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Missouri Evidence in Sexual Crimes Against Minors, Amendment 2 (2014)

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Amendment 2
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Type:Constitutional amendment
Constitution:Missouri Constitution
Referred by:Missouri State Legislature
Topic:Civil and criminal trials
Status:On the ballot
2014 measures
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August 5
Amendment 1 Approveda
Amendment 5 Approveda
Amendment 7 Defeatedd
Amendment 8 Defeatedd
Amendment 9 Approveda
November 4
Amendment 2
Amendment 3
Amendment 6
Amendment 10
EndorsementsFull text
Local measures
The Missouri Evidence in Sexual Crimes Against Minors, Amendment 2 is on the November 4, 2014 ballot in Missouri as a legislatively-referred constitutional amendment.[1] If passed, the measure would allow relevant evidence of prior criminal acts, also known as propensity evidence, to be admissible in court in prosecutions of sexual crimes involving a victim under 18 years old. The measure was known as House Joint Resolution 16 in the Missouri State Legislature, where it was sponsored by Rep. John McCaherty (R-97).[2]

Text of measure

Ballot title

The following language will appear on the ballot on election day:[3]

Official Ballot Title:
Shall the Missouri Constitution be amended so that it will be permissible to allow relevant evidence of prior criminal acts to be admissible in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age?
If more resources are needed to defend increased prosecutions additional costs to governmental entities could be at least $1.4 million annually, otherwise the fiscal impact is expected to be limited.

Fair Ballot Language:

A “yes” vote will amend the Missouri Constitution to allow evidence of prior criminal acts, whether charged or uncharged, to be considered by courts in prosecutions of sexual crimes that involve a victim under eighteen years of age. The amendment limits the use of such prior acts to support the victim’s testimony or show that the person charged is more likely to commit the crime. Further, the judge may exclude such prior acts if the value of considering them is substantially outweighed by the possibility of unfair prejudice to the person charged with committing the crime.
A “no” vote will not amend the Missouri Constitution regarding the use of evidence of prior criminal acts to prosecute sexual crimes.
If passed, this measure will have no impact on taxes.


Constitutional changes

If the measure is approved, it will amend Article I, Section 18 of the Missouri Constitution by adding Section 18(c) to read as follows:[5]

Section 18(c). Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.[4]


Rep. McCaherty proposed this amendment after receiving a letter from a constituent whose daughter had been sexually abused. No criminal charges were brought against the alleged abuser. In 2007, the Missouri Supreme Court established a legal precedent that rendered propensity evidence inadmissible. In cases of child sexual abuse, propensity evidence would be used in court to show that the accused had abused the victim in the past, even though the accused is not currently on trial for these past instances of abuse. Similarly, evidence that the accused abuser had abused other children in the past would also be admissible.[6][7]

Propensity evidence

In general, propensity evidence is evidence that a person has engaged in unlawful behavior in the past and is used to demonstrate that the person likely to engage in such behaviors again. Character evidence used by the prosecution sometimes qualifies as propensity evidence, but they are not equivalent terms. There are two basic forms of propensity evidence: uncharged prior actions and prior convictions. Both forms of evidence face significant legal issues.[8]


By definition, prior uncharged acts are unproven, at least in the sense that they have not been proven in a court of law prior to the proceeding in which they are used as propensity evidence. The process whereby such evidence is considered for admission to a trial can create a "trial within a trial," which complicates the defense of an accused person who then must account for the charges they are facing and others not actually under consideration. Alternatively, the use of prior convictions as propensity evidence does not complicate the present proceeding because those actions have been legally determined to have been performed by the defendant.[8]

However, both forms of propensity evidence have been criticized as simply creating prejudice in the jury. Propensity evidence uses past behaviors to "estimate" the likelihood that they committed the crime for which they are on trial. As attorney Scott H. Greenfield has said,

It removes any concern from a juror’s mind that the defendant may be what most people consider an “innocent” person, which is limited to a person who has never committed any “real” wrongdoing. Once a defendant is a wrongdoer, the step toward conviction is a baby step rather than a giant leap, if for no better reason than he deserves to be punished anyway. [4]

—Scott H. Greenfield, [8]


Others argue that such evidence is necessary and important to prosecute some repeat offenders, especially in cases of sexual assault. In fact, the Federal Rules of Evidence allow propensity evidence to be admitted in cases of sexual assault and child molestation. Supporters of propensity evidence in these cases argue that people who commit such acts are likely to commit them again. Such an argument was given when alterations to the Federal Rules of Evidence to allow propensity evidence were being discussed.

