that all of the records sealed by the trial
court were to be placed in the courts public file. At the States request, this Court stayed its
Order for five days so that the Attorney Generals Office could notify the victims family. Id.
The sole issues in the defendants appeal are whether the trial court erred in holding that
the defendants unproven allegations about the victims prior sexual history were inadmissible
under New Hampshires rape shield protections. Although this Court has not yet addressed the
critical issue of the admissibility of these private, sensitive, and unproven allegations about the
deceased victim, it has ordered that all of the sealed rape shield documents be released to the
public prior to ruling on defendants appeal.

24

A. The Publics Right to Open Courtrooms and Access to Court Proceedings in

New Hampshire is Not an Absolute Right
New Hampshire has a strong tradition of recognizing the right of public access to
governmental proceedings and records. State v. DeCato, 156 N.H. 570, 573 (2007). This state
is one of a handful of states that incorporates the publics right of access to governmental
proceedings and documents into the State Constitution. This right is derived from Part 1,
Articles 7, 8, and 22 of New Hampshires Constitution. Id. at 574. However, this right is not
absolute; it must yield to reasonable restrictions. Sumner v. N.H. Secy of State, No. 20150340, 2016 N.H. LEXIS 28, 3 (March 22, 2016). For instance, Article 8 of Part 1 of the
Constitution specifically states that the publics right of access to governmental proceedings and
records shall not be unreasonably restricted. N.H. Const. Pt. 1, Art. 8 (emphasis added). New
Hampshires Access to Governmental Records and Meetings statute, referred to as the Right-toKnow statute, also includes numerous specified exemptions to the general open records policy.
RSA 91-A:5. Of particular importance in this case, the Right-to-Know statute exempts records
pertaining to confidential information and records whose disclosure would constitute invasion
of privacy. RSA 91-A:5, IV. New Hampshires Guidelines for Public Access to Court Records
also provide, The public right of access to specific court records must be weighed and balanced
against nondisclosure interests as established by the Federal and/or New Hampshire Constitution
or by statutory provision granting or requiring confidentiality. New Hampshire Judicial Branch,
Guidelines for Public Access to Court Records, at II, at http://www.courts.state.nh.us/rules/misc/
misc-8.htm (last accessed August 12, 2016).
New Hampshire Supreme Court Rule 12, of critical importance in this case, also
enumerates exceptions to the general rule that all court records are accessible to the public. That
Rule provides that records of cases that are confidential by statute, administrative or court rule,
25

or court order are not available for public inspection. N.H. Sup. Ct. R. 12(1)(b)(5). The Rule
sets forth a procedure for requesting access to sealed records on appeal and even allows this
Court to seal records on its own motion, when necessary. N.H. Sup. Ct. R. 12(2) and (2)(c)(1).
If a member of the public wants access to sealed case records, that person must petition the court
and then this Court must notify all parties and other persons with standing in the case. N.H.
Sup. Ct. R. 12 (3)(b).
On January 1, 2016, this Court modified Rule 12(2)(a) to add the following italicized
language:
Upon filing, the portion of the case record determined to be confidential by the
trial court . . . shall remain confidential, unless and until the court determines on
its own motion or the motion of a party that there is no statute, administrative or
court rule, or other compelling interest that requires that the case record or
portion of the case record be kept confidential.
Even though the modified Rule allows this Court to unseal records on its own motion, it still
contains the exception where there is a compelling interest that requires that the case
recordbe kept confidential. Id.
The first step in the constitutional analysis here is whether a right to access even attaches
to rape shield proceedings. Not all court records are subject to the right to access. A State
constitutional right to access attaches only to those documents that are important and relevant to
a determination made by the court in its adjudicatory function in connection with a proceeding to
which the State right of access has attached. AP v. State, 153 N.H. 120, 134 (2005) (emphasis
added). In order to determine whether the right to public access applies to a particular
proceeding, this Court has adopted the experience and logic test. DeCato, at 575; AP, at 133.
As the State eloquently demonstrates in its Brief, rape shield proceedings do not meet either the

