Del. Luedtke's Bill 1033 would only serve to exacerbate the inexcusable mishandling of child abuse cases by MCPS personnel

House Bill 1033
 
Delegates Luedtke, Kaiser, Zucker, Barkley, Gutierrez, Kelly, Korman, and Smith

PUBLIC AND NONPUBLIC SCHOOLS - SEXUAL AND PHYSICAL ABUSE NOTIFICATION AND PREVENTION

OPPOSE

Submitted by Ellen Mugmon

Before the House Judiciary Committee

March 19, 2015

HB 1033 purports to provide certain solutions to serious problems that have been uncovered during the longstanding and continuing Montgomery County Public School System’s (MCPSS) child sexual abuse and assault scandal. Its focus appears to be on notification of parents. But it unreasonably restricts the crimes that are supposed to be disclosed, the time limits for disclosure, and the number of schools to which disclosure should reasonably apply, irrespective of the facts of each case.

Most egregiously, the bill undermines Maryland’s reporting law. School personnel would be designated to receive certain child abuse reports instead of the police and departments of social services. In addition, superintendents of a public schools and the principals of a nonpublic school would be able to override requests by local law enforcement agencies or local state’s attorneys to delay notification to parents even if this would compromise the investigation. Thus, this proposed legislation would only serve to exacerbate the inexcusable mishandling of child abuse cases by the MCPS personnel. Legislation which obstructs reporting to the police and social service by diverting reports to school systems and private schools would serve to ensure that children’s safety would be jeopardized.

The cause of the scandal is not so much the failure of the police and social services to alert superintendents of public school systems or principals of private schools that an arrest has been made, as HB 1033 implies. The cause of this scandal is, first and foremost, the failure of school system personnel to report to the proper authorities when they suspect that a teacher or other employee has abused a student. While other agencies are not without fault, procedures need to be worked out among agencies in a collaborative way in a memorandum of understanding, not in a legislative power play which really has little to do with the protection of children.

The operative policy in the MCPS appears to have been to conduct internal investigations prior to reporting, in violation of a significant Attorney General’s opinion. The operative policy also meant that employees failed to report directly to the police and social services when required. Moreover, inexpert investigations prior to police and social services investigations gave the alleged abusers the ability to destroy evidence, and abscond or inappropriately gather information after multiple in-house interviews of child victims or witnesses. For example, a special education teacher fled the country in 2013 after school personnel did an internal investigation in which they determined nothing had happened. There was no need, according to them, to call the police. The police, after their investigation, however, decided to arrest the teacher for the sexual abuse of a 15-year-old autistic child after his parents subsequently reported directly to them.

This operative policy was fostered by totally inadequate child abuse and neglect policy and procedures, which are still not corrected. Moreover, MCPS administrators had never heard of the most pertinent document it should have consulted: 76 Opinions of the Attorney General___ (1991) [Opinion No. 91-056 (December 17, 1991)]. A child advocate recently provided administrators with a copy of it as well as the Howard County Child Abuse Policy and Procedures. (see http://www.hcpss.org/f/board/policies/1030.pdf)

Interestingly, in the first half of the bill, teachers and other employees under the bill, as opposed to contractor, subcontractors, and paid employees, are subject to different crimes reportable to parents. This makes no sense.

The definition of “REPORTABLE OFFENSE FOR AN EMPLOYEE OF A LOCAL SCHOOL SYSTEM OR A NONPUBLIC SCHOOL” is underinclusive. Definition of “REPORTABLE OFFENSE FOR A CONTRACTOR, SUBCONTRACTOR, OR PAID LEADER OF A SCHOOL ACTIVITY is both underinclusive and made up of different crimes.

Section 14-101 of the Criminal Law Article has a very limited number of crimes that do not reflect all the other crimes that teachers and other personnel have committed against vulnerable students, although the name of the statute, “Crimes of Violence,” would lead one to believe that all violent crimes are listed. That is hardly the case. There is also another list of violent crimes in Section 5-101 of the Public Safety Article. Both lists are not the same. Moreover, merely adding Section 3-307 and a third degree sex offense and 3-602, in the Criminal Law Article, is grossly insufficient because the proposed legislation does not include other crimes particularly related to the protection of children. The absence of section 3-308 of the Criminal Law Article in particular is glaring. Pedophile activist groups in Maryland contend that a 4th degree sex offense involving a child, though a crime, is not harmful to children and should eventually be legalized. Unfortunately, this list of crimes inadvertently sanctions their disordered thinking.

