Marylanders should be wary of a bill on Gov. Hogan's legislative agenda that attacks basic due process protections in some of the state's most serious criminal prosecutions. Referred to as the "Repeat Sexual Predator Prevention Act," the bill would allow prosecutors in sex offense cases to present evidence to the jury that the person charged has engaged in illicit sexual behavior in the past. Although the proposal appears well-intended at first blush, if this bill passes it will erode fundamental rights and open the door to a dangerous form of prejudice.
It is a basic tenet of a fair trial that a prosecutor may not present a defendant's past criminal record to the jury because it is far too easy for jurors to assume that if the person charged has a record, he or she must be guilty this time too. Maryland's highest court, the Court of Appeals, has explained: "There are few principles of American criminal jurisprudence more universally accepted than the rule that evidence which tends to show that the accused committed another crime independent of that for which he is on trial, even one of the same type, is inadmissible."
Advocates for the bill seek the special rules to make it easier to prosecute sexual assaults. Yet Maryland law already permits judges to exercise their professional discretion to admit evidence of a criminal defendant's prior conduct when the judge deems it relevant to a contested issue in the case at hand. The proposed change instead empowers prosecutors to present such information for the sole purpose of evoking feelings of aversion and prejudice in the jury.
The proposal also rests on a false premise that people who have committed a sex offense are more likely to commit the same type of crime again when compared to other types of offenders. In stark contrast to this assumption, the U.S. Department of Justice in a 2003 study on recidivism found that people convicted of sex offenses were less likely to be rearrested for the same crime within three years of release than people convicted of nearly any other crime. A person who is convicted of a sex offense faces restrictive registration laws and unparalleled social stigmatization. Our justice system should demand a high standard of proof to convict a person in such a case, not relax the rules when the stakes are highest.
The proposed rule does not even require that the person was actually convicted of the prior act for it to be admitted as evidence. In fact, as written, it includes instances where the person was acquitted at trial or never charged.
Disturbingly, the prior sexual acts encompassed by this rule would also include consensual same-sex conduct still on the books as sex crimes in Maryland even though such laws have been ruled unconstitutional by the U.S. Supreme Court. For example, a prosecutor could argue under this rule that a defendant should be viewed as sexually dangerous because he has engaged in same-sex behavior in the past.
We should immediately be skeptical when proponents of a bill use sensationalized language to appeal to fear in order to erase fundamental due process protections. The brand of prejudice this rule would inject into these most serious of criminal trials is particularly pernicious because the fear of "sexual predators" has long been a mask for racial hatred and homophobia. We have seen this hatred surface in Donald Trump's campaign rhetoric when he called Mexican immigrants rapists, and used this falsehood to generate momentum for policies that curb the rights of many law-abiding immigrants. Indeed, in a criminal justice system that disproportionately prosecutes men of color, this rule would permit a prosecutor to stand before the jury and assert: He did it because he is the type of person who would commit this crime.
While it may be unpopular for our lawmakers to insist that those accused of ugly crimes get a fair shake, it corrupts the integrity of our judicial process to do otherwise. It is when the most stigmatized pass through our justice system that our commitment to due process is tested.
Rachel Bennett is an attorney at the Maryland Office of the Public Defender in Baltimore City's Felony Trial Division. Her email is rbennett@opd.state.md.us.