Prosecuting attorneys in Missouri are considering reintroducing propensity evidence in child sex abuse cases. The decision, which many say would improve the ability of the government to prosecute felonies, would significantly hinder defense efforts to protect accused sex offenders. Reports show that the practice was discarded in 2007 because it was deemed unconstitutional by Missouri judges.

Propensity evidence essentially consists of a record of a suspect's previous wrongdoing. This is particularly salient in child sex abuse cases because perpetrators tend to show a pattern. For example, a man on trial for abusing a 6-year-old in 2013 could be required to disclose his previous sex abuse convictions in 2004, 1985 or even earlier. In other words, the defendant is being prosecuted not only for the crime at hand, but also for his previous sex abuse convictions. Even though the suspect may have already served time, the previous violations show a consistent pattern of misbehavior.

This type of evidence is strictly prohibited in nearly every other type of case. It was banned after a 2007 Missouri Supreme Court ruling, which stated that propensity evidence violates the very basic tenets of the American judicial system. Now, propensity evidence may be making a comeback as part of a modification to the state's constitution.

Propensity evidence is helpful to prosecutors because it helps establish a trend of behavior. Often, physical evidence of the abuse does not exist, and many perpetrators tend to abuse the same types and age demographic of children. Prosecuting attorneys argue that the rule is designed to protect children from having to take the stand in a criminal trial. Still, if the evidence is banned in all other types of cases, it should not be allowed in child sex abuse trials.

Opponents of the measure argue that the law would allow judges' personal feelings to weigh heavily in court decisions. No one wants to be the person who allows an abuser to go free, so most defense attorneys find themselves having to prove their clients' innocence. This measure would simply provide an unconstitutional tool for vilifying previous offenders because of their past mistakes.

Source: News-Leader, "'Propensity evidence' could return in child sex abuse cases," Jonathan Shorman, Feb. 17, 2013