Bill to close 'loophole' in Maryland sex offender registry

Daily Record, The (Baltimore), Feb 18, 2009 by Caryn Tamber

It took Elizabeth Gilchrest 13 years to talk about the sexual abuse.

Gilchrest came forward with the allegations against her father, David A. Smith, in 2007. Smith pleaded guilty last year to a third- degree sex offense in exchange for a suspended sentence, unsupervised probation and a spot on Maryland's sex offender registry.

But then, Smith's lawyer raised questions about whether he even had to register.

Gilchrest and her husband, Allen, are now pushing for the General Assembly to close what they say is a loophole in state law that allows some people charged with long-ago sex offenses to avoid registration.

"I just sort of felt like, this is his one punishment, to be a registered sex offender," Elizabeth Gilchrest, now 25 and living out of state, said in a phone interview.

Current state law requires a sex offender to register if the crime was committed before July 1, 1997, and the offender was in custody or under supervision as of Oct. 1, 2001. A child sex offender must register if the crime happened before July 1, 1995, and if the offender was in jail or under supervision as of the 2001 date.

That means David Smith, whom Gilchrest said abused her from 1988 to 1994 but who was not charged until 2007, does not have to register, said Smith's lawyer, Dino E. Flores Jr. of Schaffer, Black & Flores P.C. in Frederick.

Flores initially agreed to registration for his client because he thought the law required it, Flores said. When he looked again, though, he decided to challenge the registration.

In November, Montgomery County Circuit Court Judge Eric M. Johnson granted Smith's motion to be removed from the registry.

Catherine Chen, a lawyer from the Maryland Crime Victims' Resource Center Inc. representing Gilchrest, and Sherri Koch, the prosecutor in the case, filed motions to undo the removal a few weeks later. Johnson agreed and held a hearing last month. He gave the parties 45 days to file briefs on judges' discretion to make registration a condition of probation.

Neither the prosecutor nor Gilchrest's lawyer returned calls for comment, but Flores said neither has filed a brief. The deadline is Monday.

As of now, Smith is listed on the registry.

Legislative actions

In addition to seeking a judicial declaration that he should stay there, the Gilchrests have contacted lawmakers about the gap in the registry law. One legislator, Sen. Norman R. Stone Jr., D-Baltimore County, has introduced two bills on the topic, S.B. 425 and S.B. 441. They appear to be identical.

The measures specify that an offender convicted of first- or second-degree rape, first- or second-degree sex offense, or any child sex offense must register for a pre-1997 or pre-1995 crime if he was convicted on Oct. 1, 2001 -- or anytime after.

Stone sponsored a similar bill last year. It passed in the Senate unanimously but did not get a hearing in the House of Delegates.

Stone said he heard from a few people affected by the gap in the law, not just the Gilchrests.

"People should not be penalized and offenders should not be rewarded by not having to register because the people were very young when it happened and maybe they were just afraid for some reason or they were embarrassed but didn't come forward until later on in life," Stone said.

Elizabeth Gilchrest said she needs to see her father held accountable for abusing her. She also said people in his community should know what he did so they can protect their children.

"I thought about the people in his life that have children," she said. "I thought they deserved to know his history. If I was a mother and had children, I'd want to know."

Smith's lawyer said lawmakers should think twice before broadening the registry law.

"It's a very, very serious stigma," Flores said of the registry. "It is frightening in what it does to people for their past transgressions."

The bills are set for a hearing March 17 before the Senate Judicial Proceedings Committee.