It was long a common practice among some Baltimore-area police departments: Offer sexual assault victims a waiver form to document that they didn’t want to go forward with their case.
Now some Maryland lawmakers want to ban police from using such waivers in sexual assault cases so that victims aren’t discouraged to report and prosecute the crimes. In some instances, experts say, detectives misused waiver forms to pressure victims to stop pursuing charges or to get cases off their plate without a thorough investigation.
“Why should there be anybody in the state of Maryland continuing this practice?” said Sen. Shelly Hettleman, a Baltimore County Democrat and sponsor of the legislation. “I think it’s really important to put it away once and for all.”
While some departments have stopped using waivers in recent years, the Harford County sheriff’s office continues to use a form titled “Request to Suspend Investigation” in cases including sexual assaults. The sheriff said his office uses the waiver “sparingly,” and only when a victim has asked to end an investigation.
The state legislation would bar police from presenting victims with forms that relieve law enforcement from “an obligation to the victim,” define the scope of the investigation, prevent prosecution of the crime or waive the victim’s rights.
Delegate Sandy Bartlett, an Anne Arundel County Democrat and sponsor of the House measure, said she doesn’t want forms used early in a case in any way that could limit an investigation.
“It’s a time of so much trauma and I don’t think that’s the time to make that decision,” she said.
The bill is the latest effort by state lawmakers to change the way Maryland law enforcement agencies handle sexual assault investigations. A 2017 law now requires police to keep rape kit evidence for 20 years. And a law that took effect in January requires police to promptly submit most rape kits for forensic testing unless the victim doesn’t want it tested.
Amid a Baltimore Sun investigation of the waivers last year, Anne Arundel and Baltimore counties stopped using the forms in sexual assault investigations.
Baltimore Police and the county police departments in Howard, Montgomery and Prince George’s counties say they do not use the waivers. The Carroll County Sheriff’s Office also doesn’t.
Among Central Maryland police departments reviewed last year by the Sun, Baltimore County used the forms most frequently: 172 times from 2017 to 2018.
The Baltimore County waiver included language stating that the victim would “release from responsibility and hold harmless” the police from any liability in the case. In one case reviewed by The Sun, a 21-year-old victim signed a form while she was in the hospital waiting for a sexual-assault forensic exam and still under the influence of alcohol.
Baltimore County Police Lt. Brian Edwards of the Special Victims Unit said in a statement this month that ending the use of the forms “was just one component in a comprehensive and ongoing effort to review and refine our investigative process.” The department has been making changes after criticism of the way it handles sexual assault cases.
Since ending the use of the forms, Edwards said, county police have seen “a significant increase in the number of victims who remain engaged with SVU beyond the initial response.”
Anne Arundel County police, too, used to offer victims a waiver to “rescind my right to further investigation of this matter.” It stopped, however, after The Sun reported it.
“We profoundly hope this step has made us better at meeting victim needs,” said Sgt. Jacklyn Davis, a spokeswoman for the agency.
But the Harford County sheriff’s office continues to use waivers. Unlike Baltimore County’s old forms, the Harford form does not say anything about releasing police from liability.
“It allows the victim to have a voice,” said Sheriff Jeff Gahler, a Republican.
Gahler said he revised the forms with input from county State’s Attorney Albert J. Peisinger Jr., a Republican who took office last year. The form now makes it clear that the victim can change their mind and revoke their request to suspend the investigation.
Deputy State’s Attorney Gavin Patashnick said the form helps ensure a victim’s wishes are documented.
“That being said, clearly utilizing ... these acknowledgments against an individual is completely inappropriate," Patashnick said.
In a letter to Hettleman about the bill, the sheriff described the form as “a last resort way to document a victim’s wish to not pursue an investigation any further.”
Gahler wrote that it doesn’t offer the waiver when victims make their initial report. A supervisor must approve using a waiver. He wrote that investigators ensure victims have access to victim services before deciding to not move forward with a case.
Investigators don’t even tell victims about the form unless they are “adamant” about not pursuing charges, said Capt. Lee Dunbar, commander of the Harford Sheriff’s Office’s Criminal Investigations Division. The sheriff’s office uses the waivers in other types of crimes, such as cases of theft between family members in which the victim doesn’t want to press charges against a relative, Dunbar said in an interview.
Gahler’s office said from 2017 to 2018, 10 waivers were signed out of 99 sexual assault cases opened. Statistics for 2019 were not available, said Cristie Hopkins, a spokeswoman for the sheriff’s office.
Critics of the waivers say they discourage reporting by victims of a crime that already is underreported. In 2018, the most recent year for which survey data is available, only 25% of rapes and sexual assaults were reported to police, according to the U.S. Bureau of Justice Statistics.
Last year, the International Association of Chiefs of Police adopted a resolution saying the group “strongly discourages” the use of victim waiver forms, acknowledging that some investigators prematurely address the issue of prosecution with victims — and that victims of violent crime may have impaired memory or decision-making due to trauma.
Retired San Diego Police Sgt. Joanne Archambault, who supervised that department’s sex crime unit for a decade, said law enforcement traditionally used the forms because “they believe that they’re covering their rear ends."
“They’re misusing it in many departments to close the case without doing their job,” said Archambault, who founded the nonprofit End Violence Against Women International, which provides training to law enforcement and others on responding to gender-based violence.
She said waivers should be used only in narrow circumstances, such as when a department may face allegations of conflicts of interest — for example, if they are investigating a fellow law enforcement officer or a celebrity.
Archambault said the language in the Harford County form is "not bad at all” compared with waivers used by other departments, but she still believes they are unnecessary. Detectives can document a victim’s wishes in case files without asking them to sign a form, she said.
She also said she would like to see more data from the sheriff’s office, such as an analysis of how often victims withdraw participation, how many cases are referred for prosecution and how often prosecutors accept the cases.
Hopkins, the sheriff’s office spokeswoman, said a breakdown of recent years’ clearance rates was not available.
The Maryland Coalition Against Sexual Assault supports the state legislation to prohibit the forms. Executive director Lisae Jordan said waiver forms have been “recognized as bad practice for many years."
In the past, police departments have stopped using forms temporarily and then started again, so this bill would ensure the practice ceases permanently, Jordan said.
“They send a wrong message and we need to improve the way we respond to sexual violence,” Jordan said of waiver forms. “This is a small but important part of that.”
The bill is scheduled for a hearing before the Senate Judicial Proceedings Committee in early March.