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—– By: Ann Costantino —–
State officials are seeking support for a cross-filed bill that could allow prosecutors to submit evidence of defendants’ prior sexual offences in trials where those defendants are being accused of sexually assaultive behaviors.
The legislation, which resembles a federal law, and has already been adopted in at least 35 states, would allow prosecutors to submit the evidence 90 days before a trial when the case involves an issue of consent or if the defense is claiming fabrication of a minor.
Allowing prosecutors to submit such evidence could establish a pattern of previous sexually assaultive acts by the same accused sexual predator.
Baltimore City State’s Attorney Marilyn Mosby (D) and state legislators, Sen. Jim Brochin (D) and Del. Vanessa Atterbeary (D), are pushing for the legislation. However, committee members from Maryland’s General Assembly, who have the power to bring the issue to vote, have failed to do so; and the lack of action could kill the legislation, cross-filed by Atterbeary and Brochin, which Brochin has fought to have passed for 14 of the almost 16 years he has served as a Maryland state senator.
Sen. Brochin, a Democrat who is running for Baltimore County Executive, said during a January press conference, “it’s the most important issue in the criminal justice system that can be passed and which can make a difference.”
Brochin said, “I think that women that have been sexually abused, where it has happened over and over again to others, need to have a voice; and this is how we’re going to get them to have a voice…It is time to do this.” He said, “It is time to make Maryland move forward. Remember, this has been law in the federal government since 1994. This has been law or the rule in more than half the states in this country and this gives women a voice, and it is time to do this.”
State’s Attorney Mosby, who tries such cases and seeks the ability to submit evidence such as the bill – if passed – would allow, says she has also prioritized this legislation for her entire five years she has served in her role. “This bill is aimed squarely at holding serial rapists and serial child molesters accountable for their crimes,” said Mosby at the press conference. “As we have all witnessed throughout the past year, serial sexual predators that rape women and men and molest children often do so time and time again,” she said.
“From Harvey Weinstein to Bill Cosby to … Larry Nassar, serial sexual predators have finally become the subjects of a national conversation. Why are we having this national conversation in 2018?” Mosby asked. “Because survivors are no longer remaining silent and have empowered one another by calling out their attackers and speaking truth-to-power,” she said. “#METOO, #TIMESUP — these are the movements that we stand for today,” Mosby said.
Maryland prosecutors are currently unable to introduce defendants’ prior sexual assault history (or accusations made by other accusers) as evidence, which opponents say creates unfair prejudice and, in some cases, the opportunity for false statements by juveniles and adult accusers.
Yet, in the wake of recent national reports of repeat sexual offenders, proponents of the bill see predatory behavior as repetitious, involving multiple victims – sometimes hundreds – by the same perpetrator.
The admission of evidence, in other words, could demonstrate a history of the behavior and intent to commit the act on alleged victims taking perpetrators to court.
In the case of Larry Nassar, for instance, the former Team USA gymnastics doctor was accused of sexually assaulting and molesting nearly 160 young women, starting as early as the 1990s.
Nassar, who was tried in Michigan, was convicted last month after pleading guilty to 10 counts of first-degree criminal sexual conduct and is serving concurrent prison sentences, which span 40-175 years, for hundreds of sexual assaults and cases of child pornography.
Unlike Michigan, Maryland law currently lacks a method for prosecutors to allow previous sexual wrongdoing – which can span decades such as with Nassar – from being entered into these cases as evidence, tying the hands of state prosecutors, such as Mosby.
Last year, even after exhaustive testimony was presented on a series of rape victims, the 2017 version of the Repeat Sexual Predator Act again failed to become law. Among those who opposed the bill were the Maryland Legislation Committee, the Maryland State Bar Association and the State of Maryland Office of the Public Defender.
The Legislative Committee stated that that law would permit the court to “admit into evidence prior sexually assaultive behavior proven by clear and convincing evidence,” saying it would “allow the demonstration of a propensity to commit a particular type of crime as a persuasive element of prosecution.” The committee said doing so would be unconstitutional.
The Bar Association stated the bill was an “unnecessary legislative attempt to codify the rules of evidence,” stating that a Maryland rule excluded such evidence when it was “substantially outweighed by the danger of unfair prejudice or confusion of the issues.”
The Office of the Public Defender opposed the bill, citing a rule that does not allow the courts to use previous wrongdoing in order to “prove the character of a person.”
Detailed accounts of rape and other sexual assaults accompanied pages of letters of support of the bill last year. Baltimore County State’s Attorney Scott D. Shellenberger, the Woman’s Law Center and the Baltimore Child Abuse Center each cited accounts that they said demonstrated a clear need for the law.
In some cases, a precedent of a double-standard has been set in which defendants can accuse their alleged victims of having a history of sexual promiscuity, while the defendant’s history can be essentially sealed or not included.
The Woman’s Law Center stated, “Under current Maryland law, the defense is legally entitled to introduce evidence regarding a victim’s past sexual conduct to support their case if ulterior motives are suspected. The prosecution, however, is not afforded the same right. As a result, serial sex offenders continue to win over Maryland juries, securing their freedom while endangering public safety.”
The 2018 Repeat Sexual Predator Act is supported by 14 legislative caucuses including the Asian-American & Pacific Islander Caucus, Legislative Latino Caucus, Women Legislators of Maryland Caucus and the Black Caucus of Maryland.
Dr. Edith J. Patterson, the second vice president of the Legislative Black Caucus of Maryland, said at last month’s press conference that it is a “unanimous concern” that the Black Caucus supports “wholeheartedly.”
“On a personal note,” Patterson added, “I would like to share that in my county, Charles County, we have had unprecedented cases of victims molested by predators, both women and men predators, who were victimizing our students,” she said.
Patterson then cited the recent Carlos Bell case in which Bell, a HIV-positive, former Southern Maryland middle school instructional aide and high school track coach, was accused of over 200 counts of child and sex abuse offenses involving 42 juvenile boys between the ages of 11 to 17.
Bell, who admitted trying to intentionally infect his young victims with the virus, pleaded guilty last month to 27 charges including sexual abuse of a minor, filming child pornography and attempted transmission of HIV. Bell agreed to an “up to 190-year” prison sentence. He is scheduled to be sentenced on March 28.
The Repeat Sexual Predator Act (SB0270/HB0301) aims to allow prosecutors to make prior evidence admissible in order to establish a pattern of behavior which sometimes spans decades and involves multiple victims. Yet, unless committee members act, the bill may not even be discussed.
Committee leaders, Senator Bobby Zirkin (D) and Del. Joseph Vallario (D), have not responded to a request for comment. The public may express its opposition or support for the bill by contacting elected officials here.
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