The mother from Jefferson County backed away from her daughter until she pressed up against the bathroom wall.
The mother at first could not fully comprehend what her little girl was talking about in the tub. The words were confusing and dark. They contained sexual talk no child should know.
The child wasn’t mature enough to understand what she was saying. But her mother pieced it together. It sounded like the daughter’s father — long estranged from her mother — was teaching the 6-year-old how to masturbate beside him under a blanket on a couch during visits to his home.
“She said to me, ‘Well, he says put your hands down there and rub. That’s the way we show our love. I do that for him. We do that every day.’”
The mother called the state Children’s Division. In the months that followed, a state child abuse investigator, sheriff’s detectives and therapists who identify and treat young victims of sexual assault all came to the same conclusion: The man was grooming the child to be used for his sexual gratification.
There was more. One of the investigators let slip that the man had been accused before of a similar act with another child, but charges had not been filed.
Months later, the mother learned that no criminal charges would come on behalf of her own child, despite two hours of taped forensic interviews of her child and a further finding by the state Children’s Division that sexual abuse had taken place.
She said a prosecutor had cried and apologized to her. She was told that there were no witnesses and that the young child’s words, sometimes disjointed and confused, weren’t enough to build a case on a specific crime.
Now, the case has helped inspire a legislative movement to amend the Missouri Constitution so prosecutors in child abuse cases would no longer be prohibited from introducing evidence of prior convictions or allegations of sexual abuse by a defendant.
The measure would negate a 2007 Missouri Supreme Court ruling that banned from child sex abuse cases “propensity evidence,” which can be used to show a proclivity to do the alleged crime. Experts say Missouri is the most restrictive state in the nation in banning such evidence, making prosecutions of child sex abuse cases difficult.
Civil libertarians decry the proposed constitutional amendment, saying it would trample the rights of the accused.
But the measure has strong support. It has sailed through the House and is awaiting action in the Senate. If passed, voters across the state will be asked to consider the amendment in November.
“The standard for prosecution for these cases has jumped up so high that it’s just impossible to get a conviction,” said Rep. John McCaherty, the bill’s sponsor. “At some point we’ve got to draw the line and protect our kids.”
McCaherty, R-High Ridge, filed the legislation after receiving a detailed email from the mother in Jefferson County. Her involvement in the legislation has remained anonymous. The letter was one of dozens the mother sent to politicians. The Post-Dispatch has chosen not to identity the mother to protect the privacy and safety of her child, but has verified details of the case through police reports, child protection records and interviews.
St. Louis Circuit Attorney Jennifer Joyce said being able to bring evidence that shows a pattern of deviant, sexual behavior by a defendant would aid the jury, who might otherwise doubt a child’s account of abuse.
“There’s a definite pattern in how these guys do this,” Joyce said. “A jury needs to know this, or else they’re going into the court with blinders on.”
Others say that reasoning undermines the defendant’s constitutional right to a fair trial.
“Allowing evidence of allegations that were insufficient to even bring charges permits the government to prejudice the jury in favor of conviction, which is contrary to the very principle on which our justice system is founded,” said Tony Rothert, legal director of the American Civil Liberties Union of Eastern Missouri, by email.
McCaherty said the change would group Missouri with the majority of other states that allow the evidence with some restrictions. Under the amendment, the prosecution would have to first introduce the evidence to the trial judge, who would serve as the gatekeeper and decide whether the evidence is prejudicial or relevant to the case. Judges make these rulings all the time, he said.
Evidence that could be used includes prior convictions. But it could also include police investigations and findings by the state Children’s Division indicating sexual abuse of a child that did not result in convictions, or even criminal charges.
Prior convictions are often used in court in the sentencing phase of a trial after a defendant has been found guilty. But Joyce said many cases don’t ever get a conviction because Missouri prohibits that evidence from being presented to a jury during a trial.
The amendment follows on the heels of a statewide task force that recommended last year allowing propensity evidence into child sexual assault trials. Prosecutors statewide pushed the issue.
A representative from the Missouri Office of Prosecution Services said no other state in the nation fully prohibits propensity evidence. The amendment would put Missouri “in the middle” with 34 other states that open the door to introducing the material at trial under some restrictive circumstances, said Executive Director Jason Lamb.