As one law review article stated,

One obvious ground is considerations of probability. The defense in a rape case will claim that the police or victim fingered the wrong man, or that the victim consented and then made up a false charge, or that the claim that a rape occurred is a complete fabrication. If the direct evidence of guilt is not conclusive, there may be no adequate basis for excluding these possibilities.

Evidence that the defendant has committed sexual assaults on other occasions, however, often puts an entirely different light on the matter. It would be quite a coincidence if a person who just happened to be a chronic rapist was falsely or mistakenly implicated in a later crime of the same type. In conjunction with the direct evidence of guild, knowledge of the defendant's past behavior may foreclose reasonable doubt as to guilt in a case that would otherwise be inconclusive.[4]

—David J. Karp, [9]

Probability of repeat offenses

The arguments for propensity evidence in sexual assaults or child molestation cases rely on the proposition that those who commit such an act once are much more likely to repeat offend than a person who has never committed such an act. Sexual criminal behavior has been extensively studied. When it comes to the matter of repeat offenses, there is a significant disparity between public perception and studied behavior. A 2008 study found that 98 percent of people believe most sex offenders re-offend.[10] Other studies have shown, however, that only around a quarter of all adult sexual offenders will re-offend. The fact that recidivism rates also depend on the type of sexual offense committed further complicates understanding how past acts can determine a propensity for future acts. For example, "[the] 15-year recidivism rate is 13 percent for incest perpetrators, 24 percent for rapists, and 35 percent for child molesters of boy victims."[11]

MO Supreme Court precedent

On September 20, 2005, Donald Ellison was convicted of the repeated rape and sexual abuse of a female child over several years and sentenced to 20 years in prison.[12] During the trial, the jury was instructed that they were allowed to consider prior acts of sexual abuse as proof of his propensity to commit the acts he was accused of in the case at hand.[13] This was allowed under the then section 566.025 of the Missouri Revised Statutes, which stated,

In prosecutions pursuant to this chapter or chapter 568, RSMo, of a sexual nature involving a victim under fourteen years of age, whether or not age is an element of the crime for which the defendant is on trial, evidence that the defendant has committed other charged or uncharged crimes of a sexual nature involving victims under fourteen years of age shall be admissible for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he or she is charged unless the trial court finds that the probative value of such evidence is outweighed by the prejudicial effect.[4]

—Missouri Revised Statutes (2000), [13]

Ellison's defense objected to this instruction and cited it in their appeal to the Court of Appeals. The lawsuit challenged the constitutionality section 566.025.[12] The appeals court, however, did not have the authority to rule on the constitutionality of that provision and so the case was transferred to the Missouri Supreme Court. Prior to this case, the Missouri State Legislature had twice attempted to pass legislation regarding propensity evidence similar to the Federal Rule of Evidence 414, but the state supreme court struck down both measures as unconstitutional. The court ruled in favor of Elliston and stated that section 566.025 violated Sections 17 and 18 of Article I of the Missouri Constitution.[13] The court called for a new trial to be held.[14]


Protect Missouri Children logo.jpg




  • Protect Missouri Children (PMC)
  • Missouri Association of Prosecuting Attorneys[15]
  • Missouri Police Chiefs Association
  • Missouri Sheriffs Association



Rep. McCaherty proposed the measure calling allowing propensity evidence, "a powerful tool to put sex offenders behind bars."[16]

Campaign contributions

Protect Missouri Children was the only campaign committee registered for this measure as of June 13, 2014. As of their April 2014 quarterly report, the committee had $238 on hand. Their only contributor at that point was Eric Zahnd, co-chair of the committee, who donated $250.[17]

PAC info:

PAC Amount raised Amount spent
Protect Missouri Children
Total $250 $12

Reports and analyses

Wells and Motley, 2001

A 2001 paper published in the Boston Law Review questioned propensity evidence's role in what the authors describe as the "myth of the crazed rapist." The authors, Christina E. Wells and Erin Elliot, argued that propensity evidence has been justified in sexual assault cases on the basis of a "myth that rapists are a 'small class of depraved criminals' who recidivate more than other offenders." The paper noted the concern that propensity evidence cannot be more probative than prejudicial and may even, "[obliterate] the right to a fair trail and [bear] the imprimatur of an inquisition."[18]

The paper further noted that while propensity evidence is regularly allowed in cases of rape by strangers or child molestation, they also sustain many objection to cases "where the sexual misconduct involved an adult female acquaintance." It also noted cases where propensity evidence has not been allowed because it is deemed that the prior cases are not similar enough to the present charge often seem to be more similar than the court acknowledges. Additionally, child molestation cases often allow propensity evidence "with no real substantive examination of the allegations to determine if they are similar to those charged."[18]

Read the full paper here.

