A question about whether a man accused of rape and his alleged victim previously had sexual relations halted a preliminary hearing Tuesday and prompted the judge to set two new hearing dates.
West Jordan police officer Bruce Eric Ballenger was accused in April of raping a West Jordan woman. He was charged with two counts of rape, a first-degree felony, and two counts of forcible sexual abuse, a second-degree felony.Utah's "rape shield law" generally prohibits admission of evidence pertaining to a victim's sexual history, although certain exceptions are permitted.
Third District Judge Ronald Nehring set June 9 for a hearing on a motion regarding the admissibility of testimony about any previous sexual relationship and June 17 to continue the preliminary hearing.
Ron Yengich, Ballenger's attorney, asked the question Tuesday while questioning the woman about how she met the police officer. Yengich argued Tuesday that information about whether a prior sexual relationship existed between Ballenger and the woman is essential in this case and admissible under the law's exceptions because it addresses the issue of consent.
But prosecutor Marsha Adkin said such evidence is not admissible and any exceptions to the law requires a separate hearing and 14 days notice to the other side. Adkin later waived the 14-day requirement.
Nehring said his decision protected the woman from the risk and embarrassment of testifying about whether a sexual relationship had existed until it is determined whether that evidence is admissible.
Adkin asked the court to continue the preliminary hearing on Tuesday regarding other matters, stating that the woman deserves a speedy trial under the Victim's Rights Act.
However, Nehring said continuing the preliminary hearing to a new date would not be harmful because the delay is only for a short time. "While this may have some deleterious effects," on the woman, Nehring said, "when all is said and done, it is the right thing to do."
During the hearing, the woman testified in a quiet voice about how she met Ballenger during a March 1997 police call to her apartment. Police reports indicate it was a domestic violence call.
She said Ballenger had offered to help her with a protective order and that they had talked several times during a six-week period, but she had felt uncomfortable with his attentions. "He came over all the time, constantly, every time he was going through the area or had a break," she said.
She said she told him she "absolutely could not do this anymore," but discovered a letter from him on her car's windshield on March 13, 1998, saying he had been watching her place and her car and that she could still call on him.
She called him and said that Ballenger said he wanted to see her to "know how I was doing." However, when he showed up at her apartment, he was in casual clothes rather than his police uniform, which she had expected since she thought he would be going to work that night.
The woman described feeling uncomfortable throughout the evening. "I really didn't know what to do. I said, `Do you want to go out or something?' I didn't want to be at my house."
They bought a newspaper that showed most activities began later that evening, so they rented two videos and bought some wine. She was upset about some personal problems and remarked that it was getting late and she was tired.
The woman testified that Ballenger pulled her down on the couch and began fondling her sexually, then used his body weight to hold her down to force himself upon her sexually. She said she repeatedly told him "no" and "I can't do this" but he continued.
Outside the courtroom, Yengich said he wants to introduce the results of a polygraph test that he said Ballenger had passed "with flying colors."