Sexual Assault and the Law

1
Sexual Assault and the Law

• Ellen C. Opdyke, Esq.
• Sexual Assault Legal Institute (SALI)
• Maryland Coalition Against Sexual Assault (MCASA)
• eopdyke_at_mcasa.org

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SALISexual Assault Legal Institute

• SALI provides direct legal services including
  representation, advise and referrals for adult
  and child victim/survivors of sexual assault
  throughout the State of Maryland in Civil,
  Criminal, and Juvenile Court, as well as training
  and technical assistance for professionals.

3
A Word About Language

• Telling you things you already know
• Men are victims
• We use women because women report more often
  and are the majority of SALIs cases.
• I will use victim and survivor
  interchangeably I prefer the term survivor,
  but victim is used in the statutes

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Working with Victims/Survivors

• Nothing is a right or wrong reaction. Like grief,
  everyone handles trauma differently. When working
  with victims, it is best to
• Make allowances for the fact their stories may
  not be perfect 100 of the time
• Allow them to make their own decisions, even if
  they seem to be going back and forth between
  options
• Be as non-judgmental as possible

5
Working with Victims/Survivors

• Culture can also play an important part when
  working with survivors. Whenever possible, be
  aware of
• Someones ethnic and/or racial background,
  economic status, and sexual orientation.
• Low income clients may have trouble accessing
  transportation or taking time off work.
• A survivor may be concerned about seeking help if
  they are not out.

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Working with Victims/Survivors

• Do not force a survivor to do anything, even if
  you think its in their best interest (with some
  life threatening exceptions).
• Talk calmly, quietly, and listen.
• Do not pass judgment. Keep an eye on your own
  biases!

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Human Trafficking Definition

• Human trafficking, also knows as trafficking in
  persons (or TIP) can be divided into two main,
  broad categories
• Sex trafficking A person is made to commit
  commercial sex acts induced by force, fraud, or
  coercion OR when the person made to commit such
  acts is under 18.

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Human Trafficking Definition

• Labor Trafficking The recruitment, harboring,
  transportation, provision or obtaining of a
  person for labor or services through the use of
  force, fraud, or coercion for the purpose of
  subjection to involuntary servitude, peonage,
  debt bondage, or slavery.
• -- Definitions from the Trafficking Victims
  Protection Act of 2000 and Polaris Project.org

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Human Trafficking in MD

• Everywhere!
• Baltimore City has the most calls to the National
  Human Trafficking Resource Center (NHTRC)
  hotline. This makes sense since its probably
  the most populated area of MD.
• -- (National Human Trafficking Resource Center
  Call Date Breakdown of MD)
• Eastern shore Labor Trafficking

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Human Trafficking in MD

• -- Unless otherwise noted, the following
  headlines were taken from http//www.justice.gov/u
  sao/md/Human-Trafficking/index.html, the MD
  United States Attorney Offices (MD USAO)
  website
• U.S. Army Soldier Pleads Guilty to Operating a
  Brothel from Millersville Apartment and to Drug
  Trafficking (Anne Arundel)
• Montgomery County Man Convicted in Sex
  Trafficking Conspiracy

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Human Trafficking in MD

• Glen Burnie Man Indicted for Sex Trafficking of a
  Minor (Anne Arundel county)
• Westminster Woman Sentenced to 10 Years for Sex
  Trafficking of a Child (Carroll County)
• -- Headlines from MD USAOs Human Trafficking
  website

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Human Trafficking in MD

• Couple Indicted in Sex Trafficking Conspiracy
  Involving Three Minor Girls (Baltimore County)
• -- Headline from MD USAOs Human Trafficking
  website
• Six Eastern Shore men charged in brothel case The
  Virginian-Pilot, June 2006

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Red Flags

• Not free to come or go as they wish
• Works excessively long and/or unusual hours
• Not allowed breaks or other unusual restrictions

14
Red Flags

• Speaks about paying off a debt
• Lives or works in a place with high security
  measures
• Avoids eye contact
• Exhibits a flat affect

15
Red Flags

• Becomes very anxious at any mention of law
  enforcement
• Appears malnourished
• Shows signs of physical restraint, confinement,
  or torture

16
Red Flags

• Has few or no personal possessions
• Not in control of their own finances and/or has
  no financial records (like a bank account)
• Not in control of their own ID

17
Red Flags

• Third party insists on speaking for them
• Has an attorney they dont seem to know
  anything about
• Has been branded (e.g. a tattoo of a
  traffickers name)

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Red Flags

• Claims to be just visiting and is unable to
  clarify where theyre staying or provide an
  address
• Does not know where they are or what city they
  are in
• Loss of sense of time
• -- Signs of a potential human trafficking victim
  used with permission from Polaris Projects
  Potential Trafficking Indicators Fact Sheet,
  found at polarisproject.org.

