Legislative Agenda

2010 Legislative Priorities - Final Report

The Maryland Coalition Against Sexual Assault (MCASA) is a non-profit membership organization that includes all of the State's sixteen rape crisis centers, law enforcement, mental health and health care providers, attorneys, educators, survivors of sexual violence and other concerned individuals. MCASA includes the Sexual Assault Legal Institute (SALI), a statewide legal services provider for survivors of sexual assault. MCASA represents the unified voice and combined energy of all of its members working to eliminate sexual violence in the State of Maryland.

The Maryland Coalition Against Sexual Assault (MCASA) supports legislation that promotes justice for survivors of sexual violence, accountability for offenders, and protection for the general public. MCASA responds to policy questions and legislative initiatives throughout Maryland's legislative session (January-April).

The 2010 legislative session was a extraordinarily successful one for sexual assault legislation. Sadly, this is partly because of Sarah Foxwell's murder by sex offender over the Christmas holidays. Legislators were moved to make sexual assault a priority and over 80 sex offender bills were introduced. MCASA tracked and advocated for about 110 bills to assure that the needs of survivors were addressed by public policy makers. A summary of legislation is below.

PRIORITY BILLS PASSED

Safe Schools Act of 2010 - HB1160

This bill includes provisions that will allow school officials to prevent a student arrested for sexually assaulting another student from attending the same school or riding the same school bus pending trial and would prohibit the perpetrator from attending the same school or riding the same school bus after conviction. Lead sponsor: Speaker Mike Busch.

Reporting of Children Living with or in the Regular Presence of Registered Child Sexual Offenders -- HB 811/SB559

This bill authorizes any individual to notify the local department of social services or law enforcement if the individual has reason to believe that a child lives with or is in the regular presence of a person, other than the child's parent or guardian, who: 1) is a registered sexual offender based on the commission of an offense against a child; and 2) based on additional information, poses a substantial risk of sexual abuse to the child [MCASA anticipates that spending time alone with the child will qualify as substantial risk]. The local department and a law enforcement agency are authorized to receive such a report and are required to investigate and take certain actions as part of the investigation.

Lead Sponsors: Delegate Kathleen Dumais & Senator Delores Kelley.

Information sharing between the Department of Social Services and the Division of Parole & Probation - HB1330/SB892

Requiring the disclosure of a report or record of child abuse or neglect to the Division of Parole and Probation if the local department of social services has reason to believe or learns that an individual who lives in or has a regular presence in a child's home is registered on the offender registry based on the commission of an offense against a child.

Lead sponsors: Delegate Norman Conway & Senator Delores Kelley.

Support for Child Advocacy Centers - HB1043/SB796.

CACs are multi-disciplinary programs that bring together child advocates, child protective services (CPS), local law enforcement, prosecutors, and community service providers. CACs work to create a child-focused system that protects children, collects reliable and admissible evidence, and prevents offenders from abusing again. This bill codified child advocacy centers and gave the Governor's Office of Crime Control & Prevention responsibility for ensuring they are established and sustained. A second part of the bill added child advocacy centers to the list of funding priorities for the Maryland Board of Victim Services.

Lead sponsors: Delegate Norman Conway and Senator "Mac" Middleton.

Budget , Budget, Budget

Administration of the federal Victims of Crime Act funds were moved from the Department of Human Resources to the Governor's Office of Crime Control & Prevention. MCASA continues advocacy in this area throughout the year.

Maryland Legal Services Corporation - Court Filing Fees - HB106/SB248

This bill increased filing fees in court cases to fund legal services for low income litigants. This is vital for legal services for victims of sexual assault and domestic violence. Current grantees include SALI, Heartly House, SARC, and others. Lead sponsors: Delegate Kathleen Dumais & Senator Brian Frosh.

Human Trafficking

MCASA worked with the Maryland Human Trafficking Task Force on a series of bills to improve the State's response to human trafficking, including sexual slavery. Two bills passed: HB283/SB261 (lead sponsors: Delegate Jeff Waldstreicher & Senator Jennie Forehand). This bill added forced sexually explicit performances as an activity which can lead to a human trafficking charge and increased the penalties for using force, threat, coercion, or fraud to compel marriage or sexual conduct. HB1322/SB542 (lead sponsors: Delegate Tom Hucker & Senator David Harrington) also passed and will require certain hotels, strip clubs, and other establishments to post information regarding trafficking. Special thanks to the Polaris Project and Julie Janovsky for their leadership on these bills.

