Utah lawmakers poised to weigh limits on use of polygraphs in sexual assault cases

SALT LAKE CITY — Utah lawmakers are expected to consider a bill limiting the use of polygraphs in sexual assault cases when the Legislative session begins later this month.

The proposed bill, HB17, was considered last year and garnered bipartisan support, but lawmakers ran out of time to pass it as they considered other legislation in the final hours of the 2024 session.

The sponsor, Minority Leader Rep. Angela Romero, D-Salt Lake City, worked on the bill during the interim and is hopeful it will pass this year.

“We want people to know that we believe them,” she said.

The bill would prohibit law enforcement investigators, prosecutors, judges or other government officials from asking or compelling a victim of a sexual offense to undergo a lie detection test during a criminal investigation. The bill also states that a victim’s refusal to take a polygraph cannot prevent the investigation or prosecution of a sexual crime from moving forward.

“I just think it’s an invasion of that person’s privacy,” Romero said. “We know that polygraph exams, deceptive exams, can’t be used in a court of law, and there are other ways to work with someone that’s been a victim of sexual assault and experienced trauma.”

During a legislative committee hearing in September, Romero presented a strengthened version of the bill that would have ensured investigators and prosecutors could not facilitate a polygraph test for a survivor who requested on their own to take one, but those changes to the bill were not well received by other lawmakers.

Those with concerns included Rep. Matt Gwynn, R-Farr West, who is also the chief of the Roy Police Department.

“We typically do not use polygraphs on victims,” said Gwynn. “However, as investigators, we also don’t work in absolutes either.”

Lawmakers listened to information from an expert in trauma-informed investigations who noted trauma responses can often mimic traditional signs of deception. And Romero told her colleagues on the committee about a Utah case where a survivor did not pass a polygraph and was seen as deceptive by investigators, but the suspect in the case later went on to victimize others.

“Because he was experiencing a lot of stress, it made it look like he was being deceptive when he wasn’t,” Romero said. “We don’t want that to prevent a case from being looked at.”

A prosecutor in the Utah Attorney General’s Office assigned to review felony cases that have been declined for charges, most of which are sexual assault cases, also told lawmakers about a case under review where the investigation was halted after a survivor chose not to submit to a polygraph.

“The victim had counsel, and they said well, they’re not admissible, and she didn’t take the polygraph and the case was dismissed,” Kristin Zimmerman explained. “So, it is an ongoing problem.”

After Romero changed the bill back to the original form that lawmakers supported last year, the committee voted to give it a favorable recommendation.

“I’m really reluctant to say, ‘You can never ever use this tool ever, period,’” Gwynn said. “I think there might be a time and a place where it could be appropriate.”

Gwynn said he supports the current version of the bill prohibiting those in the justice system from asking or requiring survivors to take a deception test.

The issue is connected to federal funds organizations like Utah’s Office for Victims of Crime receive to help survivors throughout the state.

Grants administrator Tallie Viteri said the organization receives about $2 million annually from a Department of Justice grant that comes with several conditions, including that the state’s “laws policies or practices” ensure survivors of sexual crimes will not be asked or required to take a polygraph.

“It’s important that we be in compliance with that in order to continue to receive federal funds for these important services,” Viteri said.

Romero said she is hopeful the bill will pass this year and potentially open up additional funding opportunities for victim services in Utah.