SB 250
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
Third Reader - Revised
Senate Bill 250 (Senators Lee and Waldstreicher)
Judicial Proceedings Judiciary
Criminal Law - Sexual Crimes - Fourth Degree Sexual Offense and Spousal
Defense
This bill repeals an exemption from prosecution for specified sexual crimes if, at the time
of the alleged rape or sexual offense, the person was the victim’s legal spouse. The bill also
establishes that for the purposes of § 3-308(b)(1) of the Criminal Law Article (sexual
offense in the fourth degree), in the case of two individuals engaged in an ongoing
consensual sexual relationship, “sexual contact” does not include physical contact
commonly engaged in by two individuals in a sexual relationship, unless one of the
individuals has reasonably indicated to the other that further physical contact is unwanted.
Fiscal Summary
State Effect: Minimal increase in general fund expenditures due to the bill’s expanded
application of existing penalty provisions. The bill does not materially affect State
revenues.
Local Effect: Potential minimal decrease in local incarceration expenditures. Revenues
are not materially affected.
Small Business Effect: None.
 Analysis
Current Law:
Spousal Exemption
In general, a person may not be prosecuted under § 3-303 (rape in the first degree), § 3-304
(rape in the second degree), § 3-307 (sexual offense in the third degree), or § 3-308 (sexual
offense in the fourth degree) of the Criminal Law Article for a crime against a victim who
was the person’s legal spouse at the time of the alleged rape or sexual offense.
However, a person may be prosecuted under § 3-303 (a) (rape in the first degree –
in general), § 3-304 (a)(1) (rape in the second degree – vaginal intercourse or sexual act
with another by force or threat of force without the consent of the other), or
§ 3-307 (a)(1) (sexual offense in the third degree – engaging in nonconsensual sexual
contact while meeting other specified criteria related to weapons, infliction of serious
physical injury, threats, and being aided or abetted by another) if:
 at the time of the alleged crime, the person and the person’s legal spouse have lived
apart, without cohabitation and without interruption (1) under a written separation
agreement executed by the person and the spouse or (2) for at least three months
immediately before the alleged rape or sexual offense; or
 the person, in committing the crime, uses force or threat of force and the act is
without the consent of the spouse.
A person may be prosecuted for the commission of first-degree rape, second-degree rape,
third-degree sexual offense, or fourth-degree sexual offense against the person’s legal
spouse if at the time of the alleged crime the person and the spouse lived apart, without
cohabitation and without interruption, under a decree of limited divorce.
The applicable penalties for the sexual crimes mentioned above are:
 § 3-303 (rape in the first degree): felony, imprisonment not exceeding life
(imprisonment for life without the possibility of parole applies to violations
involving a child younger than age 16 and subsequent offenders);
 § 3-304 (rape in the second degree): felony, imprisonment for up to 20 years;
 § 3-307 (sexual offense in the third degree): felony, imprisonment for up to
10 years; and
 § 3-308 (sexual offense in the fourth degree): misdemeanor, imprisonment for up
to 1 year and/or $1,000 maximum fine (3 years and/or $1,000 for subsequent
offenders).
SB 250/ Page 2
Definition of Sexual Contact
Under § 3-301 of the Criminal Law Article, “sexual contact,” as used in §§ 3-307, 3-308,
and 3-314 (sexual contact between a correctional employee and an inmate, etc.) of the
Criminal Law Article means an intentional touching of the victim’s or actor’s genital, anal,
or other intimate area for sexual arousal or gratification, or for the abuse of other party.
”Sexual contact” does not include (1) a common expression of familial or friendly affection
or (2) an act for an accepted medical purpose.
Section 3-308(b)(1) of the Criminal Law Article
Section 3-308(b)(1) of the Criminal Law Article prohibits a person from engaging in
“sexual contact” with another without the consent of the other.