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How To Help

• Ask questions to try and determine if someone is
  a victim of human trafficking.
• Talk to a potential victim in a safe and
  confidential environment.
• Preferably, talk to the victim alone. You do not
  know if the third person is friend or foe.
• -- Information from U.S. Dept. for Health and
  Human Services, Administration for Children and
  Families Human Trafficking site, found at
  http//www.acf.hhs.gov/trafficking/index.html

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How To Help

• If at all possible, find a staff member who
  speaks the potential victims language.
• You can also use a service such as Language Line,
  though in person is always best.
• If your patient is a child, contact people or
  organizations who specialize in interviewing
  minor trafficking or abuse victims
• -- Information from U.S. Dept. for Health and
  Human Services, Administration for Children and
  Families Human Trafficking site, found at
  http//www.acf.hhs.gov/trafficking/index.html

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What Questions To Ask

• Can you leave your job or situation if you want?
• Can you come and go as you please?
• Have you been threatened if you try to leave?
• Have you been physically harmed in any way?
• -- Information from U.S. Dept. for Health and
  Human Services, Administration for Children and
  Families Human Trafficking site, found at
  http//www.acf.hhs.gov/trafficking/index.html

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What Questions To Ask

• What are your working or living conditions like?
• Where do you sleep and eat?
• Do you sleep in a bed, on a cot or on the floor?
• Have you ever been deprived of food, water, sleep
  or medical care?
• -- Information from U.S. Dept. for Health and
  Human Services, Administration for Children and
  Families Human Trafficking site, found at
  http//www.acf.hhs.gov/trafficking/index.html

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What Questions To Ask

• Do you have to ask permission to eat, sleep or go
  to the bathroom?
• Are there locks on your doors and windows so you
  cannot get out?
• Has anyone threatened your family?
• Has your identification or documentation been
  taken from you?
• -- Information from U.S. Dept. for Health and
  Human Services, Administration for Children and
  Families Human Trafficking site, found at
  http//www.acf.hhs.gov/trafficking/index.html

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Whom To Contact

• National Trafficking Resource Center hotline at
  1-888-373-7888
• You Are Never Alone (YANA) www.yanaplace.org
• Casa de Maryland www.casademaryland.org
• The Maryland Human Trafficking Task Force with
  the MD USAO usamd.mhttf_at_usa.doj.gov,
  410-209-4800
• FBI and/or U.S. Immigration and Customs
  Enforcement (ICE)

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Help For Victims

• Adult victims of human trafficking who are
  certified by HHS can receive federally funded
  services and benefits to the same extent as
  refugees. To receive certification, an individual
  must
• Be a victim of human trafficking as defined by
  the Trafficking Victims Protection Act
• Be willing to assist with the investigation and
  prosecution of traffickers and
• Have completed a bona fide application for a T
  visa or
• Have received Continued Presence status from the
  U.S. Department of Homeland Security (cooperation
  not required good for one year with renewal
  potential each year)
• -- Information from U.S. Dept. for Health and
  Human Services, Administration for Children and
  Families Human Trafficking site, found at
  http//www.acf.hhs.gov/trafficking/index.html

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Help For Victims

• Child victims of human trafficking (under age 18)
  are immediately eligible for benefits they do
  not need to apply for a T visa or get Continued
  Presence status, just a letter of eligibility.
• -- Information from U.S. Dept. for Health and
  Human Services, Administration for Children and
  Families Human Trafficking site, found at
  http//www.acf.hhs.gov/trafficking/index.html

Housing or shelter assistance English language training
Food assistance Health care assistance
Income assistance Mental health services
Employment assistance Assistance for victims of torture
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• Sexual Assault and Civil Legal Options

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Civil Legal Needs for Sexual Assault Survivors

• What is the impact of sexual assault on survivors?

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Sexual assault potentially impacts survivors

• safety
• privacy
• immigration
• housing
• education
• employment
• financial stability
• domestic relations

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Civil Legal Needs for Sexual Assault Survivors

• Can the criminal justice system help with any of
  these?
• Does it?

