De­feat of Md. rape bill re­ver­ber­ates

Crit­ics blame se­lec­tion of all-male panel, de­layed ac­tion in leg­is­la­ture

The Washington Post Sunday - - METRO - BY OVETTA WIG­GINS

In the fi­nal hours of the 2017 Mary­land leg­isla­tive ses­sion, five male se­na­tors tried to hash out an agree­ment on a bill that would al­low a woman who be­comes preg­nant dur­ing a rape to ter­mi­nate the at­tacker’s parental rights.

At least 21 other states have adopted sim­i­lar laws. But in An­napo­lis, the bill failed for the ninth time in nine years, with key mem­bers of a con­fer­ence com­mit­tee panel balk­ing at the idea of ter­mi­nat­ing rights if the al­leged rapist has not been crimi- nally con­victed.

This time, the bill’s de­feat made head­lines and trig­gered an out­cry from ad­vo­cates. The two com­mit­tee chair­men who ap­pointed the con­fer­ence panel were blasted for wait­ing un­til the very end of the 90-day leg­isla­tive ses­sion — and for not in­clud­ing women in the group.

The crit­i­cism in some ways has over­shad­owed what ad­vo­cates de­scribe as vic­to­ries on other bills that ad­dress the way rape is pros­e­cuted and the op­tions avail­able to sur­vivors of sex­ual as­sault.

“This was an im­por­tant year for rape cri­sis cen­ters, for rape sur­vivors . . . . I don’t want that to be lost on the demise of this bill,” said Del. Kath­leen M. Du­mais (D-Mont­gomery), spon­sor of the par­ent rights leg­is­la­tion.

“There is a much stronger aware­ness of the vic­tims of sex­ual as­sault and a bet­ter sen­si­tivi-

ty to the is­sue over­all,” she said. “It’s hap­pen­ing na­tion­ally and I’m glad to see it hap­pen­ing in Mary­land.”

After two failed at­tempts more than a decade ago, Mary­land law­mak­ers this year passed a “no means no” bill, which says no ev­i­dence of phys­i­cal re­sis­tance is needed to prove sex­ual as­sault.

The Gen­eral Assem­bly also ap­proved a mea­sure that changes the def­i­ni­tion of rape by in­clud­ing all non­con­sen­sual sex­ual vi­o­la­tions and elim­i­nat­ing any ref­er­ence to gen­der. And it passed bills in­creas­ing the amount of time peo­ple who were sex­u­ally abused as chil­dren have to sue their abusers and re­quir­ing law en­force­ment to pre­serve the ev­i­dence in rape kits for 20 years.

Lisae Jor­dan, the ex­ec­u­tive di­rec­tor of the Mary­land Coali­tion Against Sex­ual As­sault, said ad­vo­cates “made sub­stan­tial progress for sex­ual as­sault sur­vivors” dur­ing the re­cent ses­sion.

Del. Shelly L. Het­tle­man (DBal­ti­more County), who spon­sored the bill to pre­serve rape kits, said she pushed for a statewide stan­dard after news re­ports last year showed a huge dis­par­ity in how long the kits were pre­served. Some law en­force­ment agen­cies kept the ev­i­dence for­ever, while others de­stroyed it after nine months.

“Hav­ing the preser­va­tion of this ma­te­rial gives some of the de­ci­sion-mak­ing power back to the sur­vivor,” Het­tle­man said, by giv­ing rape vic­tims more time to de­cide whether to file charges.

The “no means no” bill was nec­es­sary, ad­vo­cates say, be­cause po­lice and pros­e­cu­tors were not ad­her­ing to a 2010 state Court of Ap­peals rul­ing that a vic­tim say­ing “no” and push­ing an as­sailant’s hand away was enough to meet the state’s “force or threat of force” re­quire­ment for prov­ing sex­ual as­sault.

Un­der the new statute, that “force or threat of force” thresh­old no longer ex­ists.

Ad­vo­cates say the thresh­old is one rea­son Bal­ti­more County has one of the high­est rates in the coun­try of law en­force­ment of­fi­cials declar­ing rape al­le­ga­tions “un­founded.” An au­dit last year showed that one-third of cases closed as un­founded in the county be­tween 2013 and 2015 were cat­e­go­rized that way after vic­tims told po­lice they had not fought their at­tack­ers.

“There is a clear cul­tural shift” be­tween 2004, when the “no means no” bill was orig­i­nally in­tro­duced, and this year, Jor­dan said. “This year, many said ‘that ab­so­lutely should be law.’ ”

There was no sim­i­lar shift, how­ever, among leg­isla­tive lead­ers charged with de­cid­ing the fate of the pa­ter­nity rights leg­is­la­tion.

The pri­mary rea­son, ac­cord­ing to ad­vo­cates for the bill and those who are skep­ti­cal of it, lies in the dif­fer­ences be­tween civil and crim­i­nal court.

“Civil pro­ce­dure is looked at dif­fer­ently,” Du­mais said. “That’s where there is still some mis­un­der­stand­ing, I guess is the softer way to char­ac­ter­ize it. There is a mis­trust of the civil sys­tem.”

