The Washington PostDemocracy Dies in Darkness

In Maryland, one rape-law defeat threatens to overshadow other victories

A Maryland flag was placed on all 141 desks of the delegates during their swearing in ceremony in Annapolis, Md. (Jonathan Newton/The Washington Post)

In the final hours of the 2017 Maryland legislative session, five male senators tried to hash out an agreement on a bill that would allow a woman who becomes pregnant during a rape to terminate the attacker’s parental rights.

At least 21 other states have adopted similar laws. But in Annapolis, the bill failed for the ninth time in as many years, with key members of a conference committee panel balking at the idea of terminating rights if the alleged rapist has not been criminally convicted.

This time, the bill's defeat made headlines and triggered an outcry from advocates. The two committee chairmen who appointed the conference panel were blasted for waiting until the very end of the 90-day legislative session — and for not including any women in the group.

The criticism in some ways has overshadowed what advocates describe as victories on other bills that address the way rape is prosecuted and the options available to survivors of sexual assault.

“This was an important year for rape crisis centers, for rape survivors. . . . I don’t want that to be lost on the demise of this bill,” said Del. Kathleen M. Dumais (D-Montgomery), sponsor of the parent rights legislation.

“There is a much stronger awareness of the victims of sexual assault and a better sensitivity to the issue overall,” she said. “It’s happening nationally and I’m glad to see it happening in Maryland.”

After two failed attempts more than a decade ago, Maryland lawmakers this year passed a "no means no" bill, which says no evidence of physical resistance is needed to prove sexual assault.

The General Assembly also approved a measure that changes the definition of rape by including all nonconsensual sexual violations and eliminating any reference to gender. And it passed bills increasing the amount of time people who were sexually abused as children have to sue their abusers and requiring law enforcement to preserve the evidence in rape kits for 20 years.

Lisae Jordan, the executive director of the Maryland Coalition Against Sexual Assault, said advocates “made substantial progress for sexual assault survivors” during the recent session.

Del. Shelly L. Hettleman (D-Baltimore County), who sponsored the bill to preserve rape kits, said she pushed for a statewide standard after news reports last year showed a huge disparity in how long the kits were preserved. Some law enforcement agencies kept the evidence forever, while others destroyed it after nine months.

“Having the preservation of this material gives some of the decision-making power back to the survivor,” Hettleman said, by giving rape victims more time to decide whether to file charges.

The "no means no" bill was necessary, advocates say, because police and prosecutors were not adhering to a 2010 state Court of Appeals ruling that a victim saying "no" and pushing an assailant's hand away was enough to meet the state's "force or threat of force" requirement for proving sexual assault.

Under the new statute, that “force or threat of force” threshold no longer exists.

Advocates say the threshold is one reason Baltimore County has one of the highest rates in the country of law enforcement officials declaring rape allegations "unfounded." An audit last year showed that one-third of cases closed as unfounded in the county between 2013 and 2015 were categorized that way after victims told police they had not fought their attackers.

“There is a clear cultural shift” between 2004, when the “no means no” bill was originally introduced, and this year, Jordan said. “This year, many said ‘that absolutely should be law.’ ”

There was no similar shift, however, among legislative leaders charged with deciding the fate of the paternity-rights legislation.

The primary reason, according to advocates of the bill and those are skeptical of it, lies in the differences between civil and criminal court.

“Civil procedure is looked at differently,” Dumais said. “That’s where there is still some misunderstanding, I guess is the softer way to characterize it. There is a mistrust of the civil system.”

Under the bill, a woman who sought to terminate a man's parental rights would have to prove through "clear and convincing evidence," the standard used in civil court, that the man had sexually assaulted her. The burden-of-proof standard is higher in criminal court, where charges must be proved "beyond a reasonable doubt."

Sen. Robert A. Zirkin (D-Baltimore County), chairman of the Senate Judicial Proceedings Committee, said he was troubled with the idea of a man potentially losing his parental rights without being convicted of sexual assault.

“It’s a complicated bill,” Zirkin said. “There are protections in criminal law that do not apply in civil cases.”

But advocates argue that the state allows parental rights to be terminated in child-abuse cases even when there is no criminal child-abuse conviction. The same standard should apply, they say, in cases of sexual assault.

They also say that most rape cases go unreported and unprosecuted. If the bill applied only to convicted rapists, victims who chose not to file criminal charges would not be able to terminate the parental rights of their attackers.

Advocates say women rarely seek to terminate an attacker’s parental rights, even in states that have laws allowing them to do so easily. Jordan said she suspects that victims who become pregnant as a result of an assault instead choose to abort or “go into hiding.”

She said if the bill had passed, she would expect more women in Maryland to try to terminate the parental rights of their assailants by taking legal action.

The House unanimously passed the rights-termination bill on March 9. The Senate did not take up the measure until April 6, five days before the end of session. The Senate Judicial Proceedings Committee struck language from the bill that said that courts could not require publication of the name of the mother or child and added language that said the father could refuse to testify or offer evidence in court.

Those changes meant that a conference committee, composed of delegates and senators from the committees that had first considered the bills, would have to negotiate final wording that could then be taken up again by the full House and Senate.

Zirkin appointed himself, Sen. William C. Smith Jr. (D-Montgomery) and Sen. Michael J. Hough (R-Frederick) to the conference committee, passing over the two female lawmakers on the judicial proceedings panel.

Zirkin declined to say why he did not place Sen. Delores G. Kelly (D-Baltimore County) or Sen. Susan C. Lee (D-Montgomery) on the panel. Instead, he noted that Smith was a co-sponsor of the bill and one of the strongest advocates for it on his committee.

“That doesn’t mean that you shouldn’t have women on a conference committee discussing rape and pregnancy,” Jordan said.

Del. Joseph F. Vallario Jr. (D-Prince George’s), chairman of the House Judiciary Committee, waited until late afternoon on the final day of the legislative session to name himself, Del. David Moon (D-Montgomery) and Del. Brett R. Wilson (R-Washington County) to the conference committee. He was absent when the group finally convened at 10 p.m., two hours before the legislature would adjourn.

Vallario, who voted for the original version of the bill when it passed the House, did not respond to repeated requests for comment for this article. He told the Baltimore Sun that the makeup of the committee was coincidental.

Moon, a strong proponent of the legislation, said he thought the panel "was set up for an impossible challenge," lacking enough time and commitment from members to resolve differences between the House and Senate bills and get the legislation back to each chamber for a vote.

Dumais said she doesn’t think the makeup of the panel defeated the bill, given the support from Moon, Smith and Wilson.

Still, she said, said Zirkin and Vallario should have included women in the group.

“The optics of an all-male panel are horrible in the year 2017,” Moon said. “It was politically tone-deaf.”