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Civil Legal Needs for Sexual Assault Survivors

• 1 Priority
• Safety

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Civil Legal Needs for Sexual Assault Survivors
Safety

• Protective and Peace Orders What are they and
• how do they work?

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Civil Legal Needs for Sexual Assault Survivors
Safety
Protective Orders

• Available to victims who have one of the
  following relationships with a perpetrator
• Married or formerly married
• Child in common
• Lived together in intimate relationship for 90
  days in past year (includes same sex couples)
• Related by blood, marriage or adoption

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Civil Legal Needs for Sexual Assault Survivors
Safety
Protective Orders can provide

• Stay away order
• Order to vacate
• Temporary custody and visitation
• Emergency Family Maintenance
• Counseling
• Use and possession of home and car
• Removal of firearms

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Civil Legal Needs for Sexual Assault Survivors
Safety
Peace Orders

• Available to all victims who do not meet the
  requirements of a protective order

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Civil Legal Needs for Sexual Assault Survivors
Safety
Peace Orders can provide

• Stay away order
• Counseling

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Civil Legal Needs for Sexual Assault Survivors
Safety
Benefits Of These Orders

• Victim/survivor has a legal remedy if the
  perpetrator violates the order typically
  includes criminal charges
• May prevent escalation of the violence
• May offer survivors a feeling of empowerment
• Gives victims/survivors time to seek other legal
  remedies and support
• In domestic cases, may provide relief necessary
  to temporarily stabilize the home (custody,
  financial support)

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Civil Legal Needs for Sexual Assault Survivors
Safety
Peace and Protective Orders Risks

• Requires the victim to testify under oath,
  setting facts in stone.
• May allow defense counsel to interrogate a victim
  sooner than he or she could otherwise.
• Generally requires a victim to see the
  perpetrator.

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Civil Legal Needs for Sexual Assault Survivors
Safety
Peace and Protective Orders Addressing the
Risks

• Encourage victims who are considering seeking a
  peace or protective order to contact a
  knowledgeable attorney first.
• Do NOT automatically assume that victims of
  non-domestic assault should seek a peace order

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Civil Legal Needs for Sexual Assault Survivors
Privacy

• Privacy is one of the most significant
  differences between domestic and non-domestic
  sexual assault.
• In non-domestic sexual assault the perpetrator
  usually does not know the survivors personal
  information. This information needs to be
  protected.
• Addresses on case search for peace and protective
  orders
• Police should redact copies of police reports
  they provide parties

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Civil Legal Needs for Sexual Assault Survivors
Privacy

• In this area in particular, it is important to
  keep in mind that prosecutors do not represent
  the victim.
• Encourage survivors to consult an attorney before
  filling out forms that may provide private
  information to the perpetrator.
• Attorneys for a victim/survivor can help protect
  privacy and promote victim/survivor goals
  (including prosecution if this is what the client
  wants)

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• Many survivors are reluctant to reveal their
  immigration status, and for good reasons
• Perpetrators use it to control
• Real risk of removal

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• What to say to immigrants regarding status
• Attorneys will not report anyone to Dept. of
  Homeland Security (formerly INS)
• There may be assistance
• (note Share this information even if survivor
  does not raise immigration status as a concern.)

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• Three main types of relief
• VAWA Self-Petition
• U Visa
• T Visa

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• VAWA Self-Petitions
• can give permanent residency to sexual assault
  survivors who
• are non-citizens
• are married to, or the child or step-child of, a
  perpetrator who is a USC or LPR

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• U Visas
• give authorization to live and work in the U.S.
• Sexual assault survivors may be eligible if
  they
• are a non-citizen
• have suffered great physical or mental abuse
  resulting from a wide range of criminal activity,
  including rape, human trafficking, incest, sexual
  assault, abusive sexual contact, prostitution,
  and sexual exploitation and
• help with the investigation or prosecution of the
  crime.

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• Adjustment
• (1) Physical presence in the United States for a
  continuous period of at least three years since
  the date of admission as a U nonimmigrant and
• (2) No unreasonable refusal to provide
  assistance in the criminal investigation or
  prosecution.

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• Family members are eligible
• Limit of 10,000 U applications a fiscal year
  once the cap is reached the outstanding
  applications are held over until the next year.
  No limit on the number of U adjustments.

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• T Visas were created to allow victims of severe
  trafficking to legally stay in the US to assist
  in the prosecution of the traffickers.
• Must get certification from Feds to T Visa.

