Protecting the Predator or the Prey? the Missouri Supreme Court's Refusal to Allow Past Sexual Misconduct as Propensity Evidence
Marcantel, William E., Missouri Law Review
Americans consider child molestation and sexual assault among the most heinous crimes that one can commit. (2) In response to the public's opinion regarding these crimes, Congress created exceptions to the longstanding rule barring character propensity evidence. (3) Over the protests of prominent legal figures, (4) Congress enacted Federal Rules of Evidence 413415 in 1994.5 Though these rules have been sustained by several appellate court decisions, (6) the constitutionality of Rules 413-415 has not been conclusively decided by the United States Supreme Court.
Missouri's legislature has twice attempted to pass a statute regarding child molestation similar to Federal Rule of Evidence 414, and twice the Missouri Supreme Court has struck down these attempts as unconstitutional. (7) Although the Missouri Supreme Court relied entirely on state constitutional grounds in refusing to uphold statutes permitting propensity evidence in child molestation prosecutions, one must ask whether the Missouri Supreme Court should instead follow in the footsteps of the of the federal judiciary, which has allowed similar long-standing rules of evidence to be rejected in favor of the will of the legislature. The essence of this query lies in the answer to the question of whether the prejudicial effect of such propensity evidence and the threat to an individual's right to be tried only for the crime for which one stands accused outweighs the potential dangers posed to victims and society.
II. FACTS AND HOLDING
In the case of State v. Ellison, the victim was a pre-pubescent child, barely at the age of rational cognition, when the abuse by Donald Ellison began. (8) Donald Ellison's wife, Tena, and the child victim's mother worked together at Dairy Queen. (9) On days that the victim's mother was working, Tena would watch the victim. (10) However, on the days that both Tena and the victim's mother would work, the child and her sibling were left in the care of Donald Ellison. (11) In the summer of 2003, Donald watched the children while Tena and the victim's mother were at work. (12) On this occasion, Donald asked the victim to go to the bedroom with him, "where he engaged in sexual intercourse with the child, despite her repeat requests that he stop." (13)
After this initial incident, Donald continued to make "inappropriate sexual advances" when the children were left in his care, showing the victim pornography and masturbating in front of her. (14) According to the record, Donald "ejaculated in the child's presence and asked her to drink his ejaculate" and he had "vaginal intercourse with the child a number of times in various rooms in Ellison's house." (15) Finally on August 19, 2004, the child could not bear the burden of the abuse any longer and broke down in the midst of a slumber party, revealing that Donald Ellison molested her. (16) After being taken home and later to the local police, the victim told her mother and police of the ongoing rape committed by Donald Ellison. (17) The child described to local deputies "various instances of sexual abuse that had taken place after her sixth or seventh birthday and continued until her ninth birthday." (18) The child later testified that she had not spoken of the abuse to anyone until the summer of 2004 because Donald Ellison threatened to kill her if she told. (19)
Following the victim's interview with local deputies, police arrested Donald Ellison and charged him with child molestation in the first degree. (20) At trial, pursuant to section 566.025 of the Missouri Revised Statutes, (21) the State entered into evidence a certified copy of Ellison's prior conviction "for the class C felony of sexual abuse in the first degree for subjecting a 13-year old girl 'to sexual contact without her consent by the use of forcible compulsion and in the course of such offense Ellison inflicted serious physical injury' to the girl." (22) In a pretrial motion in limine, Ellison requested that the trial court "enter an order . …