‘It restored some dignity’
House passes expanded protection for sexual assault victims
On Tuesday, the Colorado House of Representatives voted 63 to 2 for the Protection of Victims of Sexual Offenses Bill, HB24-1072, which will expand protections for sexual assault victims by prohibiting the admission of evidence about the victim’s hairstyle or clothing as evidence of consent during a trial.
Instead, defense attorneys must submit a written motion and request a separate hearing to formally admit such evidence before a trial. During the hearing, judges will have to determine if the evidence overcomes the presumption of irrelevancy in order for it to be presented at trial.
Boulder County District Attorney Michael Dougherty has voiced his strong support for the bill, which was partly crafted by the Boulder County DA’S Office’s Sex Crime Unit.
“We want to make sure victims are protected from being blamed or harassed,” Dougherty said. “Sex assaults, more than any other crime, often go unreported because victims are worried about going through the process. This new law will reduce the amount of anxiety and concern the victim has to have and it’s my hope we will see more victims coming forward because they will have the support not only of our office but, also, the support of the law in ensuring that only admissible evidence is raised at trial.”
The bill comes after the 2018 Civil Rape Shield Law, which ruled that a victim’s sexual history is irrelevant and inadmissible unless its sexual relations with the defendant or evidence relating to the origin of semen, pregnancy, disease or similar evidence that would prove the defendant did not commit the act or acts.
The 2018 law also does not deny defense attorneys’ right to present evidence of the victim’s hairstyle or clothing as a sign of consent.
‘It restored some dignity for me’
Kelsey Harbert, 33, said similar laws to HB24-1072 are in place in approximately 40 other
states in the U.S., including New York, where Harbert accused actor Cuba Gooding Jr. of sexually assaulting her in a bar in 2019 while she was completing an internship there during her time at CU Boulder.
For any questions Gooding’s lawyers had relating to Harbert’s appearance, they were required to first address them with a judge prior to the trial. Due to the high-profile nature of the case, Harbert said defense lawyers used the media as a courtroom and approached the judge with questions regarding Harbert’s breast size, arguing that her size could lead her to feel insecure and therefore want the attention of Gooding.
Gooding later took a misdemeanor plea deal in the case.
Despite the humiliation Harbert said she felt from the mass coverage of the hearing. She said she was still relieved the question was required to be asked prior to the trial, as years
before Harbert wasn’t given the same protection.
At 10 years old, Harbert said she was molested in her hometown in southeast Colorado by a person she said was “the golden boy of the town” due to his ties with local law enforcement and judges.
During her case, which later resulted in a plea deal, the 11-year-old Harbert was asked during testimony what she was wearing at the time of her assault.
“They were trying to come up with some kind of narrative, which is really hard to do when you’re looking at a child victim,” Harbert said. “What they were trying to imply was a weird and super sick narrative of ‘she actually wanted it.’ Which is insane.”
Harbert continued, “So when I went to court against him I was asked what I was wearing and as an 11-year-old I was all of a sudden like, ‘Uh oh, did I do something bad? Did I do something wrong?’ For the first time I felt guilt.”
Harbert said despite the trauma and humiliation she endured from her
case against Gooding, she felt more considered in the proceedings compared to when she was a child because of the protections in place to prevent attorneys asking certain questions during trial.
“There was something about it that didn’t cause that lasting damage, that what I had as a kid did, and I think it’s because I was considered in the process,” Harbert said. “I was actually a part of the process and I existed to some extent and I don’t think victims get to have that. It’s kind of open season on us. We’re completely at the mercy of those around us. The experience of having the judge basically catch that ahead of time and filter it and reason about it, it humanized things and it restored some dignity for me that I had lost from that experience.”
Harbert, who now resides in Denver, spoke at the House Judiciary hearing on Feb. 27 with several other victims. Harbert said she believesthey were able to flip several seats to vote in favor of the bill following their testimony.
‘No longer will victims be ambushed on the stands’
Rep. Judy Amabile, a Democrat who serves western Boulder County, was one of the two legislators who voted against the bill and said she doesn’t believe the bill strikes the right balance.
“I absolutely think that victims have rights are critical, but I also believe that we need to make sure that people who are accused can defend themselves,” Amabile said.
To Amabile, the bill feels “rushed and imprecise” with not enough consideration that sexual assault defendants face high consequences if found guilty.
“It was an incredibly hard vote for me,” Amabile said. “It’s really hard to vote no. These are heinous crimes and people’s lives can be destroyed but I don’t think this law is going to reduce the number of sexual assaults or increase the reporting of sexual assaults.”
In an email Amabile added, “I absolutely agree that we shouldn’t blame
the victim of a sexual assault case because of how they were dressed. We rightly have protections against that in law now. I also know that people are sometimes wrongly accused and wrongly convicted.”
Dougherty disagreed with Amabile’s vote, arguing that the bill strikes a careful balance between protecting victims’ privacy in front of a jury while also giving defense attorneys the opportunity to present evidence prior to trial that could help the defendant.
“No longer will victims be ambushed on the witness stand with things about their sexual conduct through irrelevant attacks,” Dougherty said. “The victim’s prior sexual conduct, the victim’s manner of dress, anything to do with the victim’s appearance, will be presumed irrelevant and inadmissible unless the judge rules in advance that it is relevant and should be considered by the jury. The defense can file a motion in advance and request a hearing to articulate facts demonstrating that the evidence overcomes the presumption
of irrelevance.”
In an email Dougherty added, “By having the judge’s ruling in advance, we can ensure that victims are not asked improper questions in front of the jury. That pre-trial hearing will ensure that the defendant’s constitutional rights are protected, which is critically important. But doing it in advance will ensure that inadmissible questions are not asked in front of the jurors.”
Harbert criticized Amabile’s vote, saying as a representative Amabile has the responsibility to reflect the views of her district.
“My concern as someone who lived in Boulder, went to school in Boulder, I know her constituents are not going to feel the way she feels,” Harbert said. “I don’t believe that that’s above board to be voting that way when the people you represent, I don’t believe for a second, would be okay with that. If you want to vote for yourself then don’t be here. If you’re a rep, you’re a vessel for the people you represent. You’re not here for you.”