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• Trafficking Victims Protection Act of 2000
• established the T class
• Provides Victim with legal way of preventing
  deportation
• Issued for three years
• After three years victim may be eligible for a T
  Visa Adjustment
• T Visa Adjustment allows victim to become
  permanent resident
• Only 5,000 T Visa Adjustments issued per fiscal
  year (The cap does not apply to eligible family
  members.) Once the limit is reached the
  outstanding applications are held over until the
  next year.

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• Eligibility
• Victim of severe human trafficking
• Physically in the United States
• The Attorney General and the Secretary of State
  must agree that the victim complied with the
  requests of law enforcement in the investigation
  and prosecution
• Victim would suffer unusual or sever harm if sent
  back home

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• Adjustment Eligibility
• Physically in the U.S. for
• A continuous period of at least three years since
  the date of admission as a T nonimmigrant
• this can be provided by college transcripts,
  employment records, or installment payments
  (e.g., monthly rent receipts, utility bills,
  etc.)
• A continuous period of at least a continuous
  period during the investigation or prosecution of
  the trafficking certified as complete by the
  Attorney General

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Civil Legal Needs for Sexual Assault Survivors
Immigration

• Adjustment Eligibility Continued
• Good moral character since being admitted as T
  nonimmigrant
• Continued compliance with investigation or
  prosecution
• Extreme hardship upon removal from U.S.

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Civil Legal Needs for Sexual Assault Survivors
Financial Compensation

• Several legal avenues for victims of sexual
  assault

Criminal Injuries Compensation Board Restitution
as part of a criminal case Torts and other
Claims
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Civil Legal Needs for Sexual Assault Survivors
Financial Compensation

• Criminal Injuries Compensation Board
• Must cooperate with law enforcement
• Most crimes report within 48 hours
• For good cause may report within 3 years
  (including SA and child abuse cases)
• Not automatic Board must find that a crime
  occurred (difficult if charges not issued)

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Civil Legal Needs for Sexual Assault Survivors
Financial Compensation

• Criminal Injuries Compensation Board
• Criminal Injury Compensation funds are intended
  to compensate victims of violent crime for
  certain expenses. Parents/guardians may also be
  eligible for lost wages
• To receive an application for Criminal Injury
  Compensation, victims can download a form or
  call
• Maryland Department of Public Safety and
  Correctional Services, Criminal Injury
  Compensation Board
• 410-585-3010
• www.dpscs.state.md.us/cicb/

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Civil Legal Needs for Sexual Assault Survivors
Financial Compensation

• Restitution
• If the perpetrator has been convicted of a crime
• Victims should tell the prosecutor that they
  incurred expenses and give copies of all bills to
  the prosecutor before the trial.
•  Not dischargeable in bankruptcy

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Civil Legal Needs for Sexual Assault Survivors
Financial Compensation
Torts and Other Claims for Money Damages

• Most legal services agencies prohibited from
  providing representation in these cases, however,
  advising clients of options and providing
  information is not prohibited.
• SALI provides information on options and
  referrals. Tort attorneys and SALI attorneys
  sometimes work together on case.

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Civil Legal Needs for Sexual Assault Survivors
Financial Compensation
Torts and Other Claims

• Financial costs of sexual assault are high. Tort
  suits transfer costs to perpetrator.
• Unfortunately, many perpetrators are judgment
  proof.

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Civil Legal Needs for Sexual Assault Survivors
Financial Compensation
Torts and Other Claims

• Third-parties may also have liability, e.g.
  inadequate security, negligent hiring and
  retention.
•  Other non-tort claims may be available, e.g.
  employment based claims, title IX claims against
  educational institutions, state-based civil
  rights actions.

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Civil Legal Needs for Sexual Assault Survivors
Financial Compensation
Torts and Other Claims

• Statute of limitations in civil suits can be
  tricky
• Tort Claim Notice Acts impose even shorter
  deadlines in cases against government (including
  public schools).
• Victims who were minors when assaulted generally
  have different statute of limitations issues.

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Civil Legal Needs for Sexual Assault Survivors
Housing

• Legal representation may be able to assist the
  victim by advocating for a change in housing
  through a public housing authority or a private
  landlord.
• There are significantly more legal options for
  victims in domestic violence cases than in
  non-domestic sexual assault cases.

