Editor's note: It is the policy of NET News, under most circumstances, not to provide details of a crime that could identify potential victims of sexual assault. Since the incident discussed below allegedly involves members of the same family, identities of all parties involved are being withheld.
The Nebraska Supreme Court must decide whether a 25-year-old woman, allegedly sexually abused by her stepfather as a child, should be held in contempt of court and possibly jailed for refusing to answer questions in advance of his trial. Arguments in the case were heard before the court on December 7.
Watch the entire Supreme Court hearing from Dec. 7, 2011.
Earlier this year the Lancaster County Attorney threated the woman with 90 days in jail if she failed to answer questions for a pre-trial deposition. The circumstances were so unusual it prompted Supreme Court Justice William Connolly to state from the bench, "In all my years as a prosecutor, I have never seen this done."
The case began in August 2010 when a woman approached the Nebraska State Patrol with suspicions that her daughter (identified as H.M. in court documents) had been molested fifteen years earlier. The daughter would have been 8 years old at the time. There is no statute of limitations on the sexual assault of a child.
H.M.'s attorney, Randy Wertz stated during the Supreme Court hearing "investigators showed up at my client's house un-announced" at which time the girl stated she had been sexually abused by the stepfather. Police also recorded a phone conversation between the two.
Based on that evidence, the man was arrested and charged with the sexual assault of a minor. In March 2011, attorneys from the Lancaster County Attorney's office and lawyer for the accused met with H.M. to take her deposition before the trial.
According to court records the woman "declined to answer any questions relating to the events." According to her attorney, "the reasons she gave were that she did not want to be subjected to public ignominy or deep public humiliation and that she did not want her children exposed to the same."
Ignominy, defined by Black's Law Dictionary, is public disgrace or dishonor.
Brought before Lancaster County District Judge Paul Merritt Jr., H.M. stated "I don't want to be a part of this anymore."
Judge Merritt ruled the woman was in contempt of court and sentenced her to ninety days in jail unless she testified. The contempt citation was stayed by the judge pending an appeal to the Nebraska Supreme Court.
"What it's going to come down to is weighing the interest of the State of Nebraska versus the interest of the alleged victim in a case," Judge Merritt observed.
Much of the case turns on a Nebraska law shared with few other states and it hinges on that word "ignominy." It is generally accepted in American courts that people are required to testify in court when called upon.
"They have to testify, unless they have a privilege and there are lots of different kinds of privileges," said R. Collin Mangrum, Professor of Law at Creighton University in Omaha.
The most well know of those privileges or exceptions, is the right not to incriminate yourself in court. The Fifth Amendment of the U.S. Constitution states no person "shall be compelled in any criminal case to be a witness against himself." Certain people with a special relationship to a defendant are ordinarily not obligated to testify, like a spouse, attorney, doctor or member of the clergy.
Nebraska adds another form of privileged testimony to the list. The state statute reads "When the matter sought to be elicited would tend to expose him or her to public ignominy, the witness is not compelled to answer." In other words, if the testimony would result in the person being disgraced or dishonored.
"It's not a typical privilege statute," said Mangrum, comparing Nebraska law to those maintained by other states.
There is little case law in Nebraska about whether this privilege can be used if the victim of a crime does not want embarrassing details shared in a public forum.
Mangrum has written extensively about Nebraska evidence law and says the statute dealing with ignominy has problems that become clear in the case now before the State Supreme Court.
"This particular statute seems out of sorts with most states and it appears to give quite a bit of ambiguity to people who may not want to testify and gives them a little bit of an out," said Mangrum.
Nonetheless, it is part of Nebraska state law and has been since the Legislature put it there in the late 1800s.
Wertz told the court he wants a narrowly-defined ruling based on his client's specific circumstance, since the court's decision could be used by others to avoid testifying about a crime.
During the hearing Assistant Nebraska Attorney General James Smith, on behalf of the State of Nebraska, defended the county prosecutor's hard line. He argued there is no specific state protection for crime victims of any sort.
"California has a statute which does expressly prohibit finding sexual assault victims in contempt for refusing to testify about their sexual assault," Smith argued. "Nebraska has no such statute. The Legislature could have enacted such a statute and it has not done so yet."
While questioning Smith, Justice Connolly raised the dilemma that is so troublesome to everyone involved in these types of cases: a prosecutor has an obligation to the victim as well as an obligation to protect the community as a whole. That brought the following exchange:
Justice Connolly: What's society going to gain from this prosecution? Is this a repeat serial child abuser?
James Smith: The question is what's the interest at stake of a criminal law and it's a law to protect society against and to punish the individual.
Connolly: But the individual here, the victim is the one who's going to be punished. Is this the old adage, hard facts make bad law.
Smith: I would agree your honor. This is a case where what the judge has imposed as a sentence creates a very harsh result on a victim. If that is the law, as enacted by the Legislature, that is the result. It does create a harsh result.
A representative of the Nebraska Domestic Violence and Sexual Assault Coalition said the Coalition was unaware of the case until NET News called for comment. The group actively works with law enforcement to develop cases that rely on strong evidence in the hopes of keeping the victims off the witness stand. It is that organization's view that a Supreme Court decision forcing testimony from a possible victim raises concerns about traumatizing someone a second time.
The Supreme Court ordinarily can take two to three months before issuing a ruling on cases under review.