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Use of sexual assault victim's diary at center of Supreme Court hearing

The state Supreme Court is in session, and their most recent day of hearings raised the question of privacy. This time, for the protection of victims in violent sexual crime cases.

State V. Waldner circles the trial of Michael and Mark Waldner, two men indicted on multiple charges of rape and sexual contact with a child under the age of 16 between 2019 and 2020.

The question before the court is if a lower court erred in forcing the victim, identified as E.H., to share diary and journal entries at trial.

E.H. consented to law enforcement’s initial use of her journal. However the Waldner defense ultimately subpoenaed all her diaries at trial, which was granted by the lower court.

Jeremy Lund, council for the minor, cited Marsy’s Law – or the victim’s bill of rights - when arguing a right to privacy in this situation.

“We’re here today because the defendants in a child sex abuse case want to read the victims diaries after they had already received her medical records, her psychological records, and one of her diaries," Lund said. "Marsy’s Law also sets forth that the victim’s rights must be protected as vigorously as a criminal defendant’s rights.”

While representatives for the state agree there are certain protections entitled to victims, including this appeal, there are other factors to consider in complex, violent assault cases like these. Assistant Attorney General Chelsea Wenzel argued on behalf of the state.

“That is entirely too broad, especially when you’re looking at requesting something with adequate specificity and making that showing," Wenzel said. "Here the court concluded the defendants met their burden to show the evidence exists and there is a need to access E.H.’s journals. The fact that they exist and the defendants in good faith have said they need these materials is not enough to overcome when a constitutional right of the victim is involved here.”

A decision in the case is expected to be returned in the coming months.

C.J. Keene is a Rapid City-based journalist covering the legal system, education, and culture