[Congressional Record Volume 140, Number 85 (Wednesday, June 29, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: June 29, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]


                              {time}  2320
 
 MOTION TO INSTRUCT CONFEREES ON H.R. 3355, VIOLENT CRIME CONTROL AND 
                      LAW ENFORCEMENT ACT OF 1994

  Ms. MOLINARI. Mr. Speaker, pursuant to the provisions of rule XXVIII, 
clause 1(c), I offer a privileged motion to instruct conferees on the 
bill (H.R. 3355) to amend the Omnibus Crime Control and Safe Streets 
Act of 1968 to allow grants to increase police presence, to expand and 
improve cooperative efforts between law enforcement agencies and 
members of the community to address crime and disorder problems, and 
otherwise to enhance public safety.
  The SPEAKER. The Clerk will report the motion.
  The Clerk read as follows:

       Ms. Molinari moves that the managers on the part of the 
     House at the conference on the disagreeing votes of the two 
     Houses on the House amendment to the Senate amendment to the 
     bill H.R. 3355 be instructed not to make any agreement that 
     does not include Subtitle E of Title VIII of the Senate 
     amendment, providing for the admissibility of evidence of 
     similar crimes in sex offense cases.

  The SPEAKER. The gentlewoman from New York [Ms. Molinari] will be 
recognized for 30 minutes, and the gentleman from New Jersey [Mr. 
Hughes] will be recognized for 30 minutes.
  The Chair recognizes the gentlewoman from New York (Ms. Molinari).
  Ms. MOLINARI. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I thank the indulgence of my colleagues and I assure the 
Members we will move very quickly, but this is a deadly serious 
subject.
  Mr. Speaker, this motion instructs the conferees to accept language 
in the Senate crime bill that changes the Federal Rules of Evidence to 
let prosecutors in two cases, sexual assault and child molestation, to 
introduce evidence that the defendant has committed similar crimes in 
the past. This same language was adopted by the other body 75 to 19 and 
is part of their crime bill.
  Mr. Speaker, The People versus Hansen. In this case the defendant, 
Hansen, was found guilty of inducement of child prostitution and 
attempted sexual assault on a child. Hansen had been the subject of a 
police investigation after parents complained that he had engaged in 
obscene telephone conversations with their preteen daughters. The 
investigation showed that the defendant's name and phone number were 
common knowledge at a junior high school, and when the girls called 
him, he would ask them to come to his residence to have sex with him. 
He would then give them money and arrange necessary transportation. 
Conversations were taped by the police in which he made this 
proposition to two 11-year-old girls.

