Past Bad Acts

Aug 22nd, 1970

Sarah Wilbanks SALI Policy Intern After serving a ten-year sentence for sexual assault, Nelson Clifford was released in 2007.  Between then and 2015, he was tried four separate times for sexual offenses involving different victims.  In each case, he relied on a defense of consent.  Juries were not allowed to hear any evidence of his prior convictions or charges, nor could previous victims provide testimony.  Consequently, he was acquitted at each trial. Though Clifford was finally convicted this past May at a fifth trial for sexual assault,[1] this case illustrates the danger posed by Maryland’s outdated evidentiary rules. Sexual assault prosecutions often come down to this scenario: what is basically a swearing match between the victim and the defendant.  Even if there’s strong DNA evidence, the defendant can claim the encounter was consensual if the victim is an adult.  In child sexual abuse cases with weak or no forensic evidence, the defendant can deny the allegations altogether or argue the abuse was committed by someone else. Further complicating matters, sexual assault victims (and especially child victims) are often reluctant to testify, or are likely to testify in a manner that a jury might find problematic.  For example, myths about sexual assault may lead jurors to question why a victim did not scream or fight back during the assault, or why a victim might make inconsistent statements about what happened, when in fact research shows that common responses to trauma include immobility[2]  and impaired memory formation.[3]   Research has found that past sexual violence is a strong predictor for future sexual violence.[4]  In a study on self-reported rapists who had gone undetected by the criminal justice system, 63 percent had committed multiple rapes.[5]  If prosecutors are not allowed to introduce evidence of the defendant’s prior sexual offenses, the burden of proof is often nearly impossible to meet. Md. Rule 5-404(b) prohibits the use of evidence of a defendant’s prior bad acts in a criminal prosecution unless the evidence falls into a certain category of exceptions.  These exceptions include the use of such evidence to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.  However, as the case of Nelson Clifford demonstrates, evidence of prior sexual assaults, though relevant and highly probative, rarely fits into any of these categories, particularly when the defendant relies on a defense consent. In State v. Faulkner, the Court of Appeals explained that “n order to establish modus operandi, the other crimes evidence must be ‘so nearly identical in method as to earmark them as the handiwork of the accused … The device [used to commit the crime] must be so unusual and distinctive as to be like a signature.”[6]  This exception, therefore, is considered a subset of the identity exception.  As a result, if identity is not at issue, the exception does not apply.  In Hurst v. State, the Court of Appeals reiterated its holding in Faulkner.[7]  The Court further held that evidence of prior rapes is generally inadmissible when the only contested issue is consent, because its only purpose is to show propensity.[8]   In 1994, Congress enacted Federal Rules of Evidence 413 and 414 to address this problem.  FRE 413 allows for evidence that the defendant committed any other sexual assault to be admissible and considered on any matter to which it is relevant in prosecutions for sexual assault.  FRE 414 provides for the same rule in child molestation cases. However, most sexual offenses are prosecuted at the state level.  At least 12 other states have adopted similar versions of FRE 413 and 414; 3 more have adopted FRE 414 only; and many other states have common-law rules that are more inclusive of this evidence than Maryland law. While Maryland does have a “sexual propensity” exception under its common law, the evidence must involve the same victim and the same defendant to be admissible.  Even in a case of child molestation where the previous victim was a sibling of the victim, the evidence would not be admissible under the exception.[9]  The Court of Appeals has declined to extend this exception to cases where the victims were not the same.[10]  Furthermore, the Court has stated that such an expansion to the rules must come from the Court sitting in its legislative capacity or from the General Assembly.[11]   Numerous attempts to pass legislation to resolve this issue in Maryland have been made over the past decade, including HB1191, HB1205, and SB933 in the most recent session of the General Assembly.  Unfortunately, none have been successful. This coming year, MCASA will be working with members of the legislature, law enforcement, and other interested parties to advocate for a change to the law that would protect the rights of criminal defendants while ensuring that sexual offenses are prosecuted effectively so that the public is protected.
  [1] Baltimore City State’s Attorney’s Office, Serial Sex Offender Nelson Clifford Sentenced to More Than 30 Years (May 28, 2015), [2] James W. Hopper, Why many rape victims don’t fight or yell, Wash. Post: Grade Point (June 23, 2015), [3] James Hopper and David Lisak, Why Rape and Trauma Survivors Have Fragmented and Incomplete Memories, TIME: Ideas (Dec. 9, 2015), [4] K.L. Scott, Predictors of Change Among Male Batterers: Application of Theories and review of Empirical Findings. Trauma, Violence & Abuse, 5 (3) 260-284 (2004). [5] David Lisak and Paul M. Miller, Repeat Rape and Multiple Offending Among Undetected Rapists.  Violence and Victims, 17 (1) (2002). [6] 314 Md. 630, 638 (1989) (quoting McKnight v. State, 280 Md. 604, 613 (1977)) (emphasis in original). [7] 400 Md. 397, 414 (2007). [8] Id. at 410. [9] See Vogel v. State, 315 Md. 458 (1989). [10] See Hurst, 400 Md. at 416-418. [11] Id.
  This article appeared in the Summer 2015 Issue of Frontline.

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