Basyle J. Tchividjian†

Abstract

The admissibility of prior bad act evidence in child sexual abuse prosecutions oftentimes makes the difference between a guilty and not guilty verdict. Recently, jurisdictions have growingly embraced the admission of such evidence for the purpose of establishing the defendant’s propensity to sexually victimize children. Due to the potentially high prejudicial effect of admitting propensity evidence, it is more critical than ever that courts carefully apply the decisive evidentiary gatekeeper, the probative value balancing test of Federal Rule of Evidence 403 and its state equivalents. Over the years, courts and legislators have attempted to develop analytical frameworks to be used by trial judges when evaluating the probative value of prior bad acts propensity evidence in child sexual abuse cases. Unfortunately, the framework most often applied by the courts in these cases has minimal correlation to the determination of propensity, but instead is premised upon the traditional Rule 404(b) basis of establishing proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, or accident. As a result, courts end up applying differing, and sometimes inconsistent frameworks that bear no rational relationship to one’s propensity to commit a child sexual offense. Without such a relationship, it is virtually impossible to meaningfully engage in a Rule 403 balancing test to determine the probative value of prior bad acts evidence being offered to establish propensity.

This Article proposes a new analytical framework (the “403 Propensity Proposal”) to be applied by courts when evaluating the admissibility of prior bad acts evidence in child sexual abuse prosecutions that directly correlates to the issue of propensity. If such evidence is to be admissible, courts must ensure that it be directly probative of researched behavioral patterns of those who sexually victimize children. The heart of this proposal is the consideration, evaluation, and application of three methods commonly employed by those who sexually victimize children. The 403 Propensity Proposal applies these three methods—trust, authority, and instrumental force/threats as factors in establishing a rational and consistent analysis for evaluating the probative weight of such propensity evidence. This Article culminates with the application of the 403 Propensity Proposal to a fictional case study involving a child sexual abuse prosecution where the prosecutor seeks to introduce the testimonies of three witnesses who allege prior sexual abuse by the defendant. The case study application demonstrates that the proposed propensity factors will better ensure that prosecutions for these types of crimes are based upon relevant and probative evidence that directly relates to one’s propensity to sexually victimize children. Both defendants and complainants are entitled to nothing less.

† Professor Tchividjian is a former child abuse prosecutor from Florida who currently teaches Child Abuse and the Law and several other criminal law related courses at Liberty University School of Law. Professor Tchividjian also serves as Executive Director of GRACE (Godly Response to Abuse in the Christian Environment).

This article will address the most common issues associated with investigating child abuse in environments where the abusers exploit their religious authority to perpetuate the abuse. This article will also present 17 tips for investigators who investigate such religiously charged and complex cases.