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Lynn McLain: Evidence rules in rape cases unfair to victims and to jurors

Laws made by men have historically tipped the scales of justice heavily against women rape victims, on the ground that such an accusation is “easy to be made … but much harder to be defended by the party accused, though perfectly innocent.” In those countries which adhere to strict Islamic law, a conviction can be obtained only if four male witnesses will testify to the rape. If the female victim cannot provide such proof, she will be stoned to death on the ground that she has committed fornication or adultery.

Though certainly not as draconian as this, Maryland’s law remains antiquated and unfair both to rape victims and to the jurors deciding such cases. In a “he said, she said” case, where the defendant alleges that the sexual act was consensual and there are no other eyewitnesses, Maryland jurors must decide the case on the basis of one person’s word against the other’s. Mindful of the State’s heavy burden to prove guilt beyond a reasonable doubt, they have no practical choice but to acquit.

In such situations, and in sexual child abuse cases where the defendant denies having committed the sexual act, the federal courts and a number of other states frequently permit evidence that the defendant has similarly assaulted other similar victims. They also may permit joining the trials for such similar crimes, as Pennsylvania did in the trial of Penn State’s Jerry Sandusky.

In sharp contrast, Maryland’s courts routinely do not allow a trial for more than one of these crimes at the same time. Nor do they even allow evidence of one crime in the trial for another. We do not trust the jurors to be able to sift out the truth. In a misapprehension of what it means that “Justice is blind,” we blindfold the jury. It is highly unlikely that Jerry Sandusky would have been convicted if his crimes had been committed in Maryland.

Double standard

The repeated acquittals of Nelson Bernard Clifford provide a recent example. As reported by The Baltimore Sun, since 2010 Clifford has been acquitted in four separate trials for sexual assaults on four different women after breaking into their homes in the middle of the night. Implicated by DNA evidence, he could not say “It wasn’t me.” Instead he testified that he had met the women on chat lines or at clubs and that they had consented to the sex. Baltimore City judges denied the State’s motions to try several of the cases together or to at least admit evidence of some of the others in each case being tried. Each jury heard the testimony of only one victim, and nothing about the other cases. They were hamstrung in their ability to fairly gauge the credibility of the defendant and the victim [Man, 35, Acquitted on Rape Charges, Oct. 27, 2013].

The applicable evidence rule, Md. Rule 5-404, is on its face not that restrictive. It parallels the corollary rules of many other states and of the pre-1995 federal rules, which allow evidence of an accused’s other crimes if they have special relevance to an important issue in the case, such as the defendant’s motive or intent, rather than simply his or her bad character. But Maryland’s case law reads those routes to admissibility very narrowly. If defendants are convicted when the trial judge has admitted other crimes evidence in sexual assault cases, the convictions are often reversed (rape, Hurst, 2007; child sexual abuse, Behrel, 2003; Rainville, 1992; McKinney, 1990; Werner, 1985).

The Court of Appeals’ decisions automatically allow only evidence of other sexual assaults by the defendant against the same victim. Even then the evidence must meet an exceptionally high standard of “clear and convincing” proof.

Indeed, Maryland’s appellate courts have imposed a much less stringent standard (a true “double standard”) of admissibility of other sex crimes or acts by the victim, when offered against the victim and in favor of the defendant (Germain, 2001; Johnson, 1993; Churchfield, 2001).

Up until now, both the Court of Appeals and the General Assembly have resisted liberalizing Maryland law, despite the fact that since 1995 the federal courts have taken a more enlightened approach. Federal Rules 413-415 make evidence of other similar sexual assaults or child molestations presumptively admissible, albeit with advance notice to the defendant, and subject to a safety valve of the federal corollary to Md. Rule 5-403, which gives the trial judge the discretion to exclude the evidence if she finds that it will be unfairly prejudicial to the defendant.

Avenues for change

Maryland’s Constitution prohibits prosecutors, as officers of the State or the U.S., from serving in the legislature. Consequently the key committees in the General Assembly are dominated by defense attorneys, such as state Sen. Lisa Gladden, whom the Sun quotes as opposing reform of the rules [Rape Acquittals Raise Legal Debate, Oct. 30, 2013]. Past efforts, modestly aimed only at easing the rules in child abuse cases, have not made it out of committee.

The more promising avenue for change is the Court of Appeals, which necessarily is aligned with neither prosecution nor defense. It can either modify its stand through case law or amend the Maryland Rules. Although its Rules Committee has earlier declined to take up this issue on its own initiative, it is to be hoped that under the new leadership of Mary Ellen Barbera, its first female Chief Judge, the court will urge that committee to propose reform consistent with the federal model. Only then will juries be able to hear and evaluate the evidence that they need in order to ensure fair trials for both sexual assault defendants and victims.

Lynn McLain is a Professor Emerita of the University of Baltimore School of Law. Her email address is