JEFFERSON CITY, Mo. — Since he became Newton County’s prosecuting attorney in 2008, Jake Skouby says he has charged more than 200 people, alleging sex crimes involving child. In that same time period, he says, his office has only been able to actually try 20 of those cases in court.

At issue is the type of evidence that Skouby and other Missouri prosecutors are allowed to present to juries. Nearly half the states along with the federal government have policy on the books that allows information on prior accusations and convictions involving a child sex crime to be used against defendants in court. Missouri is not one of them.

Skouby and many of Missouri’s other prosecutors are hoping voters pass Constitutional Amendment 2 on Nov. 4 to allow them that same authority.

The measure, which was placed on the November ballot by lawmakers, would alter Missouri’s constitution 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,” the ballot question states.

“Offenders against children are unique when it comes to how they’re wired. That’s their preferred victim,” Skouby said. “The jury ought to know that victim has those propensities when they look at a case that has involved sexual offenses against a child.”

Ben Trachtenberg, an associate professor at the University of Missouri School of Law, said propensity evidence “is used all the time” in other types of cases, but is often a point of contention between defense lawyers and prosecutors about whether it is permissible. If Amendment 2 passes, there would be almost no question about the admissibility of such evidence in sexual assault and child molestation cases involving minors.
Not everyone agrees that Amendment 2 is the right approach.

Jeffrey Mittman, executive director of the American Civil Liberties Union of Missouri, said the amendment would “take away” constitutional protections given to everyone regardless of which crime they are being accused of committing. Mittman said he is specifically concerned about a provision that would allow evidence from cases where someone was charged but not convicted to be presented to juries.

“The Missouri Supreme Court has repeatedly reminded us: In America we are tried only on the crime charged,” he said. “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.”

According to the language of the ballot question, 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.

Skouby acknowledged that Amendment 2 would apply a different evidentiary standard to those accused of sex crimes.

“Sex offenders who choose children as their victims ought to be treated differently,” he said.

Why? Skouby said the case often comes down to the word of a child against the word of an adult.

“Often times the victim is young and isn’t able to articulate what happened. The suspect is always going to deny any sort of touching. There are a lot of cases where there is no physical evidence and the victim isn’t articulate enough,” he said. “All a jury has is a kid saying something has happened and an adult has said it hasn’t. It is difficult to get a conviction in those cases.”

To the ACLU’s point, Trachtenberg — who specializes in criminal law — said rules like Amendment 2 are designed to help prosecutors get more convictions.

“The rule would be stronger if it was limited to convictions, but would get less done. What you have to weigh in this case is the desire to prevent people from getting away with this stuff from the danger of convicting the innocent,” he said.

Among perpetrators of sex crimes, Trachtenberg said the recidivism rate is high. But the recidivism rates are also high in crimes involving heroine and cocaine possession. He said that more and more states have moved to allow propensity evidence specifically in cases involving children who are victims of sexual abuse simply because of the outcries over people getting away.

In 2007, the Missouri Supreme Court established a legal precedent that rendered propensity evidence inadmissible. Before that ruling it had been allowed.