2017 Senate Bill 316 – Changing the Admissibility of Sexual Assaultive Behavior in Maryland

The 2017 Senate Bill 316 seeks to allow prosecutors greater latitude in admitting evidence of sexually assaultive behavior.

The new legislation would be known as “The Repeat Sexual Predator Prevention Act of 2017.” If it passed, the changes would take effect on July 1, 2017.

Senate Bill 316 authorizes a court, in a prosecution for specified sexual offenses, to admit evidence of “sexually assaultive behavior” by the defendant that occurred before or after the offense for which the defendant is on trial.

Additionally, Senate Bill 316 would establish procedural requirements for the introduction of sexually assaultive behavior evidence by a State Attorney and hearings by a court on the admissibility of the evidence.  The proposed legislation would also establish provisions governing the admission of such evidence by a court.

By its terms, the new legislation would not limit the admission or consideration of evidence under any Maryland Rule or other provision of law.

Senate Bill 316 defines “sexually assaultive behavior” as an act that would constitute any of the following:

  • a  sexual  crime  under  Title  3,  Subtitle  3  of  the Criminal  Law  Article;
  • sexual  abuse  of  a  vulnerable  adult;
  • sexual  abuse  of  a  minor;
  • a violation of 18 U.S.C. Chapter 109A  (federal  sexual  abuse  statutes);  or
  • a violation of a law of another state, the United States, or a foreign country that is equivalent to these offenses.

To admit evidence of sexually assaultive behavior, the State must file a motion of intent to introduce such evidence at least ninety (90) days before trial or at a later time if authorized by the court for a good cause.

The motion must include a description of the evidence that the State intends to introduce and the State must provide a copy of the motion to the defendant and include any other information required to be disclosed under Maryland Rules 4-262 or 4-263.

When determining the admissibility of evidence of sexually assaultive behavior, the court must hold a hearing outside the presence of a jury.

Under Senate Bill 316, a Maryland Court may admit evidence of sexually assaultive behavior if the court finds and states on the record the following:

  1. that the sexually  assaultive  behavior was  proven  by  clear  and  convincing  evidence;
  2. that the evidence is being offered to rebut an express or implied allegation that a minor victim fabricated the sexual offense or to prove lack of consent; and
  3. the probative value of the evidence is not substantially outweighed by the danger of unfair

Before making these findings, however, the court must consider four (4) factors of admissibility. The factors include the following:

  1. whether the issue for which the evidence of the sexually assaultive behavior is being offered is in dispute;
  2. the similarities between the sexually assaultive behavior and the sexual offense for which the defendant is on trial;
  3. the independence  of  the sexually  assaultive behavior from the sexual offense for which the defendant is on trial;  and
  4. the closeness in time of the sexually assaultive behavior and the sexual offense for which the defendant is on trial.

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The History of the Propensity Rule in Maryland

The rule against propensity evidence, also known as character evidence, has been around since the Seventeenth Century. The propensity evidence rule prohibits the use of character traits to show that a person has a tendency to act in a certain way and that the defendant was acting in that way at the time he or she committed the alleged offense.

Maryland case law provides substantial support for the propensity rule.  See, e.g.,  Behrel  v.  State, 151 Md.  App.  64 (2003); Weiland v. State, 101 Md. App. 1 (1994); Acuna v. Maryland, 332 Md. 65 (1993).

Maryland courts have also implemented the “sexual propensity” exception to the general rule against the admission of evidence of prior bad acts when a defendant is being prosecuted for a sexual crime. The current sexual propensity exception allows a defendant’s prior acts of sexual assault against the same victim to be admitted. See, Vogel v. State, 315 Md. 458, 466 (1989).

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or other dangers such as confusion of the issues, waste of time, or misleading the jury. See, Maryland Rule of Evidence 5-403,

Moreover, under Maryland Rule of Evidence 5-404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with those prior acts.  Evidence of other crimes, wrongs, or acts is admissible, however, for other purposes such as proof of motive, intent, preparation, opportunity, knowledge, identity, common scheme or plan, or absence of mistake.


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Conclusion on Maryland Senate Bill 316

Does this legislation go too far? Prosecutors already have the sexual acts exception to the propensity rule under Maryland and Federal law. Currently, the court holds hearings to determine whether sexual propensity evidence should be admitted.

Between the sexual acts exceptions and the hearings to determine admissibility, defense attorneys ultimately have to fight two cases –one for an allegation that the defendant was accused of in the past and any present allegations.

The Baltimore State Attorney’s Office has been urging people to call their Senators and Delegates to pass Senate Bill 316. The Office even started a petition to encourage voter support. In an article to support the petition, the Office said, “[w]e need to pass HB369 and SB316 now to stop other serial rapists and child molesters before they can attack again.”


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Additional Resources

Senate Bill 316 –Visit the official website of the Maryland General Assembly to see the full Legislative analysis of Senate Bill 316. Also, find the disposition and the up-to-date details on the status of the bill.

Petition for SB 316 –Visit Change.Org to find a petition promulgated and supported by the Baltimore State Attorney’s office to encourage voters to contact their legislators to vote in favor of this bill.


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Find an Attorney for Sexual Assault in Baltimore County, Maryland

The attorneys at James E. Crawford, Jr. & Associates represent clients charged with sexually motivated crimes in Baltimore, Maryland. With offices in Arbutus and Catonsville, James E. Crawford, Jr. & Associates fights false allegations of sexual abuse.

The attorneys at James E. Crawford, Jr. & Associates take cases in Arbutus, Maryland, and in the surrounding cities of Baltimore, Westminster, Elliot City, and Frederick, Maryland.

Call 443-709-9999 today for a free consultation.