The attorney for a former BYU professor charged with sexually assaulting one of his students wants access to the student’s records in the BYU Title IX office.
However, the information being requested by subpoena may go against Utah’s rape shield law, which limits the kinds of evidence a criminal defense attorney can obtain in a case involving sexual misconduct.
Michael James Clay, 46, was charged last June with two second-degree felony counts of forcible sexual abuse in Provo’s 4th District Court. Clay’s attorney has filed motions to waive his initial appearance, originally scheduled for Oct. 5, 2020, four times.
The law prohibits defense attorneys from introducing any “evidence offered to prove that a victim engaged in other sexual behavior” and “evidence offered to prove a victim’s sexual predisposition.”
“The goal of the rule is to encourage the victims of sexual assault to report the crime without concern that they will be humiliated at trial with questions about their prior relationships,” said University of Utah law professor Louisa Heiny. “We also want to ensure that the jury is making a decision based only on the facts of this case.”
Heiny added that there are some exceptions to the rule. For example, the defense may be allowed to use evidence of prior false allegations of sexual assault to impeach — or question the integrity or credibility — of the alleged victim.
“However, a defendant who wishes to impeach the alleged credibility with his or her prior allegation of sexual assault must first demonstrate by a preponderance of the evidence that the allegation was false,” Heiny said. “In essence, that means the defendant’s first test is to show that it is more likely than not that the earlier allegation was false. That’s not necessarily easy to do. The defense will need to work around lots of other evidentiary rules in order to meet that burden.”
Clay’s attorney argues the subpoena “is not a speculative request or fishing expedition, and it is not a general request for impeachment purpose” but states that the student’s Title IX records are “highly relevant to (her) credibility.”
Heiny said the subpoena strikes her as problematic. “If I were the prosecutor in this case, I would argue the subpoena itself should have been under seal” and not filed as a public court document, she said. “I don’t know if the defense will be given the information from the alleged victim’s records, but the public request itself undermines the goals of the Utah rape shield rules.”
Jerry Salcido, a Utah-based trial lawyer, disagrees. He said the subpoena would be an exception to the rape shield law.
“It wouldn’t violate the rape shield law because it is information that if not admitted would violate the defendant’s constitutional right to cross-examine the alleged victim as to her credibility and character for honesty,” he said.
The Family Educational Rights and Privacy Act, which protests the privacy of students’ educational records, may also come into play with the subpoena.
A bulletin from the the National Crime Victim Law Institute says that although the law is unclear whether Title IX records fall within FERPA’s definition of “education records,” and are therefore entitled to FERPA’s privacy protections, “victims have a number of explicit rights that may be implicated by a subpoena for the victims’ records related to a Title IX proceeding.”
Schools must ensure the subpoena is valid and make a valid attempt to notify students in advance of their compliance with such a subpoena.
“Although a school is not under an obligation to move to quash the subpoena on behalf of the victim, if the victim would prefer for the school to move on his or her behalf, it is best practice,” the bulletin says.
Charging documents detail a power difference between the student and Clay — who is accused of using his influence within his department and the victim’s field of study, the student’s emotional vulnerability and religious priesthood authority to exploit the student.
According to charging documents, Clay gave the victim a priesthood blessing and on another occasion, he “told her that he had prayed about her and felt inspired from God to engage in physical contact with the victim,” and he “told the victim that he knew that they were supposed to meet and help each other.”
Following Clay’s charge, another student spoke out about his behavior, alleging that he created an atmosphere where “students felt he was holding their futures hostage.”