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Constitutional Freedoms

Maryland Law in 1980s Viewed Sexual Assault as a Misdemeanor

Montgomery County police chief says an investigation today would be based on '82 measure, which had a one-year statute of limitations

Maryland law in the early 1980s classified acts like those alleged against Judge Brett Kavanaugh (pictured above right) by Christine Blasey Ford (above left) as misdemeanors with a one-year statute of limitation, according to local officials who would oversee an investigation today.

“To date, there have been no criminal reports filed with the Montgomery County Department of Police that would lead to the initiation of any criminal investigation related to Judge Kavanaugh,” Montgomery County Police Chief Thomas Manger and State’s Attorney John McCarthy told a group of local Democratic legislators pushing for such action in a letter Friday.

“Furthermore, the law at the time the offense occurred is the law that must be applied to any charges that might be brought,” Manger and McCarthy wrote. “For example, in 1982, assault and attempted rape were both misdemeanors and subject to a one-year statute of limitations.”

A prosecution based on the prospect of a more contemporary statute providing a more severe penalty would violate the Constitution’s prohibition on ex post facto law enforcement.

“For example, in 1982, assault and attempted rape were both misdemeanors and subject to a one-year statute of limitations.”

The two officials also emphasized the importance of having a victim come forward. They added that they “stand ready to investigate any sexual assault allegation from any victim where the incident occurred in our jurisdiction.”

The legislators had “asked authorities not to wait for an alleged victim to make a complaint to them before starting an investigation,” according to The Baltimore Sun.

The implications of Maryland’s statutes at the time of the alleged assault may not be so simple as the two officials described it, however, according to Eugene Volokh, a UCLA School of Law professor and founder of the Volokh Conspiracy blog.

“As it happens, attempted rape, though a misdemeanor, could (and sometimes did) carry a sentence of life imprisonment in 1982 Maryland,” Volokh told LifeZette. Writing on his blog Saturday, Volokh said “that a state treats a crime as a misdemeanor often means that it’s a minor crime, but not in all states, and in particular not in Maryland.”

Still, the letter from Manger and McCarthy highlights one of the biggest obstacles facing the FBI and Maryland law enforcement agencies in a one-week investigation of Ford’s allegation that Kavanaugh and a friend, Mark Judge, sexually assaulted her during a high school party in the early 1980s.

Related: No Reason to Think FBI Will ‘Uncover Anything’ New on Kavanaugh

Kavanaugh and Judge both deny the allegation, as do two other individuals Ford said were present at the time of the incident. Ford is unable to remember the location or date of the alleged assault.

The latter point appears to be especially important, as Manger and McCarthy told the state legislators that an investigation would have to focus on “where the incident occurred in our jurisdiction.”

Senate Democrats believe a July 1, 1982, entry in Kavanaugh’s calendar indicates the location and date of the alleged assault.

Kavanaugh’s July 9 nomination by President Donald Trump to the Supreme Court was voted out of the Senate Committee on the Judiciary Friday for debate and final voting by the full Senate. The motion to move the nomination forward was backed by the committee’s 11 Republicans and opposed by its 10 Democrats.

Republican leaders agreed to the proposal of Sen. Jeff Flake (R-Ariz.) for an FBI investigation of Ford’s allegations, with the review to be “limited as to time and scope” so that a final vote can be taken by the Senate within a week.