Protective Order Violations - Extending Orders - HB534/SB867

This allows judges to extend protective orders for up to 2 years in cases where a perpetrator re-abuses a victim while an order is in place. Lead sponsors: Delegate Jeff Waldstreicher and Senator Anthony Muse.

Landlord-tenant - "Safe Homes" bill - HB1322/SB554

Law provides protections for victims regarding their landlord/tenant relationships. The law provides that if the victim/tenant has obtained a final protective order or peace order, the victim may terminate the lease in order to relocate; the landlord must change the locks upon request of the victim at the victim's expense, and creates a rebuttable presumption that the victim is not in breach of the lease if the landlord is attempting to evict the victim for the behavior of the abuser.

Lead Sponsors: Delegate Cheryl Glenn & Senator Lisa Gladden.

Special thanks to MCASA's lobbyist colleagues for their work on this bill: Laure Ruth from the Women's Law Center of Maryland, Cynthia Lifson from the Md. Network Against Domestic Violence, and Dorothy Lennig from the House of Ruth. The University of Baltimore Law School and students also contributed countless hours to this bill.

Pre-trial Release - Violation of Criminal No Contact Orders (Alexis's Law) - HB60/SB618

This bill prohibits a person charged with committing a sexual offense against a minor from violating a condition of pretrial or posttrial release prohibiting the person from contacting, harassing, or abusing the alleged victim or going in or near the alleged victim's residence or place of employment. A violator is guilty of a misdemeanor and subject to imprisonment not exceeding 90 days. A police officer may arrest a person without a warrant if the police officer has probable cause to believe that the person has violated a condition of pretrial or posttrial release as prohibited under the bill. This bill is named for a child sexual abuse survivor in Cecil County whose perpetrator violated conditions of release and the Court failed to respond. Lead sponsors: Delegate Michael Smigiel & Senator Nancy Jacobs.

Registered Sex Offenders - Restrictions on Pretrial Release and Inclusion on RAP Sheet -- HB 1046

This bill prohibits a District Court Commissioner from authorizing the pretrial release of a defendant who is a registered sex offender. A judge is authorized to release such a defendant on suitable bail, on any other conditions reasonably assuring that the defendant will not flee or pose a danger to others, or both bail and such other conditions. A State record of arrest and prosecution ("RAP" sheet) that is accessible to judicial officers making pretrial release determinations must prominently indicate, when applicable, that the subject of the report is a registered sex offender or subject to a term of lifetime sexual offender supervision.

The bill also specifies that, under the Maryland Rule governing the review of a commissioner's pretrial release order, when such a defendant is presented to the court, the judge must order a continued detention if the judge determines that bail or other conditions of release would not protect against flight or a danger to others. There is a rebuttable presumption that such a defendant will flee or pose such a danger. The bill makes the imposition of lifetime sexual offender supervision a reportable offense to the Criminal Justice Information System (CJIS) Central Repository.

Lifetime Supervision for Sex Offenders -- HB473/SB280.

The O'Malley administration introduced a bill on life-time monitoring for offenders to improve the State's response to sex offenses and had MCASA's strong support.

This Administration bill makes substantive and organizational changes to provisions governing the extended supervision of some sexual offenders. The bill requires the lifetime supervision of the following sexual offenders for a crime committed on or after October 1, 2010:

• a sexually violent predator;
• a person convicted of first or second degree rape, first degree sexual offense, certain circumstances of second degree sexual offense;
• a person convicted of attempted first or second degree rape, first degree sexual offense, or certain circumstances of second degree sexual offense; sexual abuse of a minor if the violation involved a child under 12;
• a person required to register based on the commission of an act as a juvenile; and
• a person convicted more than once arising out of separate incidents of a crime that requires registration.

A person convicted of certain circumstances of third degree sexual offense may be required to be under lifetime supervision. The bill eliminates the role of the Maryland Parole Commission to administer or enter agreements for extended parole supervision of sexual offenders and deletes reference to an "extended parole supervision offender." The bill also eliminates extended supervision for a period less than life, except that the term of supervision for a person required to be under supervision based on an act committed as a juvenile shall expire when the person's obligation to register on the sex offender registry expires, which is generally 5 years.

