Table Three, Capacity Issues (e.g. drugs, alcohol, disability, physical helplessness)

 

CRIME

ACT

FORCE

CONSENT

FACTORS

MAXIMUM PENALTY

RAPE

SECOND DEGREE

§ 3-304(a)(2)

VAGINAL INTER-COURSE

 

Marriage can be a defense – see note below

NOT AN ELEMENT

NOT AN ELEMENT

(1) With a person who is mentally defective 1 or incapacitated, or physically helpless AND

(2) where the person committing the act knew or reasonably should have known of the disability

Felony
Twenty Years

Mandatory Minimum: 5 Years Applies only if defendant was over age of 18 and victim under 13.

SEX OFFENSE

SECOND DEGREE

§ 3-306(a)(2)

SEXUAL ACT

NOT AN ELEMENT

NOT AN ELEMENT

(1) With a person who is mentally defective or incapacitated, or physically helpless AND

(2) where the person committing the act knew or reasonably should have known of the disability

Felony
Twenty Years

Mandatory Minimum: 5 Years Applies only if defendant was over age of 18 and victim under 13.

SEX OFFENSE

THIRD DEGREE

§ 3-307(a)(2)

SEXUAL CONTACT

 

Marriage can be a defense – see note below

NOT AN ELEMENT

NOT AN ELEMENT

(1) With a person who is mentally defective or incapacitated, or physically helpless AND

(2) where the person committing the act knew or reasonably should have known of the disability

Felony

Ten Years

 

Marriage – Still a Defense to Sex Crimes Based on Capacity Issues

 

Traditionally, marriage was a defense to sex crimes.  Vestiges of this remain:  a perpetrator may not be charged under §3-304(a)(2)(vaginal intercourse with a person with serious disability, incapacitation or physical helplessness) or §3-307(a)(2)(sexual contact with a person with serious disability, incapacitation or physical helplessness) UNLESS the parties have a limited divorce or a written separation agreement or have lived separate and apart without interruption or cohabitation for 3 months prior to the offense.  Note that marriage has never been a defense to §3-306(a)(2) because sexual acts were not legal.

Jessica's Law:  In 2006, Maryland enacted its version of "Jessica's Law," when it created mandatory minimums for certain sex crimes against young children (see chart). This bill also created a monitoring system for sex offenders which can include GPS and other restrictions

 
 


 

1 SALI regrets the insensitive use of the term “mentally defective,” but this accurately reproduces the language of the Annotated Code of MD, Criminal Law § 3-301(b).