Media editorial positions

See also: Endorsements of Missouri ballot measures, 2014


  • The Kansas City Star said,
Constitutional Amendment 2 is a reasonable and necessary measure to help sexually abused children and put dangerous offenders behind bars. The Star recommends voting YES.

Unlike the federal government and nearly all other states, Missouri does not allow juries to learn that a defendant in a child sexual abuse case may have been accused of similar crimes in the past. That restriction places a heavy burden on young victims to convince a jury that abuse has taken place.[4]

Kansas City Star, [19]

  • The St. Louis Post-Dispatch said,
Law enforcement authorities say they need more tools to fight child sexual abuse and help put sexual predators behind bars.

Amendment 2, which will be on Missouri election ballot Nov. 4, gives prosecutors and law enforcement officers the help they need...Even if just one part of this problem was improved by allowing the admissibility of such evidence — that young children could be spared the trauma of having to relive their abuse in a courtroom — it would be reason enough to recommend supporting Amendment 2.

The rest of what the amendment does provides even more reason to merit a yes vote. Those who commit crimes in secret against society’s most vulnerable victims should not be able to keep their past a secret. This amendment seeks to level the playing field for prosecutors. Vote Yes on Amendment 2.[4]

St. Louis Post-Dispatch, [15]

Path to the ballot

Missouri Constitution
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See also Amending the Missouri Constitution

Proposed amendments must be agreed to by a majority of the members of each chamber of the Missouri General Assembly. HJR 16 was passed by the House on March 7, 2013, and it was passed in the Senate on May 16, 2013.[2][20]

Missouri Evidence in Sexual Crimes against Minors, HJR 16 House Vote
Approveda Yes 130 80.74%
Missouri Evidence in Sexual Crimes against Minors, HJR 16 Senate Vote
Approveda Yes 30 88.23%

See also

Suggest a link

External links

Additional reading


  1. Missouri Secretary of State, "2014 Ballot Measures," accessed February 24, 2014
  2. 2.0 2.1, "HJR 16: Missouri House Joint Resolution," accessed July 26, 2013
  3. Missouri Secretary of State, "2014 Ballot Measures," accessed July 26, 2013
  4. 4.0 4.1 4.2 4.3 4.4 4.5 4.6 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  5. Missouri State Legislature, "2013 House Joint Resolution 16 TRULY AGREED TO AND FINALLY PASSED," accessed June 13, 2014
  6., "Protecting Child Victims of Sexual Abuse (HJR 16) Passes General Assembly," May 21, 2013
  7. Evidence Law and Advocacy, "Chapter 7: Propensity Evidence," accessed July 26, 2013
  8. 8.0 8.1 8.2 Simply Justice: A Criminal Defense Blog, "What’s Wrong with Propensity Evidence Anyway?" October 14, 2008
  9. Karp, D. J. (October 1994) Evidence of Propensity and Probability in Sex Offense Cases and Other Cases. Chicago-Kent Law Review. 70(1). 15-35
  10. Katz-Chiavone, S., Levenson, J. S., & Ackerman, A. R. (2008) Myths and Facts About Sexual Violence: Public Perceptions and Implications for Prevention. Journal of Criminal Justice and Popular Culture 15(3). 291-311.
  11. Scientific American, "Once a Sex Offender, Always a Sex Offender? Maybe not." April 3, 2008
  12. 12.0 12.1 State v. Ellison, No. WD 66013, 2007 WL 1118394, at *1 (Mo. App. W.D. 2007).
  13. 13.0 13.1 13.2 Marcantel, W. E. (2009) Protecting the Predator or the Prey? The Missouri Supreme Court’s Refusal to Allow Past Sexual Misconduct as Propensity Evidence. Missouri Law Review 74(1). 109-120.
  14. Find Law, "State v. Ellison," December 4, 2007
  15. 15.0 15.1 St. Louis Post-Dispatch, "Editorial: Amendment 2 offers special help for child abuse victims," October 14, 2014
  16. Protect Missouri Children, "Protect Missouri Children Committee Formed," accessed June 13, 2014
  17. Missouri Ethics Commission, "C141031: Protect Missouri Children," accessed June 13, 2014
  18. 18.0 18.1 Wells, C. E. &, Motley, E. (2001) Reinforcing the Myth of the Crazed Rapist: A Feminist Critique of Recent Rape Legislation. Boston Law Review 81(127). 128-198.
  19. Kansas City Star, "More harmful initiatives than good ones on Missouri's Nov. 4 ballot," October 3, 2014
  20. Missouri House, "97th General Assembly , 1st Regular Session: Activity History for HJR 16," accessed August 1, 2013