The bill prohibits a person subject to such lifetime supervision from knowingly or willfully violating the conditions of the supervision, with the following penalties:

• for a first offense, the person is guilty of a misdemeanor and subject to maximum penalties of imprisonment for 5 years and/or a fine of $5,000;
• for a second or subsequent offense, the person is guilty of a felony and subject to maximum penalties of imprisonment for 10 years and/or a fine of $10,000.

A person imprisoned for a violation of lifetime supervision is not entitled to diminution credits and continues to be subject to lifetime supervision upon release until discharge from supervision. A court may remand a person to a correctional facility pending the hearing or a determination on a charge of violation of a condition of lifetime sexual offender supervision. A person may file a petition for discharge after serving at least 5 years of supervision. The court may not discharge a person from supervision unless the court makes a finding on the record that the petitioner is no longer a danger to others. Unless incapacitated or no longer on the bench, the judge who originally imposed the lifetime supervision must hear any petition for discharge. The sentencing court may not deny a petition for discharge without a hearing. Victim notification provisions apply to proceedings for violation of lifetime sexual offender supervision.

The sentencing court (or juvenile court in the case of a person place on supervision based on an act committed as a juvenile) must impose special conditions of lifetime sexual offender supervision at the time of sentencing (or imposition of the registration requirement in juvenile court) and advise the person of the length, conditions, and consecutive nature of that supervision. Before imposing the special conditions, the court must order a presentence investigation, and for a sentence for third degree sexual offense, a risk assessment. The bill delineates allowable special conditions, including global positioning satellite (GPS) tracking or equivalent technology and required participation in a certified sexual offender treatment program. The court may adjust the special conditions of such lifetime supervision in consultation with the person's sexual offender management team.

MCASA successfully advocated for victim notification when an offender is released from supervision or the conditions of supervision are modified.

Sexual Offender Advisory Board - HB 931/SB 856

This O'Malley Administration bill alters the composition of the Sexual Offender Advisory Board by adding the Secretary of Health and Mental Hygiene, the Secretary of Juvenile Services, the Director of the Maryland Criminal Justice Information System Central Repository, the Executive Director of the Governor's Office of Crime Control and Prevention, or their designees, and specified other members with expertise in sexual abuse, related crimes, and victimization of such crimes. A representative of child advocacy centers will also be added to the Board. The bill also expands the duties of the board to include developing criteria for measuring a person's risk of reoffending to assist a court in determining whether a person may be appropriately released from extended sexual offender supervision, studying and making recommendations on the issue of civil commitment of sex offenders, and considering ways to increase cooperation among states with regard to sexual offender registration and monitoring. Other legislation added the duty to study issues related to sex offenders in nursing homes. The bill takes effect June 1, 2010, and requires that the first annual report of the board be submitted by December 31, 2010. MCASA member Michele Hughes sits on this Board as the victim services representative.

PRIORITY BILLS THAT DID NOT PASS

Sex Crimes Definition - Survivor Centered Law - HB1310/SB667

Sex crimes in Maryland use a variety of defined terms. "Sexual act" is used for more invasive activities including oral sex, anal sex, and penetration with an object. "Sexual contact" encompasses fondling but also penetration with body parts other than tongues and penises (for instance, penetration with a fist or a finger). This bill would have revised these definitions by moving penetration with fists/fingers/toes/etc. to the same category the same as penetration with an object. This would mean that offenses involving non-consensual fondling would be treated less seriously, but offenses involving penetration would be treated more seriously. The Maryland Legislative Agenda for Women (MLAW) has included this bill on its priority list this year.

Lead sponsors: Delegate Kris Valderrama and Senator Jennie Forehand.

Passed the Senate, never brought to vote by House Judiciary Committee

Human Trafficking - Forfeiture - HB514/SB463

Authorizing a State or local law enforcement agency to seize specified property used or intended for use in connection with a violation of the law prohibiting human trafficking; creating the Anti-Human Trafficking Fund for specified purposes.

