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Bill to expand protective orders to acquaintances draws fire in Md. Senate

Senators raise due-process concerns

Steve Lash//February 20, 2020

Bill to expand protective orders to acquaintances draws fire in Md. Senate

Senators raise due-process concerns

By Steve Lash

//February 20, 2020

Sen. Jeff Waldstreicher. (The Daily Record / Bryan P. Sears)
Sen. Jeff Waldstreicher, D-Montgomery. (The Daily Record / Bryan P. Sears)

ANNAPOLIS – A bill to enable alleged victims of sexual assault to seek protective court orders against acquaintances who allegedly attacked them drew fire from Senate opponents Thursday as an improper and possibly unconstitutional expansion of a law intended to protect people from family members or romantic partners who have turned violent.

Current law permits a victim to get a protective order from a district court judge by showing, by a preponderance of the evidence, that the perpetrator attempted to sexually assault him or her.

The victim and perpetrator, however, must be in a specified relationship, including current or former spouses, cohabitants, blood or adoptive relatives, people who have a child in common, or people who have had a sexual relationship within a year of the petition for protection being filed. The law, part of Maryland’s family law statute, also enables disabled or elderly adults to seek protective orders.

Sen. Jeff Waldstreicher, D-Montgomery and the bill’s chief sponsor, told his Senate colleagues during floor debate that the law must be expanded to provide protection for women from being approached again by someone who has attempted to grope them or who has committed a more serious sexual assault, regardless of whether the woman and the perpetrator had a relationship.

But Sen. Robert Cassilly said the measure — Senate Bill 210 — could leave people who neither know nor ever intended to harm the alleged victim vulnerable to accusations of sexual assault without the right to an attorney under a law intended to protect against domestic violence by a known assailant.

“Do we really have to shoehorn this into family law?” Cassilly asked, noting that in a civil protective order proceeding the defendant does not have the right to an attorney.

Without counsel, a defendant alleged to have committed sexual assault receives at best “abbreviated due process” during the hearing, said Cassilly, R-Harford.

“It’s a process, but it’s not due process,” he said. “It can lead to error.”

In addition, the consequences for the defendant can be particularly serious, as a person placed under a protective order could lose his or her job, Cassilly said.

A victim’s appropriate recourse when attacked by a stranger is to seek protection by calling the police and pressing for a criminal prosecution, which is fairer to the accused than a protective order hearing, the senator said.

Though they face potential incarceration in a prosecution, those accused are entitled to an attorney and their guilt must be proven beyond a reasonable doubt, Cassilly added.

Sen. Michael J. Hough, R-Frederick and Carroll, also voiced concern about the lack of due process for those accused of sexual assault in a protective order proceeding, with its relaxed burden of proof and no right to an attorney.

“The state affords you nothing and you lose everything,” said Hough, noting that an order of protection can lead to accused people losing their jobs as well as their firearms, if they own guns.

Sen. Justice Ready agreed with Cassilly and Hough and proposed an amendment to the bill that would provide a right to counsel for those indigent acquaintances against whom a protective order is sought.

“We don’t want anyone to get railroaded,” said Ready, R-Carroll.

Waldstreicher is vice chair of the Senate Judicial Proceedings Committee, which approved the measure on an 8-3 vote last week. Cassilly, Hough and Ready were the three dissenters.

Sen. William C. “Will” Smith Jr., the committee’s chair, called Ready’s proposal for a right to defense counsel at a civil hearing a “fantastic” and “solid idea” in keeping with Smith’s support for affordable legal representation for indigent individuals who are sued by a landlord or other creditor.

But Smith, D-Montgomery, said Ready’s call for representation in protective order proceedings would cost the state “millions of dollars.”

Further debate on Ready’s amendment and Waldstreicher’s bill is scheduled to resume in the Senate on Friday.

As the Senate debate raged, the House of Delegates on Thursday passed legislation similar to Waldstreicher’s on a 122-17 vote. Del. Vanessa E. Atterbeary, D-Howard, is chief sponsor of House Bill 248.


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