Del. Luedtke's Bill 642 will lead employers and school personnel to hire and retain individuals with histories of sexual misconduct and violence against vulnerable populations

House Bill 642

CHILDREN - CHILD CARE FACILITIES, PUBLIC SCHOOLS, AND NONPUBLIC SCHOOLS - CONTRACTORS AND SUBCONTRACTORS 

Sponsored by: Delegate Luedtke

SUPPORT ONLY IF AMENDED

Submitted by Ellen Mugmon

Before the Maryland House Ways and Means Committee

March 12, 2015

HB 642 was prompted by the still unresolved sexual abuse scandal in the Montgomery County Public Schools. It adds certain contractors and subcontractors to the entities that must request fingerprint based federal and state criminal history records for their employees who work in schools and thus have access to children. This portion of the bill should receive the approval of the Committee.

The significant problem with the bill is related to the the definition of an “APPLICABLE OFFENSE.” The list of crimes is significantly under-inclusive and will lead employers and school personnel to hire and retain individuals with histories of sexual misconduct and violence against vulnerable populations. This would imply that if an offense is not applicable, it must not be a serious problem.

Moreover, one of the contractors who testified at the Senate hearing for the crossfiled bill, SB 508, did not acknowledge that his employee had been previously convicted of second degree assault for groping three women, a crime not considered an “APPLICABLE OFFENSE.” So one should rightly ask why second degree assault is not listed as an APPLICABLE OFFENSE in the bill. This technician worked in 58 Montgomery County schools and subsequently groped students. How does this list solve this problem? It does not. It makes it worse.

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 of the Criminal Law Article, which is a third degree sex offense, as well as section 3-602 of 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 now a crime, is not harmful to children and should eventually be legalized. Unfortunately, this list of crimes inadvertently sanctions their disordered, self-serving 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, a 4th degree sex offense, which again is not one of the “APPLICABLE OFFENSES”. So an employer or human resource director could hire or retain an individual who molests children under the assumption he did not commit a sexual crime. As a result this scheme does not protect children sufficiently. It never has and never will.

Other offenses which are deemed inapplicable include child pornography possession, distribution, and manufacture. This applies when certain educators collect child pornography or have taken explicit pictures of students, or photoshopped them and then distributed them on the internet. Moreover, a building service worker was retained by the Montgomery County School System after he was arrested for surreptitiously spying on little girls in school, and then was convicted of unnatural and perverted sex practices. Both crimes are not listed [in Bill 642].

Please note also that the following crimes are inapplicable

crimes [not included] according to this bill;

• sexual relationships with high school students off-campus off time: 
• indecent exposure; 
• statutory rape; 
• sex trafficking; 
• stalking: 
• trespass (Trespass is associated with stalking, peeping Tom, and malicious destruction of property. Children have been the victims of these crimes.); 
• sexual solicitation of a minor; 
• child physical abuse in the first and second degree and child neglect; 
• sexual and physical abuse or 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 which in the literature is specifically correlated with child abuse; and as mentioned above 4th degree sex offense and unnatural and perverted sex practices.

I am aware that sections 2-206.1 and 6-113 of the Education Article are current law. But the public policy of picking and choosing crimes in this way in legislation has clearly turned out to be a dangerous mistake when evaluating individuals in positions of public trust concerning vulnerable children. In fact, it serves to protect certain offenders rather than school children. Therefore, I respectfully request that the Committee amend out of the bill the two sections above, and instead ask MSDE to develop guidelines in consultation with national experts on screening. If the Committee wishes to continue with a list, it should at least add to the meaning of “APPLICABLE OFFENSES” the additional crimes listed above for the safety and well-being of Maryland’s children The Committee must know, however, that while this approach is an improvement, it is still inadequate because the list in this testimony is incomplete.

In my view, these cases need to be examined individually. Employers need to ask for charging documents and an explanation from employees concerning their convictions. This procedure acknowledges plea bargains and lenient way the court system handles sexual crimes against children, as the Committee can see from the attached articles and summary prepared by a member of the Parents’ Coalition of Montgomery County.

As a longstanding child advocate, I therefore ask that you give HB 642 a favorable report only if amended. Thank you for considering my views.