Senate panel weighs bill removing ‘physical resistance’ in rape cases

ANNAPOLIS – Saying Maryland law is behind the times, a prosecutor and women’s rights groups pressed a Senate committee Wednesday to pass a bill removing the requirement that rape victims show they tried to resist their assailants physically, lest the rapist be acquitted.

Maryland imposes an “archaic and unfair standard” on rape victims, said Sen. Delores G. Kelley, the bill’s chief sponsor. “You have the power to undo this great wrong.”

The legislation would “bring Maryland out of the Stone Age,” by placing the legal focus on the rapist’s actions rather than on the victim’s, Kelley told the Senate Judicial Proceedings Committee, on which she serves as vice chair.

Victims of other violent crimes, such as robbery, are never called upon to testify regarding whether they fought back, Kelley added.

Senate Bill 217 would provide that “evidence of physical resistance by the victim is not required to prove” rape.

Supporters of the bill call it necessary in light of Maryland high-court rulings indicating that evidence of physical resistance is necessary to show the victim’s lack of consent to intercourse in rape cases. Those decisions by the Court of Appeals have been reflected in jury instructions that have essentially made physical resistance an element of the crime of rape, said Baltimore County State’s Attorney Scott D. Shellenberger.

But physical resistance, while strong evidence of lack of consent, must not remain the only reliable evidence, Shellenberger told the committee.

He said a victim faced with force or the threat of force might choose not to resist the attacker, adding that such reasonable reticence is not consent.

“I have to show a lack of consent and force or threat of force” to prove rape, Shellenberger said. “I can prove force without having to show there was resistance.”

But Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and the committee’s chair, questioned the need for the statute, citing Maryland court rulings that indicated physical resistance is not needed to show lack of consent. His concerns were echoed by committee members Sens. Michael J. Hough, R-Carroll and Frederick, and Robert G. Cassilly, R-Harford.

However, Lisae C. Jordan, executive director of the Maryland Coalition Against Sexual Assault, said saying “no” to sexual intercourse is not enough to prove lack of consent under Maryland case law. The state’s outdated rape law requires victims to “fight back, or you won’t have access to the criminal justice system,” Jordan told the committee.

Laure Ruth, legal director of the Women’s Law Center of Maryland, agreed that teaching women and girls to just say “no” does not suffice in Maryland. To secure a rape conviction, they must also be told to resist physically, even if such resistance would put them in greater danger, Ruth said.

Baltimore County Executive Kevin Kamenetz, in support of the bill, told the committee that the legislation “keeps the focus on what the perpetrator did and not what the victim did.”

In Maryland, “it shouldn’t be a ‘no means I should fight back test,’” Kamenetz said. “It should be ‘no means no.’”

Margaret Teahan, of the Maryland public defender’s office, accepted the bill’s provision that evidence of physical resistance is not required to prove rape. But she objected to a subsequent provision that the legislation “may not be construed to affect the admissibility of evidence of actual physical resistance by the victim.”

That section could lead to a “presumption by the court that evidence of physical resistance is always admissible” in a rape case, Teahan said. Judges should always retain the discretion to dismiss any evidence if they deem its prejudicial impact on jurors would outweigh its probative value, she told the committee.

SB 217 is cross-filed in the House of Delegates. Del. Kathleen M. Dumais, D-Montgomery, is the chief sponsor of House Bill 429.