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What they're not telling you about Md.'s rape paternity bill

The social media campaign that pretends to explain Maryland's controversial rape paternity bill is another example of how state and national politics have been consumed by the politics of personal destruction as opposed to reasoned and detailed debate.

If a child is conceived as the result of a sexual assault, everyone is pretty much in agreement that the "rapist" or perpetrator of the act should not have custody or access to the child.

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But the real issue in this legislation has always been how to determine if a child was conceived as the result of a sexual assault or consensual sex without a criminal trial. For many years various iterations of this bill were aggressively criticized and opposed by Maryland's judges — speaking through the Maryland Judicial Conference and the Maryland State Bar Association.

Remember, the debate is not about giving rapists access to the child conceived as a result of violence. The real issue has been about guaranteeing constitutional due process protections to a person who has been accused, but not criminally charged, with perpetrating a sexual assault.

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If you have a husband, brother, son, father or grandfather, lean in and listen carefully. This year's rape paternity bill was again opposed by the Maryland judiciary because of its one-sided, "ends justify the means" philosophy to addressing what is a serious issue that is entitled to a serious solution.

The bill does not require that a person be indicted and convicted by a jury of his peers before he is denied access to his child. And think about this: Under the bill, a person who is found not guilty in a criminal proceeding can then still lose his child if a civil judge finds in a civil proceeding by a lesser standard of evidence and without constitutional protections of a criminal trial that the person perpetrated the act despite a jury's finding of not guilty. This type of outcome is very troubling to many of us who understand that because a person accused of a crime is not popular does not mean that the person's civil and constitutional rights should be sacrificed at the altar of identity politics.

Under this bill, a private person may file a civil lawsuit in the same manner and court as she would a dispute about an automobile accident to make the determination that an individual perpetrated a sexual assault. Under the bill, no police report is necessary, no independent determination by a state's attorney is required, and, in fact, under previous versions of the bill, an indigent defendant was not entitled to an attorney to defend him. The bill similarly limited an individual's right to take discovery such as identifying witnesses, taking statements, and being constitutionally placed on notice of the nature of the accusation.

Over the last several years, Del. Joseph F. Vallario and Sen. Robert A. Zirkin, each chairman of their respective chamber's judiciary committee, fought to include many of these critical constitutional protections in the final version of the bill. This year a conference committee of the House and Senate reached a compromise at approximately 11 p.m. on the last night of the legislative session. Anyone who has spent more than 20 minutes in Annapolis knows that there was more than enough time for the conference committee report to pass both the House and the Senate before the session ended. The fact of the matter is that Chairmen Vallario and Zirkin did their jobs and were not responsible for the failure of the conference committee report to pass both the House and the Senate. The House speaker and the president of the Senate control the calendar and could have easily stopped the presses until the conference committee report was printed and passed.

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There have been people of good will on all sides of these issues including Chairman Vallario, Chairman Zirkin, and Del. Kathleen Dumais, who has long lobbied for the legislation. We need more people of good will and fewer zealots, more honest and accurate accounts and less inflammatory personal denunciations. Due process is an American invention — an American birthright — and it should not be sacrificed at the altar of identity politics. Next year is another year, and I am confident that the compromise worked out by the conference committee will be enacted by the General Assembly, but we have to keep in mind that attacking the integrity and motives of people with whom we disagree establishes awful precedent for how we try to resolve differences of opinion in our democracy.

Luiz Simmons is a lawyer and former member of the Maryland House of Delegates.

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