In addition, Section 5-101 of the Public Safety Article lists second degree assault as a crime of violence. Generally, it is considered a Domestic Violence crime which is, of course violent. But it is not a crime of violence in Section 14-101 of the Criminal Law Article. Most importantly, it is a crime that is too often a plea bargain down from sexual crimes. A Rockville teacher was convicted of second degree assault, which has no sex- offense component to it. He was originally charged with child sexual abuse and a 4th degree sex offense, which again is not a “REPORTABLE OFFENSES.”

Other offenses which are deemed “UNREPORTABLE” include child pornography possession, distribution, and manufacture. Moreover, a building service worker was retained by the MCPS after he was arrested for surreptitiously spying on little girls in school locker room. Because of that he was moved to a warehouse and then convicted of unnatural and perverted sex practices.

The following crimes, for example, are also presumed in the bill to be irrelevant: sexual relationships with high school students off-campus off-time; indecent exposure; statutory rape; sex trafficking; stalking; trespass which is associated with stalking, peeping Tom, and malicious destruction of property, all crimes not included; sexual solicitation of a minor; child physical abuse in the first and second degree and child neglect; sexual and physical abuse and neglect of a vulnerable adult; harassment; false imprisonment; presence of a minor in sight and hearing of a crime of violence; allowing or encouraging a child to engage in obscene photography, films, poses, or similar activity; reckless endangerment; indecent, lewd conversations and texting with minors; illegally carrying a concealed firearm on school property; and animal cruelty. There are other significant crimes not listed here.

The definition of “REPORTABLE CRIMES” with regard to a contractor and subcontractor, or paid leader of a school activity is insufficient. It does include 4th degree sex offense and certain additional crimes which are not included for employees. The question is why are they different? Moreover, why are notifications from the police about contractors, subcontractors, and paid leaders time limited and concern only a particular school at the time of the offense, when one contractor who sexually assaulted girls worked in 58 schools? See section (A)(II) on page 2. Also, why are subsequent notifications to parents of students and employees 5 business days later similarly limited? See section (C)(I)(II) on page three. Thus, HB 1033 calls for disclosure to parents, on the one hand, and limits the information disclosed on the other.

In addition,Section (B)(1) on page 3 leaves out the one day notification for parents of the victim which is supposed to be the purpose of the bill. Furthermore, this provision is contrary to another Attorney General opinion which states that the local department of social services must notify the parents of the victim within 24 hours. ( See 82 Opinions of the Attorney General___(1997) [Opinion. No. 97-023 (September 19, 1997)].

But two of the most troubling provisions of the bill concern the usurpation of the police, state’s attorney and DSS roles in child abuse investigations. In section (D) on page 4, HB 1033 would allow the public school superintendent or principal of a nonpublic school to reject a request by police, DSS and state’s attorney to delay the notification of parents in order to prevent compromising their investigations. The bill also calls for the designation of a contact person within the local school system or nonpublic school for parents and employees to receive reports of incidents of abuse that may be related to the arrest along with information on how to report sexual abuse to the county board, and school administration. Thus, reporting incidents of abuse to school entities may or may not be related to the arrest. Either way, this end run around the reporting law in the midst of a scandal is especially outrageous. Clearly, the purpose of this bill is not to protect children, but the school system and its employees.

The literal language of the child abuse reporting law and the Attorney General’s opinion make it clear, notwithstanding HB 1033, that ‘the [school system’s] personnel investigation must not take place until after the alleged abuse has been reported and is subject to whatever limitations are imposed by the local DSS or the police….One overriding requirement of the Child Abuse subtitle is immediate reporting of instances of suspected abuse. Thus, under no circumstances may a school system delay reporting….” Given all of the above, I respectfully ask that the Committee give HB 1033 an unfavorable report.