SIOUX FALLS, S.D. (KELO) — Victims of rape, domestic violence and other crimes are guaranteed rights under South Dakota’s constitution. In 2016, the majority of voters approved Marsy’s Law, which is a constitutional amendment. Under Marsy’s Law, the victim of a crime is guaranteed 19 different rights. However, our KELOLAND News Investigation reveals much of Marsy’s Law appears to be up to interpretation and victims aren’t always getting the protections they are guaranteed to receive.

When it comes to Marsy’s Law violations, KELOLAND Investigates has reported on a case of victims not getting timely notification before the parole hearing of a man who killed a pregnant woman.

The South Dakota Attorney General’s Office called it a “rare issue,” but other victims say it’s happened to them as well and other tenants of Marsy’s Law are also being ignored.

Holly Wethor’s experience was like many victims of domestic violence. For six years, she kept trying to make the relationship work and was scared to leave.

Holly Wethor is a domestic violence survivor turned victim’s rights advocate

“He almost tried pushing me out of a three-story hotel window. He dropped me in an elevator and you thought that would have been my rock bottom, but it wasn’t. That’s how much self-worth that you lose,” Wethor said.

The abuse continued.

“He threw me into an end table and I became unconscious. And that was my rock bottom and that’s when the advocate at the courthouse in Lincoln County really pushed me to go get counseling for myself. And I did and it was the best thing I ever did. They saved my life,” Wethor said.

Wethor then learned as a victim, she had rights.

“My advocate went with me to court and I learned about Marsy’s Law and writing impact letters. With Marsy’s Law you are able to write these letters, go in front of a judge and be able to speak.

The experience prompted Wethor to become a Marsy’s Law advocate, helping other victims navigate the court system. But in her work with other victims and even her own case, Wethor says the application of Marsy’s Law has been sporadic. She points to when her abuser was let out of prison.

“You’re supposed to know when they get out and they’re supposed to call you and contact the victim. That didn’t happen in one of my cases as well,” Wethor said.

A short time later, Wethor believes she was targeted by her ex when shots were fired at her house.

“At about 1:30 in the morning, my daughters and some of her friends were in the room and I heard sounds like fireworks. And all of a sudden I heard a car squeal and I flipped open my window and I just see an unmarked car, no license plate, no nothing, just take off. It missed them by centimeters and inches. And as a parent that is horrific,” Wethor said.

The lack of notification is not the only violation of Marsy’s Law KELOLAND Investigates has found.

“I feel like I haven’t been treated right in any way, during this whole process,” Sara said.

This woman, whom we are calling “Sara,” asked us to conceal her identity because she is a victim of rape.
Sara says she was raped when she was just 17.

“I snuck out one night with someone I thought would be cool to sneak out with. But it turned out really bad; ended up getting sexually assaulted,” Sara said.

The case has been making its way through the court system since 2019.

The reason Sara is coming forward now is because of what happened in the last court hearing in June before Minnehaha County Judge, Bradley Zell.

According to a transcript, the defendant in the case requested that Sara’s personal counseling records be turned over, “relating to any allegations about the rape or any other alleged rapes, as that goes directly to her credibility.”

The State’s Attorney arguing the case disputed the defense’s request, saying in court:
“those things are prohibited.” Not only would it be a HIPPA violation, but “We also have provisions that are constitutional rights for victims under Marsy’s, that say they have the right to privacy. They have the right to prevent their personal records from being disclosed and used. “

Kennecke: Should a victim be asked to supply their personal counseling records?
Sara: No. That’s like personal information. That’s like if I were to ask him (the defendant), if we wanted his medical records and counseling records if he had anything like that. Why should he give them up?

According to Marsy’s Law, a victim has “the right to prevent the disclosure to the public, the defendant or anyone acting on the defendant’s behalf, of information or records…. which could disclose confidential or privileged information about the victim.”

However, Judge Zell said in court that Sara’s counseling records were not privileged because she had talked to other people. Judge Zell said, ” When the person starts communicating with their parents or their friends or other people that are outside what is deemed to be privileged, it’s no longer privileged.”

“What he’s saying is if I go to counseling and I go talk to my family about it and my friends, then I’ve waived the privilege. Marsy’s Law clearly protects that,” Rogers said.

Attorney Gina Rogers of East River Legal Services took on Sara’s case when someone from the Marsy’s Law national office contacted her after Judge Zell ordered all of Sara’s records be turned over to the defense.

“No evidence or testimony was presented at this hearing on June 21st, when he ruled that ______ had to turn over everything the defendant requested for this young lady’s privileged and confidential records. And he ruled that she waved her privilege without any evidence, without any testimony, without giving her a chance to speak,” Rogers said.

The prosecutor in the case then asked if the judge would review the information first, before handing it over to the defense. You’ll recall after Attorney General Jason Ravnsborg hit and killed Joe Boever, Ravnsborg requested all of Boever’s psychological and medical records as well. Judge John Brown ruled that he would look at Boever’s personal records first and then decided they could not be used in the case.

However, Judge Zell denied a similar request, saying that he would “grant a protective order on behalf of the alleged victim, making them for attorneys’ eyes only and/or experts for the purpose of preparing of any defense.” Judge Zell goes on to say that he doesn’t have the ‘resources” to look at documents in cases first.

Then the issue came up of whether Sara had other counseling records that the defense didn’t know about.
Judge Zell said in court, “People don’t realize this just because you’re an alleged victim doesn’t mean you are not subject of a subpoena and to be subject to deposition. You are. You can talk to the alleged victim and subpoena them and compel discovery. “

“That is the exact opposite of what Marsy’s Law says,” Rogers said.

According to Marsy’s Law, the victim has “The right, upon request, to privacy, which includes the right to refuse an interview, deposition or other discovery request, and to set reasonable conditions on the conduct of any such interaction to which the victim consents.

“To me, the most outrageous thing is to read a transcript and see the victim being re-victimized by the court, who is supposed to protect her rights as much as, if not more than the defendant’s rights according to Marsy’s Law,” Rogers said.

Marsy’s Law advocates like Wethor are concerned about how this case may affect victims coming forward in the future.

“One hundred percent what needs to be changed in that the judges need training. Officers need training. They need to take it seriously, so people don’t have to keep coming back in their courthouse and they don’t have to keep going through the cycle; so the domestic cycle can stop,” Wethor said.

Kennecke: Do you think something like this will discourage other women from coming forward?
Sara: It would. If they heard this had happened and it’s been pushed on for two-and-a-half years. No one’s going to want to deal with that.

We reached out to Judge Zell to get his response, but he says he cannot “discuss specific or currently pending cases with the media.” Rogers is trying to stop Sara’s counseling records from being released, but claims victims shouldn’t be forced to get their own attorney.

The next hearing in the rape case is October 5, with a jury trial scheduled in December.