Section 14.80 Evidence Issues

• Library: Criminal Practice 2012 Supp

5. (§14.80) Evidence Issues

Defenses to statutory rape and sodomy are limited. Consent or lack of force is not a defense even if the female was a prostitute or deliberately seduced the defendant. State v. Snow, 252 S.W. 629 (Mo. 1923). Prior sexual intercourse by the defendant and the infant victim may be shown in evidence to show motive, etc. State v. Graham, 641 S.W.2d 102 (Mo. banc 1982). A victim who is of very tender years may be incompetent as a witness, but the victim’s spontaneous utterances of complaint to the victim’s mother or someone else may be admissible. State v. Van Orman, 642 S.W.2d 636 (Mo. 1982). Statements to social workers and the police may be admissible. See §§ 491.075, 492.304, RSMo Supp. 2004. Prior inconsistent statements are admissible as substantive evidence.

Section 566.025, RSMo 2000, provides that, if a defendant is charged with a violation of Chapter 566 or 568, RSMo, and the victim is under the age of 14, regardless of whether the victim’s age is an element of the offense, evidence of a prior crime with a victim under the age of 14 is admissible. This was a legislative attempt to counter State v. Bernard, 849 S.W.2d 10 (Mo. banc 1993), which held that much of this evidence is inadmissible.

Formerly, the reputation of chastity or proof of prior intimacies of the victim that tended to show an inclination to consent was admissible, State v. Northern, 472 S.W.2d 409 (Mo. 1971), but proof of specific acts with other men was not admissible, State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974); State v. Ruhr, 533 S.W.2d 656 (Mo. App. W.D. 1976). The “Rape-Shield” law, § 491.015, RSMo 2000, now prevents the admission of evidence of previous sexual conduct unless the judge rules such evidence to be relevant. A close review of that statute is necessary, and a proper offer of proof must be made. See the following cases for a starting point of research on this rape-shield law: State v. Gibson, 636 S.W.2d 956 (Mo. banc 1982); State v. Sherman, 637 S.W.2d 704 (Mo. banc 1982); State v. Ray, 637 S.W.2d 708 (Mo. banc 1982).

Corroboration of the victim’s testimony in a rape or incest case may also be necessary, especially when the victim is mature and the evidence is weak. State v. Tompkins, 277 S.W.2d 587 (Mo. 1955); see also State v. Weekly, 223 S.W.2d 494 (Mo. 1949); State v. Warren, 366 S.W.2d 311 (Mo. 1963). Corroboration is required when the testimony was contradictory and in conflict with the physical facts or the surrounding...