Lead Sponsors: Delegate Tanya Shewell, Senator Jennie Forehand

Passed the Senate, never brought to vote by House Judiciary Committee

Joint Custody - OPPOSED - HB925/SB1047/HB950

MCASA opposes mandating a presumption of joint custody in family law cases. These types of presumptions can harm children in cases involving grooming for sexual abuse, violated boundries, sexual abuse that does not lead to criminal convictions. Joint custody presumptions are also harmful in cases involving domestic violence, including those involving marital rape or other intimate partner sexual violence. Lead sponsors: Delegate Carter, Senator Muse, Delegate McConkey.

These bills were not voted on by their committees.

OTHER BILLS OF INTEREST

Prince George's County - Domestic Violence - GPS Tracking System Pilot Program for Offenders - HB665and Washington County - Domestic Violence - GPS Tracking System Pilot Program for Offenders HB1336 authorize pilot projects in Prince George's and Washington Counties that willmonitor domestic violence criminal offendersusing GPS tracking systems.

International Marriage Brokers - Regulation - HB65/SB129

Requires provision of information to potential "mail order brides" (or husbands), requires criminal background check of spouse, regulates the industry.

Senator Pugh & Delegate Haddaway

Denial or Dismissal of Peace Order or Protective Order Petition - Shielding of Records-HB1149/SB935 (formerly the "expungement bill). Allows a respondent in a protective order or peace order case that has been dismissed or denied to request the court to remove from judicary case search and other public access all records relating to the proceeding. Domestic violence & sexual assault advocates, judges and law enforcement officals would have access to the shielded records. Although MCASA opposed the expungement of protection order records, this final version of this bill included important protections for victims. These include requiring judges to check for past protective orders prior to issuing order.

Warrantless Arrest - Violation of Protective Order - HB661

Provides that an officer shall arrest with or without a warrant for a violation of a protective order.

Prohibitions on Wearing, Carrying or Transporting Firearms - Exception - HB905/SB2

Establishes an exception to the prohibition against transporting a firearm for a respondent who is surrendering a weapon.

Sexual Offenses Against Children - Jessica's Law Enhancement - HB 254/SB 622

This bill increases the mandatory minimum prison sentence for a person 18 years of age or older convicted of second degree rape or second degree sexual offense of a victim younger than the age of 13 from five years without the possibility of parole to 15 years without the possibility of parole, and increases the maximum prison sentence from 20 years to life. (These provisions were also included in the Administration's Adam Walsh/SORNA bill HB 936/SB 854.)

Child Sexual Offenders - Diminution Credits - HB289

This bill prohibits the earning of diminution credits to reduce the term of confinement of an inmate who is serving a sentence in a State or local correctional facility for committing first or second degree rape or first or second degree sexual offense against a victim who is a child under the age of 16.

Repeat Child Sexual Offenders - Diminution Credits - HB599

This bill prohibits the earning of diminution credits to reduce the term of confinement of an inmate who is serving a sentence for committing third degree sexual offense against a child under the age of 16 after being previously convicted of committing a third degree sexual offense against a child under the age of 16.

Child Pornography - Matter Reflecting Belief That a Minor Is Depicted In a Certain Manner - HB1053

This bill expands the State's prohibition against producing or distributing child pornography by prohibiting a person from knowingly promoting, advertising, soliciting, distributing, or possessing with the intent to distribute any matter, visual representation, or performance in a manner that reflects the belief, or that is intended to cause another to believe, that it depicts a minor engaged as a subject of sadomasochistic abuse or sexual conduct.

Sex Offenders - Notification and Registration - HB 936/SB 854 (Adam Walsh/SORNA)

This Administration bill makes changes to notification and registration provisions of Maryland's sexual offender laws to conform to the federal Sex Offender Registration and Notification Act (SORNA), which is Title I of the Adam Walsh Child Protection and Safety Act of 2006. MCASA successfully advocated for a compromise approach for juvenile sex offenders (see details below). This bill was import both for its substantive effect and because passage was required to protect federal Byrne funding. Byrne dollars are important for both law enforcement and victim services.

