Marilyn Mosby, with growing coalition, pushes sexual assault legislation for fourth year

As an upstart candidate for Baltimore state's attorney, Marilyn Mosby went to Annapolis in 2013 pushing a bill to help prosecute repeat sex offenders. Filed late in the session, it had just one sponsor and went nowhere.

This year, Mosby is back for a fourth try, with passage in the Senate last year under her belt and now counting the support of Republican Gov. Larry Hogan, who adopted the bill this year as part of his legislative package on crime.

The bill would allow prosecutors to introduce evidence of past sexual assault allegations when an accused attacker claims an encounter was consensual.

Despite recent momentum, the bill's prospects remain unclear. Legislators have expressed concern over using allegations for which someone has been found not guilty against them. The chair of the Senate committee that passed the bill last year is expressing new concerns. And it has yet to progress in the House Judiciary Committee, which is scheduled to hold a hearing on the bill Tuesday and historically has taken a conservative approach to changing criminal law.

Some also wonder if Hogan's support could hurt the bill's prospects as Democrats attack his agenda.

Mosby joined a rally on women's issues in Annapolis on Monday night to garner more support, and has been asking voters to call their legislators and use hashtags on social media such as #stoptheconsentdefense and #letthejurydecide.

"This is an important issue that we've been advocating for the past four years," Mosby said in an interview Monday. "I'm cautiously optimistic that hopefully the [House chairman] will find it in his heart to put it to a vote."

At the Women's Rally, Mosby said it's "unfathomable" that a victim's sexual history can be questioned in court during a rape case, but that allegations of a defendant's prior sexual assaults can't be brought in as evidence. She implored the "warrior women" in the audience to write their lawmakers to force them to take a vote on the bill.

"Ask yourself, warrior women: If not us, then who? If not now, then when?" Mosby said to cheers.

Mosby's interest in the bill was sparked by the cases of Nelson Bernard Clifford, a convicted sex offender who was acquitted in four separate cases after he took the stand and said he had consensual sex with the alleged victims.

In each case, prosecutors were not allowed to share the prior sexual assault allegations against Clifford, for which he was acquitted of breaking into women's homes and raping them, because juries generally are supposed to decide on a defendant's guilt based only on the evidence against them in that particular case.

Advocates say allowing prosecutors to cite prior allegations would better align state law with the standards of federal court and dozens of other states, and level a playing field that currently can allow a victim's past sexual history to be explored — but not that of a suspect.

Use of prior allegations would not be automatic under the bill, which would still require a judge to determine whether the allegations are prejudicial.

Sen. James Brochin, a Baltimore County Democrat who previously pushed similar legislation and sponsored Mosby's bill the past two years, said he thinks it deserves to pass.

"There's a saying down here that the enemy of the good is the perfect," Brochin said. "I know we're not going to get perfect legislation, but this is going to have substantial benefit to so many Marylanders and save so many lives."

In 2013, as Mosby was putting together the legislation, she sought survivors of sexual assault willing to share their stories and met Angela Wharton, a rape survivor who leads a group called Phynyx Ministries. Telling her story publicly was intimidating, but after giving it much consideration through prayer, Wharton said, she agreed to participate.

Mosby found a sponsor with then-Prince George's County Del. Aisha Braveboy, who liked the goals of the legislation but was not optimistic about its prospects that first year.

"I told her it was going to be a challenge," recalled Braveboy, a Democrat. It wasn't put to a vote.

In 2015, a freshman Republican sponsored the bill in the Senate. Mosby sent messages to supporters asking them to contact Sen. Bobby Zirkin, a Democrat who chairs the Senate Judicial Proceedings Committee, and demand its passage.

At the time, Zirkin called it a "very dangerous piece of legislation" that could send innocent people to prison, and said the legislation wasn't going anywhere that year.

In the meantime, Baltimore prosecutors were able to try two cases against Clifford together using existing rules, and he was convicted in 2015 of two counts of third-degree sex offense and sentenced to 30 years in prison.

Worried that state legislators saw the bill as too Baltimore-centric, Mosby began courting rural legislators and invoked the 2009 case of a young Wicomico County girl who was killed by a sexual offender.

"I thought it was really important for people to understand that this is a serious issue that all of the legislators, no matter where you're from, should take issue with," Mosby said.

Zirkin came around and supported the bill after he helped tailor it to mirror a law in Utah. The bill passed out of committee and eventually won a 46-1 vote in the full Senate. But it came too late to be taken up by the House of Delegates.

After the session, Mosby said legislators standing in the way were "promoting rape culture."

Wharton, of Phynyx Ministries, recalled getting a note from Mosby after the bill failed last year that said: "We're not giving up. I will continue to fight with everything I have for this bill."

"She is such a light in a dark place for so many survivors," Wharton said. "She's keeping the torch lit for this legislation, for survivors all over Maryland."

Mosby said her office has delegates on the record expressing support for the bill, and wants it to be put to a vote with the House Judiciary Committee.

Del. Kathleen Dumais, a Montgomery County Democrat who is vice chair of the committee, thinks the issue raised in the bill should be taken up by the Court of Appeals rules committee instead of the legislature.

"I think it would be a more academic review, and less emotional," Dumais said. "I know there's a real push on [to pass the bill], but I don't know that the bill introduced is exactly where we should be."

With its prospects in the House unclear, there were also tensions two weeks ago during a hearing with the Senate committee that last year passed the bill.

At the hearing, Zirkin asked repeatedly if the bill might have unintended consequences for rape victims by making it easier for their past sexual history to be brought in.

"I guess you're not understanding my response to you. That's already being done," said Mosby, leaning into the microphone. Then she stepped back and said, "Are we clear?"

"I think we're after the same thing," Zirkin responded.

In an interview, Zirkin said the issue was overlooked last year when the bill passed his committee. He doesn't think it should lead to the bill's demise in the legislature's 90-day session, however.

"We have 50 days left — plenty of time left," he said.

jfenton@baltsun.com

twitter.com/justin_fenton

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