As an Aggressive Baltimore Maryland Criminal Defense Attorney I have represented hundreds of people charged with Sex Offenses. Many of these case deal with adults (typically men) having sexual contact with underage victims (typically girls) – so call Statutory Rape Cases – although Maryland Law does not use that specific terminology. The basic rule is that if a child is under the age of 16 – which is the age of consent in Maryland – it is illegal for an adult who is at least 4 years older than the child to have an form of sexual contact with the child. These crimes are prosecuted very aggressively throughout Maryland and typically result in jail time as well as requirement to register as a sexual offender for 15 to 25 years or even for life.
What makes these cases even more difficult to defend is that they are so called “Strict Liability” offenses, which means that it does not matter if the adult was aware that the child was underage. This applies even in circumstances in which the child affirmatively lies about or conceals her age. As unfair as this may sound, it is the law in Maryland and in many other states. It also does not matter who initiates the sexual contact. The adult will be held liable even if he was aggressively pursued by the child to have sex. I successfully resolved a case that falls into this latter description last week in Baltimore County Circuit Court. Here are the facts:
My client was accused of having sexual intercourse with a 13 year old girl. On its face this fact may conjure up mental images of Chester the Molester or some other equally despicable pervert or dirty old man. The truth, however, in this case was that my client is 18 years old and doesn’t look (or act) most older than 15. In fact, the incident occurred just the night after his 18th birthday and involved a young girl who didn’t act so young. In most people’s view, there is a big difference between an 18 year old boy having sex with a 13 year old, and a 40 year old man doing so, but the law technically makes no such distinction. It is up to the prosecutor to exercise her discretion as to how aggressively she wants to prosecute these cases. Indeed the Legislature necessary counts on prosecutors to do just that as each case is different and must be viewed in light of the facts and circumstances of that case.
As a side bar, I tried a case against a prosecutor in the city a few years ago. He insisted on pursuing a mandatory minimum 5 year no parole sentence in a gun case in which the defendant was a small time pot dealer and there was no evidence that he was violent or that he ever used the weapon that was recovered from his home to assist him in his illegal activities. I argued to the prosecutor that these laws were not designed for people like this defendant and that the legislature intended them to be used to combat violent drug gangs and dealers. This prosecutor retorted that my argument was “ridiculous” and maintained that the law “applied equally to everyone”. It is frightening to me that someone with the power entrusted in a criminal prosecutor would refuse to even recognize the concept of prosecutorial discretion. But I digress.
Sometimes when preparing a case, criminal defense attorneys can build enough of a defense that, even if they don’t believe it is enough to take to trial, they can use it to convince the prosecutor to reduce the charges for fear that they may lose the case. Unfortunately, I had no such luxury in this case as the incident was actually witnessed by another boy who was sharing a room with my client, When questioned by the police, he confirmed that he had witnessed the two engaging in sexual intercourse as the girl had claimed. He also confirmed that my client was asleep in his bed when the girl (who was the daughter of his mom’s boyfriend and was spending the night) came into the room and climbed into his bed with him. He even told the police that he heard my client telling her no at the beginning of the encounter. But as I indicated earlier, this is a strict liability offense and it no more matters who initiated the act than it matters whether he knew her age. All that matters is that he she is under 16 and he is more than 4 years her senior.
When confronted by the police my client readily confessed believing that he had done nothing wrong. By the time he and his parents came to me, the case was open and shut against him but I still had to spend a considerable amount of time convincing him and to a lesser extent, his parents, that he had in fact violated the law. They became almost apoplectic when I explained that if convicted of the second degree sex offense he would not only face jail time but would be a convicted felon for the remainder of his life (PBJ is prohibited by statute for this charge) and would be required to register as a sex offender for at least 25 years. I advised them that I really had nothing to work with legally speaking and would nstead have to rely solely on my ability to persuade the prosecutor to exercise her discretion and do the right thing.
Luckily for him, the prosecutor that drew the case is an exceedingly reasonable person who definitely understands the concept of prosecutorial discretion. She and I were able to work out an agreement that not only kept him out of prison but also would afford him the opportunity to have this charge expunged from his record. We did this by amending the charges to a 4th degree sex offense and second degree assault – both misdemeanors for which PBJ is available. He will have to complete a period of probation and register as a sex offender for two years. So long as he doesn’t get into any additional trouble, he will be eligible for a modification of his sentence to PBJ which will allow him to both terminate registration and have the matter expunged entirely from his record. All in all a very favorable outcome considering the seriousness of the charge and the strength of the evidence against my client.