The bill replaces reference to the four existing categories of sexual offenders with the three tiers of categorization under SORNA. The bill includes the following provisions:

A Tier I sex offender means a person who:

• has been convicted of conspiring to commit, attempting to commit, or committing fourth degree sexual offense;
• has been convicted of conspiring to commit, attempting to commit, or committing visual surveillance with prurient intent, or possession of child pornography, if the victim is a minor;
• has been convicted of a crime committed in a federal, military, tribal, or other jurisdiction that would constitute any of the above cited offenses;
• has been convicted of any of enumerated federal offenses; has been convicted of any similar military offense specified by the Secretary of Defense;
• or has been convicted of a crime in a court of Canada, Great Britain, Australia, New Zealand, or any other foreign country where the U.S. State Department has determined in its country reports on human rights practices that an independent judiciary generally or vigorously enforced the right to a fair trial during the year in which the conviction occurred that, if the crime were committed in this State, would constitute one of these crimes.

A Tier II sex offender means a person who:

• has been convicted of conspiring to commit, attempting to commit, or committing specified third degree sexual offenses, sexual solicitation of a minor, production of child pornography, or hiring a minor for a prohibited purpose, if the victim is a minor;
• has been convicted of conspiring to commit, attempting to commit, or committing human trafficking, abduction of a child under 16, or operating a house of prostitution, if the intended prostitute or victim is a minor;
• has been convicted of conspiring to commit, attempting to commit, or committing, sexual misconduct by a correctional officer or employee of the Department of Juvenile Services, or sale of a minor, if the victim is a minor who is at least 14;
• has been convicted of conspiring to commit, attempting to commit, or committing an offense that would require the person to register a tier I sex offender after the person was already registered as a tier I sex offender;
• has been convicted of a crime committed in a federal, military, tribal, or other jurisdiction that would constitute any of the above cited offenses;
• or has been convicted of a crime committed in another jurisdiction, including a foreign jurisdiction, as described above.

A Tier III sex offender means a person who:

• has been convicted of conspiring to commit, attempting to commit, or committing first degree murder while committing rape, sexual offense in the first or second degree, or sodomy;
• has been convicted of conspiring to commit, attempting to commit, or committing first or second degree rape, first or second degree sexual offense, certain circumstances of third degree sexual offense, continuing course of conduct with a child, incest, kidnapping, or sexual abuse of a minor;
• has been convicted of conspiring to commit, attempting to commit, or committing sodomy or unnatural or perverted sexual practices, if the offense was committed with force or threat of force;
• has been convicted of conspiring to commit, attempting to commit, or committing a certain circumstance of third degree sexual offense, sexual conduct between a correctional or juvenile justice employee and an inmate or confined child, child kidnapping, or sale of a minor if the victim is under 14;
• has been convicted of conspiring to commit, attempting to commit, or committing the common law offense of false imprisonment, if the victim is a minor;
• has been convicted of conspiring to commit, attempting to commit or committing an offense that would require the person to register as a tier I or tier II sex offender after the person was already registered as a tier II sex offender;
• has been convicted of a crime committed in a federal, military, tribal, or other jurisdiction that would constitute any of the above cited offenses;
• or has been convicted of a crime committed in another jurisdiction, including a foreign jurisdiction, as described above.

The bill adds "an agency or person responsible for collecting the information for the initial registration of a sex offender" to the definition of "supervising authority" and specifies that the supervising authority for a registrant who moves to Maryland from another jurisdiction is the local law enforcement unit in which the registrant is a resident or habitually lives, instead of the Secretary of Public Safety and Correctional Services.

Adult Registration and Homeless Registrants

The bill includes the following provisions:

• provides for the registration of sexual offenders who are homeless with no fixed address; requires a homeless person to register in person, within a specified timeframe, with the local law enforcement unit in the county where the registrant "habitually lives;"
• defines "habitually lives" as any place where a person lives, sleeps, or visits with any regularity, including where a homeless person is stationed during the day or sleeps at night, and any place where a person visits for longer than 5 hours per visit more than 5 times within a 30-day period;
• requires a registrant to disclose all addresses and places where the resident resides or habitually lives;
• requires re-registration of homeless registrants weekly while habitually living in the county; provides that, if a homeless registrant obtains a fixed address, the registrant must register with the appropriate supervising authority and local law enforcement unit within three days;
• requires local law enforcement notifications for any registrant when a change of residence occurs; requires new in-person reporting requirements relating to institutions of higher education;
• requires new notifications (and/or timeframes) relating to a change of name, leaving the United States for residence or work in a foreign country, or a temporary residency and requires new notifications by a local law enforcement unit to the Department of Public Safety and Correctional Services (DPSCS) of such changes;
• changes all references to the provision of a photograph for registration purposes to provision of a digital image and adds a requirement for palm prints; specifies that a Tier I sex offender must register every six months for 15 years,
• a Tier II sex offender must register every six months for 25 years, and a Tier III sex offender must register every three months for life;
• provides the circumstances under which the registration term of a Tier I sex offender may be reduced to 10 years;
• specifies that a sexually violent predator's quarterly registration requirement be made to a local law enforcement unit;
• generally narrows all registration, changes of information, and notification deadlines to three days;
• requires a sexual offender who is sentenced to a term of incarceration to register prior to release from incarceration;
• and adds information that must be included in a registration statement, such as a copy of the registrant's passport or immigration papers, Social Security number (and purported Social Security numbers), locations where all vehicles are kept, and landline and cell telephone numbers.