  In order to apprehend Hansen, the police had one of the girls call 
him and have him send a cab to take her and her sisters to his 
residence. Hansen was arrested as he paid the girls' cab driver.
  The evidence at the trial included testimony by two other young girls 
that the defendant had also solicited sex with them in phone 
conversations. However, the appellate court held that admission of the 
testimony with the other two girls was reversible error because this 
evidence was ``unnecessary to establish intent'' and hence, in the 
court's view, ``was without a valid purpose.''
  Mr. Speaker, this happens time and time again in sexual assault and 
in child molestation cases where there are no witnesses other than the 
victim. This allows, it does not mandate, a judge's discretion in only 
those two instances, when he or she thinks that the cases are similar 
and relevant enough to introduce prior evidence of past convictions.
  Mr. Speaker, this will allow the States and the Federal Government to 
proceed to convict and apprehend and put away child molesters and 
sexual assaulters without fear of technical overturning.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HUGHES. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in strong opposition to the motion to instruct 
conferees. I do so on two grounds. It is very difficult to argue 
against something that would suggest that in some way we are going to 
make it easier for child molesters or sexual abusers to walk.
  First of all, Mr. Speaker, we in the Congress many years ago set up 
an extensive process called the Rules Enabling Act, which has served us 
well for a long time. Under this particular process, changes in the 
rules of evidence and procedure for Federal courts originate not in the 
Congress but in the federal court system. We decided that a long time 
ago.
  The governing body of the Federal courts, the Judicial Conference of 
the United States, develops and proposes rules changes which must be 
approved by the Supreme Court before being submitted to Congress. The 
changes go into effect 6 months later unless rejected or modified by 
the Congress. The Federal Rules of Evidence, like all other Federal 
rules, affect the daily business of all of our courts, and also serve 
as a pattern for many State procedural rules.
  In fact, on the Rules Enabling Panel we have State court justices, we 
have constitutional scholars, the Chief Justice makes the appointments, 
and it has served us well over the years.
  The pervasive and substantial impact of the Federal Rules demands 
exacting and meticulous care in drafting amendments. This is not 
evident in the proposal before us. The existing rulemaking process 
involves a minimum of six levels of scrutiny or stages of formal 
review. This has gone through none. This is an amendment offered on the 
floor of the Senate after about 20 minutes' debate, without very much 
thought, and it is procedurally and substantively flawed. There has 
been no debate about the impact it would have on criminal or civil 
cases.
  Mr. Speaker, I think it is the height of irresponsibility to suggest 
that we change our rules of evidence on the basis of no hearings, 
totally abandoning the process we have set up that served us well. The 
proposed new rules of evidence, this particular rule would create an 
exception to rule 404(a), which excludes admission of a person's 
character for the purpose of proving action in conformity therewith on 
a particular occasion.
  In effect, Mr. Speaker, 404(a) states that we cannot convict a person 
for a particular crime based on past conduct of a similar nature. In 
prosecutions of sexual assault or child molestation offenses, this type 
of evidence would be particularly prejudicial.
  These proposed new rules of evidence changes would go further and 
allow admission of evidence, not conviction. We are talking about 
allowing evidence, not a record of conviction. Even if the defendant 
had been acquitted of the charges on previous occasions, any evidence, 
regardless of conviction, could be offered under this particular rule 
of evidence.
  Mr. Speaker, there is the ``no need for a conviction'' language in 
the proposal that makes admissible all evidence of the defendant's 
commission of another offense that is similar in nature. I know that in 
our actions on crime bills we all have a tendency to want to be tough, 
sound tough, but come on, this is ridiculous. It is ridiculous.
  Frankly, Mr. Speaker, what the gentlewoman is doing, it raises 
serious constitutional questions. If the only evidence in the 
prosecution's case-in-chief is evidence that is hearsay or was rejected 
by a previous jury when they acquitted the defendant, it raises 
constitutional questions as to whether the conviction could stand.
  Mr. Speaker, this has not been thought through. We ought to reject 
this.
  Mr. Speaker, I reserve the balance of my time.
  Ms. MOLINARI. Mr. Speaker, I yield myself 1 minute to respond.
  First of all, we did not have hearings on this measure in this body, 
that is accurate. That is not by fault of this gentlewoman. I went 
before the Committee on Rules for the last three years to try to get a 
hearing in the people's body and was denied that opportunity.
  Number two, to instill a judicial conference to study this bill, this 
effort has been part of every crime bill that has left this House, but 
has failed to be passed into law by this Congress while the current 
system goes unchecked and unheeded.
  Number three, with due respect to the gentleman from New Jersey [Mr. 
Hughes], I think if we talked to any one of the victims or the parents 
of the victims whose assailant has been allowed to go free because of a 
technical difficulty, they would not deem this measure ridiculous, and 
they would not agree to the statement that the current system serves us 
well.
  Mr. Speaker, I yield 3 minutes to the gentleman from Arizona [Mr. 
Kyl].
  (Mr. KYL asked and was given permission to revise and extend his 
remarks.)
  Mr. KYL. Mr. Speaker, under the Federal Rules of Evidence, prior 
similar offenses may be admitted at trial even when the defendant has 
not been charged with offenses, but there is no Federal rule expressly 
authorizing such admissibility in the sex crime context. Ironically, 
Mr. Speaker, this is the context in which it is needed the most.

