This is a petition filed in the Utah Supreme Court on behalf of four women (Jane Does 1, 2, 3, and 4) who were sexually assaulted, and yet the public prosecutor with jurisdiction refused to file criminal charges against their attackers. The petition relies on Utah Constitution, article VIII, § 16, which anticipates situations where a crime victim might need her own avenue for initiating criminal prosecution. Accordingly, this constitutional provision provides that “[i]f a public prosecutor fails or refuses to prosecute, the Supreme Court shall have power to appoint a prosecutor pro tempore.” Indeed, to underscore the fact that other ways to initiate a prosecution are available, the provision specifically states that public prosecutors in this state shall have the “primary responsibility” for prosecuting crimes. “Primary” responsibility is, of course, not the same as exclusive responsibility.
This petition explains why the Utah Supreme Court to use its power to appoint a prosecutor, both to bring justice for these four particular sexual assault victims and, more broadly, to help protect a class of victims – women and girls who have been sexually assaulted – who are under-protected by current prosecutorial practices in our country. The petition argues that the Court can address systemic under-prosecution of rape cases through its power under the Utah Constitution, not only under the Court-Appointed Prosecutor Provision, art. VIII, § 16, but also to protect rights contained in Utah’s Victims’ Rights Amendment, art. I, § 28, the Utah Uniform Operation of Laws Clause, art. I, § 24, and the Utah Equal Rights Provision, art. IV, § 1. It also has power to act through the federal Equal Protection Clause, U.S. Const., amend. XIV.
The petition concludes by asking for the Court to appoint a prosecutor to prosecute the sexual assaults committed against the four Jane Does.
Cassell, Paul; Nestel, Heidi; Warr, Bethany; Garvin, Margaret; Ferbrache, Gregory; and Hanni, Aaron H., "In Re: Petition for Appointment of a Prosecutor Pro Tempore by Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4 : Petition for Appointment of Prosecutor Pro Tempore" (2018). Utah Law Faculty Scholarship. 134.