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Brett Kavanaugh Could Still Face Felony Charges in Maryland Courts

Posted September 23rd, 2018 by in Criminal/Sexual Violence.

Dr. Christine Blasey Ford bravely came forward with allegations that Brett Kavanaugh, President Trump’s Supreme Court nominee, tried to rape her in 1982 in Montgomery County Maryland, when Kavanaugh was a 17-year-old student at Georgetown Prep in Bethesda, Maryland.

While some have speculated that Kavanaugh could face charges for the 1982 incident, no one has yet analyzed the question under Maryland law. That analysis raises two thorny legal issues: Would Maryland’s statute of limitations bar Kavanaugh’s prosecution for a crime that occurred so long ago? And, can Kavanaugh be charged as an adult at age 53 for a crime he allegedly committed when he was 17?

The statute of limitations question is relatively straightforward. Based on the allegations first reported by Ronan Farrow and Jane Mayer,[1] Brett Kavanaugh could be charged and prosecuted under Maryland law[2] with first-degree attempted rape or misdemeanor criminal attempt. First-degree attempted rape in Maryland carries a maximum sentence of life in prison.[3] Maryland has no statute of limitations for this felony[4] and felonies generally unless the Maryland General Assembly enacts a statutory limitations period, which it did not do for attempted rape.[5] Moreover, while Maryland law imposed a one-year limitation for common law misdemeanors, attempted rape was considered a “penitentiary misdemeanor” for which there was no such limitation.[6]

While a much closer question, Kavanaugh’s status as a minor would not appear to prevent criminal charges. Under Maryland law, a person who is over the age of 14 and charged with a felony may be charged in adult criminal court.[7] Maryland provides this kind of defendant the right to seek a “reverse waiver”—i.e., a request to have his or her case transferred to the juvenile court. Adult criminal courts determine whether to send the case to juvenile court based on a variety of factors, including the defendant’s age and the severity of the alleged crime. So, Kavanaugh could attempt to block charges by arguing the case had to be brought in juvenile court. Based on his age and the severity of the alleged crime, however, that would be an uphill battle.

Given this, it is theoretically possible that the Montgomery County State’s Attorney could indict and seek to prosecute Kavanaugh. The likelihood of it happening is dependent on a variety of factors, including prosecutorial discretion, political will, and the resources available to prosecutors. Statistically speaking, most prosecutors would decline such a case based on its age alone. However, in Montgomery County, where Dr. Ford alleges Brett Kavanaugh attempted to rape her, State’s Attorney John McCarthy has been a pioneer on sexual assault issues and has not backed down from prosecuting old, challenging, high-profile sexual assault cases. Moreover, Montgomery County is one of the few jurisdictions that have the resources to prosecute this kind of legal battle. So, the chances of Brett Kavanaugh being indicted and prosecuted are more likely in Montgomery County than almost anywhere else in Maryland. I have confidence that law enforcement officials in Maryland will take every step necessary to help Dr. Ford in her pursuit of justice.

As a victim advocate who has made a life-long commitment to helping survivors and fighting criminal/sexual violence, I commend Dr. Ford for her incredible bravery amid this politically tumultuous time. Her willingness to share her story now, when the stakes are as high as our nation’s highest court, is inspirational and a testament to the increasing voice we are and should be giving survivors.

Footnotes

[1] Ronan Farrow and Jane Mayer, A Sexual-Misconduct Allegation Against the Supreme Court Nominee Brett Kavanaugh Stirs Tension Among Democrats in Congress, New Yorker (Sept. 14, 2018), https://www.newyorker.com/news/news-desk/a-sexual-misconduct-allegation-against-the-supreme-court-nominee-brett-kavanaugh-stirs-tension-among-democrats-in-congress.
[2] The law would be applied now as it existed in 1982.
[3] See Walker v. State, 53 Md. App. 171, 185–87, 452 A.2d 1234, 1242–43 (1982).
[4] The crime of assault with the intent to commit rape is a felony with no applicable statute of limitations. See Md. Code Ann., Art. 27 § 12 (1982 Repl. Vol.).
[5] See Massey v. State, 320 Md. 605, 610 (1990).
[6] State v. Stowe, 376 Md. 436, 439–40, 829 A.2d 1036, 1038 (2003).
[7] Md. Code Ann., Crim. Proc. § 4-202 (2018); see also, Md. Code Ann., Art. 27, § 594A (identical statute in effect in 1982).

Steven J. Kelly

Steven J. Kelly

Mr. Kelly is Chair of Sanford Heisler Sharp’s Criminal Sexual Violence Practice Group. He represents plaintiffs, especially those from traditionally marginalized groups, who seek justice as victims of violence. Learn More

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