                              {time}  2330

  In other context, such evidence is permitted to prove motive, 
opportunity, intent, knowledge or absence of mistake. In sex-related 
crimes, it can be particularly useful to demonstrate a propensity of 
the accused to commit similar prior offenses.
  We are not talking about allegations. We are talking about prior 
offenses. So that if as the gentlewoman from New York pointed out in 
the case that she discussed there is a clear pattern of conduct by an 
accused who has been convicted of similar conduct in the past and the 
case revolves around a question of belief of his word or her word, the 
evidence of that prior offense has probative value to determine the 
guilt of innocence of the accused. In that situation, the judge ought 
to have the discretion to admit the evidence.
  It is not automatic. The judge simply would be permitted the 
discretion to admit the evidence in this limited situation. The judge 
still has total discretion to exclude the evidence if its probative 
value is substantially outweighed by the danger of unfair prejudice to 
the defendant.
  Mr. Speaker, there is no taking away of the rights of the accused. It 
is only in a very limited circumstance in which the judge would allow 
the evidence but an important circumstance, a circumstance in which 
perhaps the only credible evidence for the jury because of the dispute 
between the only two people who know what happened is evidence of 
offenses of similar conduct in the past.
  This is an important but small step for us to take to begin to grant 
the victims of crime equal protection in our criminal justice system.
  Mr. Speaker, as the gentlewoman pointed out, the reason we did not 
have an opportunity to have the debate on this is because we were 
denied that opportunity by the Committee on Rules. But the Senate 
approved this language by a vote of 75-19. It is important for us to 
instruct our conferees to agree with the Senate provision to take this 
small step for justice for the victims of crime in our society. I urge 
a ``yes'' vote.
  I have appreciated working with Representative Molinari on this 
important issue. Sexual violence is one of the most troubling issues 
facing our Nation today, and the importance of State and national 
commitment to strengthening laws against sexual violence cannot be 
underscored.
  Let me start by stating some of the statistics, often heard, but 
important enough to this debate to mention again. Police records 
indicate a woman is raped every six minutes in the United States. 
According to the Uniform Crime Report sponsored by the FBI, four women 
are raped every day in Arizona. In Phoenix alone last year, there were 
476 rapes reported. And, according to National Victim Center 
statistics, of these sexual violence victims only around 22 percent 
report the crime to police. According to the same group, we spend ten 
times more in resources defending those accused of sexual assault than 
we spend in helping the victims of sexual violence.
  And, yet, behind the shocking statistics of sexual violence there 
lies a criminal justice system that oftentimes works more for the 
accused than for the victim. Take the following example:

       On May 4, 1986, Suzanne Harrison, an 18-year-old honor 
     student in Texas, three weeks away from high school 
     graduation, was abducted. The next day she was found raped 
     brutally beaten and strangled to death. She was murdered by a 
     parolee named Jerry Walter McFadden, a man who calls himself 
     ``Animal.'' McFadden had been convicted of two 1973 rapes and 
     sentenced to two 15-year sentences. Paroled in 1978, he was 
     again sentenced to 15 years in 1981 for a three-count crime 
     spree in which he kidnapped, raped, and sodomized a Texas 
     woman. Released on parole again in July of 1985, even though 
     his record now contained three sex-related convictions and 
     two prison sentences, McFadden raped and murdered Suzanne 
     Harrison less than one year later.

  Clearly, if a criminal justice system were better able to keep 
rapists in jail, Suzanne Harrison and thousands of other victims might 
be alive today.
  Tonight, we have the opportunity to instruct conferees to make a 
small but important change to our criminal justice system so that 
victims of sexual abuse and child molestation are not revictimized once 
they bring charges against a perpetrator and enter into the court 
system. Members can do this by approving this motion to instruct crime 
bill conferees to accept section 831 of the Senate-passed crime bill.
  This important provision would amend the Federal Rules of Evidence to 
make it easier for prosecutors in sexual violence and child molestation 
cases to introduce evidence showing that the accused has committed 
similar sexual assault crimes in the past. This very amendment, 
introduced by Senator Dole, passed 75-19 during debate on the Senate 
crime bill. The amendment is also a provision of H.R. 688, the Sexual 
Assault Prevention Act, which Representative Molinari and I have 
introduced to combat sexual and domestic violence. There are currently 
113 bipartisan cosponsors of our bill.
  Unfortunately, House Members did not have an opportunity to vote on 
the Federal Rules of Evidence amendment. Representative Molinari and I 
both offered amendments during Rules Committee consideration of the 
crime bill to change the Federal Rules of Evidence in the same manner 
that Senator Dole's amendment does; but, the Rules Committee would not 
permit its consideration, so this is your first opportunity to vote on 
this provision.
  It is critical that we accept this provision of the Senate bill. Its 
effect is to help ensure that the criminal justice system is not skewed 
unfairly toward the rights of the accused at the expense of the victim.
  It will go a long way toward helping to neutralize the psychological 
damage a sexual assault or child molestation victim experiences going 
thorough the judicial process. And, it will provide a model upon which 
States can base reforms of their own rules of evidence.
  In most rape or molestation cases, it is the word of the defendant 
against the word of the victim. If the defendant has committed similar 
acts in the past, the claims of the victim are more likely to be 
considered truthful if there is substantiation of other assaults.

