By: Jason Shapiro
A few years ago, I had a client, a young man, who recently graduated from Wilde Lake High School, in Columbia. He was back at the school where he was visiting his old football coaches and team mates during the summer try-outs. There, he met an attractive young girl who was trying out for the cheerleading squad. They flirted, began seeing each other, and eventually had consensual sex. The girl’s mother, finding condom wrappers in the trashcan, demanded the girl tell her the identity of the boy with whom she had sex. The girl did, and when the mother found out that he was a high school graduate, called the police. The police found that young man playing a pick up game of basketball. They told him that they were investigating him for rape. They told him he was not under arrest and that the police just wanted to talk. He denied any rape. He admitted to consensual sex. He said that he was dating this girl and that he really liked her. He explained that she told him she was almost 16 (a statement of which the girl says she did tell this young man) and that he thought it was ok for he, an 18 almost 19 year old, to see a girl 3 years younger.
It turns out that the girl lied about her age. She was 2 years younger than stated, as she was a freshman, 13 going on 14 years of age. As a result, the young man was charged with Felony Second Degree Rape.
Here is worst part:
- Second Degree Rape is a “strict liability offense.” This means that even though the girl lied about her age, and even though the young man thought that he was doing no wrong, he can still be convicted of the offense by the mere fact that he is more than four years older than he young lady.
- A probation before judgment disposition is precluded by law for this offense. Therefore, if the presiding judge feels that the young man was duped into a sexual compromising position by a lying “victim” that judge cannot right the wrong by striking out the guilty finding and offering the young man a probation before judgment disposition. Without a probation before judgment disposition, the young man cannot expunge this charge from his record, and he will need to live the rest of his life with a felony conviction for second-degree rape on his public record.
- That young man was required to register on the Sexual Offender Registry. Because the “victim” was underage, the young man is now classified as a “Sexually Violent Predator.” He is required to be on the sexual offender registry for life.
Since the legislature has mandated no probation before judgment dispositions may be imposed, and mandated this young man’s participation in the sexual offender registry, no judge and no government official can exercise any discretion regarding “making the punishment fit the crime.”
In my opinion, the State of Maryland has become very conservative regarding these kinds of offenses to the point that certain individuals, such as the client portrayed above, have not been treated fairly and justly by the criminal justice system.
I don’t believe that anyone who reads this blog, or anyone who dwells in the State of Maryland for that matter, believes that true sexually violent predators should be dealt with in any other manner than harshly. However, the young man profiled above could be many an 18 or 19-year-old young man who is not thinking clearly when an attractive young lady is consenting to sexual relations.
It is my belief that since we appoint judges for their intellect and experience, we should rescind the mandatory penalties in this cases to allow such judges to use that intellect and experience to determine which young men should be required to go through life with a felony conviction and a listing on the sexual offender registry, and which young men should have the opportunity to expunge the blot of these kinds of offenses from their public record.