Missouri abolishes the corroboration rule and the destructive contradictions doctrine: a victory for victims of sexual assault?

• Author: Stallion, Kristen L.

State v. Porter, 439 S.W.3d 208 (Mo. 2014) (en banc).

1. INTRODUCTION

   Since early common law, evidentiary doctrines have limited the weight factfinders may give to the testimony of victims who take the witness stand and retell the traumatizing details of their sexual assaults. Two of these doctrines, the corroboration rule and the destructive contradictions doctrine, existed in Missouri until the summer of 2014. The corroboration rule required additional evidence to support a sexual assault conviction if the victim's testimony was deemed so contradictory to physical evidence, surrounding circumstances, and common experience as to render it doubtful. (1) Similarly, the destructive contradictions doctrine required corroboration to support a conviction if a victim's testimony was self-destructive or in opposition to physical evidence. (2) These rules reflected a patriarchal common law mentality and the continued subordination of women in a justice system that insisted the victims of sexual assault, who are most commonly women, are not as believable as victims of other types of crimes. Law enforcement officials, juries, and the public scrutinized each detail of an assault because even the slightest discrepancy or inconsistency would throw extreme doubt on the female victim's testimony, which was not enough to support a conviction on its own.

   Similar evidentiary doctrines have been reformed and repealed across the nation. (3) The change in the treatment of victims of sexual assaults can be credited in large part to the efforts of proponents of the second wave of feminist reform that swept the nation in the 1970s and 1980s. (4) Thankfully, juries are no longer instructed to view female sexual assault victims as wayward waifs whose minds are easily subject to impression and whose pasts are scrutinized and thought to be adequate blame for the trauma they have endured. Despite the abolition of the corroboration rule and destructive contradictions doctrine, however, these rules will continue to be effectively enforced by juries due to long-held beliefs on gender and sex norms. (5) More is needed to adjust these misconceptions about women and rape. Once juries abandon these misconceptions, there may be a substantial increase in the number of convictions and reports of rape in Missouri and throughout the United States.

   Part II of this Note explores the issue in the case at hand, State v. Porter, which has finally abolished both the corroboration rule and destructive contradictions doctrine in Missouri sexual assault cases. Next, Part III presents the archaic rationale behind the two doctrines and explores its development. Finally, in Part IV, the Supreme Court of Missouri's decision to abolish these doctrines is dissected and the evolution of these evidentiary common law rules is analyzed in light of courts' efforts to remove the high wall of doubt female victims must attempt to overcome. This analysis reveals that much still needs to be done in order to truly prevent sex and gender norms from continuing to enter the courtroom and burden prosecutions of sexual assault.

2. FACTS AND HOLDING

   On October 31, 2010, B.Y. (the "Grandmother") was babysitting her three-year-old granddaughter, K.W., in a room K.W.'s mother rented in a rooming house managed by Sylvester Porter. (6) The Grandmother fell asleep while watching K.W. and when she awoke, she found K.W. lying on Porter's bed with her pants off and a shirtless Porter with his head between K.W.'s legs. (7) The Grandmother took her granddaughter out of Porter's room and asked what had happened. (8) K.W. replied that Porter was "sniffing around down there" and "messing with her bottom part." (9) When K.W.'s mother returned home about one half hour after the Grandmother awoke from her nap and found K.W. in Porter's room, K.W. told her mother that Porter had touched her vagina. (10) K.W.'s mother then confronted Porter, who denied ever touching K.W. (11) K.W. overheard Porter's denial and told him, "[Y]es you did, you touched my kookoo." (12) K.W.'s mother subsequently called St. Louis City Police. (13)

   On November 12, 2010, a forensic interviewer with Children Advocacy Services of Greater St. Louis ("CAC") interviewed K.W. (14) In the interview, K.W. volunteered that Porter was in jail after "he put his hand on her private part." (15) K.W. said she had told Porter to "stop, stop, stop, stop" but that Porter kept touching her. (16) K.W. was able to point to a drawing of the female anatomy to indicate Porter had touched her vagina. (17) K.W. also told the interviewer that Porter had touched her private part with his tongue, that Porter put "hot sauce" on her "kookoo," and that Porter put his penis near her eye. (18) The State "charged Porter with two counts of first-degree statutory sodomy for touching K.W.'s vagina with his hand (Count I) and with his tongue (Count II). (19) The State also charged Porter with one count of first-degree child molestation for touching K.W.'s head with his penis (Count III)." (20)

