Allow past sex crimes as evidence in court

Sen. Chris Marr

As a result of efforts to remove the statute of limitations on child sex crimes in Washington, I have worked with victims' rights advocates, the legal community and experts in offender treatment to identify ways to stem sex offender recidivism. One important step, advocated by the Washington Association of Prosecuting Attorneys, amends state rules of evidence in sex-offense cases to permit the introduction of a defendant's prior record of sex-related crimes as allowed under federal law. It would still allow the court to exclude the evidence if it would be unfairly prejudicial or misleading to a jury.

Though such a change will likely raise due-process concerns on the part of some criminal defense attorneys, I believe it strikes a fair balance with victims' rights. That's why, along with 28 other senators (including 13 Republicans), I have introduced Senate Bill 6363. In terms of combating repeat predatory sex offenders, including those who offend against children, this could be the most significant legislation this session.

Many of us are aware of the frustration expressed by prosecutors and juries that an inability to introduce relevant evidence of similar sex crimes in the past has resulted in the acquittal of serial offenders who have gone on to commit similar crimes. One example is the case of Lamin Darboe, a nursing assistant with two prior complaints for sexually propositioning patients before he was charged with the rape of an incapacitated stroke victim who was in his care at Kindred Hospital in Northgate.

During his trial, the prosecution moved to have the earlier complaints against Darboe admitted as evidence of "prior bad acts" — arguing that his earlier behavior constituted "a common scheme or plan" which eventually led to the rape of 33-year-old mother of four who was paralyzed and unable to speak. These "prior bad acts" were ruled as inadmissible, however, because they were not similar enough to the crime that Darboe was on trial for. The jury, unaware of Darboe's history, was unable to arrive at a verdict. SB 6363 would have allowed the court to admit the prior acts as evidence, to be weighed by the jury.

Though the argument for prior-offense admissibility has been made for a range of offenses, the reason for caution in imposing it across the board is clear and justifiable — introducing evidence of prior bad acts might persuade a jury to base a verdict on past actions rather than the facts of the case.

However, the higher risk of recidivism in sex offenders is well documented. A 1994 federal study of nearly 9,700 male sex offenders shows that, compared with non-sex offenders from state prisons, released sex offenders were four times more likely to be rearrested for a sex crime than a non-sex offender. These are crimes (when reported) that victimize society's most vulnerable populations, including children, where a higher standard of protection is warranted.

Some will object that SB 6363 would permit the introduction of evidence of prior charges of sex crimes as well as convictions, but their inclusion is well justified. Victims of child molestation often do not report a crime until years later, when the statute of limitations may have expired. Even if it is reported, criminal charges in a sex-crime case are often not pursued because the victim may be too traumatized. Though there may not be a conviction, the court should be able to allow a jury to consider what might be compelling evidence that the defendant has offended before.

Of course, there are cases where evidence of a prior bad act would be too prejudicial or provide no probative value. These could include cases of youthful indiscretion, mitigating factors, mental illness or substantial contradictory evidence. This is why the court would be allowed discretion to admit or exclude admission of such acts. Let us also remember that admission of evidence is not a guarantee of conviction—it merely allows juries to impose justice based on all the relevant facts, including the defendant's propensity to offend.

SB 6363 is but one step in addressing the threat that sex offenders impose on society. The most effective steps are those that eliminate the first victim. For that reason, increased funding for education and prevention efforts is critical. Beyond that, improvements like this in the criminal justice process and sentencing can ensure that first-time offenders are less likely to become repeat offenders.

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