OMAHA, Neb. – A woman can be sent to jail for refusing to testify against the man she has accused of sexual assault, the Nebraska Supreme Court said Friday, although it suggested that might not be the best way to address her reluctance to take the stand.
The ruling came in the case of a Kansas woman who was found in contempt after refusing to testify against a 63-year-old Nebraska man who was charged with sexually assaulting her 17 years earlier when she was 7 years old. In April 2011, Lancaster County District Judge Paul Merritt ordered the woman to testify or face 90 days in jail, saying the case hinged on her testimony, which outweighed any shame she might feel.
His order drew criticism from victims' groups like the Rape, Abuse & Incest National Network, which said his actions would make the criminal justice system even less attractive to rape victims who are already reluctant to report their assaults.
The Nebraska Supreme Court upheld the judge's decision Friday, saying a state law that allows witnesses to decline to testify when they would be shamed or publicly disgraced doesn't apply in criminal cases. However, the court questioned whether threatening the woman with jail was the best approach.
"We observe that the fact that the state may compel (the woman) to testify does not necessarily mean that it should," Nebraska Supreme Court Judge Kenneth Stephan wrote in the opinion. "But that question must be left to the judgment and discretion of the prosecutor."
The man charged with first-degree sexual assault of a child in the case, Glen Riensche, has been free on bond after his trial was put on hold while the woman's appeal was heard.
The woman initially cooperated with investigators in August 2010 after her mother reported the alleged assault that took place between August 1992 and August 1994. The woman described details of the assault to Nebraska State Patrol officers and allowed them to record a phone conversation with Riensche where he admitted touching her inappropriately.
But she refused to testify last year in court, saying that doing so would cause deep humiliation for her and her family.
The Associated Press does not identify alleged victims of sexual assault.
Lancaster County Attorney Joe Kelly said Friday he hasn't decided how his office will proceed. He said it was important for his office to fight the woman's claim she shouldn't be compelled to testify because that could have opened the door for other witnesses in criminal cases to refuse to testify too. But he said prosecutors will "respectfully listen to and talk with our victim" before moving ahead with the case, which he expects to do within the next two weeks.
"Our main function is to prosecute serious cases ... and to protect the public," he said. "But we also have very important duties and obligations to crime victims, and sometimes there is a balancing involved."
The woman's attorney, Randall Wertz of Lincoln, did not immediately return a message left Friday by The Associated Press seeking comment.
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