26

experience or the logic prong of the test.5 States Brief, at 23-30. Therefore, the right to
public access does not attach to rape shield proceedings.
B. Unsealing Private, Unproven Allegations about a Rape Victims Prior Sexual
History, Protected by the Rape Shield, Does Not Inform the Public About the
Governments Actions
The purpose of allowing the public open access to court proceedings is to protect the
publics ability to hold government accountable. Sumner, at 4 (emphasis added). If
disclosing the information does not serve this purpose, disclosure will not be warranted even
though the public may nonetheless prefer, albeit for other reasons, that the information be
released. Lamy v. N.H. Pub. Util. Commn., 152 N.H. 106, 111 (2005) (internal citations
omitted). See also, Union Leader Corp. v. N.H. Ret. Sys., 162 N.H. 673, 682 (2011)(disclosure
not warranted where it does not serve the purpose of informing the citizenry about the activities
of their government). That purpose is not fostered by the disclosure of information about private
citizens that is accumulated in various records, but that reveal little or nothing about the agencys
own conduct. Union Leader Corp. v. N.H. Hous. Fin. Auth., 142 N.H. 540, 554 (1997). The
public has no parallel interest in holding private citizens accountable. Holmes v. Holmes, No.
00-M-0815, 2001 N.H. Super. LEXIS 18, at 8 (N.H. Sup. Ct. Nov. 7, 2001).
In several of these cases, the court held that the information sought was not subject to
public access. For example, in Sumner, at 6-7, this Court denied a citizens request for access to
ballots cast, holding that the ballot exemption statutes were reasonable restrictions to the publics
right of access. See also, Holmes, at 9 (no public access to guardian ad litem report in divorce
case); Lamy, at 113 (no public access to names and addresses of residential utility customers).
Here, the records of unproven allegations about a murdered rape victims prior sexual history do

Amici will not repeat the thorough analysis of the experience and logic test, provided by the State, but instead
adopt the States arguments.

27

not serve the purpose of informing the citizenry of the activities of their government and,
therefore, are not subject to the publics right to access.
C. Even if the Public Right to Access Attached in this Case, Which it Does Not, the
Victims Right to Privacy is a Compelling Interest that Outweighs any Public
Right to Access
On numerous occasions, this Court has held that an individuals right to privacy
outweighs the publics right to access. In Sumner, at 5, this Court held that a voters right to
privacy and the States compelling interest in the integrity of elections outweighed the publics
interest in access to ballots cast. Communications protected by attorney-client privilege are also
exempt from public disclosure under the Right-to-Know law, as both confidential information
and as information that is protected by statute. Profl Fire Fighters of N.H. v. N.H. Local Govt
Ctr., 163 N.H. 613, 614 (2012). In Holmes, at 9, the trial court denied a request for access to the
guardian ad litems report about the children in a divorce case, holding, The purpose of keeping
the report confidential is to provide the children with one last bastion of privacy, safe from the
inquisitive eyes of the public. The critical issue is whether the records in question reveal
intimate details of an individuals life. N.H. Civil Liberties Union v. City of Manchester, 149
N.H. 437, 441 (2003).
The reasoning this Court used in holding that search warrants in an ongoing criminal
investigation were not subject to disclosure applies in this case as well. In re: State (Bowman
Search Warrants), 146 N.H. 621 (2001). In Bowman, at 630, this Court stated that it was
precisely the type of case that should be afforded protection from disclosure, holding:
New Hampshire is a small State in which certain criminal cases are widely
reported and followed keenly by the public. With the proliferation of access to
the Internet and on-demand access to news and other information, the media
and the eyes of the public may invade small rural communities during the
duration of an investigation. This alone may serve to compromise cooperation of
those with helpful information.
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Id. This Court also recognized that the decision about access is one that is best left to the sound
discretion of the trial court. Id. at 626. The exact same reasoning applies to rape shield
proceedings. As explained in detail above, the purpose of rape shield: to protect victims privacy
and encourage prosecution, would be completely undermined by allowing public access to rape
shield proceedings when a convicted rapist appeals his conviction.
The reasoning used by the Georgia Court of Appeals in deciding that their state statute
prohibiting the publication of a rape victims name did not violate their states open records law
is particularly germane here. Doe v. Bd. of Regents of Univ. Sys. of Ga., 452 S.E.2d 776, 780
(1994). The court found that the state had a legitimate interest in protecting a sexual assault
victims privacy. By doing so, victims are encouraged to report rapes so that they may be
investigated and the perpetrators prosecuted. Id. The court held that the statute is not to be
rendered meaningless but must be construed so as to achieve the humane and crime-reporting
purposes which prompted its passage. Id. In affirming the confidentiality statute, the court
concluded, If there is a stalemate between the Open Records Act and the confidentiality statute,
it must be resolved in favor of providing the shield rather than the sword. Id. The Georgia
court found that the balance had been struck in [the rape victims] favor as a matter of public
policy by the legislature. Id. That is the precise reasoning that applies in this case as well.
D. This Courts Decision to Unseal the Rape Shield Materials Before It Rules on the
Admissibility of the Rape Shield Evidence is Premature
The defendants only issues on appeal are whether the trial court erred in refusing to
admit the defendants proffered rape shield allegations and whether the State opened the door to
the precluded information. States Brief (Aug. 22, 2016), at 5. The trial court has considered the
evidence twice: once at trial, where it found the evidence inadmissible and ordered the material
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sealed, and again when this Court remanded the issue for the trial court to reconsider its decision
to seal the records in light of the defendants request to file an unredacted brief on appeal. Both
times, the trial court held the records should be sealed. States Brief (Aug. 22, 2016), at 5 & 6.
This issue was only raised in this Court when the defendant sought leave to file an
unredacted brief in this Court. States Brief (Aug. 22, 2016), at 5. After remanding the issue to
the trial court, which held once again that the material should remain sealed, this Court issued an
order denying defendants request and ordering him to file a redacted brief. Supreme Court
Order (Dec. 10, 2015). Both the defendant and the State then filed redacted briefs and
unredacted briefs (under seal) in this Court. On May 13, 2016, on its own motion, this Court
ordered the State and the defendant to file memoranda addressing whether the sealed portion of
the record should remain sealed, in light of this Courts revision of N.H. Sup. Ct. R. 12(2)(a).
Supreme Court Order (May 13, 2016). Defendant never raised the issue of public access until he
responded to this Courts May 13, 2016 Order, when he raised it in a very cursory manner.
States Brief (Aug. 22, 2016), at 7. After this Court ordered, on its own motion, that the sealed
material was to be publicly released, the State sought an emergency stay and requested that this
Court allow the parties to fully brief the issues. The victims father filed a motion to intervene,
to try to protect his deceased daughters privacy interests. Until this Court granted the fathers
motion to intervene, the victim has had no voice in the decision to unseal the rape shield
materials.
All of New Hampshires jurisprudence about open access to court proceedings and court
records, including State Constitutional provisions, statutes, court rules, and case law, is premised
on the assumption that someone is actually asking for access. This Court has a well-defined
procedure for how to handle requests from members of the public or media. In re Keene

