Though sexual assault is rarely reported—and even then, only occasionally prosecuted—its victims have had it way too easy for far too long, according to a New Hampshire Republican representative. He’s made it his first legislative order of business to pass a bill that would require more proof than just a victim’s testimony before a rape case could be brought to trial.
Sponsored by Rep. William Marsh, the vaguely-worded HB 106 requires a victim’s testimony in a sexual assault case to have “corroboration,” at least in cases where the defendant has no prior sexual assault convictions.
Though the corroboration rule in rape prosecution has a well-documented history, the term is not defined in this bill’s language. At a hearing on Tuesday in the state’s House Committee on Criminal Justice and Public Safety, Marsh said it could mean an eyewitness account, or physical evidence like computer files, photographs or hotel receipts, or medical evidence like documented injuries, or behavioral changes in the alleged victim.
Marsh—a newly-elected opthamologist and homeschooling father of five, who enjoys marching in his local town’s 4th of July parade, dressing in colonial garb, and shooting a musket, according to his online bio—introduced the bill to right what he sees as a history of wrongful conviction. Meanwhile, law enforcement and victims’ advocacy groups lined up on Tuesday to testify that it would enable rapists and child molestors.
“It’s really nothing short of the nation’s first pedophile protection act,” Sgt. Sean Ford of the Concord Police Department told the AP.
The inspiration for Marsh’s bill is Foad Afshar, a 56-year-old unlicensed psychotherapist, who was convicted in June of one felony count of aggravated sexual assault and a misdemeanor count of simple assault for molesting his 12-year-old patient during a therapy session.
In the two week trial—during which scores of the defendant’s supporters packed the courtroom—Afshar denied ever touching the child inappropriately, and said he had only grazed the boy’s arm during a “touch therapy” session to alleviate the child’s fear of a hernia exam. Afshar also said he was in another room sending an email during the alleged assault, a claim that prosecutors refuted, and additionally offered that his arthritis was too severe to allow him to touch the boy’s genitals in the way the victim described. Afshar said the boy was known to lie and he was likely trying to get out of therapy.
A jury disagreed, and Afshar was sentenced to three to six years in prison. He’s appealing the ruling.
Afshar’s conviction, in Marsh’s opinion, is a miscarriage of justice—one that should be rectified not in the court of appeals, but with a change in state law.
“My daughter Emily’s friend from NHIA [The New Hampshire Institute of Art], Dr. Foad Afshar was convicted in June without corroborating evidence—the case is under appeal,” Marsh explained on his website. “Consequently, NH Psychologists are afraid to treat victims of sexual abuse fearing a similar fate. Left untreated, these victims are likely to become the next generation of predators. This bill would insure due process.”
“Yes, children who are sexually abused are innocent victims, but they are not the only innocent victims,” Marsh said in his official testimony. “I think we would all agree that if a person who has not committed a crime is found guilty and sent to jail, then that person also is an innocent victim.”
Whatever side one rests on concerning Afshar’s conviction, Marsh’s claim that state psychologists “are afraid to treat victims of sexual abuse fearing a similar fate,” seems to be a stretch. Criminal cases against mental health providers in New Hampshire are incredibly rare; Afshar’s is is the only complaint that has led to criminal prosecution since the New Hampshire’s Board of Psychologists began regulating the profession in 2013.
The bill’s co-sponsor, Republican Jess Edwards, testified that without a change in law, retirees like himself could be dissuaded from working with troubled youth in programs like Big Brothers, Big Sisters of America because of the chance of being falsely accused of sexual abuse.
“The social cost of discouraging adults from engaging youth populations is extremely high,” Edwards wrote in his official testimony.
A third sponsor, Democrat Mary Heath, withdrew her support in response to fierce opposition. Objections came from varied organizations including the New Hampshire Coalition Against Domestic and Sexual Violence, the County Attorney’s Association, The New Hampshire Chiefs of Police, and the New Hampshire Psychologist Association, which wrote in a statement that “Sexual assault victims already face significant challenges when seeking justice, and corroborating evidence is not always available. This proposed change places a higher onus on victims and may especially disadvantage children.”
Sexual assault—especially of a minor—is a clandestine crime, as the bill’s opponents have all noted. Bruises, ripped clothing, or eye witnesses are hard to come by. Child molestors aren’t known to commit their crimes in the presence of others, and often exert power over their victims by telling them that no one will believe them.
This bill, its opponents argue, seeks to formally codify that threat by resurrecting so-called corroboration rules, laws that legal experts and advocates have fought against since the 1970s and that most states had entirely banished by the early aughts, according to a 2004 paper by Michele J, Anderson, now president of Brooklyn College and one of the country’s foremost experts of legal issues surrounding rape.
With HB 106, Marsh wants New Hampshire to go further than any state has sought to in years. “What New Hampshire is considering, requiring corroboration in all cases where the defendant has not been convicted previously, goes far beyond the requirements of any state I can think of,” Roger Canaff, a legal expert on sexual abuse cases, told the Concord Monitor.
Whether his bill will ever escape committee remains to be seen. Considering it faces vocal opposition, goes further than any other corroboration standard in the country, and its Democratic co-sponsor has removed her support, its chance for passage looks bleak.
Not that it bothers Marsh.
“I never had any illusions about the chances for my bill,” Marsh told me. “After all, they advise us not to submit bills in our first year and I’m in my first few weeks. But that won’t make the issues go away.”