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Civil Legal Needs for Sexual Assault Survivors
Employment/Disability

• Survivors of sexual assault may need legal help
  with
• workers compensation
• disability accommodations
• Family Medical Leave Act benefits
• other medical leave

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Civil Legal Needs for Sexual Assault Survivors
Employment/Disability

• Survivors who are assaulted by a co-worker, may
  also have protections and remedies under sexual
  harassment laws for work-related sexual assaults.

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Civil Legal Needs for Sexual Assault Survivors
Education

• 13.3 of college women indicated that they had
  been forced to have sex in a dating situation.
• Johson, I. Sigler, R. Forced Sexual
  Intercourse Among Intimates. Journal of
  Interpersonal Violence. 15(1) 2000.

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Civil Legal Needs for Sexual Assault Survivors
Education

• "No person in the United States shall, on the
  basis of sex, be excluded from participation in,
  be denied the benefits of, or be subjected to
  discrimination under any education program or
  activity receiving Federal financial assistance."
  Title IX of the Education Amendments of 1972, 20
  USC 1681
• Schools receiving public funds are required to
  have an appropriate response to sexual assault
  and may violate Title IX if they fail to do so.

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Civil Legal Needs for Sexual Assault Survivors
Education

• Schools are required by the Title IX regulations
  to have grievance procedures through which
  students can complain of alleged sex
  discrimination, including sexual harassment.
• Students who choose to report the assault may
  need legal help navigating the schools judicial
  administrative proceedings.
• In addition to legal actions, student survivors
  may also need help changing dorms, schedules,
  dealing with the financial aid ramifications of
  taking time off, and other practical/legal
  issues.

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Civil Legal Needs for Sexual Assault Survivors
Family Law

• Many sexual assault victims/survivors are
  assaulted by their intimate partner.
• These situations lead to legal problems with
  divorce, alimony, custody, child support, and use
  and possession of various family possessions.

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Minors and Victims Rights
70
SAFE EXAM

• Maryland law states that to get a forensic exam,
  the victim does NOT have to report the assault to
  the police. (COMAR 10.12.02.03)

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Minors Right to Consent

• Married or a Parent
• Ann. Code of Md. Health-General 20-102
• A minor who is married or a parent has the same
  capacity as an adult to consent to medical
  treatment.

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Minors Right to Consent

• Life or health would be affected by waiting
• Ann. Code of Md. Health-General 20-102 (b)
• A minor has the same capacity as an adult to
  consent to medical treatment if, in the judgment
  of the attending physician, the life or health of
  the minor would be affected adversely by delaying
  treatment to obtain consent of another person.

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Minors Right to Consent

• 16 years or older consenting to help with mental
  or emotional disorder
• Ann. Code of Md. Health-General 20-104
• A minor who is 16 years old or older has the same
  capacity as an adult to consent to a
  consultation, diagnosis, and treatment of a
  mental or emotional disorder by a physician,
  psychologist, or a clinic
• Cannot refuse consultation, diagnosis, and
  treatment if parent consents.

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Minors Right to Consent

• Releasing information about mental health
• Ann. Code of Md. Health-General 20-104(b)
• A physician or, on the advice of the physician,
  medical staff of a hospital or public clinic may,
  but need not, give a parent, guardian, or
  custodian of the minor or the spouse of the
  parent info about treatment needed by the minor
  or provided to the minor.

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Minors Right to Consent

• Consenting to treatment for drug and/or
  alcoholism life or health exception
• Ann. Code of Md. Health-General 20-102(d)
• A minor has the same capacity as an adult to
  consent to psychological treatment for drug abuse
  and/or alcoholism if the attending physical
  believes the life or health of the minor would be
  adversely affected by waiting for consent from
  another person.

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Minors Right to Consent

• Specific things minors can consent to
• Ann. Code of Md. Health-General 20-102(c)
• A minor has the same capacity as an adult to
  consent to treatment for or advice about
• (1) drug abuse (cannot refuse treatment in an
  approved inpatient program if parent consents)
• (2) alcoholism (cannot refuse treatment in an
  approved inpatient program if parent consents)
• (3) venereal disease
• (4) pregnancy
• (5) contraception other than sterilization
• (8) initial medical screening and physical exam
  on and after admission into a detention center

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Minors Right to Consent

• Specific things minors can consent to
• Ann. Code of Md. Health-General 20-102(c)
• (6) Physical examination and treatment of
  injuries from an alleged rape or sexual offense
• (7) Physical examination to obtain evidence of an
  alleged rape or sexual offense
• Minors CAN consent to SAFE exams! No parental
  approval needed.
• This also means they can REFUSE to consent to an
  exam.

