By Alexandra Hoskins, Esq., and Claire Kelleher-Smith, Staff Attorneys at the Sexual Assault Legal Institute (SALI)
Every spring, the General Assembly enacts new legislation, and every fall, the law books of Maryland receive makeovers as that legislation becomes official law. Here are some highlights from the legislation that the Maryland Coalition Against Sexual Assault helped to pass last spring:
No Means No – Rape and Physical Resistance (SB 217/HB 429; Md. Code Ann. Criminal Law § 3-319.1): This law modernizes Maryland’s sexual assault statute by clarifying that the government is not required to prove that a rape victim physically resisted the assault for the rapist to be convicted. The law reflects a fundamental improvement to Maryland’s response to sexual assault survivors and reflects updated thinking and research. The neurobiological effects of trauma can lead victims of sexual assault to feel paralyzed and unable to fight back both during and after the assault. Rapists often target people who are in vulnerable positions and unable to fight back. And, refraining from physical resistance during an assault can sometimes be the safest option for the victim. Now, under the new law, rape survivors do not have to prove that they physically fought against the attack. Instead, the update in the law reflects the modern understanding that “No Means No.” This law is one of the most important changes to Maryland’s criminal law in recent years.
Classification of Rape (HB 647/SB 944; Md. Code Ann. Criminal Law § 3-303 & 3-304): This law modifies the criminal rape statutes to include both vaginal intercourse and sexual acts. Before this change, the criminal rape statute only applied to vaginal intercourse, which the statute defined as penetration of the vagina. The definition of sexual acts is broader, and includes penetration of an individual’s genital or anal openings by a body part or object, or oral-genital or oral-anal contact. With this update to the law, the criminal law classifies all rape as rape in Maryland.
Expanding Statute of Limitations in Civil Child Sexual Abuse Cases (SB 505/HB 642; Md. Code Ann. Courts & Judicial Proceedings § 5-117): This law expands the time period for a survivor of child sexual abuse to file for civil damages against a perpetrator or other responsible parties, such as the perpetrator’s employer. Under the new law, a survivor may sue the perpetrator directly until the survivor’s 38th birthday. Or, if the perpetrator is convicted of sexual abuse of a minor, the survivor may file a civil action within three years of the conviction, even if the conviction is after the survivor’s 38th birthday. The survivor may sue responsible third parties for the harm caused by the sexual abuse until the survivor’s 38th birthday if the third party: (1) owed a duty of care to the survivor, (2) employed the perpetrator or exercised some degree of control or responsibility over the perpetrator, and (3) was grossly negligent. For a general negligence lawsuit against a third party, the survivor must sue by the survivor’s 25th birthday.
Child Abuse – Definition (HB 1263/SB 996; Md. Code Ann. Family Law § 5-701): This law amends several definitions in the family law code concerning child abuse. These amendments were necessary because of two 2016 decisions from Maryland’s high court. In Wicomico County Department of Social Services v. B.A., 449 Md. 122 (2016) the Court of Appeals of Maryland ruled that a martial arts instructor’s sexually explicit messaging did not constitute child abuse because the acts occurred outside of class. The new law expands the definition of child abuse to include perpetrators who exercise authority over a child because of the perpetrator’s position or occupation, without any temporal restriction. The definitions were also updated in response to to the Court of Appeals’ ruling in McClanahan v. Washington County Department of Social Services, 445 Md. 691 (2015); the definitions now clarify that child abuse resulting in “mental injury” does not require that the perpetrator intended to harm the child.
Rape Kit Retention and Survivor Notification (HB 255/SB 349; Md. Code Ann. Criminal Procedure § 11-926): This law supports survivors of sexual assault by providing more explicit requirements for the collection and transfer of sexual assault evidence kits and notice to survivors about the status of the kit analysis. The amendment requires retention of sexual assault evidence kits for at least twenty years, and requires hospitals and child advocacy centers to provide kits to law enforcement within 30 days of collection.
To view MCASA’s 2018 Legislative Priorities, please click here.