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Sentinel, 136 N.H. 121, 129-30 (1992). See also, N.H. Sup. Ct. R. 12(3), which also provides a
well-defined procedure for seeking access to sealed records on appeal. This process provides for
notice and opportunity to be heard and an in camera hearing to protect the sealed information
prior to a legal determination. Keene Sentinel, at 130. The record of the in camera proceedings
shall be sealed. Id. at 131 (emphasis added). As part of the process, this Court recognized
that there are certain countervailing rights, such as statutory provisions granting or requiring
confidentiality in certain cases. Id. at 130.
Another critical component of the procedure for seeking release of sealed materials is that
the court cannot render moot the rights of the individual seeking to have the records remain
sealed by disclosure before the court decides whether to unseal the document. AP, at 137. In
other words, the court cannot release the information before determining the legal issues raised
when the materials were sealed in the first place. In Keene Sentinel, at 131, this Court explicitly
held, In the event of an appeal, no access to the documents in question shall be granted until the
matter has been finally resolved. (Emphasis added). By releasing the rape shield materials
before the parties and the victim had the opportunity to be heard, and before this Court had the
opportunity to rule on the defendants appeal on the admissibility of the rape shield allegations,
this Court has essentially rendered that issue moot for the victim. If this Court unseals the rape
shield materials and then affirms the trial courts decision that the allegations were inadmissible,
there will be no possible way for the victims family to get their deceased daughters privacy
back or undo the pain the release will cause her family and friends.
When this Court released the rape shield materials on its own motion, it did not have the
benefit of full briefing on the complex legal and constitutional issues involved. Furthermore, this
Court has not even had the opportunity to rule on defendants appeal about the admissibility of

