In 1981, 16 year old Terry Mitchell was a witness in felony murder case, the federal prosecutor was Richard Roberts. Robert was prosecuting Joseph Paul Franklin, a white supremacist who murdered two black joggers in Salt Lake City, and Franklin survived the attack. According to Mitchell, Roberts raped her nearly every single day during Franklin’s trial. Roberts’s response to the $25 million lawsuit filed by Mitchell was simple: he’d had “a bad lapse in judgment.”
There was no illegality, Roberts claimed, because he didn’t start the relationship with his 16 year old witness until after the trial and guilty verdict against Franklin. Roberts allegedly told Mitchell that if she went public with her allegations, Franklin’s life sentence would be overturned, and the man who killed two of her friends and injured her would go free.
Roberts didn’t deny having sex with Mitchell at the Shiloh Inn, where he was staying during the trial. He said the sex was consensual. According to Mitchell, after a dinner with Roberts, Roberts claimed he had to stop by his hotel on his way to drop her off at her mothers, and then yelled at her to get out of the car and go to his hotel room. Once he had her in the hotel room, Roberts allegedly told Mitchell “You aren’t going anywhere until I get a taste of you.” He allegedly raped her twice after demanding she perform oral sex on him.
Roberts invoked the statute of limitations as a defense to Mitchell’s claims. That statute of limitations permitted victims of sex crimes four years after their eighteenth birthday to bring a civil claim against their rapist. In 2016, the Utah Legislature, recognizing that such a limited statue of limitations was absurd due to the fact that “it takes decades for children and adults to pull their lives back together and find the strength to face what happened to them,” expanded the statute of limitations to 35 years after the victim’s 18th birthday, or within three years of the effective date of Utah Code 78B-2-308(7).
Roberts moved to dismiss, claiming that he had a vested right to invoke the statute of limitations defense under the old statute of limitations. The federal magistrate, Judge Furse, certified the case to the Utah Supreme Court to determine if the Utah Legislature had the authority to “expressly revive time-barred claims through a statute.” The Utah Supreme Court proceeded to conduct briefing and oral arguments.
The Court ruled that the Utah Legislature was “constitutionally prohibited from retroactively reviving a time-barred claim in a manner depriving a defendant of a vested statute of limitations defense.” The Court then cited two cases in support of their position: Handley’s Estate, which would have allowed the children of a polygamist to reopen probate proceedings after the probate court’s final judgment against them based on the Legislature’s statute which would have allowed the children “to relitigate the dispute and inherit a portion of the father’s estate,” and Ireland v. Mackintosh, where a legislative reform extended the statute of limitations for promissory notes from four years to six years.
In Handley, a final judgment had been entered in favor of the polygamist’s children from his legal marriage. That created a vested right for those children to rely on the court’s final judgment, and reopening the case retroactively would have effectively voided a judgment that had been finalized. In a state where thousands men had children from illegal plural marriages, the consequences of ruling to vitiate a final judgment were obviously unworkable.
in Mitchell’s case, no final judgment had ever been entered because no claim had been brought. The legislative reform in 78B-2-308 clearly stipulated that it did not revive claims that had been litigated to a final judgment prior to July 1, 2016, nor did it revive claims “where a written settlement agreement was entered into between a victim and a defendant or perpetrator.”
Ireland v. Mackintosh involved promissory notes, whereby a payee, or the person giving the loan, had four years to enforce the note against the promisor or maker, the issuer of the note. Ireland had loaned Mackintosh $5275 via a promissory note dated January 2, 1892, which was payable the next day, but when Ireland had died on May 14, 1898, his wife Agnes, the executrix of his estate, found that Mackintosh had never paid her husband back.
The statute of limitations at the time was four years, but on March 20, 1897, the Legislature extended the statute of limitations to six years for promissory notes or other written debt instruments. The Court held that debt was not a form of property, which was important, because the Court stated that no bar to do recovering a debt under a promissory note could be removed by the repeal of a statute, or the extension of the statute of limitations.
