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Zirkin backs Md. bill to clarify resistance unneeded to prove rape

But Maryland lawmakers failed to pass a bill that would have enabled very drunken drivers to be held liable for punitive damages if their driving caused death or injury. The bill will be reintroduced next year, said Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and chair of the Judicial Proceedings Committee.

Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and chair of the Judicial Proceedings Committee.

ANNAPOLIS – The chair of the Senate Judicial Proceedings Committee on Thursday endorsed legislation making clear that rape victims need not show they tried to resist their assailants physically to gain a rape conviction.

Sen. Robert A. “Bobby” Zirkin said he believes that Maryland’s high court has already held that physical resistance is not required to show a victim’s lack of consent, but added that the Court of Appeals’ rulings are subject to contrary interpretation. As a result, the pattern jury instruction in rape cases is unclear, which could lead jurors to conclude that physical resistance is required, said Zirkin, D-Baltimore County.

A law expressly stating that evidence of physical resistance by the victim is not required to prove rape would provide clarity and spur changes in the jury instructions, Zirkin said. Such clarifying legislation, Senate Bill 217, was the subject of a hearing before Zirkin’s committee Wednesday and will likely be voted on by the panel next week, he said.

The bill that emerges from the committee is going “to make it abundantly clear that physical resistance is not necessary,” Zirkin said. “It should be obvious public policy.”

At Wednesday’s hearing, the bill had the full-throated support of women’s rights groups and Baltimore County Scott D. Shellenberger, who said a victim faced with force or the threat of force might choose for safety reasons not to resist the attacker. Such reasonable reticence is not consent, Shellenberger added.

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

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. However, 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.

The Senate bill is cross-filed in the House of Delegates as House Bill 429.

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