  It is also common in rape and child molestation cases that the victim 
is too traumatized, intimidated, or humiliated to file a complaint and 
go through the full course of proceedings of a criminal prosecution. 
Nevertheless, the victims in such cases are often willing to bear the 
burden of testifying when they know that the person who marred their 
lives has also victimized others and that these revelations will come 
out at trial. According to Justice Department statistics released last 
week, girls under 18 are the victims of more than half the rapes 
reported to police. Allowing the prosecution to bring to trial similar 
child molestation crimes of the accused will certainly held these young 
victims bring their attacker to justice.
  It is important to note that the Senate provision does not require 
that evidence of prior sexual assault be admitted. The trial court 
retains the total discretion to include or exclude this type of 
evidence moreover, under the Senate provision the defendant would have 
fifteen days notice of the evidence to be offered and cross examination 
would be allowed. Essentially what this amendment does is make it clear 
that a judge will not necessarily be reversed on appeal of he admits 
evidence of prior similar acts in sex related cases. The judge retains 
the discretion to exclude the evidence if its probative value is 
substantially outweighed by the danger of unfair prejudice to the 
defendant.
  Mr. Chairman, this should not be controversial. For the thousands of 
individuals who are victims of sexual violence every year, we should 
strengthen our sexual violence laws by instructing conferees to include 
section 831 in the crime conference report. Members should not pass up 
this opportunity to make a positive difference in the lives of those 
who have experienced the tragedy of sexual assault and child 
molestation. Members should vote yes on this motion to instruct.
  Mr. HUGHES. Mr. Speaker, I yield myself such time as I may consume.
  Let me just say to my colleague, the gentleman from Arizona, I do not 
know whether he heard my original statement, but that is not the 
process. We have a rules enabling act that we created. We have a 
process, the Judicial Conference of the United States is the one that 
takes the testimony, basically decides changes in the rules of evidence 
and they implement them. We have the right to reject. We are basically 
circumventing the process that we set up. It is not the Committee on 
Rules of this House that basically works its will on rules of evidence. 
It was done so that we should have the kind of expertise and 
consideration that the Judicial Conference of the United States would 
provide.
  Mr. Speaker, I yield 3 minutes to the gentleman from New York [Mr. 
Schumer].
  Mr. SCHUMER. Mr. Speaker, I thank the gentleman for yielding me the 
time.
  Mr. Speaker, I would say to my colleagues that this is something that 
is one of the most inadvisable things that we could do if we believe in 
the criminal law.
  I believe as strongly as anybody that we ought to go after people who 
commit crimes, sexual crimes, and rape. But we should do it based on 
the laws of evidence. Make no mistake about it, my colleagues, this 
would say, not just a conviction but any allegation at all would be 
admissible in a court, not for all crimes but for these crimes. That is 
turning our system of due process on its head.
  Let me state, why do you think the NOW legal defense fund, one of the 
strongest women's groups in this country that has made a campaign to 
eliminate rape, to eliminate sexual harassment, why are they opposed to 
this? They are very simply opposed because this is the kind of measure 
that does not belong in a system where we talk about freedom, where we 
talk about due process, where we talk about evidence. To say that any 
allegation for these particular cases shall be admissible in court is a 
very, very serious matter, I would argue a serious mistake, but if we 
are going to do this, then we ought to be very careful about where and 
when we do it and not just rush headlong into passing a motion like 
this which while I know is not binding would say something terrible 
about our beliefs in how we prosecute criminals.
  Mr. Speaker, I do not believe that the Civil Liberties Union is right 
on every issue, but this goes so far beyond.
  Mr. Speaker, I would simply say that to say that any allegation 
whatsoever for these two crimes shall be admissible as evidence, not a 
conviction, not even something that was admitted in court, but any 
prior evidence would be a serious mistake. I would ask my colleagues to 
think twice before we rush to pass something that so flies in the face 
of what Anglo-Saxon jurisprudence has stood for for 200 years.
  Ms. MOLINARI. Mr. Speaker, I yield 2 minutes to the gentleman from 
Oklahoma [Mr. McCurdy].
  (Mr. McCURDY asked and was given permission to revise and extend his 
remarks.)
  Mr. McCURDY. Mr. Speaker, unfortunately I believe the American public 
is tired of hearing about process and rules, especially when we see the 
fact that the gentlewoman was not offered an opportunity to present 
this amendment and have it fully debated.
  Mr. Speaker, I rise in strong support of the gentlewoman's motion to 
instruct and urge its passage.
  (By unanimous consent Mr. Michel was allowed to proceed out of 
order.)

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