Tuesday, January 23, 2007

Lumpkin to Legislature - I need your help here!

His Honor Gary Lumpkin, Presiding Judge of the Oklahoma Court of Criminal Appeals, started the new year with a bang, sending a message to the Oklahoma Legislature through the Oklahoma Bar Journal. The case was: JAMES v. STATE, 2007 OK CR 1. His Honor took great exception to the majority’s overturning of the “greater latitude rule” which allows courts to take prior similar acts into consideration when dealing with a sex offender. His well-reasoned dissent deserves attention by the public:

¶1 In Myers v. State, 2000 OK CR 25, 17 P.3d 1021, 1031, this Court stated its position regarding an area of criminal law of which we have grown all too familiar. Regardless of whether or not that familiarity comes from watching the nightly news, reading the daily newspaper, or sitting for years on an appellate court bench, most of us know that those who commit crimes of sexual assault against women and young children tend to be repeat offenders.
¶2 Myers thus recognized the unique nature of sex crimes. Sexual abuse or assault is unlike such crimes as, say, murder, theft, or selling drugs—crimes that generally arise out of poverty, greed, lack of a sense of right and wrong, or the need to feed one’s chosen drug habit. As a general rule, a person commits sexual abuse, or like crimes, against an adult female out of hatred of the opposite sex, the desire to control, or because the abuser was himself or herself abused as a child. Unfortunately, sex crimes are crimes of propensity—a proclivity that rarely goes away.
¶3 Even worse are sex crimes committed against children. Here, the crimes are usually committed by a relative or some other person extremely close to the child, i.e., someone who exercises dominion and control over the child or who holds a position of trust. That relationship or position of trust often allows the perpetrator to commit crimes over an extended period of time without being caught, due to the use of fear and control tactics. Such heinous acts are the result of a perverse sexual attraction, and, again, the abuser may have experienced similar abuse as a child.
¶4 Sexual crimes committed against women and children, therefore, present special evidentiary issues when a person charged with such crimes is bound over and brought to trial. Many such crimes go unreported due to the embarrassment and humiliation involved or because the person abused is trapped. With children, the victims are often so young when the abuse began that they have trouble narrowing down the year when the abuse first occurred. Indeed, many details of the crimes committed are often lost in the interim or confused by guilt and conflicting feelings resulting from the violation of trust.
¶5 And so, Myers took the nature of these crimes into consideration and stated an evidentiary position about what is universally known. And in doing so, it attempted to protect both women and our most vulnerable citizens, children. Myers thus announced a “greater latitude rule,” one that simply recognized that those who commit sexual crimes are more likely to fall into one of the well-known exceptions to 12 O.S.2001, § 2404 , the rule prohibiting evidence of other crimes, wrongs, or acts to prove action in conformity with one’s character. That is, a person’s past sexual abuse of a female or young child tends to fall within one of the “excepted” areas of section 2404, i.e., motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. And while the prior crimes may be somewhat dissimilar to the contemporary ones charged and many years may separate the two, the fact that a person has sexually abused another places them into a fairly narrow category that touches on most of the exceptions in one way or another.
¶6 Today’s opinion would do away with the “greater latitude rule” on the basis that the rule is “unworkable.” Perhaps the more preferable word would be “uncomfortable,” for the opinion gives no example of how it is unworkable. I suspect it is unworkable only in the sense that some don’t want to work with it. In fact, since Myers, members of this Court have merely refused to follow that law established in Myers. Indeed, this may be more about the author of Myers than it is about an inability to work within the confines of that holding, which garnered four concurs and only Judge Chapel’s concurring in result vote, an indication that, while he did not ascribe to the idea of greater latitude, he found nothing reversible in the case that used it. 1
¶11 Moreover, if you flip through the pages of our evidence code, you will see that sex-related crimes are treated differently and that greater latitude in this area is a common theme, one that our Legislature has repeatedly recognized. Thus, an accused is prohibited from introducing evidence concerning an alleged victim’s sexual past or reputation, except under specific circumstances. 12 O.S.2001, § 2412. The spousal privilege recognized in 12 O.S.Supp.2002, § 2504 does not apply when one spouse is charged with a crime against the other or a child of either. The rules against impeaching witnesses with stale convictions do not apply where “the witness is a defendant currently charged with a sexual offense involving a child….” 12 O.S.Supp.2002, § 2609. Special rules have been enacted when children are witnesses, concerning the manner of taking testimony. 12 O.S.Supp.2003, §§ 2611.2 – 2611.11. Sequestration rules are relaxed for the parents of child victims. 12 O.S.2001, § 2615(4). And the all-important hearsay rules are also relaxed when a child under 13 makes statements regarding physical abuse or inappropriate sexual contact. 12 O.S.Supp.2004, § 2803.1 .
¶12 And so, I would not do away with the “greater latitude” rule in sex-related crimes, especially those involving children. I do not believe the rule swallows 12 O.S.2001, § 2404 (B). Rather, I see it as simply one additional factor to consider when the court is looking at admissibility on the issue of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Indeed, by denouncing greater latitude, we wind up in a worse place than we were, because a comparison of the cases indicates that even when the “rule” had not been announced, it was still being used. For these reasons, I must dissent to the Court’s opinion in this case.
¶13 In closing, I would also urge our Legislature to take notice of this issue, take steps to protect those most vulnerable in our society, the children, and adopt a version of Rule 413 of the Federal Rules of Evidence in an effort to protect our children.

I agree.


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