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Who’s on trial in a sex assault case? Colorado bill aims to protect victims from questions about clothing.

The clothing rack set up in a Colorado Capitol hallway displayed a T-shirt and jeans, a child’s pink cardigan with a polka-dotted mini skirt, and an Army sweatshirt with shorts.

The outfits represented everyday clothing worn by women and girls across the country when they were sexually assaulted. Labeled with brief descriptions, each outfit was meant to counter the myth, still pervasive at times in American culture and courtrooms, that a victim of rape might have invited the sexual contact.

State lawmakers are debating a bill aimed at strengthening protections for Colorado sex assault victims by expanding the rape shield law to prevent certain evidence — including what a victim was wearing — from being used by defendants in court as proof of consent.

Backers hope it will spur more victims to participate in court proceedings against their assailants.

“When a person is sexually assaulted, they should feel confident that they can seek justice through a fair process,” said Rep. Shannon Bird, a Westminster Democrat who’s one of the sponsors of HB24-1072. “This shouldn’t require a victim to be subjected to public shaming, open discussion of their past or unrelated private affairs, or disparagement of their character and reputation.”

But too often, she said, that’s the price victims pay when they seek justice.

Defense attorneys in some cases cite the clothes a person wore before the unwanted touching, their hairstyle or their prior relationship with the accused to argue that the person consented to sexual activity. According to the bill’s “legislative declaration” section, the success rate for sexual assault prosecutions is “abysmally low due to societal myths about sexual crimes resulting in victim blaming as well as the high rate of victims opting not to participate in the criminal justice system because of a lack of protection from harassment and humiliation.”

The bipartisan bill passed the House 63-2 on Tuesday and now awaits action by the Senate.

Rep. Lisa Frizell, a Castle Rock Republican, said she signed on to the legislation after discussions with the Colorado District Attorneys’ Council.

“There’s a real need for this in Colorado,” Frizell said. “Sexual assault is a huge problem nationwide. We have not, in my opinion, implemented enough protection for victims, and this is just one step.”

Majority of sexual assault cases are not reported

Kelsey Harbert, who has spoken publicly about her accusation that actor Cuba Gooding Jr. sexually assaulted her while she was studying in New York in 2019, testified in support of the bill late last month during a House Judiciary Committee hearing. Gooding pleaded guilty to forcible touching in 2022 in a New York criminal case and has faced civil litigation from Harbert and others.

Harbert, who lives in Colorado, told lawmakers that concerns voiced in committee about taking away defendants’ legal rights were unfounded and overshadowed the experiences of the people underrepresented in the cases — the victims, who often come from marginalized communities.

She recalled first facing “victim-blaming” types of questions as a 10 year old who had been sexually assaulted by a family member, including about what she was wearing. Harbert said it made no difference in the case but led to shame and self-doubt. She was asked similar questions as an adult about her 2019 assault, she said — with her physical insecurities and what she was wearing used to buttress a claim she made it up.

“Lucky for me, I wasn’t assaulted here. I wasn’t assaulted in Colorado,” Harbert said. “I was assaulted in a different state that, like dozens of other states, has these protections in their rape shield laws. And because of that, I had the ability to at least have some consideration and protection as I went through a very ruthless and very public process.”

While the Colorado bill wouldn’t go as far as laws in other states, Frizell hopes it will help make victims of sex crimes more comfortable in reporting them and testifying in court.

More than two out of three sexual assault cases are not reported to police, according to the Rape, Abuse and Incest National Network. That’s a problem not just for the victims but for public safety, Bird said.

Some defense attorneys testified against the bill, expressing concerns about the rights of the accused. Ramsey Lama of the Colorado Criminal Defense Bar called the legislation unnecessary and potentially unconstitutional.

Lama, a retired judge, said state law already requires a defense team to file a motion when it wants to introduce such evidence, and that evidence is sealed until a judge decides it’s admissible in public.

“These proceedings are rare,” he said. “As indicated, I’ve presided over thousands of cases and over 50 trials, and I’ve only done a handful of rape shield hearings. And of those hearings, I’ve actually never entered a ruling admitting this evidence because there’s kind of high standards get it in.”

Handling past false reports by a victim

Defense attorneys opposed a part of the bill that limited the use of a victim’s history of false reporting in arguments — a concern also shared by some lawmakers.

The bill’s sponsors accepted changes that narrowed what could be considered a history of false reporting and be subject to limitations. A judge’s approval would still be needed before such a history could be used as evidence and proof that the report was false.

Citing a victim’s overall sexual history with the defendant in evidence also would require a judge’s prior approval.

Those amendments swayed more votes in favor of the bill in the House. Rep. Judy Amabile, a Boulder Democrat, was the sole “no” vote in the House committee and one of two on the House floor, along with Democratic Rep. Elisabeth Epps.

“Of course I think that these are heinous crimes and that we should be responding appropriately and that we should believe women,” Amabile said.

While she’s glad for the changes to the bill, she said, “philosophically, that bill wasn’t going to do anything to reduce the number of sexual assaults that are happening. All it was going to do was make it more difficult to have a defense.”

For Amabile, her vote came down to sexual assaults already carrying what she views as harsh penalties. Part of the promise of America’s justice system is the ability to defend yourself from criminal charges, especially when punishments are so severe, she said — and when some prisons don’t provide rehabilitation or treatment programs.

But for supporters, the legislation is much needed and overdue.

“The message of this bill is that the victim is not responsible for their rape, and this is not a crime of passion,” Frizell said. “This is a crime of violence and it needs to be treated that way, and we need to take care of victims.”

Frizell says she understands the job defense attorneys have, but “I feel like they can do that without crushing the soul of the victim — without assassinating their character. And if they can’t, they’re not very good at their job.”

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