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Proposed bill on past sex assault evidence fails

gavel2 1 Every legislative session of course includes bills, some that were part of the Governor’s legislative agenda, which are not passed by the General Assembly. Often such proposals are brought back in succeeding years, and this year’s legislative session was no exception. This session saw failure of a proposal that would allow evidence of past sexual crimes under certain circumstances.

The Governor proposed changes in the law which were introduced as Senate Bill 316 (House Bill 369), called the Repeat Sexual Predator Prevention Act of 2017. It provided that in a criminal trial for certain sexual offenses, “evidence of other sexually assaultive behavior by the defendant occurring before or after the offense may be admissible.” The bill proposed that such evidence would only admissible to prove lack of consent to an alleged sexual act, to “rebut an express or implied allegation that a minor victim fabricated the sexual offense,” where the sexually assaultive behavior was proven by clear and convincing evidence, and the trial judge found that its probative value is not outweighed by unfair prejudice.

What would constitute “sexually assaultive behavior” would be defined in the proposed law to be sexual crimes under Maryland, sexual abuse of a minor or vulnerable adult, or similar offenses from other States. The prosecution would have to give ninety days notice before trial of an intent to use such evidence. The Court would then hold a hearing outside the presence of the jury before deciding whether to admit such evidence.

As was reported in the Daily Record and other news outlets, there was substantial opposition to the measure because of the highly prejudicial nature of past sexual offenses and how it may affect a jury’s determination of guilt on the pending charges. The bills did not make it out of either the House or Senate Judiciary Committees.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

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