Bill Summary – FastDemocracy

HB 81
                      Department of Legislative Services
                              Maryland General Assembly
                                    2020 Session
                           FISCAL AND POLICY NOTE
                                Enrolled - Revised
House Bill 81                   (Delegate Moon, et al.)
Judiciary                                                             Judicial Proceedings
                            Criminal Law – Sodomy – Repeal
This bill (1) repeals the crime of sodomy under § 3-321 Criminal Law Article; (2) makes
conforming and technical changes due to the repeal; (3) prohibits the expungement of a
conviction for sodomy, as the offense existed prior to the bill’s effective date, under
specified circumstances; and (4) clarifies that evidence of a witness’s conviction for
sodomy as it existed prior to October 1, 2020, is not admissible as evidence to prove a
witness’s conviction of an infamous crime.
                                    Fiscal Summary
State Effect: The bill is not expected to materially affect State finances or operations.
Local Effect: The bill is not expected to materially affect local government operations or
finances.
Small Business Effect: None.
                                         Analysis
Current Law/Bill Summary: Under § 3-321 of the Criminal Law Article, a person is
prohibited from committing the act of sodomy. A violator is guilty of a felony and subject
to imprisonment for up to 10 years.
Sexual Molestation or Exploitation, Sexual Abuse, and Sexual Activity
Under certain statutes, “sexual molestation or exploitation” and “sexual abuse” include
sodomy. The bill removes sodomy from these definitions. The bill also removes sodomy
from the definition of “sexual activity” under the State’s revenge porn statute.
Expungements
Subject to specified requirements and criteria, a person who has been convicted of a crime
and the act on which the conviction was based is no longer a crime is eligible to file a
petition for expungement of a police record, court record, or other record related to the
conviction.
Although the bill repeals the crime of sodomy, the bill specifically prohibits expungement
of a conviction for sodomy, as the offense existed prior to October 1, 2020, if the act was
committed:
      without consent;
      with a minor younger than age 16;
      with anyone the individual could not marry under State law (e.g., parent, child, or
       sibling);
      with a mentally incapacitated individual; or
      with a substantially cognitively impaired individual.
Sex Offender Registry
The bill clarifies that a person who has been convicted of sodomy, as the offense existed
prior to October 1, 2020, is a Tier III sex offender if the offense was committed with force
or threat of force.
Background: In a 1998 decision, the Circuit Court for Baltimore City held that State laws
prohibiting sodomy and unnatural or perverted sexual practices do not apply to
noncommercial, consensual private sexual activity between adults, regardless of whether
the activity is heterosexual or homosexual. Williams v. State, 1998 Extra LEXIS 260
(Md. Cir. Ct. 1998). The consent order entered into pursuant to that decision enjoined the
State and Anne Arundel County from enforcing the sodomy and unnatural or perverted
sexual practices in these instances.
In Lawrence v. Texas, 539 U.S. 558 (2003), the U.S. Supreme Court held that a
Texas statute prohibiting certain intimate sexual conduct between two individuals of the
same sex violated the constitutional right to liberty under the Due Process Clause.
HB 81/ Page 2
The Judiciary advises that in fiscal 2019, 97 violations (53 District Court and
44 circuit court) were filed in the courts under § 3-321 of the Criminal Law Article.
According to the Maryland State Commission on Criminal Sentencing Policy,
four individuals were sentenced on five counts of sodomy in the State’s circuit courts
during fiscal 2019.
                              Additional Information
Prior Introductions: None.
Designated Cross File: SB 735 (Senator Lam, et al.) - Judicial Proceedings.
Information Source(s): Maryland State Commission on Criminal Sentencing Policy;
Judiciary (Administrative Office of the Courts); Office of the Public Defender;
Maryland State’s Attorneys’ Association; Department of Public Safety and Correctional
Services; American Civil Liberties Union, Williams Institute (UCLA School of Law);
Department of Legislative Services
Fiscal Note History:    First Reader - January 17, 2020
rh/aad                  Third Reader - March 15, 2020
                               Revised - Amendment(s) - March 15, 2020
                        Enrolled - April 1, 2020
                               Revised - Amendment(s) - April 1, 2020
Analysis by: Donavan A. Ham                         Direct Inquiries to:
                                                    (410) 946-5510
                                                    (301) 970-5510
HB 81/ Page 3
Statutes affected: 
Text - Third - Criminal Law - Sodomy and Unnatural or Perverted Sexual Practice - Repeal: 3-801 Courts and Judicial Proceedings, 10-905 Courts and Judicial Proceedings, 2-201 Courts and Judicial Proceedings, 3-321 Courts and Judicial Proceedings, 3-602 Courts and Judicial Proceedings, 3-604 Courts and Judicial Proceedings, 3-809 Courts and Judicial Proceedings, 10-105 Criminal Procedure, 2-202 Criminal Procedure, 3-301 Criminal Procedure, 3-301 Criminal Procedure, 11-701 Criminal Procedure, 3-312 Criminal Procedure, 11-1007 Criminal Procedure, 5-701 Family Law
Text - Enrolled - Criminal Law – Sodomy – Repeal: 3-801 Courts and Judicial Proceedings, 10-905 Courts and Judicial Proceedings, 2-201 Criminal Law, 3-321 Criminal Law, 3-602 Criminal Law, 3-604 Criminal Law, 3-809 Criminal Law, 10-105 Criminal Law, 2-020 Criminal Law, 2-202 Criminal Law, 3-301 Criminal Law, 3-301 Criminal Law, 11-701 Criminal Law, 3-312 Criminal Law, 11-1007 Criminal Law, 5-701 Family Law