chevron-down Created with Sketch Beta.
July 20, 2022 Practice Points

Missouri Criminal-Defense Attorneys Not Required to Inform Sexual-Assault Victims of Rights

A Missouri statute requiring criminal-defense attorneys to provide information to sexual-assault victims about their rights before interviewing them has been found unconstitutional.

By James R. Wyrsch and Hannah Besermin

Criminal-defense attorneys cannot be mandated to inform sexual-assault victims and/or survivors of their rights. Mandating such actions violate defense attorneys’ rights to freedom of speech as declared by the First Amendment of the U.S. Constitution according to a recent decision by the Missouri Supreme Court invalidating a Missouri statute. Fox v. State, 640 S.W.3d 744 (Mo. 2022).

In August 2020, legislation relating to victims of sexual offenses was enacted by Missouri Senate Bill No. 569. Included within this legislation was Missouri Revised Statute, section 595.201. Among other things, this section mandated criminal-defense attorneys to provide information regarding the rights that survivors of sexual assaults have before conducting interviews of them. In an action for declaratory and injunctive relief, the constitutionality of this provision was challenged. The challengers alleged that provisions within section 595.201 violated, “a defense attorneys’ right to freedom of speech under the First Amendment . . . [and the] Court's ability to regulate the legal profession under the Missouri Constitution” among other things. Fox v. State, 640 S.W.3d 744 (Mo. 2022). The circuit court determined that section 595.201 as applied to defense attorneys was constitutionally invalid and violated defense attorneys’ rights to freedom of speech.

In March 2022, the Supreme Court of Missouri, affirmed the circuit court’s decision. The court found that strict scrutiny applies to the provision, as section 595.201.2(4) does not “incidentally burden speech,” it “specifically compels speech.” Id. Since the requirements of the statute can be achieved through other means and are not limited to specific circumstances, the strict-scrutiny burden is not met. Thus, section 595.201 as applied to criminal-defense attorneys is constitutionally invalid, as it violates criminal-defense attorneys’ free-speech rights, infringing on their First Amendment constitutional protections. Criminal-defense attorneys practicing in other states should be aware of this ruling in preparation for similar laws within their states.

James R. Wyrsch is with Wyrsch Hobbs Mirakian P.C. in Kansas City, Missouri. Hannah Besermin is a JD candidate at University of Missouri-Kansas City School of Law.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Copyright © 2022, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).