The State of Texas has made it easier to convict individuals charged with sex crimes against children by allowing evidence of completely unrelated bad acts to be admissible at trial. While the rest of the Country seems concerned about preventing wrongful convictions, Texas has passed legislation that will most add to the numbers of those people falsely accused and mercilessly prosecuted for crimes they did not commit.


Article 38.37 Texas Code of Criminal Procedure has been amended to allow evidence of uncharged allegations, separate from offense charged in the case, to be admitted for any bearing the evidence has on relevant matters, including character of the defendant.


Rule 413 of the Federal Rules of Evidence expressly permits the use of prior sexual assault offenses “for its bearing on any matter to which it is relevant” in a sexual assault prosecution. Similarly, Rule 414 permits the use of prior child molestation offenses in child sexual abuse prosecutions. In order to permit the use of such extraneous offense evidence, a federal trial court is required to conduct a Rule 403 “balancing test” which instructs that such evidence be excluded if its potential for “unfair prejudice” outweighs its probative value. The federal appeals courts have uniformly held the balancing test should be tilted in favor of probative value over unfair prejudice in order for these relatively “new rules” to have their intended effect. Put simply, Congress intended that Rule 414 evidence would almost always be “exceptionally probative” because it establishes a defendant’s sexual interest in children.


The Texas Rules of Evidence did not have either a similar Rule 413 or 414 until this past legislative session. Sen. Joan Huffman, R-Houston, remedied this situation with the introduction and passage of a bill that tracks some of the language in Federal Rule 414. Last December the Austin American-Statesman carried a quote by the tough, law-and-order Republican lawmaker shortly after she filed the bill:


“Sexual assault cases are often difficult to prosecute and may not have any relevant evidence other than the testimony of the alleged victim,” the former Houston prosecutor and judge said. “When the testimony of a young child is all the evidence the State can present against the word of an adult, juries often find it difficult to determine guilt beyond a reasonable doubt … If there have been outcries by other children against the same defendant, their testimony can be relevant and have crucially important value.”


Lt. Governor David Dewhurst and Attorney General Greg Abbott supported Huffman’s efforts to have Texas become the 12th state of adopt Federal Rules 413/414 legislation. It’s a rather strange irony that conservative politicians like Huffman, Abbott and Dewhurst who rail against the federal government suddenly decide to pass a law fashioned after a federal one. The new Huffman law reflects a continuing trend by the Texas Legislature to make it easier to prosecute child sexual abuse offenses, offenses which, because of the obvious sympathies involved, also carry the greatest potential for wrongful convictions. Dewhurst explained at Huffman’s new conference last December:


“Here in Texas we are serious about getting child predators off the streets and out of our neighborhoods. By allowing evidence of prior sexual assaults offenses to be admitted in a case, Senate Bill 12 will strengthen Texas’ Jessica’s law and help protect our children from these dangerous criminals and put them behind bars once and for all. This session, we are sending a strong clear message to those looking to harm our kids: not in Texas.”


Listening to Huffman and Dewhurst, Texas is suffering from a crisis of child sexual abuse. Amanda Van Hooser, director of program services with the Austin Center for Child Protection, fueled this perception by pointing out in support of the Huffman legislation that 65,000 Texas children in 2011 were identified as victims of abuse and neglect. What Van Hooser failed to point out was that just 6 to 9 percent of those children were victims of sexual abuse, and approximately 90 percent of that abuse occurred within the family unit or by someone known to the victim.


This new rule of evidence by Sen. Huffman, we believe, is just another manufactured crisis by conservative politicians designed to enhance their law-and-order bona fides, an obvious attempt to grab low hanging fruit for good PR.  Sen. Royce West, D-Dallas, was quoted in the Houston Chronicle as opposing the Huffman bill. West said the evidence rule change would bring about “more wrongful convictions.” Evidence of prior sexual assaults never adjudicated in a court of law would lead jurors, according to West, to believe the defendant “must have done something wrong.”


The fact that prior sexual assaults do not have to be convictions, just accusations, also troubled Sen. Robert Duncan, R-Lubbock, who also told the Chronicle that the pre-Huffman bill rules of evidence in Texas were “designed to protect liberty” but that Huffman’s law allows jurors to hear “allegations that have never been vetted by a grand jury.”


The Chronicle spoke with local attorney Pat McCann and University of Houston law professor Adam Gershowitz about Huffman’s bill before it became law. McCann said the evidence rule change was a “terrible idea.” While maintaining public civility, McCann pulled no punches about why he thought it was a bad idea: “With all due respect to Senator Huffman’s sincere commitment to protecting victims of violent crime, this is probably one of the worst ideas that any senator has ever come up with.”


Professor Gershowitz was more tolerant. He pointed out that while defense attorneys say evidence of prior sexual misconduct puts them at a disadvantage because it irreparably prejudices the defendant in the current case for which he is being tried, the law professor also said prosecutors face a difficult hurdle to surmount because defendants in rape cases generally claim the sex was consensual and, thus, evidence by the prosecution of similar prior sexual misconduct undermines the consent defense. “That’s why it’s a very hard issue,’ Gershowitz told the Chronicle. “I don’t know which side is right.”


The issue is not hard for those who see the justice system as a venue for fair play.


Currently, Texas law prohibits a defendant from introducing evidence of an alleged adult rape victim’s prior promiscuous sexual conduct and prevents a defendant from presenting evidence of an alleged child sexual abuse victim’s history of lying and making false allegations. Equally significant, a defense of fabrication, frame-up or retaliation by a defendant in a child sexual case can be rebutted by the prosecution with evidence of prior sexual misconduct by the defendant.


The rules of evidence are clearly stacked against a defendant accused of any kind of sexual assault offense in Texas, especially those involving a child. A defendant faced with any sexual offense against a child must deal with the “sexual predator” prejudice fueled by law-and-order politicians and extreme crime victim advocates. Under Huffman’s law, the prosecution can now force a defendant to defend against the indicted offense and other un-indicted allegations, regardless of their truthfulness. We agree with Sen. West: the Huffman law is indeed a recipe for wrongful convictions.