Bills Would Change Sex-Offender Registry

By Caryn Tamber
Daily Record
March 17, 2009

ANNAPOLIS — There are at least 130 sex offenders in Maryland who are not required to register because of when they committed their crime, the director of the state's sex offender registry told a Senate committee Tuesday.

The director, Elizabeth Bartholomew, was testifying at a Senate Judicial Proceedings Committee hearing on Senate Bills 425 and 441.

The bills, identical except for their lead sponsors, would address a hole in the state's registry requirements that benefits offenders whose victims do not come forward for many years — a category that tends to include child sex offenders.

"There is a means for sex offenders, a way that they can manipulate Maryland law to avoid compliance with the regulations," Bartholomew testified.

Under current law, offenders who committed their crimes on or before specified dates — Oct. 1, 1995, for some offenses; July 1, 1997 for others — are required to register only if they were in prison or under supervision as of Oct. 1, 2001.

Falling outside those parameters are offenders who committed their crimes before those dates, who were not in prison or under supervision as of Oct. 1, 2001.

The bills seek to close that window for certain offenses by requiring registration of anyone convicted after Oct. 1, 1995, based on conduct that occurred before that date, without regard to the convict's status in 2001.

Telling no one

Elizabeth Gilchrest, who was abused by her father between 1988 and 1994, testified that she told no one about the abuse until 2005, when she confided in her husband.

In 2007, she turned in her father, David Smith. He pleaded guilty to third-degree sex offense last year in Montgomery County. He was given a 10-year suspended sentence and five years of unsupervised probation, but was required to register as a sex offender.

But when his lawyer, Dino E. Flores Jr., realized that Smith was not actually required to register, he moved to undo that part of the plea deal. The judge initially granted the motion but agreed to restore the registration provision while the parties litigate the issue. He has not yet decided the issue.

Gilchrest told the committee that she agreed to the plea deal because she felt that, since her father was required to register, "other children might be saved from my predator."

"My father is a child molester and can no longer be trusted with children," she said.

Another abuse victim, David Fortwengler, also testified before the committee. He was abused in 1968, when he was 11, he said. The perpetrator was his parish priest in Prince George's County.

He did not come forward until 2002, at the height of the clergy sex abuse furor. When the priest was finally convicted and sent to prison, Fortwengler could finally sleep easy.

"I felt comfortable and safe that no kid was getting raped that night," he told the committee.

Once the abuser got out of prison and off parole, Fortwengler didn't feel that way anymore. It turned out that the priest, having committed his offense before 1995, could not be required to register as a sex offender.

Fortwengler is outraged.

"People need to know where this man is," he said.

He said after the hearing that he once drove up to New Jersey, where the priest now lives, and passed out fliers to his neighbors, warning them about his convictions.

Fortwengler was disappointed Tuesday to hear that, even with an amendment, the bill would not cover his abuser. The amendment adds several crimes to the list covered by the original bill (first- and second-degree rape, first- and second-degree sexual offenses, and sexual abuse of a minor), but not "unnatural and perverted sexual practices," which is what the priest went to prison for.

OPD, MSBA oppose

The Office of the Public Defender and the Maryland State Bar Association submitted letters opposing the bill.

The public defender's letter says the bill is "unworkable" and has issues of "fundamental fairness."

"[M]any people engage in plea negotiations with an eye toward making sure that any plea agreement be to a crime that does not carry a registration requirement," the letter read. "For those who reasonably rely on the State to keep its word that certain convictions would not carry with it a registration requirement, changing the law retroactively could undermine the agreement to the extent that there may be a due process violation."

The MSBA opposes the legislation because it would make the requirement retroactive.

"In the Bar Association's view, the practice of having laws apply retroactively on a widespread basis could be confusing for lawyers and their clients and is an unsound basis for public policy," the group's letter read.


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