Document Type

Brief

Publication Date

2018

Abstract

Montana’s pending certiorari petition in Montana v. Tipton provides the Supreme Court with an opportunity to review the important issue of when States are permitted to revive criminal cases based on newly discovered DNA evidence. Until recently, many states have had child sex abuse statutes of limitation that have made it difficult for prosecution to occur. In Stogner v. California, 539 U.S. 607 (2003), the Supreme Court addressed California’s attempt to address the injustice by reviving expired criminal statutes of limitations in all cases of child sex abuse. In a 5-4 decision, the Court held that the California law violated the Ex Post Facto Clause. For a narrow majority of the Court, the blanket revival of criminal claims went too far. Since Stogner, the science of DNA evidence in sex assault cases has become increasingly sophisticated and reliable and states have begun to enact laws to permit prosecution of child rape where conclusive DNA evidence becomes available. This deeply reliable evidence justifies the reopening of a child sexual abuse case even when the statute of limitations previously expired, because it does not raise the risk of unfairness to the perpetrator. It is also necessary to prevent further abuse by the now-identified perpetrator. In this case, eight-year-old L.T. was raped in her home in the middle of the night. Evidence was gathered immediately. The wrong man served a decade in prison due to a false conviction. It is now possible, due to a later-discovered DNA match with the actual perpetrator, to hold the right man accountable. This case is a proper vehicle for the Supreme Court to consider the appropriate interpretation and limits of Stogner v. California. By permitting prosecution of child abuse perpetrators, this Court would not only be providing particular victims access to much-needed justice but would also be aiding in the incarceration of dangerous sexual predators before they could abuse more children. Nothing in the Constitution forbids these laudable conclusions.

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