On August 22, 2016, the ACLU-NH submitted an amicus brief before the New Hampshire Supreme Court in support of the victim’s request for the Court to vacate its June 10, 2016 Order that unsealed private information concerning the victim’s prior consensual sexual activity. Below is a summary of the brief’s arguments:
This case presents the important question of how New Hampshire courts should balance three competing constitutional rights—the victim’s constitutional right to privacy, the public’s right to access government records under Part I, Article 8 to the New Hampshire Constitution, and a defendant’s right to a public trial under the Sixth Amendment and Part I, Article 15 of the New Hampshire Constitution—in determining whether rape-shield proceedings and related documents concerning a victim’s prior consensual sexual activity should be made public. The ACLU-NH makes four arguments in its brief.
First, Rule 412 and RSA 632-A:6, II apply to appellate proceedings before the New Hampshire Supreme Court. Thus, Rule 412’s important presumption that proceedings addressing the admissibility of a victim’s prior consensual sexual activity be heard confidentially “during a hearing in chambers” applies equally before the Supreme Court, just as it applies before New Hampshire trial courts.
Second, while Rule 412’s “hearing in chambers” language cannot be viewed as a per se rule requiring that all rape-shield hearings be held in a closed courtroom, see State v. Howard, 121 N.H. 53, 59 (1981), nonetheless a rape-shield hearing, both at the trial court level and on appeal, should generally be conducted in a closed courtroom absent compelling reasons for public access. It should be the rare case in which a rape-shield hearing is opened to the public. This is because, generally, the victim’s constitutional right of privacy at a rape-shield hearing is compelling and outweighs the public’s and defendant’s more modest interests in public access. Public access to a Rule 412 hearing is unlikely to prejudice the defendant’s rights. Regardless of whether the hearing is public, the defendant will, as a matter of due process, still be permitted to argue for the admissibility of the information in question. And if the information is ultimately deemed admissible, then the defendant can use the information at a public trial. Meanwhile, if a rape-shield hearing before the trial court or on appeal is opened to the public, it will cause the very damage that Rule 412 and the rape-shield statute seek to prevent—namely, public embarrassment, shame, and humiliation caused by the public disclosure of the victim’s intimate relations that presumptively have no bearing on the criminal case.
Third, and relatedly, since a Rule 412 motion is generally to be heard “during a hearing in chambers,” New Hampshire trial courts and the Supreme Court should provisionally seal the record of the rape-shield hearing proceedings—including the written briefs, affidavits, transcripts, appendices and any other information disclosing the victim’s prior sexual history—absent compelling reasons for public access. This provisional sealing should remain in effect until a final determination has been made as to whether the information is admissible at trial, as the question of admissibility will be, in the overwhelming number of cases, dispositive as to whether the victim’s prior consensual sexual activity presented in the rape-shield hearing should be publicly available. Only after the court makes an admissibility determination can the court fully balance the interests of the victim, the public, and the defendant in deciding how this information should be treated.
If documents concerning the victim’s prior sexual history are inadmissible, then these documents, as well as the briefs and appendices, should generally remain sealed. The information will have no bearing on the defendant’s guilt or innocence, thus rendering minimal the public’s interest in disclosure and the defendant’s interest in public access. Conversely, the release of this inadmissible information could have a devastating impact on the victim’s privacy rights. Perhaps even worse, disclosure would create an environment where victims of sexual assault will not report these crimes out of fear that their irrelevant prior sexual history will become public knowledge. Where the victim’s prior sexual history is inadmissible, it should be the rare case in which this information is unsealed and released to the world.
If the defendant is able to overcome the rape-shield statute’s presumption that a victim’s prior sexual history is irrelevant, then the calculus changes. After the court deems this information admissible, these documents, as well as the briefs and the appendices, should generally be unsealed but only (i) if the defendant or a third party requests that the Court unseal this information, and (ii) after giving the State and the victim notice and an opportunity to be heard as to why the documents should remain sealed—a requirement that is mandated as a matter of procedural due process. A court’s finding that the defendant has overcome the rape-shield statute’s presumption of irrelevance (and is therefore entitled to present this information to a jury that will adjudicate guilt or innocence) significantly enhances the public’s and defendant’s respective interests in disclosure. Undoubtedly, the victim’s privacy interest in this information is still strong. But when such information is deemed admissible despite the protections of the rape-shield statute, such privacy interests must generally give way to the defendant’s rights under Article 15 and the compelling principle embedded in Article 8 that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”
Fourth and finally, if a trial court or the Supreme Court contemplates opening to the public a rape-shield hearing or unsealing documents concerning a victim’s prior sexual history, the victim is entitled to process—particularly, notification and an opportunity to be heard—before a final decision is made on disclosure. This is because a court’s decision to disclose this information not only implicates the victim’s constitutional right to privacy recognized in Howard, but also the victim’s right to be free from reputational harm and social stigma.
On September 29, 2016, the Supreme Court issued an order agreeing with the position of the victim, victims’ rights advocates, and the ACLU-NH that the information should remain sealed.