Fifteen other states, including neighboring Illinois, Arkansas and Oklahoma are considered “permissive,” meaning evidence of prior acts can be introduced with few to no court barriers. Federal courts also permit the evidence, he said.
In the 2007 case that banned propensity evidence, the Missouri Supreme Court ruled that Donald Ellison had been unfairly convicted of first-degree child molestation in a child rape case. In that case, a jury learned of Ellison’s prior conviction of first-degree sexual assault of a 12-year-old girl.
The high court unanimously ruled that introducing such evidence violated the state constitution, which prohibits admission of previous criminal acts — both uncharged crimes and convictions — as evidence of a defendant’s propensity. In the decision, Judge Michael Wolff said the state constitution would have to be revised to allow such evidence.
After the ruling, Ellison was retried and convicted of first-degree molestation in a Clinton County court and is serving a 20-year sentence.
THE NATURE OF THE CRIME
Child protection advocates say the odds are already stacked against prosecutions on child sexual abuse cases.
Young victims don’t have the maturity to vocalize or fully understand the wrong that has been done to them. They must often testify before aggressive defense attorneys. Physical evidence of abuse is rare, as are witnesses.
In addition, in the vast majority of cases, the abuser is someone the child knows: relatives, boyfriends, coaches, family friends or other acquaintances. That means children must face testifying against those they like and love. Most know their allegations could tear their family and household apart.
All those factors can add up to a low rate of criminal charges — much less prosecutions — for child sex abuse cases.
For example, a recent survey by Missouri Kids First found that of the 7,388 children interviewed in 2012 at forensic centers statewide by police or therapists for sexual and physical child abuse, nearly 90 percent of the cases were not accepted for prosecution.
It’s impossible to say how many of those cases might have resulted in criminal charges if prosecutors could have brought evidence of prior convictions or allegations against a defendant.
What is known, said Emily van Schenkhof of Missouri Kids First, is that statistics indicate that a perpetrator of a sex crime on a child is far more likely to repeat the same crime than offenders of other crimes. That’s why when an alleged sex offender goes on trial, it’s not uncommon to have multiple victims come forward alleging the same abuse over a span of years, she said.
But for critics, those factors are not justification for potentially allowing empty allegations to be used against defendants.
“It’s difficult to oppose because nobody likes child abusers or sexual predators,” said Rep. Rory Ellinger, D-University City, who opposed the bill during House discussion.
But, he said, “all you would have to do in a sexual assault case is to have any hint that a person has been previously charged or convicted with a crime, and the person is, in all probability, going to be found guilty.”
The Jefferson County mother said she can’t forgive herself for allowing the man to care for her daughter. She had only recently allowed the child to get to know her father, at the urging of his aunt. The visits had all been supervised. But when the mother was in the hospital with a life-threatening infection, he offered to take the girl for several nights. She said yes.
That led to other visits between him and the child before the man dropped out of their life for a month. Then, one day he showed up at their house with a futon in the back of his truck and offered to give it to the mother. He said he was moving and didn’t need it anymore.
They loaded it into the living room. The mother noticed that her daughter seemed to cower.
It was, she learned later, the couch on which the daughter said the abuse happened.
“I think it was a warning like to her from him, and maybe that’s what triggered her to tell,” she said.
That night, the girl did tell.
The girl, now 8, has been in therapy nearly two years. For months, she didn’t like to leave the house and had an intense fear of spiders, bears and dogs. She had severe night terrors. In therapy, the child revealed that her father had said her mother would die in the hospital, and that then she would die. On one of the visits, they camped outside. The child said he told her the bears and spiders would get her if she didn’t do what he said. He tied a dog up near her wherever she was.
“The way he did this was in such a manipulative and fine-tuned way,” she said. “It’s something I can’t wrap my head around.”
The mother said if anything good can come out of it, it’s the proposed constitutional amendment.
“They might not be able to go get him this minute. They can’t just pick him up for what he did to her,” she said. “But if he does this to another child, they could use (my daughter’s) case to get him.”
The mother is certain that day will come. Not long after she learned of the abuse, the mother filed a court order of protection to keep the man away from her and her daughter. That forced her to face him in court. At one hearing, the man showed up with a new girlfriend and her two children, about 8 and 3. It was a school day.
“He had the 3-year-old on his lap,” she recalled. “He grinned at me like, ‘Look what I got.’ It was the most evil, sick thing I have ever seen in my life. That’s what made me write the letters.”