The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I've had little to say about the recent Judge Kavanaugh controversy, because I have no real knowledge to add on the subject. But something came up, quite tangentially, that I could usefully learn something about, so I want to briefly mention it.
Maryland police wrote yesterday that in 1982, assault and attempted rape were misdemeanors under Maryland law, and therefore subject to a one-year statute of limitations (though it seems to me that assault with intent to rape was even then a felony). This statute of limitations appears to be one of several reasons why the local police would be reluctant to get involved in this matter. (Others are that Dr. Ford hasn't actually brought a complaint to them, and that even absent a statute of limitations trying to find proof beyond a reasonable doubt, which is what the criminal law process requires, in an attempted rape case from 35 years ago can be a hopeless proposition.)
Some might ask: How could a crime as serious as attempted rape be treated as a mere misdemeanor? Was Maryland law at the time so dismissive of sex crimes? (Of course, this is entirely apart from the question whether Judge Kavanaugh actually commited this crime, which he of course categorically denies.)
I think the answer is that "misdemeanor" in Maryland doesn't what it means to the rest of us—despite the label, the crime of attempted rape was treated as very serious. Here's how I understand Maryland law on this.
[1.] Maryland, unlike most other states, still has "common-law crimes"—crimes defined entirely by the courts, which the legislature has never turned into statutory crimes. In the early Republic, this was the norm in all states, but starting with the mid-1800s most states codified all their crimes. Not so with Maryland.
Indeed, to this day even murder is a common-law crime in Maryland; so is attempt in general, except for a few attempts that are statutorily defined as felonies. Attempt to commit sexual offenses was made a statutory felony in 1996, but before then it was a misdemeanor simply because attempts in general were misdemeanors.
[2.] Perhaps because of this lack of codification, "the distinction between felony and misdemeanor [in Maryland] is a hodgepodge, following neither rhyme nor reason," as the Maryland high court said in 1979. It has also labeled the distinction "very unusual," in a way that can cause huge confusion for the police.
In particular, while in most of the rest of the country misdemeanors are defined by their comparatively light punishments (usually a year or less in jail), in Maryland misdemeanors can lead to long prison terms, up to life in prison (as in this 1982 attempted rape case). The same is true of misdemeanor attempt; as a 1984 Maryland high court case put it,
Attempt is a common-law misdemeanor, which, prior to 1976, had no statutorily prescribed sentence limit; the sentence for attempt was solely within the discretion of the trial judge. In 1976, however, the legislature enacted § 644A of Article 27, which limited the sentence for attempt to the maximum sentence for the completed crime.
Maryland misdemeanors, then, aren't (and weren't) necessarily minor crimes, or crimes with a minor maximum penalty; certainly attempts to commit serious felonies aren't minor crimes. But they do (and did) carry with them different procedural rules, including the statute of limitations, which is the point that the police department letter mentioned.
[3.] So when you hear news stories about a crime being a "misdemeanor," or otherwise using legal terminology, keep in mind that many of these legal terms vary in meaning from state to state, and in some states depart from the norm (and thus from their common modern meaning). 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.
Again, none of this bears on what did or didn't happen, and on who did or didn't do what to whom. But it does help explain what many might, on first hearing of it, view as a very strange feature of Maryland law.