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Md. bill targeting repeat sex offenders stymied again

Sen. Jim Brochin, D-Baltimore County, in the Senate chamber. (File)

Sen. Jim Brochin, D-Baltimore County: ‘The Bill Cosbys who get away with it over and over again are going to keep getting away with it. (File)

Legislation to allow evidence of past sexually assaultive behavior into criminal trials has again stalled in the General Assembly despite backing from the governor’s office.

The measures would allow prosecutors to introduce evidence of a defendant’s past behavior that would constitute a sexual offense under Maryland law to rebut a claim of consent or an allegation that a minor victim has lied, the narrowest form of the proposal since it was first introduced more than 25 years ago.

But neither the House Judiciary Committee nor the Senate Judicial Proceedings Committee have taken action on the cross-filed bills despite lengthy hearings on the issue and support from Gov. Larry Hogan’s administration, which included the bills in Hogan’s justice-for-victims initiative.

A spokeswoman for Hogan said the governor will “continue to fight to address the gaps in our state laws” and criticized lawmakers’ inaction.

“For too many years, legislation aimed at protecting victims of sexual assault has been held up for inexplicable reasons,” Hannah Marr said in an emailed statement. “It’s disappointing that the General Assembly would yet again fail to act on this critical legislation.”

Lisa Smith, legislative affairs director with the Baltimore City State’s Attorney’s Office, said advocates will continue to push for a vote on the bills that committee leadership have worked to amend.

“My sense is that committee leadership wanted to perhaps change the approach to drafting the legislation and make it more clear,” she said.

House Judiciary Vice Chair Del. Kathleen M. Dumais, D-Montgomery, said Wednesday the issue is complicated and she did spend time working with the governor’s office and advocates to come up with different language.

However, Dumais said she does not believe making the bill more narrow is the right option; instead, she said the Judiciary’s Standing Committee on Rules of Practice and Procedure should look at amending current evidence guidelines.

A letter to the rules committee in the fall signed by attorneys, judges and lawmakers asked it to address prior bad acts evidence in sexual assault cases but the committee was overwhelmed with bail reform issues, Dumais said.

“If we do nothing, I think that will encourage the rules committee to take it up,” she said, adding that she will ask the committee to do just that once the General Assembly session ends.

Smith said advocates will petition the rules committee to take action if the change is not made legislatively but noted it has not acted thus far.

“We would hate to see more dangerous offenders acquitted… merely because the two branches are kicking the issue back and forth,” she said. “A lot of victims have been advocating and pleading with legislators to do something.”

Sen. Robert A. “Bobby” Zirkin, D-Baltimore County, chair of the Senate Judicial Proceedings Committee, did not respond to requests for comment.

Prosecution tool

Prosecutors have argued the legislation provides them a tool to hold serial offenders accountable by allowing them to present the court with evidence which can be introduced if the underlying conduct is proven by clear and convincing evidence and the defendant is given notice. The probative value of the evidence must also substantially outweigh the danger of unfair prejudice.

But criminal defense attorneys have argued the limitations on character evidence in the Maryland Rules are in place because of the weight juries assign that type of information.

Sen. Jim Brochin, D-Baltimore County, sponsored the legislation in previous years, including last year’s version that passed the Senate. He called it “incredibly disappointing” to see the legislature fail to act this year.

“The really frustrating part is the big picture is this: this week, in a Baltimore city courtroom, in a Prince George’s County courtroom, probably in a Baltimore County courtroom, you’re going to let a sexual predator out,” he said. “The Bill Cosbys who get away with it over and over again are going to keep getting away with it.”

Prosecutors testified at committee hearings about serial rapists who were acquitted or never successfully prosecuted.

Baltimore City State’s Attorney Marilyn J. Mosby, who has advocated for the bill in past legislative sessions, cited the cases of Nelson Bernard Clifford, who was accused of sexual assault by multiple victims but acquitted in four trials in 2010 and 2011 after he claimed his accusers consented. Clifford was convicted of third-degree sex offense in May 2015 at his fifth trial and sentenced to more than 30 years in prison.

Brochin said if the law doesn’t change, prosecutors will continue to have trouble holding serial offenders accountable.

“I think the governor did his work and I think his legislative team did their work,” he said. “We just can’t find the support among defense lawyers in either committee that feel like at the end of the day, because these are allegations, that they shouldn’t be admissible.”

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