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Univ. of South Carolina School of Law

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Thursday, November 8, 2007

Don't Stand So Close to Me: Comparing Arkansas' "Pedophile Exception" with the Federal Rules

I learned through the Court of Appeals of Arkansas' recent decision in Pitts v. State, 2007 WL 3171942 (Ark.App. 2007) that Arkansas has a "pedophile exception" to the general rule prohibiting the use of character evidence to prove that an individual has a propensity to act in a certain manner and acted in conformity with that propensity at the time of the alleged crime. 

Federal Rules of Evidence 413-415 allow for evidence of a defendant's past sexual assaults and acts of child molestation to prove that the defendant did, in fact, commit the sexual assault or act of child molestation with which he is currently charged.  These Rules were enatced as part of the Violent Crime Control and Law Enforcement Act of 1994, despite the overwhelming majority of lawyers, judges, legal organizations, and law professors opposing the laws when the Act was submitted for public comments.

Arkansas, however, has not adopted Rules 413-415, and it appears that its "pedohile exception" is different from these Federal Rules in at least 2 regards.  According to Kassandra M. Bentley's case note, "Lost or Just Bewildered?" 59 Ark. L. Rev. 917, 936 (2007), Arkansas' "pedophile exception" is more limited than the Federal Rules "because it requires the prior act to be helpful in showing a proclivity toward a specific kind of act with a particular class of person with whom the defendant has an intimate relationship."  Thus, for instance, if a defendant in Arkansas were on trial for drugging and engaging in intercourse with a teenager, the prosecutor would likely be unable to introduce evidence that he molested a 7 year-old he was babysitting because the prior act would not show his proclivity toward a specific kind of act with a particular class of person.  Federal Rule of Evidence 414, however, has no such limitation, and thus this evidence would likely be admissible were the case heard in a state adopting this Federal Rule.

The second distinction, which makes Arkansas' exception broader than the Federal Rules, is that Federal Rules of Evidence 413-415 only allow for the admission of conduct that constitutes a crime of sexual assault or child molestation to prove that a defendant committed the sexual crime with which he is charged.  Under Arkansas' "pedophile exception," however, evidence of a past act that did not constitute a crime can be admissible.

Thus, for instance, in Garner v. State, 101 S.W.3d 857 (Ark.App. 2003), a high school teacher was accused of trying to force himself on some of his female students.  The Court of Appeals of Arkansas determined that under the state's "pedophile exception," the prosecutor properly introduced the testimony not only of students claiming that the teacher previously sexually assaulted them, but also, inter alia, the testimony of a former student that the teacher used to stare at her, tell her that she had a nice body, and make other inappropriate comments.  Under Federal Rules of Evidence 413-415, only the testimony about the past sexual assaults would have been admissible.

To me, Arkansas' rule seems better than the new Federal Rules, to a large degree because it it appears more consistent with Federal Rule of Evidence 404(b).  Rule 404(b) allows evidence of other crimes, wrongs, or acts to be admitted to prove that a defendant has a common plan or scheme or modus operandi for committing crimes.  In essence, Arkansas' "pedophile exception" allows evidence under this same modus operandi theory while Federal Rules of Evidence 413-415 allow in evidence of past sexual acts that bear little relation to the crime with which the defendant is charged.   

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