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Md. law hampers prosecution of serial rapists

There is one kind of violent offender who stands in stark contrast to all others: the sexually violent serial rapist. They don't simply commit one isolated sexual assault; they commit multiple sexual assaults. Sometimes their work spans the course of several years. They pick their victims well. Sometimes it's a vulnerable woman, too broken by drug addiction to be believed. Sometimes it's someone who has the unfortunate coincidence of being in the wrong place at the wrong time.

Serial rapists are far from being a nightmare in the prosecutor's imagination. They are not mythical; they are not an abstraction. Serial rape is a real phenomenon. Forensic psychologist David Lisak found a shockingly high rate of repeat sexual offenses among a shockingly small number of men. In a study where 120 men admitted to committing a sexual assault, they averaged about five victims per offender. Maryland law has, to some extent, recognized that sexual offenders may continue to re-offend. For this reason, Maryland adopted public sex offender registries to ensure greater supervision of sexually violent predators. But this important public protection only comes after a conviction for a sex offense.

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Prosecutors tasked with investigating serial rapists find themselves in a difficult position. They work to build the strongest cases they can. They are aided by DNA evidence that can conclusively prove the identity of the perpetrator to the exclusion of all others on the planet. They see first-hand the pattern of horrible offenses — one victim after another, sexually assaulted in the same way. With such strong patterns between each offense, it seems obvious that trying each case together before the same jury would guarantee a conviction.

However, no matter how powerful presenting all of this evidence to one jury may be, Maryland law currently prevents prosecutors from allowing the jury to hear the entire extent of a serial rapist's crimes. No matter how many times a serial rapist assaults a new victim, the jury will only hear one victim's case at a time. For the defendant, even with DNA evidence against him, it is all too easy to take the stand and testify that the sexual assault was not a crime at all but a consensual sexual encounter. And in a prosecution where there are only two witnesses to the crime, the case devolves to an unresolvable contest between the credibility of the victim and that of the defendant. After the jury is instructed that they may only convict if there is no reasonable doubt, acquittal in these cases is a near certainty. Moreover, the decision to acquit comes from a jury of 12 people who were never given all of the evidence showing a serial pattern of rape. It stands to reason that they might come to a different result if they heard about the other victims.

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Such is the current plight of prosecutors facing a serial rapist. Maryland law has rigidly restricted the ability to show juries the other instances of sexually assaultive behavior. And prosecutors are fearful of trying these cases together in a single prosecution, knowing that a guilty conviction could be overturned on appeal. With Maryland's highest court holding that one woman's lack of consent has no relevance on another woman's lack of consent, that fear is well-founded.

"Justice, though due to the accused, is due to the accuser also," a U.S. Supreme Court justice once wrote. "We are to keep the balance true." Yet, because of the current state of the law, the balance always tips in favor of the accused at the expense of the accuser. In this aspect, the law has failed previous and potential future victims of serial rapists.

Maryland's Court of Appeals, in the case of Hurst v. State, suggested that if the state of the law should be changed, it should come from the legislature. The Baltimore City state's attorney's office, along with others across the state, composed a bill that would allow prosecutors to show such a pattern to juries. Since 1994, federal courts have allowed federal prosecutors to show juries the defendant's prior acts of sexual misconduct against different victims. In the time since, a number of states have followed the federal example by adopting state-specific versions of the federal rule. It is time that Maryland joins these states by adopting such a rule and putting an end to rape culture.

Trey Perkins is an assistant state's attorney working in the Special Victims Unit of the Baltimore City state's attorney's office; his email is tperkins@stattorney.org.

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