SALT LAKE CITY — A Utah girl told investigators she was 12 years old when a man she knew gave her alcohol and raped her in April.
The Utah Court of Appeals now is weighing whether she can be compelled to take the stand against him at a preliminary hearing to determine if there's enough evidence for the case to advance to a trial.
Attorneys for the girl say evidence of the man's crimes is already strong. Being forced to testify, they argue, would compound her trauma and would not change the facts. But lawyers for 28-year-old Ivan Michael Lopez contend it's his right to have his legal team cross-examine the girl, who is now 13.
The issue "is of great public significance and has a tendency to evade review," 3rd District Judge James Blanch wrote in an October decision. He sided with Lopez's attorneys, declining to block a subpoena ordering the girl's testimony.
The judge indicated there is probable cause for Lopez to stand trial, with evidence including video of the girl's interview with investigators, plus statements in court from the responding officer and a detective. Still, calling her to testify is "not unreasonable," he wrote, due to her mature demeanor and age.
Lawyers for the accused man contend no Utah law bars his legal team from questioning the girl.
“Crime victims do not have a right under Utah law to refuse to testify at court hearings when they have been lawfully served with a subpoena,” his attorney, Jessica Jacobs, wrote in court filings.
Lawyers for the girl say otherwise.
Cross-examining her “is the very type of traumatic and intimidating ordeal the Legislature was attempting to curb” in a list of crime victims' rights spelled out in the Utah Constitution, the girl's attorney, Bethany Warr, wrote in court documents. Those who come forward as victims in Utah are entitled to be "treated with fairness, respect and dignity, and to be free from harassment and abuse throughout the criminal justice process," Warr noted.
The Utah Crime Victims Legal Clinic in November petitioned the Utah Supreme Court for permission to appeal the case, and the review now is pending in the Court of Appeals.
The issue has often surfaced in Utah's courtrooms, Blanch wrote in his order allowing the subpoena to go forward. But he said victims in many cases have already testified by that point, and defendants often don't want to draw out the case by filing an appeal if they are denied the opportunity to question young victims.
The Supreme Court considered the question earlier this year, in the case of a different 12-year-old girl who prosecutors say was sexually abused by her mother's live-in boyfriend in Utah County in 2014. The girl also gave a statement recorded on video at the Children's Justice Center, and the judge in the case agreed with prosecutors that forcing the girl to testify would violate her right to be treated fairly as a victim.
The man appealed in an effort to secure her testimony, but the Utah Supreme Court in August declined to take a side. It wrote that the man did not appeal the judge's broader decision ordering him to stand trial, so the issue of the child testifying was moot.
Justice John Pearce wrote in the opinion that "we must dismiss this appeal and await another opportunity to answer the question."
Lopez faces charges of raping a child and aggravated sex abuse of a child, both first-degree felonies, plus selling, offering or furnishing alcohol to a minor, a class A misdemeanor. He has not entered pleas to the crimes alleged to have taken place on April 30.
The judge in his order directed the courtroom to be closed to people unrelated to the case and directed Lopez to wait in a holding cell at the time of the teen's testimony. A date for the remainder of the preliminary hearing has not yet been set.Comment on this story
Similar debates have arisen nationally. A 2018 bill introduced in Congress sought to prevent defendants acting as their own attorneys from questioning minor victims, but it did not get a hearing.
The proposal from U.S. Sen. Jeff Flake, R-Ariz., followed the Arizona child sexual abuse case of Chris Simcox, the leader of a border militia group who represented himself and sought to cross-examine two girls under age 10, a plan he dropped after victims' rights attorneys sought for the U.S. Supreme Court to block him from doing so. In 2016, he was convicted of abusing one of the children and acquitted of abusing the other.