Juvenile Registration

The bill provides that a person who has been adjudicated delinquent for an act that, if committed by an adult, would constitute first or second degree rape, first or second degree sexual offense, or nonconsensual third or fourth degree sexual offense involving "digital penetration" must register if:

the person was a minor who was at least 13 years old at the time the delinquent act was committed;

• the State's Attorney or the Department of Juvenile Services requests that the person be required to register;
• 90 days prior to the time the juvenile court's jurisdiction over the person terminates under § 3-8A-07 of the Courts Article, the court, after a hearing, determines under a clear and convincing evidence standard that the person is at significant risk of committing a sexually violent offense or an offense for which registration as a tier II or tier III offender is required;
• and the person is at least 18 years old.

Listing of Juvenile Sex Offenders

The bill requires a person to be included in a listing of juvenile sex offenders that is maintained by the Department separately from the sex offender registry if:

• the person has been adjudicated delinquent for an act that, if committed by an adult, would constitute first or second degree rape, first or second degree sexual offense, or nonconsensual third or fourth degree sexual offense involving "digital penetration";
• and the person was a minor who was at least 13 years old at the time the delinquent act was committed.

The listing of juvenile sex offenders shall be accessible only by law enforcement personnel for law enforcement purposes. When the juvenile court's jurisdiction over a person who is included in the listing of juvenile sex offenders terminates, the person shall be removed from the listing. The Department must adopt regulations to implement the registry, including a definition of "law enforcement personnel," by December 31, 2010.

Registration Waiver

If a person is under the protection of a federal or comparable witness protection program, sex offender registration requirements are waived upon a written request from the agency operating the program. The waiver is terminated if the exempted offender is subsequently convicted of an offense requiring registration.

Public Information

The bill prohibits registration information provided to the public by DPSCS from including a sex offender's Social Security number, driver's license number, medical or therapeutic treatment, travel and immigration document numbers, and arrests not resulting in conviction. DPSCS must post on the Internet: 1) a current listing of each registrant's other than a minor registrant's name and other identifying information; and 2) in plain language that can be understood without special knowledge of the criminal laws of the State, a factual description of the crime of the offender that is the basis for the registration, excluding details that would identify the victim. DPSCS, through its Internet posting of registrants, must provide information regarding the out-of-state registration status of each registrant who is also registered in another state as available through a national sex offender public registry web site.

Retroactivity

The bill requires that the registration provisions apply retroactively to include a person who: (1) is under the custody or supervision of a supervising authority on October 1, 2010; (2) was subject to registration on September 30, 2010; or (3) is convicted for any crime on or after October 1, 2010 and has a prior conviction for an offense for which registration as a sex offender is required. The term of retroactive registration must be calculated from the date of release.

Jessica's Law Enhancement

The bill also increases the mandatory minimum prison sentence for a person 18 years of age or older convicted of second degree rape or second degree sexual offense of a victim younger than the age of 13 from five years without the possibility of parole to 15 years without the possibility of parole, and increases the maximum prison sentence from 20 years to life.

MCASA extends its thanks to Elizabeth Bartholomew and Rhea Harris from DPSCS for this detailed summary of the Adam Walsh bill and for other information included in this report.

As always, please feel free to contact MCASA's General Counsel, Lisae C. Jordan, lisae.jordan.esq@gmail.com with any questions about legislation.