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

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Amendment 2
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TypeConstitutional amendment
OriginMissouri State Legislature
TopicCivil and criminal trials
StatusApproved Approveda
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 Approveda
Amendment 3 Defeatedd
Amendment 6 Defeatedd
Amendment 10 Approveda
Endorsements • Full text
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Expenditures
Local measures

The Missouri Evidence in Sexual Crimes Against Minors, Amendment 2 was on the November 4, 2014 ballot in Missouri as a legislatively referred constitutional amendment, where it was approved.[1] The measure was designed to 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]

Aftermath

On January 31, 2017, the Missouri Supreme Court ruled in an unanimous decision that Amendment 2 applies to crimes that occurred before the amendment took effect in December 2014. The court stated that Amendment 2 "applies to all trials occurring on or after the effective date of the amendment, regardless of when the crimes are alleged to have occurred." The court also said, "There is no basis in the text of this provision to limit its application to crimes that are alleged to have occurred after (it took effect), and there is no other basis on which to impose such a limitation."[3]

Leslie Hazel, a public defender, argued that the amendment should not impact alleged crimes that occurred before the measure took effect. Her defendant, Kendrick Tipler, was charged with an attempted sexual act against a child in 2013. Tipler said a past conviction in which he pleaded guilty to endangering the welfare of a child should not be held as admissible in court.[3]

Election results

Below are the official, certified election results:

Missouri Amendment 2
ResultVotesPercentage
Approveda Yes 1,018,773 71.98%
No396,51928.02%

Election results via: Missouri Secretary of State

Text of measure

Ballot title

The following language appeared on the ballot on election day:[4]

“ 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.

[5]

”

Constitutional changes

The measure amended Article I, Section 18 of the Missouri Constitution by adding Section 18(c) to read as follows:[6]

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.[5]

Background

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.[7][8]

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 is likely to engage in such behaviors again. Character evidence used by the prosecution sometimes qualifies as propensity evidence, but these 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.[9]

Criticisms

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.[9]

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 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.[9][5] ”
—Scott H. Greenfield

Support

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.[10][5]

”
—David J. Karp

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.[11] 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."[12]

Missouri 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.[13] 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.[14] This was allowed under 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.[14][5] ”
—Missouri Revised Statutes (2000)

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.[13] 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.[14] The court called for a new trial to be held.[15]

Support

Protect Missouri Children logo.jpg

Supporters

Officials

Organizations

  • Protect Missouri Children (PMC)
  • Missouri Association of Prosecuting Attorneys[16]
  • Missouri Police Chiefs Association
  • Missouri Sheriffs Association

Individuals

HJR 16 "Yes" votes

The following members of the Missouri State Legislature voted in favor of placing this measure on the ballot.[17][18]

Note: A yes vote on HJR 16 merely referred the question to voters and did not necessarily mean these legislators approved of the stipulations laid out in Amendment 2.

Senate

House

Arguments

Rep. McCaherty proposed the measure calling for the allowance propensity evidence, "a powerful tool to put sex offenders behind bars."[19]

Campaign contributions

Protect Missouri Children was the only campaign committee registered for this measure as of June 13, 2014. As of the final December 3 2014, report, the committee had $52,611.14 in contributions.[20]

PAC info:

PAC Amount raised Amount spent
Protect Missouri Children
$52,611.14
$52,086.14
Total $52,611.14 $52,086.14

Top contributors:

Donor Amount
Kanakuk Ministries $10,000
Peter Hershend $5,000
Cape Foundation Inc $5,000
BJC Healthcare $5,000
SSM Health Care $5,000
Anthony Collier $5,000
Jennifer Atterbury $5,000
Children's Mercy Hospital and Clinics $5,000

Opposition

Opponents

  • Missouri Association of Criminal Defense[21]
  • Missouri Chapter of the ACLU

HJR 16 "No" votes

The following members of the Missouri State Legislature voted against placing this measure on the ballot.[17][18]

Note: A no vote on HJR 16 meant that a legislator did not want to refer the question to voters and did not necessarily mean these legislators disapproved of the stipulations laid out in Amendment 2.

Senate

House

Arguments

Kevin Curran, the head of the Missouri Association of Criminal Defense stated, "The danger is that people are going to be convicted not based on what evidence they have that relates to the charge, but more so the fact that they've been convicted of something similar before, or accused of something similar before. We see that as a big problem."[21]

The executive director of the Missouri Chapter of the ACLU, Jeffrey Mittman, issued the following statement about Amendment 2:[21]

“

Tampering with the Missouri Constitution to take away constitutional protections that are a traditional and necessary part of our criminal justice process goes against American ideals. The Missouri Supreme Court has repeatedly reminded us: in America we are tried only on the crime charged. Missourians should avoid the temptation to allow evidence of uncharged crimes to be presented at trial, simply to demonstrate a propensity or tendency to commit a crime. [5]

”

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 trial and [bear] the imprimatur of an inquisition."[22]

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."[22]

Read the full paper here.