Un­der the bill, a woman who sought to ter­mi­nate a man’s parental rights would have to prove through “clear and con­vinc­ing ev­i­dence,” the stan­dard used in civil court, that the man had sex­u­ally as­saulted her. The bur­den-of-proof stan­dard is higher in crim­i­nal court, where charges must be proved “beyond a rea­son­able doubt.”

Sen. Robert A. Zirkin (D-Bal­ti­more County), chair­man of the Se­nate Ju­di­cial Pro­ceed­ings Com­mit­tee, said he was trou­bled with the idea of a man po­ten­tially los­ing his parental rights with­out be­ing con­victed of sex­ual as­sault.

“It’s a com­pli­cated bill,” Zirkin said. “There are pro­tec­tions in crim­i­nal law that do not ap­ply in civil cases.”

But ad­vo­cates ar­gue that the state al­lows parental rights to be ter­mi­nated in child-abuse cases even when there is no crim­i­nal child-abuse con­vic­tion. The same stan­dard should ap­ply, they say, in cases of sex­ual as­sault.

They also say that most rape cases go un­re­ported and un­pros­e­cuted. If the bill ap­plied only to con­victed rapists, vic­tims who chose not to file crim­i­nal charges would not be able to ter­mi­nate the parental rights of their at­tack­ers.

Ad­vo­cates say women rarely seek to ter­mi­nate an at­tacker’s parental rights, even in states that have laws al­low­ing them to do so eas­ily. Jor­dan said she sus­pects that vic­tims who be­come preg­nant as a re­sult of an as­sault in­stead choose to abort or “go into hid­ing.”

She said if the bill had passed, she would ex­pect more women in Mary­land to try to ter­mi­nate the parental rights of their as­sailants by tak­ing le­gal ac­tion.

The House unan­i­mously passed the rights-ter­mi­na­tion bill on March 9. The Se­nate did not take up the mea­sure un­til April 6, five days be­fore the end of ses­sion. The Se­nate Ju­di­cial Pro­ceed­ings Com­mit­tee struck lan­guage from the bill that said that courts could not re­quire pub­li­ca­tion of the name of the mother or child and added lan­guage that said the fa­ther could refuse to tes­tify or of­fer ev­i­dence in court.

Those changes meant that a con­fer­ence com­mit­tee, com­posed of delegates and se­na­tors from the com­mit­tees that had first con­sid­ered the bills, would have to ne­go­ti­ate fi­nal word­ing that could then be taken up again by the full House and Se­nate.

Zirkin ap­pointed him­self, Sen. Wil­liam C. Smith Jr. (DMont­gomery) and Sen. Michael J. Hough (R-Fred­er­ick) to the con­fer­ence com­mit­tee, pass­ing over the two fe­male law­mak­ers on the ju­di­cial pro­ceed­ings panel.

Zirkin de­clined to say why he did not put Sen. Delores G. Kelly (D-Bal­ti­more County) or Sen. Su­san C. Lee (D-Mont­gomery) on the panel. In­stead, he noted that Smith was a co-spon­sor of the bill and one of the strong­est ad­vo­cates for it on his com­mit­tee.

“That doesn’t mean that you shouldn’t have women on a con­fer­ence com­mit­tee dis­cussing rape and preg­nancy,” Jor­dan said.

Del. Joseph F. Val­lario Jr. (DPrince Ge­orge’s), chair­man of the House Ju­di­ciary Com­mit­tee, waited un­til late af­ter­noon on the fi­nal day of the leg­isla­tive ses­sion to name him­self, Del. David Moon (D-Mont­gomery) and Del. Brett R. Wil­son (RWash­ing­ton County) to the con­fer­ence com­mit­tee. He was ab­sent when the group fi­nally con­vened at 10 p.m., two hours be­fore the leg­is­la­ture would ad­journ.

Val­lario, who voted for the orig­i­nal ver­sion of the bill when it passed the House, did not re­spond to re­peated re­quests for com­ment for this ar­ti­cle. He told the Bal­ti­more Sun that the makeup of the com­mit­tee was co­in­ci­den­tal.

Moon, a strong pro­po­nent of the leg­is­la­tion, said he thought the panel “was set up for an im­pos­si­ble chal­lenge,” lack­ing enough time and com­mit­ment from mem­bers to re­solve dif­fer­ences be­tween the House and Se­nate bills and get the leg­is­la­tion back to each cham­ber for a vote.

Du­mais said she doesn’t think the makeup of the panel de­feated the bill, given the sup­port from Moon, Smith and Wil­son.

Still, she said, Zirkin and Val­lario should have in­cluded women in the group.

“The op­tics of an all-male panel are hor­ri­ble in the year 2017,” Moon said. “It was po­lit­i­cally tone-deaf.”

“The op­tics of an all­male panel are hor­ri­ble in the year 2017. It was po­lit­i­cally tone-deaf.” Del. David Moon (D-Mont­gomery)

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