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Decades-old allegations are hard to prove, law professor says

Published: Monday, Aug. 3 2015 9:31 p.m. MDT

Paul Cassell (Laura Seitz, Deseret Morning News) Paul Cassell (Laura Seitz, Deseret Morning News)

SALT LAKE CITY — Should prosecutors decide to pursue criminal charges against former state House Majority Leader Kevin Garn, they would need to do considerable work and research before anything could reach a courtroom, a law professor said.

Law enforcement officials contacted by the Deseret News Saturday declined to comment on whether there is any investigation into the recent sex-related claims against Garn made by Cheryl Maher. Garn resigned from the Legislature Saturday after confessing to being naked in a hot tub with Maher when she was 15 and he was 30.

However, Paul Cassell — a University of Utah professor of criminal law, former federal prosecutor and federal judge — said, hypothetically speaking, a prosecutor presented with allegations like these would need to see whether the statute of limitations has expired.

"I would think there would be some very significant statute of limitations issues," Cassell said.

There are things that can "toll," or freeze, the statute of limitations, but Cassell said those generally are fairly narrow situations.

Cassell emphasized, "I'm not making a statement about Rep. Garn — I don't know if he's ever been in a hot tub."

Any potential criminal behavior that extended beyond the alleged 1985 hot tub incident — such as some kind of threats, or an improper exchange of funds — also might make a difference.

It is clear, Cassell said, that any prosecutor would need far more detailed facts about what happened and when — and so far, the information regarding Maher and Garn has been extremely vague.

"At the end of the day, there may be factual barriers to pursuing any prosecution," Cassell said. "Typically, a prosecutor will not move forward on a pure 'he-said-she-said' allegation without some kind of corroboration.

"Criminal law sets a very high standard of proof — beyond a reasonable doubt. You could have two people disagree about what happened in a private setting, and without corroboration one way or another, it would be impossible for a prosecutor to get a conviction."

Among other things, Utah state laws regarding sex crimes have been amended since 1985.

A prosecutor also would need to look at whether there was coercion involved, especially since Maher at one time worked for Garn.

"There may be claims that would support civil liability, but not criminal liability. A supervisor who makes unwanted sexual advances has violated civil rights statutes, but not violated any criminal statute. Criminal law stakes out fairly narrow boundaries for coerced sex that are different than civil boundaries," Cassell said.

He also said prosecutors would have to consider whether it was worth it to pursue a possible decades-old case when there are sex crimes occurring routinely throughout the state now that might take higher priority.

e-mail: lindat@desnews.com

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