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JEFFERSON CITY — It's easy to agree about the brutality of sex crimes against children and the gut-wrenching emotions felt for victims. But opinions throughout the legal system vary on how to fairly seek justice in those cases.

Amendment 2, which Missouri voters can vote for or against this November, states that child sexual abuse cases are different before the law. If passed, the state constitutional amendment would allow for propensity evidence to be used against suspected child sexual abusers — at the discretion of judges.

Propensity evidence is, as the proposed amendment defines it, "relevant evidence of prior criminal acts, whether charged or uncharged." Evidence would be considered relevant if it supported a victim's account or showed a pattern of abusive behavior by the suspect. The amendment allows judges to decide if the evidence goes too far in creating a bias.

Prosecutors and victims advocates see propensity evidence as a key tool to getting more convictions against sexual abusers of children. This tool was banned from their legal toolkit in 2007 by the Missouri Supreme Court. The State of Missouri v. Ellison decision overruled a previous statute that allowed for propensity evidence.

There are "significant hurdles in the way" of a successful prosecution of a child sexual abuse case, said Dan KnightBoone County prosecuting attorney.

"Even when we do get to jury trial in these cases, what will happen typically is it will be just that child up there, going it alone.  There is no corroborating evidence, because, again, the crime is committed behind closed doors, maybe it wasn't reported for a long time, so there's no DNA (evidence)," Knight said. "So then there will be inconsistencies sometimes that develop in (the child's) testimony, what I would consider to be minor inconsistencies. Defense attorneys will argue that there is reasonable doubt and (the jury) should acquit."

If Amendment 2 passes and propensity evidence becomes admissible in court, prior allegations and convictions against defendants could be used as supportive evidence to a victim's testimony.

"If someone has been convicted multiple times of doing the exact same thing, in the exact same way — we're talking about convictions — that is not admissible currently under the system that we have right now, without the passage of this amendment," Knight said.

Rep. John McCaherty, R-High Ridge, drafted the bill that eventually became the Amendment 2 ballot issue voters will see in November. McCaherty was moved to legislative action after hearing from a constituent whose young daughter had allegedly been sexually abused by her father. That case was not pursued by the local prosecutor, McCaherty said.

Afterwards, McCaherty collaborated with the Missouri State Prosecuting Attorney's office to examine current laws and learn what hindered prosecutors from successfully pursuing such cases. That discussion led him to come up with Amendment 2.

"They determined this was the No. 1 thing to do to help protect kids," McCaherty said of the prosecuting attorney's office's recommendation of Amendment 2.

However, others believe there are risks with letting propensity evidence into court.

"One of the fundamental things that we have is the right to a fair trial, a right to challenge an allegation of criminality on the merits," Columbia-based attorney Stephen Wyse said.

Wyse said the amendment will introduce "mere allegations of a prior bad act" that violated the right to a fair trial.

"Guilty people are not the only ones ever accused of crimes. When you make it easier to convict people, you're also making it easier for the enhanced risk of convicting someone who didn't commit the offense," said Michael Barrettgeneral counsel and public information officer with the Missouri State Public Defender's office.

Barrett said that the Missouri State Public Defender's office had no stance, either for or against, on Amendment 2.

However, Barrett did have his own words of caution on the proposal of the amendment. "By allowing (propensity evidence) in these types of cases, it almost creates different standards for justice in different types of cases, which I think is problematic," he said.

Eric Zahnd is the Platte County prosecuting attorney and co-chair of Protect Missouri Children, the campaign arm in support of Amendment 2. Zahnd acknowledged that child sexual abuse cases may share similarities with domestic violence or elder abuse cases, for which propensity evidence is not and will not be admissible in court under Amendment 2.

"I wouldn't be opposed necessarily," Zahnd said of extending propensity evidence availability to domestic violence and elder abuse cases.  "But we're not going that far," he said.

Rep. McCaherty also felt that allowing propensity evidence into child sexual abuse cases would not open a door for that kind of evidence to be allowed in other type of cases in the future.

"No, I don't think it does, nor do I think we want it to," he said. "We drafted it so narrowly so that it couldn't be used for anything else."

Unlike in cases of elder abuse, children "cannot express what happened to them because they are not sexual creatures. They don't have the terms for their body parts," said Emily van Schenkhof, deputy director of Missouri Kids First.

Missouri Kids First represents child advocacy centers in the state, advocates for laws and policies, and provides professional development and training for "members of our multi-disciplinary teams that investigate child abuse," van Schenkhof said.

Van Schenkhof has no apprehensions about Amendment 2.

"If we felt that this was something radical, that was outside of the norm, I wouldn't support it, because I'm not in the business of supporting bad public policy on constitutional things," she said."I want Missouri to be the state that is on the cutting edge of preventing and addressing child sexual abuse, not a state that sticks out as far as having very prohibitive evidentiary standards."

Prosecutors assure that even as Amendment 2 expands evidentiary standards, judges allow propensity evidence only when appropriate.

"A prosecutor is still going to have to convince a judge that the probative value of this (propensity) evidence outweighs any prejudicial effect.  A judge is still always the gatekeeper," he said.

However, Wyse said that when dealing with such emotionally charged cases such as child sexual abuse cases, "we are dealing with passions, and judges have passions as well."

"Getting at the truth can take longer and require more effort, but truth is the quintessence of justice. We need to tread cautiously when throwing out safeguards," Barrett said.

Supervising editor is Scott Swafford.

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