78
Minors Right to Consent

• Release of information about minors treatment
• Ann. Code of Md. Health-General 20-102(f)
• A physician, psychologist or, on the advice of
  the physician or psychologist, medical staff of a
  hospital or public clinic may, but need not, give
  a parent, guardian, or custodian of the minor or
  the spouse of the parent info about treatment
  needed by the minor or provided to the minor with
  the exception of information about abortion.

79
Minors Right to Consent

• Ann. Code of Md. Health-General 20-103
• Notification of a parent or guardian is generally
  required for an unmarried minor to receive an
  abortion.
• However
• Ann. Code of Md. Health-General 20-103(b)
• If the minor does not live with the parent or
  guardian AND a reasonable effort was made to give
  notice, a physician can perform the abortion
  without notification.

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Minors Right to Consent

• Also
• Ann. Code of Md. Health-General 20-103(c)
• 20-103(c) A physician may perform an abortion
  without notice to a parent or guardian if, in the
  physicians professional judgment
• (i) Notice to the parent or guardian may lead to
  physical or emotional abuse of the minor OR-
• (ii) the minor is mature and capable of giving
  informed consent OR-
• (iii) notification would not be in the best
  interest of the minor
• Encourage minors to contact knowledgeable
• attorneys about reproductive rights law!

81
Maryland Crime Victim Rights

• The Maryland Constitution A victim of a crime
  shall be treated by agents of the State with
  dignity, respect, and sensitivity during all
  phases of the criminal justice process

82
Core Victim Rights

• Informed
• Present
• Heard

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Right to Information

• When crime is reported to police, they MUST
  receive Crime Victims and Witnesses Your
  Rights and Services
• Provides information about crime victims legal
  rights
• Provides information about services, including
  MCASA and MNADV
• No right to information from police during
  investigation

84
Right to Information

• Written information from law enforcement and
  prosecutors
• Crime Victim Notification Request and Demand for
  Rights Form
• Informed of right to restitution
• Informed of right to submit a Victim Impact
  Statement
• Information and notice of hearings, outcome, etc.
• Post-conviction information about probation
  violations and parole hearings

85
Right to be Present

• Generally, a victim has a right to attend any
  proceeding in which the Defendant has a right to
  be present

86
Right to be Present

• A victim or a victims representative has the
  right to be present at the trial
• If the victim or representative is a witness in
  the case, the victim can be present only after
  testifying
• A victim or a victims representative has a right
  to be present at an open parole hearing (a victim
  can request that a hearing be opened)

87
Right to be Present at Juvenile Proceedings

• A victim or victims representative is to be
  admitted to juvenile proceedings even if they
  would otherwise be closed to the public

88
Right to Be Heard

• If practicable, a victim or victims
  representative may address the judge or jury
  before a sentencing/disposition through a Victim
  Impact Statement
• At the request of the States Attorney
• If Notification Request Form is filed
• Subject to cross-examination on facts

89
Right to be Heard

• Victim Impact Statement can also be given
• For inclusion in Pre-sentence investigation
• At a juvenile waiver hearing
• Automatic in adult-to-juvenile
• At courts discretion in juvenile-to-adult
• To request restitution from the defendant
• The Court shall consider the Victim Impact
  Statement in sentencing the Defendant

90
Right to be Heard

• If the Defendant is convicted, a victim has the
  right to be heard by the parole board regarding
  the release of Defendant from custody
• At open parole hearings
• Through written statements at closed parole
  hearings
• In meeting with Parole Commission

91
After The Trial

• VINE (Victim Information and Notification
  Everyday) is computer system that regularly
  receives court and custody information from
  Maryland criminal justice agencies and
  automatically notifies a victim of court dates,
  the release, escape, or transfer of their
  offender.
• VINE is free and available 24 hours a day, 7 days
  a week.
• You can register for VINE two ways
• Call the Maryland Crime Victims Resource Center,
  Inc. at 1-877-VICTIM-1 and ask for help with
  VINE. Need the name of the offender, the phone
  number they wish to receive calls on, and a
  four-digit pin number of their choosing.
• Call 1-866-MD4VINE and follow prompts.
• www.vinelink.com

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Sexual Assault and the Criminal Law
93
Defining Sexual AssaultSexual Assault and
Criminal Law

• Prosecutors represent the State, not the victim

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Defining Sexual AssaultSexual Assault and
Criminal Law

• What do we mean when we say sexual assault?