   Porter pled not guilty to all three charges, and the St. Louis City Circuit Court held a jury trial from July 9 to July 11, 2012; (21) K.W. was five years old at the time she testified on July 10, 2012. (22) In her testimony, K.W. stated that she knew Porter, but said she did not see him in the courtroom at that time. (23) K.W. said that Porter had "touched her 'private part' when she was younger and that this occurred in a different place than where she was then living." (24) K.W. also stated that Porter "touched her with his hand and that he did not touch her private part with any other part of his body." (25) Porter called several witnesses, including a witness from the St. Louis Police Department's crime laboratory, who testified that no seminal fluid was found on K.W.'s clothing or on K.W.'s vaginal swab. (26) A forensic examiner from CAC testified that when she interviewed K.W.'s mother five days after the incident, the mother told her that K.W. cried and recanted when she saw Porter being arrested and that K.W. had said that the Grandmother made K.W. say that Porter touched her. (27) K.W.'s mother also reported that the Grandmother had been drinking beer while watching K.W. (28) The examiner replied on cross-examination by the State that "it was possible a child might recant upon seeing someone getting] arrested, notwithstanding whether or not the incident occurred." (29)

   Porter moved for judgment of acquittal at the close of all evidence, arguing that the State did not make a submissible case after testimony was presented, stating that the Grandmother pressured K.W. to say Porter had touched her. (30) The trial court denied Porter's motions and submitted the case to the jury, who found Porter guilty on all three counts. (31) The trial court subsequently granted Porter's motion for judgment of acquittal on his first-degree child molestation charge (Count III) and sentenced Porter "to two concurrent terms of twenty-five years in the Missouri Department of Corrections." (32)

   On appeal, Porter contended that the trial court erred by overruling his motion for judgment of acquittal at the close of all evidence and convicting him on Count I (first-degree statutory sodomy) because K.W.'s trial testimony was inconsistent and contradictory and should have required corroboration in order to convict Porter. (33) Porter also argued that the trial court erred in overruling his motion for judgment of acquittal at the close of all evidence and in convicting him of Count II (first-degree statutory sodomy) because K.W.'s "out-of-court statement that Porter touched her vagina with his tongue was inconsistent with, contradicted, and not corroborated by, her other out-of-court statements that nobody touched any part of her body." (34) Additionally, Porter contended that the trial court erred by granting the jury's request to observe all evidence and in sending K.W.'s CAC interview to the jury for review. (35) Porter argued that K.W.'s statements on the tapes were testimonial evidence under Missouri Revised Statutes Section 491.075.1 and gave the jury the ability to listen to the recorded testimony as often as desired, which created the presumption that the recorded interview was to be given more weight. (36)

   The Missouri Court of Appeals for the Eastern District affirmed the trial court's judgment sentencing Porter for two counts of first-degree statutory sodomy. (37) The appellate court denied Porter's argument that the corroboration rule should be invoked because K.W.'s trial testimony was so contradictory to her out-of court statement to the CAC interviewer. (38) The court reasoned, "As noted by our Supreme Court, 'inconsistent or contradictory statements by a young child relating a sexual experience [do] not, in [themselves] deprive the testimony of all probative force.'" (39) The court's rationale was that just because K.W.'s testimony and out-of-court statements were inconsistent did not mean that her trial testimony was "so contradictory or inconsistent as to deprive it of all probative force" as the corroboration rule requires. (40) The court decided that "[a]ny contradictions or inconsistencies in K.W.'s testimony were properly weighed by the jury in their determination of her credibility." (41) As to Porter's third argument, nothing in the record reflected whether the parties were notified of the jury's request of all state and defense exhibits, videos, and lab reports or whether either party objected to the fulfillment of the jury's request. (42) Because the record did not indicate what happened after the jury's request for exhibits, the court determined that "[i]n the absence of any record indicating what occurred at the trial court with respect to [the] claim of error, [it was] obligated to affirm the trial court." (43)

   Porter again appealed his convictions for two counts of first-degree statutory sodomy, contending the corroboration rule and destructive...