Menu
Robert C. Bonsib, Esq. MarcusBonsib LLC MarcusBonsib LLC

Discuss Your Case or Schedule a Consultation Today

office: 301-441-3000 cell: 301-509-5100
View Practice Areas

Rape, Sexual Offense, Child Abuse - Admissibility of Prior Sexual Conduct

PRIOR SEXUAL CONDUCT - RAPE - SEXUAL ASSAULT VICTIM'S REPUTATION FOR CHASTITY

Rape, sexual offenses, child abuse, sexual abuse of vulnerable adult prosecutions and defense of those charged with such offenses will confront a new evidentiary landscape in Maryland criminal courts effective July 1, 2018 if Maryland's Governor signs, as expected, recently passed Senate Bill 270 and House Bill 301. Captioned "Evidence of Sexually Assaultive Behavior-Admissibility" these bills provides a roadmap for prosecutors who seek the admissibility of evidence that the defendant committed sexually assaultive behavior - either before or after the date of the offense conduct for which the defendant is on trial. If the prosecution intends to introduce such evidence, the bills require the following:

1. The prosecution must file a motion of intent to introduce evidence of sexually assaultive behavior at least 90 days before trial - or at a later time if authorized by the Court for good cause.

2. A motion filed pursuant to this section shall include a description of the evidence.

3. A copy of the motion is required to be provided to the defendant and it must include any other information required to be disclosed under Maryland Rule 4-262 or 4-263.

4. The Court is required to hold a hearing outside the presence of the jury to determine the admissibility of evidence of sexually assaultive behavior. [in a prior draft of the bill, there was a requirement that the hearing be held at least 30 days before trial - that requirement was stricken from the final draft of the bill].

5. The Court is required to admit evidence of other sexually assaultive behavior if the Court finds and states on the record that:

(1) The evidence is being offered to:

(I) Prove lack of consent; or

(II) Rebut an express or implied allegation that a minor victim fabricated the sexual offense;

(2) The Defendant had an opportunity to confront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior;

(3) The sexually assaultive behavior was proven by clear and convincing evidence; and

(4) The probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

Maryland Criminal Law Article 3-319 currently provides limitations as to what evidence may be introduced relating to a sexual assault victim's chastity or sexual abstinence. It provides as follows:

Evidence relating to a victim's reputation for chastity or abstinence and opinion evidence relating to a victim's chastity or abstinence may not be admitted in a prosecution for:

(1) a crime specified under this subtitle or a lesser included crime;

(2) the sexual abuse of a minor under § 3-602 of this title or a lesser included crime; or

(3) the sexual abuse of a vulnerable adult under § 3-604 of this title or lesser included crime.

This statute further states that:

Evidence of a specific instance of a victim's prior sexual conduct may be admitted in a prosecution described in subsection (a) of this section only if the judge finds that:

(1) the evidence is relevant;

(2) the evidence is material to a fact in issue in the case;

(3) the inflammatory or prejudicial nature of the evidence does not outweigh its probative value; and

(4) the evidence:

(i) is of the victim's past sexual conduct with the defendant;

(ii) is of a specific instance of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma;

(iii) supports a claim that the victim has an ulterior motive to accuse the defendant of the crime; or

(iv) is offered for impeachment after the prosecutor has put the victim's prior sexual conduct in issue

The statute requires a closed hearing:

(c)(1) Evidence described in subsection (a) or (b) of this section may not be referred to in a statement to a jury or introduced in a trial unless the court has first held a closed hearing and determined that the evidence is admissible.

(2) The court may reconsider a ruling excluding the evidence and hold an additional closed hearing if new information is discovered during the course of the trial that may make the evidence admissible.

Rape, sexual offense, child abuse and similar prosecutions are amongst the most difficult. Issues relating to the prior sexual conduct of both the defendant and the alleged victim have always presented challenges to both the prosecution and defense. These cases may now require mini-trials in advance of the actual trial. Hearing to determine what evidence may be admissible as to the prior conduct of the victim and now, hearings will be required to determine admissibility of evidence of alleged prior sexually abusive conduct by the defendant. Both types of evidence have the potential for being highly prejudicial. The results in the trial may very well be determined by what evidence is presented to the jury about either or both the victim's prior sexual activities and the defendant prior "sexually assaultive" behavior.

This bill will be come effective, if signed, on July 1, 2018.

No Comments

Leave a comment
Comment Information
If you or someone you know has been accused or is under investigation for a federal or state criminal offense, we can help. Contact us by providing a description of your case and/or sending any questions you may have about your legal matter using this “Priority Case Submission� form.

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Centrally located in Greenbelt, Maryland we are conveniently located to serve the needs of our Clients throughout Maryland and in the District of Columbia.
Have a question about your case?

Contact us and find out how we can help you. Contact us now

MarcusBonsib, LLC
6411 Ivy Lane
Suite 116
Greenbelt, MD 20770

Phone: 301-441-3000
Map & Directions

Back to top