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Rape
• Date rape
• Incest
• Child sex abuse
• Unwanted sexual contact

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Does the law contain the same meaning?

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Defining Sexual AssaultSexual Assault and
Criminal Law

• 3 Terms Used to Describe Sexual Behavior
• Vaginal Intercourse
• Sexual Act
• Sexual Contact

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Vaginal Intercourse
• Genital copulation, regardless of whether semen
  is emitted, including penetration of the vagina.

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Sexual Act
• Oral contact with the anus
• Oral sex
• Anal sex
• Penetration of genital opening or anus with an
  object

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Sexual Contact
• Touching
• Digital Penetration
• See Sex Crimes Tables Table One, Definitions
  for complete definitions of vaginal intercourse,
  sexual act and sexual contact.

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Defining Sexual AssaultSexual Assault and
Criminal Law
All sex crimes fall into one of the following
categories

1. Force-based crimes
2. Capacity-based crimes
3. Marital-rape
4. Relationship-based crimes
5. Age-based (statutory rape)
6. Child sex abuse

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Potential Charges for Perpetrator
• Rape
• Sexual Offense
• Sexual Abuse of a Child

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Force-based Crimes

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Rape

CRIME ACT FORCE CONSENT FACTORS MAXIMUM PENALTY
RAPE First Degree Vaginal Intercourse Force or Threat of Force Without Consent One or more aggravating factors Felony Life Imprisonment Or Life Imprisonment Without Parole
RAPE Second Degree Vaginal Intercourse Force or Threat of Force Without Consent Aggravating factors not necessary Felony Twenty Years
Aggravating Factors include use of a weapon
infliction of suffocation, strangulation,
disfigurement or serious harm threat of death,
suffocation, strangulation, disfigurement,
serious physical injury, or kidnapping
commission of the offense by two or more persons
or commission of the offense in connection with
burglary in the 1st, 2nd or 3rd degree. IF the
victim is younger than 16 OR if the defendant was
previously convicted of 1st degree rape or 1st
degree sexual offense.
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Defining Sexual AssaultSexual Assault and
Criminal Law

• Sexual Offense

CRIME ACT FORCE CONSENT FACTORS MAXIMUM PENALTY
Sexual Offense First Degree Sexual Act Force or Threat of Force Without Consent One or more aggravating factors Felony Life Imprisonment Or Life Imprisonment Without Parole
Sexual Offense Second Degree Sexual Act Force or Threat of Force Without Consent Aggravating factors not necessary Felony Twenty Years
IF the victim is younger than 16 OR if the
defendant was previously convicted of 1st degree
rape or 1st degree sexual offense.
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Defining Sexual AssaultSexual Assault and
Criminal Law

• Sexual Offense

CRIME ACT FORCE CONSENT FACTORS MAXIMUM PENALTY
Sexual Offense Third Degree Sexual Contact Proof of force is not required Without Consent One or more aggravating factors Felony Ten Years
Sexual Offense Fourth Degree Sexual Contact Proof of force is not required Without Consent Aggravating factors not necessary Misdemeanor 1 Year and/or 1,000 fine
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Defining Sexual AssaultSexual Assault and
Criminal Law

• A Note on Third Degree Sex Offenses
• Proof of force is NOT required, if an aggravating
  factor is present
• When would this be the case?
• Incident involves kidnapping
• Offender is aided or abetted by another gang
  rape or lookout situation
• Offense is committed in connection with a burglary

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Capacity-based Crimes
• (eg. drugs, alcohol, disability, physical
  helplessness)

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Capacity-based Crimes
• Involve individuals defined according to Criminal
  law 3-301 as
• Mentally Defective
• Mentally Incapacitated
• Physically Helpless

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Mentally Defective Individual
• A person with mental retardation or a mental
  disorder, which temporarily or permanently makes
  him or her incapable of understanding the nature
  of his or her conduct or resisting or
  communicating unwillingness to engage in vaginal
  intercourse, a sexual act, or sexual contact.

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Mentally Incapacitated Individual
• One who is incapable of understanding the nature
  of his or her conduct or resisting vaginal
  intercourse, a sexual act, or sexual contact due
  to
• The influence of a drug, narcotic, or
  intoxicating substance OR
• An act committed on him or her that occurred
  without his or her consent or awareness.