Media editorial positions

See also: Endorsements of Missouri ballot measures, 2014

Support

  • 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.[5]

”
—Kansas City Star[23]
  • 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.[5]

”
—St. Louis Post-Dispatch[16]
  • The Daily Star-Journal said,
“ To keep the Constitution meaningful, those who are merely accused of sexually abusing children deserve a fair trial.

Amendment 2 walks the tightrope between defending children from predators and recognizing that every person accused of a crime, no matter how heinous, deserves a fair trial. Vote yes for Constitutional Amendment 2 on Nov. 4.[5]

”
—Daily Star-Journal[24]

Path to the ballot

Missouri Constitution
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Preamble
Articles
I • II • III • IV • V • VI • VII • VIII • IX • X • XI • XII • XIII • XIV
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][25]

House vote

Missouri Evidence in Sexual Crimes against Minors, HJR 16 House Vote
ResultVotesPercentage
Approveda Yes 130 80.74%
No2314.28%

Senate vote

Missouri Evidence in Sexual Crimes against Minors, HJR 16 Senate Vote
ResultVotesPercentage
Approveda Yes 30 88.23%
No25.88%

See also

External links

Additional reading

Footnotes

  1. ↑ Missouri Secretary of State, "2014 Ballot Measures," accessed February 24, 2014
  2. ↑ 2.0 2.1 OpenStates.org, "HJR 16: Missouri House Joint Resolution," accessed July 26, 2013
  3. ↑ 3.0 3.1 Idaho Statesman, "Missouri Supreme Court rules on child sex abuse evidence," January 31, 2017
  4. ↑ Missouri Secretary of State, "2014 Ballot Measures," accessed July 26, 2013
  5. ↑ 5.0 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source. Cite error: Invalid <ref> tag; name "quotedisclaimer" defined multiple times with different content Cite error: Invalid <ref> tag; name "quotedisclaimer" defined multiple times with different content Cite error: Invalid <ref> tag; name "quotedisclaimer" defined multiple times with different content Cite error: Invalid <ref> tag; name "quotedisclaimer" defined multiple times with different content Cite error: Invalid <ref> tag; name "quotedisclaimer" defined multiple times with different content Cite error: Invalid <ref> tag; name "quotedisclaimer" defined multiple times with different content Cite error: Invalid <ref> tag; name "quotedisclaimer" defined multiple times with different content Cite error: Invalid <ref> tag; name "quotedisclaimer" defined multiple times with different content
  6. ↑ Missouri State Legislature, "2013 House Joint Resolution 16 TRULY AGREED TO AND FINALLY PASSED," accessed June 13, 2014
  7. ↑ Fenton-HighRidgePatch.com, "Protecting Child Victims of Sexual Abuse (HJR 16) Passes General Assembly," May 21, 2013
  8. ↑ Evidence Law and Advocacy, "Chapter 7: Propensity Evidence," accessed July 26, 2013
  9. ↑ 9.0 9.1 9.2 Simply Justice: A Criminal Defense Blog, "What’s Wrong with Propensity Evidence Anyway?" October 14, 2008
  10. ↑ 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
  11. ↑ 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.
  12. ↑ Scientific American, "Once a Sex Offender, Always a Sex Offender? Maybe not." April 3, 2008
  13. ↑ 13.0 13.1 State v. Ellison, No. WD 66013, 2007 WL 1118394, at *1 (Mo. App. W.D. 2007).
  14. ↑ 14.0 14.1 14.2 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.
  15. ↑ Find Law, "State v. Ellison," December 4, 2007
  16. ↑ 16.0 16.1 St. Louis Post-Dispatch, "Editorial: Amendment 2 offers special help for child abuse victims," October 14, 2014
  17. ↑ 17.0 17.1 Missouri Senate, "Journal of the Senate FIRST REGULAR SESSION SIXTY-NINTH DAY—THURSDAY, MAY 16, 2013," accessed November 1, 2014
  18. ↑ 18.0 18.1 [http://www.house.mo.gov/billtracking/bills131/jrnpdf/jrn033.pdf Missouri House of Representatives, "JOURNAL OF THE HOUSE First Regular Session, 97th GENERAL ASSEMBLY THIRTY-THIRD DAY, THURSDAY, MARCH 7, 2013," accessed November 1, 2014]
  19. ↑ Protect Missouri Children, "Protect Missouri Children Committee Formed," accessed June 13, 2014
  20. ↑ Missouri Ethics Commission, "C141031: Protect Missouri Children," accessed December 5, 2014
  21. ↑ 21.0 21.1 21.2 St. Louis Public Radio, "Missouri Voters To Decide Amendments On Early Voting, Teacher Tenure And Sex Crime Trial Rules," October 20, 2014
  22. ↑ 22.0 22.1 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.
  23. ↑ Kansas City Star, "More harmful initiatives than good ones on Missouri's Nov. 4 ballot," October 3, 2014
  24. ↑ Daily Star-Journal, "MAmendment 2 aims at Mo. child abusers," October 22, 2014
  25. ↑ Missouri House, "97th General Assembly , 1st Regular Session: Activity History for HJR 16," accessed August 1, 2013
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