 Caroline Ashby
AK was born in July 2002 to Caroline and her husband, David Ashby. David, filed for divorce in 2008 and it was finalized in May 2009. David then married Rachell Stallings and Caroline began living with a boyfriend.
Initially, David and Caroline shared time with AK on an informal 50-50 basis. Soon thereafter, however, David and Caroline had disputes about custody of AK. Custody remained a hotly contested issue until Caroline was arrested.
AK began experiencing behavioral problems at home and he was caught acting out in sexual ways with other youths. From July 2009 to November 2010, AK was enrolled in counseling with Dr. Kirk Thorn. During that time, AK disclosed inappropriate sexual activities with his cousin and another boy. On January 19, 2010, AK reported to Dr. Thorn that Caroline bathed with him and that it made him feel uncomfortable, although AK said Caroline was wearing clothing at the time.
In November 2010, AK’s stepmother, Rachell, called the Wasatch Mental Health Center to ask for a referral to a new therapist to address AK’s behavioral issues. During that conversation, she referred to AK bathing with Caroline. As a result, on December 15, 2010, AK was interviewed at the Children’s Justice Center (CJC) as part of a state Division of Children and Family Services (DCFS) investigation. The interviewer, Chantel Harvey, told AK that David and Rachell had said he bathed with Caroline. AK said that was true, and then said that they bathed in the nude and that sexual touching had occurred.
In January of 2011, while his mother was awaiting trial, AK was enrolled in play therapy with J.P. Lilly. On February 17, 2011, AK told Lilly that Caroline had abused him over a hundred times in the bathtub.
The charges against Caroline alleged that the sexual abuse took place between January 2009 and December 15, 2010. Prior to the trial, Caroline’s defense lawyers filed a motion to admit evidence that AK had engaged in sexual behavior with other children, arguing that the evidence was admissible to impeach AK’s credibility. The prosecution opposed the motion.
Following a hearing, Utah County District Court Judge Claudia Laycock found that AK had been involved in six incidents of sexual behavior with other children. The judge noted that AK had told Lilly that he had been abused by Caroline “over 100 times,” and that he had denied his sexual behavior with other children. The judge also found that during the CJC interview, AK failed to disclose the sexual behavior with other children and instead disclosed only sexual behavior with Caroline. Judge Laycock ultimately denied the motion and prohibited the defense from presenting the evidence.
The trial began on September 28, 2012.
David testified that Caroline bathed with AK when he was six years of age and older, and that he disapproved of the practice. David said he reported it to DCFS, but DCFS declined to investigate. He said he did not suspect Caroline was sexually abusing AK; he only thought that bathing with AK at that age was inappropriate. David told the jury that he and Rachell were shocked when he learned through the CJC interview what had been happening during the baths.
AK testified via a live video feed playing on a closed-circuit television. He restated that he had repeatedly taken naked baths with Caroline, although some parts of his testimony were inconsistent with his CJC interview and other statements he had made to therapists and the police.
Caroline testified and denied the allegations of abuse. Although she admitted that she bathed nude with AK when he was three or four years old, she said she stopped bathing naked with him when he “started to identify body parts.” She said she bathed with AK while they were wearing bathing suits one time between January 2009 and December 2010.
On October 4, 2012, the jury convicted Caroline of two counts of aggravated sexual abuse. On December 5, 2012, she was sentenced to 10 years to life in prison, and surrendered to begin serving her sentence.
In July 2015, the Utah Supreme Court upheld the conviction and sentence.
In 2016, after AK had lived with other relatives and in foster care, AK moved in a paternal aunt and uncle in Oregon. David gave the aunt and uncle guardianship, and when AK was 15, AK asked to be adopted. Caroline and David both voluntarily relinquished their paternal rights and AK was adopted.