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his rape shield allegations at trial. The trial court, as the fact finder entitled to a great deal of
discretion on rape shield determinations, ruled twice that the material should remain sealed. In
addition, this Court rendered moot the victims privacy rights before reaching a decision on the
merits of the case. This Courts decision to unseal this sensitive, private information, before
considering all of the complex legal issues involved, is premature.
E. The Rape Shield Materials Must Remain Sealed
The Colorado Supreme Courts ruling in Bryant, at 624, provides an excellent summary
about why the sensitive, unproven rape shield allegations in this case must remain sealed. In
Bryant, Kobe Bryant was accused of raping a young woman who worked in the hotel where he
was staying. Because of his fame, an international media circus surrounded the case. The court
reporter accidentally distributed the transcript of the rape shield hearing to all of the major media
outlets in the country. The press appealed, claiming they had the right to publish the transcript.
In Bryant, at 626, the court held, The state has an interest of the highest order in this
case in providing a confidential evidentiary proceeding under the rape shield statute, because
such hearings protect victims privacy, encourage victims to report sexual assault, and further the
prosecution and deterrence of sexual assault. The court stated, [T]he harms in making these in
camera judicial proceedings public would be great, certain, and devastating to the victim and to
the state. Id. at 637. The victim was entitled to rely on the protective provisions of the rape
shield statute, which the state affords her in her capacity as complaining witness in a sexual
assault prosecution. Id. at 636. The states interest in keeping the in camera proceedings
confidential was sufficient to outweigh the presumption in favor of dissemination at that time.

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The court concluded that this prior restraint is necessary to protect against the evil that is great
and certain and would result from this reportage.6 Id. at 633.
In balancing the rights of all those who have a stake in this issue, the victims right of
privacy prevails, based on the rape shield protections, her constitutional right of privacy, the
victims rights statute, and established exceptions in New Hampshires open access
jurisprudence. The defendant has not raised the issue, other than a cursory mention in later
pleadings in this Court, or preserved it for appeal. Neither the public nor the press is seeking
access to this information.
To the contrary, key media organizations have written editorials opposing the release.
The New Hampshire Union Leader wrote:
We are perhaps New Hampshires loudest supporters of open record laws, but the
private lives of crime victims are not public record. Unsealing these files would
undermine New Hampshires rape shield law, and give accused criminals
enormous leverage to expose their victims private lives to the public, even if that
information could not be used in court.
Balancing Rights: Rape Shield Law Faces Challenge, New Hampshire Union Leader (June 19,
2016, 9:14 PM), http://www.unionleader.com/apps/pbcs.dll/article?avis=UL&date=20160620&
category=OPINION01&lopenr=160629988&Ref=AR&template=printart.
Another respected New Hampshire media organization also opposed the release, opining:
As a news organization we believe in the greatest possible public access to our
courts. We also believe, however, that there are reasonable limits and that judges
should have the right to seal information that would damage a crime victim and
her family without any public benefit. We further believe that removing rape
shield protections will have a chilling effect on the prosecution of sexual assaults

The Bryant case, unlike this case, involved a prior restraint on the press since the material had already been
released. Even under that much more exacting constitutional standard, the Colorado Supreme Court denied the
medias request to publish the material prior to the trial courts ruling on the rape shield issue. Bryant, at 637. In
this case, there is no specter of the press having to impose self-censorship. Id. at 635.

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and other crimes and further traumatize victims. That is also not in the public
interest.
Balancing Victims Rights with Public Access to Courts, Fosters Daily Democrat (June 29,
2016, 3:15AM), http://www.fosters.com/news/20160619/balancing-victims-rights-with-publicaccess-to-courts?template=printart.
By ordering the release of the rape shield materials, this Court inserts itself in the case as
a fact finder, without the proper factual context or having the benefit of proper legal arguments.
No one has articulated a reason why the materials should be released. The victims received no
formal notice or opportunity to be heard, even though the victim had constitutional, statutory,
and rule-based rights to be protected. The decision has the effect of rendering her rights moot,
before this Court rules on the underlying evidentiary issue. The ruling eviscerates New
Hampshires rape shield protections and further complicates the prosecution of sexual offenses.
It also creates uncertainty for crime victims, prosecutors, law enforcement, defense counsel, and
criminal defendants about whether other critical information sealed by trial courts in this State
will remain sealed when convicted defendants appeal their convictions. It also creates additional
pain for the murdered victims family.
CONCLUSION
For the foregoing reasons, amici curiae respectfully request that this Honorable Court:
(1) reverse its Order of June 15, 2016, and hold that the rape shield materials shall remain sealed;
(2) create a process by which victims are entitled to notice and an opportunity to be heard when
courts are considering whether to unseal records that may implicate victims rights; and (3)
refrain from ordering the release of any sealed records during the pendency of an appeal.

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