Senate passes bill allowing prior bad acts evidence at rape trials

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ANNAPOLIS – The Senate on Friday passed legislation to permit the prosecution to introduce as evidence at trial an accused rapist’s prior sexual assaults.

With the Senate’s 44-0 vote, attention shifts to the House of Delegates, which gave its preliminary approval Friday to similar legislation. A final vote on the House measure could come within the next few days.

Differences between the Senate and House bills would have to be reconciled for the legislation to gain final approval in both chambers and be sent to Gov. Larry Hogan, who has voiced support for the Senate measure.

Senate Bill 270 would permit prior sexual assaults, if shown by clear and convincing evidence, to be introduced at trial to prove the rape victim’s lack of consent or to rebut the defendant’s express or implied allegation that a child sexual-abuse offense was fabricated.

Sen. Jim Brochin, the Senate bill’s chief sponsor, said Friday the measure is “for all the women in the state,” especially those who have either been discouraged from or ignored when reporting having been sexually assaulted. The legislation allows these women to come to court and say, “This happened to me, too,” added Brochin, D-Baltimore County.

Prosecutors would have to tell the defense 90 days before trial they intend to introduce the evidence. The judge would then hold an evidentiary hearing at least 30 days before trial to determine if the evidence of the prior assault was clear and convincing based in part on the “objective improbability that the defendant would be accused of sexually assaultive behavior on more than one occasion.”

The judge would also have to decide that the probative value of the evidence outweighs its prejudice to the defendant.

The measure has the support of Marilyn J. Mosby and Scott D. Shellenberger, the state’s attorneys for Baltimore and Baltimore County, respectively.

Testifying for the bill last month, Mosby told the Senate Judicial Proceedings Committee that allowing prior bad acts evidence at trial targets “serial sexual predators” whose prior assaults might have gone uncharged or even uninvestigated because past victims had not stepped forward – until the trial.

“Survivors are no longer remaining silent,” Mosby told the committee. “Time’s up on serial predators.”

But Ricardo Flores, of the Maryland public defender’s office, voiced concern Friday that, under the Senate bill, judges could consider the probability of a prior bad act by the defendant rather than require proof before admitting it into evidence.

The prosecution’s burden must be to “bring proof rather than probability,” said Flores, the office’s director of government relations.

The measure before the House would require the defendant to have an “opportunity to confront and cross-examine” the alleged victims of and witnesses to the alleged prior-but-uncharged sexual assaults before a judge may permit these attacks to be introduced into evidence.

Del. Vanessa E. Atterbeary, D-Howard, is chief sponsor of House Bill 301.

Brochin has sponsored the Senate legislation in more than a dozen past General Assembly sessions, only to see it die. He called the bill “the most important” measure he has put forward in his 16 years in the Senate.

Brochin is leaving the legislature this year to run for Baltimore County executive.