Real and personal property was distinguished by the Utah Supreme Court from debt via a promissory note, but the Court ultimately based its rejection on the retroactive application of the expanded statute of limitations on the fact that “it was not the intention of the legislature to revive causes of action on claims which had previously become stale, and against which the statute had fully run.” This would imply that Ireland stood for the possibility that if the legislature had expressed its intention to apply the expanded statute of limitations retroactively, it could have.
Nevertheless, the Utah Supreme Court in Mitchell held that the vested rights analysis barring retroactive application of expanded statutes of limitation violated the Due Process Clause. The Court quoted Thomas M. Cooley, who noted that a party who satisfied a demand-through a final judgment or the tolling of the statute of limitations on a promissory note governed by such a statute of limitations-was entitled to rely on the tolling, and to “restore it [retroactively] would…create a new contract for the parties[-]a thing quite beyond the power of legislation.”
Promissory notes and final judgments, as well as property, are easily distinguishable from rape. Under Utah’s criminal code, 19 crimes have no statute of limitations. Rape is one of those crimes. There was never any agreement or contract between Mitchell and Roberts with respect to the rape or any subsequent litigation; if there had been an agreement, there would never have been a rape. The statute of limitations imposed by the Legislature effectively obliterated Mitchell’s access to due process or equal protection by giving her alleged rapist a means of evading civil culpability for the damages he inflicted. Roberts had no real or personal property interest, nor did he owe Mitchell under a promissory note.
He raped Mitchell. Arguing that he had a substantive right in the statute of limitations to avoid civil culpability for that rape is absurd by itself, but analogizing that rape and the civil statute of limitations to statutes of limitations for real and personal property, inheritance, and debt instruments is beyond absurd-it is vulgar. The Utah Supreme Court effectively ruled that rapists have a right to rely on the statute of limitations as a defense against civil culpability for rape because debtors and heirs have such a right with respect to final judgments and debt instruments. These are not analogous circumstances under any reasonable construction of the law.
Asserting that a 16 year old who was raped from the time she was toddler until two months before she was shot in racially motivated attack should have filed a civil suit within four years of her eighteenth birthday is an argument that offends basic propriety. It fulfills the letter of the law while vitiating its spirit, not to mention the public interest. In fact, under Utah’s laws in the Eighties, Mitchell would have had a mere year after her eighteenth birthday to file suit against Roberts.
It would appear that the Utah Supreme Court’s position is that rapists have a right to due process which enables them to evade civil culpability. The Legislature can vitiate the rights of their victims with impunity by arbitrarily imposing a statute of limitations on their timeline to sue their abusers, but it cannot vitiate the right of the rapist by retroactively applying an expanded statute of limitations. The Court’s ruling in Mitchell v. Roberts was a legal and moral obscenity.
Rep. Ken Ivory, then original sponsor of the expanded statute of limitations legislation, introduced HJR 7, intended to bring a referendum before the Utah voters to enable the amending of the Utah Constitution s that the Legislature could retroactively impose expansions of the statute of limitations for child sex crimes. It was not passed in the 2023 or 2024 general sessions.
Considering that the Utah Supreme Court was being asked to rule that a federal judge-Roberts-would face retroactive culpability under the expanded limitation, the tortured legal reasoning of the Court takes on an entirely different hue. These are lawyers and judges, and Roberts was a federal judge and former federal prosecutor who allegedly raped a 16 year old shooting victim and eyewitness in his murder trial. Time and time again, the legal and political systems find a way to enable their own to avoid culpability for their alleged sexual misconduct, which often is alleged to be outright rape.
The end result is that a mere 12% of victims report, while 88% of sexual assault victims do not report. Only 3% of the 12% who do report will see their abuser convicted. Put simply, you have a 97% percent chance of avoiding any criminal accountability as a rapist if your victim reports. In the context of the full 100% of victims, you have a 99.7% chance of avoiding criminal consequences for rape, and in the context of civil litigation, the odds that a victim will be able to successfully sue you for the damages you inflict on them are even lower.
That is the sick reality of Terry Mitchell’s case and its implications for sexual assault victims.