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Physically Helpless Individual
• One who is unconscious OR
• One who does not consent and is physically unable
  to resist or to communicate unwillingness to
  submit to vaginal intercourse, a sexual act or
  sexual contact.

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Defining Sexual AssaultSexual Assault and
Criminal Law

• A Note on the Mentally Incapacitated or
  Physically Helpless Victim
• Alcohol consumption by the victim does not mean a
  sexual assault did not occur
• Law written specifically to address the situation
  where an offender takes advantage of or creates a
  situation where the victim is unable to consent
  or say no
• Difficult to prove, yes, but look to victims
  story, witnesses, and other evidence (bar tab,
  security cameras, SAFE exam, etc) for
  corroborating evidence

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Defining Sexual AssaultSexual Assault and
Criminal Law
Capacity Issues
CRIME ACT FACTORS MAXIMUM PENALTY
Rape Second Degree Vaginal Intercourse (marriage can be a defense) With a person who is mentally defective or incapacitated, or physically helpless AND Where the person committing the act knew or reasonably should have known of the disability. Felony Twenty Years
Sex Offense Second Degree Sexual Act With a person who is mentally defective or incapacitated, or physically helpless AND Where the person committing the act knew or reasonably should have known of the disability. Felony Twenty Years
Sexual Offense Third Degree Sexual Contact (marriage can be a defense) With a person who is mentally defective or incapacitated, or physically helpless AND Where the person committing the act knew or reasonably should have known of the disability. Felony Ten Years
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Defining Sexual AssaultSexual Assault and
Criminal Law

• Marital Rape
• Traditionally, marriage was a defense to sex
  crimes
• Vestiges of this remain
• no 4th degree sexual offense charges
• no age based offenses
• no capacity based offenses
• YES force OR threat of force
• Threat of force was added in in 2004 by a bill
  introduced by now Lt. Gov. Brown when he was a
  delegate.

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Relationship-based crimes

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Relationship-based crimes
• Correctional employees
• Professionals who perpetrate may also face
  discipline from licensing boards.

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Age-based crimes
• (Statutory Rape)

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Defining Sexual AssaultSexual Assault and
Criminal Law
Age of Consent 14 for Sexual Contact 16 for
Sexual Acts and Vaginal Intercourse
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Defining Sexual AssaultSexual Assault and
Criminal Law

• Sexual Abuse of a Child

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Defining Sexual AssaultSexual Assault and
Criminal Law

• Sexual Abuse of a Child
• 3 Factors to consider
• Age
• Relationship
• Responsibility

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Defining Sexual AssaultSexual Assault and
Criminal Law
Child Sexual Abuse
Under 18 family or household member
Under 18 person with care, custody or supervision of child (example babysitter, teacher during school hours)
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Defining Sexual AssaultSexual Assault and
Criminal Law

• Child Sexual Abuse
• Marylands Saturday Afternoon Exception

Clergy and 16 or 17 year old parishioner during supervised sanctioned activity Child Sexual Abuse Felony 25 Years
Clergy and 16 or 17 year old parishioner on Saturday afternoon (no supervision or sanctioned activity) No crime
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What is the crime?

• A 54 year old man forces vaginal intercourse on a
  32 year old woman at knife-point.
• (Rape 1- Felony, Life)
• A 32 year old neighbor unexpectedly grabs the
  breasts of 14 year old neighbor walking home from
  school.
• (SO 4-Misdemeanor, 1 year)
• A 32 year old uncle grabs the breasts of his 14
  year old niece who is spending the summer with
  him and his wife in their home.
• (CSA-Felony, 25 years)

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Contact SALI

• Victim/Survivors can call
• 301-565-2277
• 877-496-SALI (toll-free)
• Generally speak with paralegal/advocate and an
  attorney calls them back
• Arrangements made for languages other than
  English (including for deaf and hard of hearing)

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Become a Member of MCASA

• With your help, the Maryland Coalition Against
  Sexual Assault (MCASA) is leading the fight for
  justice for survivors of sexual violence,
  accountability for all offenders, and protection
  for the general public.
• Members will receive MCASAs newsletter,
  Frontline, by email, and be eligible for other
  membership benefits, including participating in
  the "E-lert" public-policy advocacy system.
• How much would you give to end sexual violence in
  Maryland? A regular membership is 50.00 a new
  category of "supporting member" is 20.00.
  Donations are also accepted.
• Become a member of MCASA by visiting
  http//www.mcasa.org/ or calling 410-974-4507.