Several new laws affecting people accused of criminal offenses, as well as alleged victims, many of which take effect in Maine from today (Oct 18).Others became law earlier in the year. Perhaps the most under-reported and yet far-reaching legislation - likely to meet constitutional challenges - is that child sex assault victims will be able to give evidence remotely.
There are other new protections for juveniles, modest bail reforms, changes in how drug cases are dealt with, sentence enhancements for some crimes, and 'loopholes' have been closed. On the civil side, those who allege they have been sexually abused can now have a cause of action that was previously time-barred. In light of recent reports of people allegedly being motivated by race in reporting incidents to police, there is a new sentence enhancement for filing a false report based upon a person’s race, religion, disability or origin. The person has to know it is false and that it was intended to get a police response. This is a Class C offense. While the felony/misdemeanor distinction does not officially exist in Maine, this is regarded as a felony because the potential maximum sentence is greater than a year. A new law broadens the rights for juveniles - those people who are under 18 at the time of an allegation. It broadens when a lawyer is appointed for those who cannot afford one, limits when a child can be prosecuted or incarcerated, and increases the review of court decisions - both by the same court and at an appellate level.
Separate legislation in SB 35 amends the Maine Juvenile Code to grant a juvenile the opportunity to immediately appeal an adverse bind-over decision that moves the case into criminal court from the juvenile court. There is also a narrowing of distribution of records for juveniles with court involvement. There also new options for immigrant juveniles caught up in the criminal justice system. However, a bill to close Long Creek, which accommodates juveniles in detention, by June 20 2023 was vetoed by the governor, which could not be overcome in the legislature. For sex assault cases, there are changes affecting how children can give evidence, how police can collect that evidence, and new sentencing enhancements are being imposed.
As mentioned, there is now legislation that, in theory at least, allows testimony from an alleged child victim who is under 14 to give evidence remotely, outside the presence of a defendant accused of a sexual assault. This has not had much media coverage but the effect is profound, whichever side you may be on the issue. Media coverage is sure to come. Whatever the merits and intent of the legislation, this is likely to face a constitutional hurdle which presumes that a person who is accused of a crime can confront the witness against them and this has always been interpreted to mean in person and in court. Police also have broader legal ability to pose as children. A person who pretends to be a minor is also now deemed to be a minor for the purposes of sentencing or to prove the element of an offense. It also enhances punishment if a person who pays a prostitute, or seeks one, and thinks that person is a minor (under 18), even if they are not. This is a Class C crime rather than a Class D (making it regarded generally as a felony rather than a misdemeanor).
Among the other reforms are a change to an existing defense for a person accused of engaging in prostitution and a new affirmative defense. In addition, new legislation elevates the crime of aggravated sex trafficking if the person being trafficked is 14 years of age or younger from a Class B to Class A, which has the effect of increasing the potential maximum sentence. A ‘loophole’ that was raised in the Law Court about a substitute teacher accused of having sex with a student has been closed. That case overturned a conviction for gross sexual assault and unlawful sexual contact (while affirming other convictions) because of the way the statute was written about having ‘existing' authority, which was not proven by the government because he was a substitute teacher. Now that teacher / student relationship is to include past interactions as a result of that case. Related to the issue of sexual assault allegations, any claims of child sexual abuse that were previously time barred have a new two-year window to bring a claim. The legislation gives priority to court clerks to deal with those claims before other civil claims as well.
There is also a new offense of child endangerment when a child gains access to a loaded firearm and then uses it in a crime, threatens someone, or discharges it. This is a Class D offense, regarded as a misdemeanor. There are several defenses - including that it was locked in a safe, there was a trigger lock, or a reasonable belief that it was left in a place with limited access that the child would not go into. There has also been a modest reform of cash bail. There is a change in the standard in setting bail from reasonably ensuring a person’s appearance as a reason to impose cash bail to a determination by the court that the release would not result in an imminent risk of willful flight by an accused person. While that appears to heighten the standard in theory, it remains to be seen how that will operate in practice. Certain class E crimes are now prohibited from being set with a financial condition - though in practice that will make little difference because few, if any, people are actually held in jail for pending Class E cases.
For probation violations, there is a modest change when the violation is not a crime. There is also a new entitlement to deferred disposition.for more serious offenses (Class Bs). Related to this, there are also new alternative sentencing programs for deferred disposition agreements. Deferred dispositions are agreements or contracts covered by law to lower or dismiss charges as part of a plea deal. New legislation also no longer makes it a crime for a person having residual amounts of drugs in needles etc. Quantities of drugs could also get people charged with trafficking, even if they displayed no intent to sell any drug they used. This has now also been eliminated. People could also be forced to be for drug testing as restitution (to pay back the cost of doing the test). That has now changed to only be allowed in drug crimes where the person was motivated by profit crimes. A court is also required to make a finding of that fact before ordering it. For operating under the influence cases, a breath test can only be used as evidence if the certificate for the result is issued by the qualified person (generally a police officer) who performed the analysis. In other words, it can‘t be signed by someone else - only the person who did the test. While some of the reforms are helpful, there is still no process in Maine to seal or expunge past convictions as there is in other states, which means a conviction remains forever in Maine. Even though possession of cannabis (marijuana) is now legal, one piece of legislation (HP 151) died, intending to seal criminal history record information regarding convictions or adjudications for personal adult use of cannabis (marijuana) by making the information confidential.
An attempt (HP 195) to protect inmates from the excessive charges they pay to make phone calls also died. those in custody will still be providing business to phone providers who make a tidy profit from an incarcerated person’s only means of communication with friends and family - and often before trial when they are legally presumed to be innocent.
Related: New reforms for policing in Maine. Story here.
NOTE: This is not meant as a comprehensive list and is not intended as legal advice.