Family and advocates want solution to legal loophole after the death of Audrii Cunningham

As mourners prepare for the funeral of 11-year-old Audrii Cunningham, who was killed near Houston, the community wants answers about how the suspect in her death was allowed to remain free despite a long criminal history of violence.

Nearly two decades years before Don McDougal was charged with capital murder in Audrii's slaying, he was accused of indecency with a child by climbing into another Texas girl's bed and attempting to undress her. That previous case was pleaded down to a lesser charge of enticing a minor, allowing him to remain off the state sex offender registry, according to Brazoria County documents.

Last year in the county where Audrii’s family lives, McDougal was accused of a stabbing a man, but authorities said they didn't have enough evidence at the time to arrest him on a charge of aggravated assault.

Now, her family and victim advocates are calling on lawmakers to close the legal loophole that allowed McDougal to stay off the sex offender registry and question what they see as the failure of the criminal justice system to keep Audrii safe.

Wayne Davis, the father of the child McDougal pleaded guilty to enticing in 2008, said the legal system “failed my daughter 100% and failed Audrii and who knows how many other children.”

“The system is not made to protect our kids,” Davis said.

McDougal, 42, a family friend, was supposed to be taking Audrii to the school bus stop when she disappeared on Feb. 15. Her body was found in a river this week and her funeral is set for Saturday.

In a statement sent earlier this week to KPRC-TV in Houston, Audrii's father and grandmother said “the system failed us” because, despite McDougal's history of targeting female children, he was not listed in the sex offender registry when they checked before allowing him to stay in a camper on their property in Livingston.

“Had we been aware of what we know now, this man would never have set foot on our property, much less been a part of our little girl’s life,” the statement said.

Chad Etheridge, who has been appointed to represent McDougal, did not respond to messages left by phone and email.

Since finding out about the legal loophole, Andy Kahan, director of victim services and advocacy at Crime Stoppers of Houston, has begun a campaign to change state law.

Kahan, whose nonprofit aims to solve and prevent crime in the area, said he is in talks with legislators to add enticing a child, when the crime involves a sexual element, to the list of offenses required to register on the state's sex offender registry. The measure, which would be named after Audrii, has received early support from lawmakers, he said.

“We are naming another law after another dead kid," Kahan said. "That’s reality.”

State Rep. Trent Ashby, a Republican who represents Livingston, said in a statement that he is committed to making the change during the state’s next legislative session in 2025.

“I am deeply troubled by the notion that a legal loophole may have allowed a monster to carry out such a senseless and wicked act of violence," said Ashby, who is seeking reelection this year.

Mary Sue Molnar, executive director of Texas Voices for Reasons and Justice, a nonprofit that supports people required to register as sex offenders and their families, said she hopes the extent of any proposed law remains limited and doesn't group everybody into the same category.

Molnar said she views McDougal as an isolated case that she has “no idea how he slipped through the process” and wonders how effective a new law will be if prosecutors continue to allow plea deals for lesser crimes.

The larger question Molnar has in this case is why McDougal was not arrested when first identified by the victim in a stabbing last year.

The lawyer who represents David Stanley, the person stabbed outside his Polk County home last fall, said he is unsure what changed after his client called police to identify McDougal as a suspect in September.

David Feldman said his client was stabbed after going to help a woman who claimed she and a man she was traveling with— later identified as McDougal— were having car trouble.

In a November audio recording obtained by The Associated Press, Stanley's girlfriend confronts Polk County Sheriff Byron Lyons about why McDougal has not been detained despite being identified by the victim and matching the description.

“We messed up and we are trying to get the answers for what happened," Lyons responds to the woman in the recording.

The Polk County Sheriff's Office declined to comment to the AP on the recording, adding that it would not comment on any of McDougal's charges until the cases were tried.

Though Stanley originally misidentified the suspect in his stabbing, he later corrected his statement. Feldman said police did not arrest McDougal then but did so earlier this month after Stanley called police when he identified McDougal’s photo from seeing coverage of Audrii’s disappearance.

“That is the big question — why is he allegedly believed for the first time on Feb. 16 and not before?” Feldman said.