By Glynis Kazanjian
A bill to allow evidence in court of sexual predatory behavior by people accused of sex crimes advanced last week in the Senate, but chances of the legislation progressing in the House are dim, with one committee leader wanting judges to decide the issue.
The Senate Judicial Proceedings Committee passed an amended bill Thursday that will effectively allow prosecutors to introduce evidence of other sexually assaultive behavior by defendants. Maryland courts typically never allow that unless it is for the same victim.
The amended Senate bill, SB270, would allow prior or current evidence of sexually assaultive behavior if it could help prove a lack of consent by the victim or rebut an allegation that the victim fabricated the assault. Under current state law, prosecutors are prohibited from entering such evidence if the defendant claims the alleged victim consented to the act or fabricated it. Yet federal law allows it.
The Senate bill also keeps in place protections for the accused by allowing a judge to determine if the evidence could unfairly prejudice the defendant.
“The bottom line is that we put out a really good work product,” said Sen. Jim Brochin, D-Baltimore County, who has repeatedly sponsored the bill. “I hope the House considers it. Right now in Maryland judges almost never let this testimony come in.”
Problem in House Judiciary
Proponents of the law, however, say House Judiciary Chairman Joseph Vallario Jr., a defense attorney, will not allow a committee vote to advance the House version of the bill.
Lawmakers and advocates in support of the “prior bad acts” legislation, as it is known, say similar versions of the bill have been introduced in the legislature for the last 14 years, but each time the bill dies in the House. Vallario has chaired the Judiciary Committee since 1993.
A version of the bill must be passed in both legislative chambers for it to have a chance to become law.
“I am not so happy to be here before you on the Repeat Sexual Predator Offender Act of 2018,” said Del. Vanessa Atterbeary, D-Howard County, at a Jan. 30 Judiciary Committee bill hearing.
Atterbeary is the lead sponsor of the House companion bill, HB301. “This bill has been before you since 2004. It is my opinion that [recent crimes] could have been prevented. I am here on behalf the 40 plus children who were sexually abused by their teacher’s aide in Charles County just recently who was HIV positive at the time. I am here on behalf of the multiple women who got into what they thought was an Uber car in Baltimore City and were taken back to Howard County and raped. We are failing the women and children of Maryland.”
In an informal interview Thursday, Vallario and Judiciary Committee Vice Chair Kathleen Dumais, D-Montgomery, disagreed on what action on the bill should occur next. No action has been taken on HB301 since the Jan. 30 hearing.
Court of Appeals Rules Committee
“We’re considering it,” Dumais said. “We’re looking at language. We are considering a couple of versions, as well as what’s been introduced. We have a slight disagreement. I think that issue as a rule of evidence would be better handled in the Rules Committee [of the Court of Appeals. But] the legislature certainly has jurisdiction.”
During the Jan. 30 hearing, Dumais told Atterbeary and Baltimore City State’s Attorney Marilyn Mosby while she thought they were qualified to work on the legislation, she believes it is important to have “the right people at the table” to handle rules of evidence. She said recently the Court of Appeals Rules of Practice Committee agreed to take it up.
“I think we need to have the members of the bench, as well as criminal defense lawyers, as well lawyers that have practiced in other areas to be able to hash this out,” Dumais said.
Panel members expressed concern about the delay that would be created by placing it with Rules, estimating it could take three to four years. Dumais said she disagreed with the timetable.
Vallario questioned whether the Rules Committee would have time to take up the bill.
He also indicated the outcome of a Bill Cosby case in neighboring Pennsylvania would set his timeline for the Judiciary committee.
“The real question is whether or not the Rules Committee will take the time to do the work that is necessary on this subject that is very different all over the country,” Vallario said. “There was an article in the paper on Bill Cosby’s thing. We kind of [are] looking to see what that judge is going to do. That was in front of him — the issue to whether prior bad acts can come in.”
The full Senate is expected to take up SB270 this week, Brochin said.
Lynn Mclain, a professor of law at the University of Baltimore School of Law who reviewed the amended Senate bill, said, “A law like this is desperately needed in Maryland,” to effectively prosecute sex offenders.
“In Maryland, because this evidence is inadmissible now, you can’t join [cases at] a trial,” Mclain said. “In Jerry Sandusky, they joined crimes. You can’t do that in Maryland. The Bill Cosby case — you can’t bring it in Maryland.”
Gov. Larry Hogan introduced his own version of the repeat sexual offender bill, HB353, but a spokesperson signaled the governor would support Atterbeary’s bill.
Mosby said she is encouraged by the Senate bill, but the fight remains in the House.
“This legislation, even with the proposed amendments, will help prosecutors across Maryland secure justice for sex abuse survivors and will put a stop to serial sexual predators who endanger the safety of Maryland women, children, and men,” Mosby said. “While this movement, which is now supported by every legislative caucus, has garnered momentum, the fight is not over. This legislation must also receive a favorable report from the House Judiciary Committee and the House of Delegates, so we must fight on.”
This bill is unconstitutional because it violates due process. A person’s past does not mean that the accused is automatically guilty.