State/Local Fiscal Effect: Repeal of the spousal exemption is likely to result in an
increase in prosecutions for specified sexual offenses; the bill’s “sexual contact” provisions
may reduce the number of fourth-degree sexual offense cases.
Information is not available on the number of cases that were not prosecuted as a result of
the spousal exemption provisions repealed by the bill and the number of cases that would
no longer be considered fourth-degree sexual offenses due to the bill’s “sexual contact”
provisions. However, given the penalties for the offenses to which the spousal exemption
applies and the likely circumstances in which the spousal exemption applies, and assuming
that the bill’s provisions apply to a small number of cases, this analysis assumes that the
overall effect of the bill is a (1) minimal increase in State general fund incarceration
expenditures from the repeal of the spousal exemption and (2) a potential minimal decrease
in local incarceration expenditures from the bill’s “sexual contact” provisions. While
fourth-degree sexual offense carries a monetary penalty, the bill is not expected to
materially affect State or local revenues.
Persons serving a sentence longer than 18 months are incarcerated in State correctional
facilities. Currently, the average total cost per inmate, including overhead, is estimated at
$3,900 per month. Persons serving a sentence of one year or less in a jurisdiction other than
Baltimore City are sentenced to local detention facilities. For persons sentenced to a term
of between 12 and 18 months, the sentencing judge has the discretion to order that the
sentence be served at a local facility or a State correctional facility. The State provides
assistance to the counties for locally sentenced inmates and for (1) inmates who are
sentenced to and awaiting transfer to the State correctional system; (2) sentenced inmates
confined in a local detention center between 12 and 18 months; and (3) inmates who have
been sentenced to the custody of the State but are confined in or who receive reentry or
other prerelease programming and services from a local facility.
SB 250/ Page 3
The State does not pay for pretrial detention time in a local correctional facility. Persons
sentenced in Baltimore City are generally incarcerated in State correctional facilities. The
Baltimore Pretrial Complex, a State-operated facility, is used primarily for pretrial
detentions.
Counties pay the full cost of incarceration for people in their facilities for the first
12 months of the sentence. Per diem operating costs of local detention facilities have
ranged from approximately $40 to $170 per inmate in recent years.
The Office of the Public Defender (OPD) advises that the bill’s provisions increase agency
caseloads and that it may need to hire additional staff to manage its caseloads. However,
OPD provided no information on the anticipated effect on the agency’s caseloads and noted
that it cannot calculate the impact on OPD expenditures. The Department of Legislative
Services advises that the bill is unlikely to generate enough additional cases to warrant the
hiring of additional attorneys.
The Maryland State’s Attorneys’ Association advises that the bill has no fiscal or
operational effect on prosecutors.
Additional Information
Prior Introductions: HB 590 of 2020, a similar bill, passed the House and was referred
to the Senate Judicial Proceedings Committee, but no further action was taken. Its
cross file, SB 230, received a hearing in the Senate Judicial Proceedings Committee, but
no further action was taken. HB 958 of 2019, a similar bill, received a hearing in the House
Judiciary Committee, but no further action was taken.
Designated Cross File: HB 147 (Delegate Crutchfield, et al.) - Judiciary.
Information Source(s): Judiciary (Administrative Office of the Courts); Department of
Public Safety and Correctional Services; Office of the Public Defender; Maryland State’s
Attorneys’ Association; Maryland State Commission on Criminal Sentencing Policy;
Caroline and Prince George’s counties; Department of Legislative Services
Fiscal Note History: First Reader - January 12, 2021
rh/aad Third Reader - March 31, 2021
Revised - Amendment(s) - March 31, 2021
SB 250/ Page 4
Analysis by: Donavan A. Ham Direct Inquiries to:
(410) 946-5510
(301) 970-5510
SB 250/ Page 5


Statutes affected:
Text - Third - Criminal Law - Sexual Crimes - Fourth Degree Sexual Offense and Spousal Defense: 3-301 Criminal Law, 3-308 Criminal Law