DANVERS — A Peabody man cleared of a rape charge after prosecutors dropped their case against him 31/2 years ago is asking a judge to seal his record.
The Essex County District Attorney’s Office is opposing the request, arguing that the circumstances that led them to cease their prosecution of Robert Banks of Peabody on a child rape charge are not the “exceptional” type of circumstances outlined in the law dealing with sealing criminal records.
Banks, now 24, was charged in September 2007, after a 15-year-old girl and her father reported to police that she was sexually assaulted in her home by another teenager she identified as “Bobby,” a friend of a friend, prosecutors said at the time. The girl told police that while her friend went outside to make a phone call, she was sexually assaulted, according to a police report. Because the girl was under 16, Banks, then 18, was charged with child rape.
During the proceedings, lawyers for Banks cited inconsistencies in the girl’s account, including her claim to have met her assailant at a party that Banks had not attended. DNA evidence in the case raised more questions, when it turned out that it did not match Banks.
The other teen who had been in the house that day subsequently refused to provide a DNA sample, according to the case docket.
But what ultimately led prosecutors to drop the case, through a legal process known as a “nolle prosequi,” was the girl’s decision not to testify as the case was about to go to trial in 2010.
Now, prosecutors are arguing that since the only reason the case was dropped is the girl’s unwillingness to testify, Banks has no grounds to have his record sealed.
Banks and his lawyer, Michael Phelan, cited last year’s revisions to the state’s Criminal Offenders Records Information or “CORI” law, which now allows for the sealing of records in cases that have been “nol prossed,” dismissed or led to a finding of not guilty.
Those revisions to the law were prompted by accounts of individuals who have been denied jobs or other opportunities as a result of their criminal records.
But prosecutors say the provision for sealing “nol prossed” cases requires the sealing to be in the interest of “substantial justice,” such as when a person is mistakenly charged.
Prosecutor Marcia Slingerland argued that in the Banks case, the girl testified before the grand jury, which found sufficient evidence to indict him. She also said there is a “strong Constitutional presumption” against sealing records, which, like court proceedings, are presumed to be open and available to the public.
Courts have set a high bar for those trying to challenge that presumption of openness, Slingerland argued, and mere privacy concerns or a fear of the loss of future opportunities is not sufficient.
A hearing on the request is scheduled for Oct. 15.
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at firstname.lastname@example.org or on Twitter @SNJulieManganis.