Our Opinion: An exception in child sexual abuse cases?

Although the November election is more than two months away, a proposed change in criminal law already has triggered controversy.

Constitutional Amendment 2 on the Nov. 4 ballot would ease restrictions on admissible evidence in child sexual abuse cases, by allowing evidence of past criminal acts - including alleged crimes that didn't result in convictions.

This would mark a departure from the existing prohibition against using evidence of past crimes against a defendant facing a new criminal charge or charges.

The prohibition is a fundamental in criminal law cited by the Missouri Supreme Court in a 2007 ruling. "Evidence of prior criminal acts," wrote former high court judge Michael Wolfe, "is never admissible for the purpose of demonstrating the defendant's propensity to commit the crime with which he is presently charged. There are no exceptions to this rule."

The amendment would create an exception.

As a rule, we are uncomfortable with special exemptions or, for that matter, protections. Our objection to the Right to Farm amendment on the August ballot was based on our opposition to singling out one industry, agriculture, as a constitutionally protected class.

Proponents of Amendment 2 - including state associations representing prosecutors and law enforcement officers - offer compelling arguments to support the exception.

First, "sexual predators" already can be considered a special class, in that they are listed on a public web site.

Second, precedent for the exception exists. Prior allegations of child sexual abuse are admissible evidence in 11 states, according to the Missouri Office of Prosecution Services.

Last is the human component. Legal proceedings compound fear and trauma for children who already may have been victimized. "This is a measure that I think everybody who supports Missouri's kids ought to be in favor of," said Eric Zahnd, Platte County Prosecutor and past president of their statewide association.

Countering that emotional argument, Michelle Monahan, an officer with the statewide defense attorneys group, said the amendment would permit evidence that attacks the character of the defendant, rather than evidence the defendant is guilty of the alleged crime.

Although the amendment is specific, it would create an exception that raises larger issues about due process in legal proceedings.

On this issue, voters deserve comprehensive discussion and debate, which has not begun too soon.