Should a jury hearing a child sexual assault case be allowed to learn about allegations of the defendant’s past deviant behavior, even if the details were never proven and don’t involve the current charges?
Missouri voters will be asked to make that decision on Nov. 4 when they cast their vote on Amendment 2, which opens the door to prosecutors introducing prior criminal acts by the defendant — called propensity evidence — in criminal sexual abuse trials involving victims younger than 18.
The proposed amendment rolled through the Missouri House and Senate last spring as a joint resolution with little open opposition. It has also gained the endorsement of the state Republican Party and has seemingly bipartisan support.
Proponents include child welfare advocates and state organizations representing prosecuting attorneys, police chiefs and sheriffs. They say Missouri has been hobbled in prosecuting child sex offenders since 2007, when a Missouri Supreme Court decision banned such evidence. Before the ban, Missouri permitted the use of it at a judge’s discretion in sexual abuse trials involving victims under 14.
The amendment would put Missouri with 34 other states that open the door to introducing the material at trial under some restrictive circumstances. 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.
Under the amendment proposed in Missouri, the trial judge would again serve as the gatekeeper, ruling whether the jury hears about the past behaviors and whether they are relevant to the charges at hand.
Detractors say any evidence alleging prior sexual misconduct would immediately taint the defendant in the eyes of the jury.
Scott Greenfield, a New York-based defense attorney who has written against propensity evidence said, “the younger the victim, the more dangerous and damning” the information can be with a jury.
“They reduce their expectations of proof because we have a general inclination to believe that people who do bad things always do bad things,” Greenfield said. “We have a far greater likelihood of convicting people on prejudice rather than evidence.”
Studies indicate the vast majority of people believe child sex offenders will repeat the offense, though other studies indicate only about a quarter actually do. Some question the latter statistic, arguing it is skewed because the majority of child predators are never detected because child victims often do not report the crime.
But supporters, such as Platte County Prosecutor Eric Zahnd, say the tool is important, and the fact Missouri rejects it outright makes Missouri one of the hardest states in the country to gain a conviction in a child sex abuse case.
He and others cite extremely low indictment and prosecution statistics involving child victims. Nearly 90 percent of potential child sexual abuse cases brought to child forensic investigators in Missouri are rejected for prosecution, according to the organization Missouri Kids First.
Emily van Schenkhof, a deputy director at Kids First, said young victims — some dealing with assaults by family members — don’t do well under questioning by defense attorneys. They are often the only witness and have trouble understanding and vocalizing what happened to them. Sometimes they have confusing family alliances and pressure to stay quiet if the accused is a relative.
She said child predators often go undetected. But when they are caught, other victims typically come forward reporting similar patterns of abuse, often from years ago.
“There are certain cases and certain times when it would be extremely valuable for judges and juries to know about prior crimes,” she said. “And that is going to happen when others come forward when a child speaks out.”
Historically, judges have a very high threshold to allow such information. But Zahnd said even the threat of propensity evidence puts far greater pressure on sexual offenders to come clean about their crimes.
“If defendants knew that all the people they had abused may be allowed to testify, I believe more defendants will plead guilty rather than try to go to trial,” he said. “The effect of this amendment is that many victims will be spared the trauma of having to testify in trial.”
John McCaherty, R-High Ridge, was the sponsor of the original House joint resolution that led to the proposed amendment.
More than two years ago, McCaherty got a letter from a constituent who described how her daughter, then 6, had been groomed and sexually abused by her once-estranged father. A prosecutor told the mother she would not be able to press charges for lack of evidence, even though forensic investigators and the Missouri Department of Social Services’ children’s division found evidence abuse had taken place.
The mom said her anger grew when another person in law enforcement let slip that the suspect had been accused earlier of a similar act but was never charged. The Post-Dispatch, which previously reviewed court and investigative records in the case, has chosen not to identify the mother for the privacy and safety of her child.
“If he does this to another child, they could use (my daughter’s) case to get him,” the mother said at the time.
Contacted last week, the mother said her daughter, now 9, is doing well after years of therapy. But she said she will have to file orders of protection against her abuser every year until she is 18.