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Once bitten, twice shy

This is why hard cases make bad law.

A few years back, Van Williams, a teacher, was charged with rape of a 14-year-old boy who was one of his students.  The state introduced evidence that he'd had a consensual sexual relationship with another one of his students, this one 16, twelve years earlier.  The 8th District, in an en banc decision, reversed, finding that the other acts evidence should have been excluded.  It was an excellent decision, articulating the criteria under which 404(B) evidence should be admitted.

And it was probably the wrong result.  In its 2012 decision reversing the 8th District, the Supreme Court noted that the evidence showed "that Williams had targeted teenage males who had no father figure to gain their trust and confidence and groom them for sexual activity with the intent of sexual gratification," which was enough to show a "scheme or plan," one of the exceptions under 404(B).

So two weeks ago, in State v. Dove, the 8th District took on another 404(B) issue in a case involving child sexual abuse.  It followed the criteria the Supreme Court laid down in Williams for evaluating whether such evidence should be admitted, and decided that despite it being an "extremely close case," the judge was correct in allowing it.

And it was probably the wrong result.

Dove was charged with raping his child's 15-year-old babysitter, whom we'll call Sharon.  Sharon usually slept over on the nights she babysat for the Doves, and on this occasion, the couple stayed out until 2:00 A.M.  The wife was so drunk she passed out on the upstairs bed, and Sharon went down in the basement to watch TV.  Dove joined her soon after that, then, according to Sharon, grabbed her, forced her sweatpants partially off, and raped her.

Prior to trial, the State had served notice that it intended to use Dove's 2003 conviction for unlawful sexual contact with a minor.  That evidence consisted of the mother of the victim in that case testifying that she observed that her 12-year-old daughter's bedroom door was closed, and when she went in to check on her, found Dove performing oral sex on the sleeping girl.  The mother screamed, the girl awoke, and Dove jumped out the window and fled.

EvidR 404(B) is an exception to the general rule against propensity evidence:  you can't prove that Joe is guilty of robbing a bank just because he previously robbed a bank.  The "scheme or plan" exception comes into play when the prior acts are so similar that they provide a "behavioral fingerprint":  if Joe's prior bank robberies involved three accomplices wearing Halloween masks and doing the robbery when the bank opened, and in this case the robbery was committed by four people wearing Halloween masks who entered the bank when it opened, well, there's a pretty good chance that Joe was one of the four.

The State argued that this was a similar situation:  the prior incident went to providing Dove's identity.  The panel easily rebuffed this, noting that identity wasn't at issue:  the question wasn't who raped Sharon, the question was whether she was raped at all. 

But Williams had found that the "scheme or plan" exception could stand on its own; it wasn't limited to providing identity.  And that's what the panel finds here:  the evidence of the prior incident "is somewhat probative of whether Dove targeted a young girl who was asleep, and was also somewhat probative of Dove's sexual motivation in this circumstance."

It's hard to see how "sexual motivation" is even an issue.  Without the evidence of the prior act, would anybody be wondering why Dove would have tried to rape someone?  The obvious motive, as with any sexual act, is sexual gratification.

But there's a bigger problem.  The girl Dove is charged with raping here wasn't asleep.  And there's no similarity between the sex acts.  This was nothing other than propensity evidence:  Dove attempted to have oral sex with a 12-year-old, so it's more likely that he raped a 15-year-old.

This isn't entirely the panel's fault.  It scrupulously follows the three-part test articulated by the Supreme Court in Williams for admission of 404(B) evidence:  it must be probative, it must fall under one of the exceptions listed in the rule, and the probative value must outweigh the prejudicial effect.  As I explained when I discussed Williams, though, this is broadly meaningless.  Saying that the evidence must be probative adds nothing; that's the test for all evidence.  That it must fall within one of the exceptions to the rule says nothing more than the rule does.  And the rule also requires that the evidence be excluded if its prejudicial effect outweighs its probative value. 

Especially worrisome in Williams was its reliance on curative instructions, on which the Dove panel similarly relies.  The judge in Dove instructed the jury as follows:

If you find the evidence that the defendant previously committed a sexual offense is true, you may consider this testimony for the purpose of insight, whether it proves the defendant's motive or his intent or purpose to commit the offense charged in this trial. The evidence cannot be considered for any other purpose.

I'm not even sure what that means.  Basically, in both Williams and Dove, it boils down to saying that the jury didn't consider it for an improper purpose because the judge told them not to.  It's bad enough when we presume that a jury followed an instruction to disregard certain evidence; research indicate they don't do that, and that it usually serves merely to highlight the improper testimony.  That's why the courts consistently find that not requesting a curative instruction isn't ineffective assistance of counsel:  the lawyer may well decide that he doesn't want the jury reminded of the damning evidence.  But here, you have a "curative" instruction that basically says you can take the evidence into consideration in determining whether the defendant committed the crime, but not in determining whether he committed the crime.

In my discussion of Williams, I wrote

I'd worried that the court's decision would amount to a holding in these situations that "a prior homosexual relationship with a 16-year-old boy" would be sufficient to allow admission.  Read properly, Williams seems to require more than that.

Dove doesn't seem to require anything more for admission of a previous incident of child sexual abuse than that there was a previous incident of sexual abuse.

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