In late 2019 or early 2020, AK was complaining to the aunt who had adopted him about various things that were going wrong in his life when he added, “And I lied in court about Caroline.” His aunt then scheduled an appointment with Dr. Douglas Goldsmith to evaluate whether AK was changing his story on his own free will or if he had been pressured to recant.
On January 12, 2020, Dr. Goldsmith reported that AK said that, as a young child, he was introduced to sexual activity by a similar aged boy he had known since preschool. When he was interviewed at the CJC, he didn’t want to get that friend into trouble, so he “said it was mom.”
Dr. Goldsmith found no evidence that AK's recantation was precipitated or pressured by anything beyond his own conscience and that he was exposing himself to significant emotional risks by coming forward – not only by admitting to lying as a child about something about something so serious, but also by having to expose the sexual abuse he had suffered from a neighbor child and to re-disclose other sexual behaviors he had engaged in as a child.
AK wrote a letter to the parole board recanting his claims of sexual abuse and on February 2, 2020, he repeated his recantation during testimony at a parole board hearing. On February 7, 2020, the parole board granted Caroline’s parole. On April 10, 2020, Caroline was released on parole.
On February 23, 2020, Caroline’s post-conviction lawyer, Elizabeth Hunt, filed a petition seeking a declaration of actual innocence.
On March 25, 2021, AK testified at an evidentiary hearing on the actual innocence petition. While he had memory gaps, he remembered that he wanted to protect the identity of a friend, so he accused Caroline. He said that he decided to make up a “really big number” of times the abuse with Caroline occurred so that it would “sound impressive in court.”
He testified that as a child he only engaged in sexual conduct with males and that he never engaged in any sexual conduct with a female or with his mother. He testified that he was a liar when he was young and that it was difficult for him to testify about his prior propensity to lie.
On April 20, 2021, District Court Judge Thomas Low denied the petition. The judge ruled that Caroline had not shown by “clear and convincing evidence” that she was factually innocent. Judge Low noted that it would be difficult to meet that burden of proof with a recantation, even if the recantation was reconcilable with the undisputed facts. Judge Low found that the recantation could not reconciled with the “undisputed facts.”
Attorney and law professor Jensie Anderson along with attorneys Freyja Johnson and Emily Adams appealed. In November 2022, Anderson also presented Caroline’s case to the Utah County District Attorney’s Office Conviction Review Unit (CRU). After reviewing the case and interviewing AK, the CRU recommended vacating Caroline’s conviction. The Utah Attorney General then intervened, and the case was stayed pending the Utah Supreme Court decision. In September 2023, the Utah Supreme Court agreed with Caroline’s argument that Judge Low had applied the wrong standard and that in so doing, had inflated Caroline’s burden of proof.
“Where a defendant is convicted based on uncorroborated witness testimony and that witness later recants under oath, that recantation, if credible, is sufficient to prove factual innocence by clear and convincing evidence,” the court ruled. The case was remanded “to determine whether the recantation is credible.”
“Recantations are viewed with suspicion due to the real concern that witnesses may be motivated to retract accusations for reasons other than the truth,” the court said. “Therefore, examining the circumstances in which the recantation occurred is critical to assessing whether it is credible.” The court said that Judge Low had failed to address the circumstances surrounding the recantation and that there was “ample evidence in the record that weighs in favor of the recantation’s reliability.”
On November 14, 2023, Judge Low issued a ruling reversing his original decision, and found Caroline factually innocent. The judge declared that AK’s testimony was “earnest and honest.”
The judge noted that the recantation “appears to have occurred under circumstances free from suspicion of undue influence or pressure from any source.” And, the judge said, “the record does not indicate any possibility of collusion” between Caroline and AK. These factors supported a finding of credibility, the judge declared.
“Therefore, having found the recantation to be credible, the court now concludes that Petitioner has met her burden of proof by demonstrating that she is factually innocent,” Judge Low said. The judge ordered Caroline’s conviction vacated and expunged.
On December 15, 2023, the order became final when the prosecution did not appeal the ruling.
– Maurice Possley
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