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Bill allowing prior bad acts in rape cases awaits Hogan’s signature

Sen. Jim Brochin, D-Baltimore County (Maximilian Franz/The Daily Record)

Sen. Jim Brochin, D-Baltimore County (Maximilian Franz/The Daily Record)

ANNAPOLIS – Legislation to permit prosecutors to introduce at trial an accused rapist’s prior sexual assaults will head to Gov. Larry Hogan’s desk after the Senate passed the bill 46-0 on Wednesday.

The House of Delegates approved the legislation, House Bill 301, by a 137-0 vote last month.

Hogan has said he will sign the proposed Repeat Sexual Predator Prevention Act into law, which would go into effect July 1.

Sen. Jim Brochin, D-Baltimore County, has introduced the legislation for more than a dozen sessions only to see it annually fail in the General Assembly. Enactment of the bill would be “the crowning achievement I always wanted,” Brochin, who is leaving the Senate this year to run for Baltimore County executive, said after the Senate vote.

The legislation “is a game changer for every state’s attorney,” Brochin added. “Women can come forward and say, ‘This happened to me also.’”

The bill has failed in past sessions amid the due-process concern that the “probative” value of an accused rapist’s prior bad acts are inherently outweighed by the “prejudice” to the defendant.

The Maryland Public Defender’s office reiterated that concern in written testimony to the Judicial Proceedings Committee in February.

“Regardless of whatever limiting instructions a judge may give, jurors are going to hear this evidence and conclude that the defendant has a propensity to commit sex crimes and therefore must be guilty,” the office stated.

In an effort to assuage that concern, the legislation 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.

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 to determine if the evidence was clear and convincing and if its probative value outweighs it prejudice to the defendant.

The defendant would have to be given 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.

Baltimore City State’s Attorney Marilyn J. Mosby lobbied for the bill this legislative session, telling lawmakers 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 Senate Judicial Proceedings Committee in February. “Time’s up on serial predators.”

Del. Vanessa E. Atterbeary, D-Howard, is chief sponsor of HB 301. The Senate version, sponsored by Brochin, was Senate Bill 270.

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