@SenatorSusanLee Puts Forth Another Useless Bill Instead of Actually Working to Protect Children

Montgomery County State Senator Susan Lee is at it again. 

Just like last year (2018) she is putting forth a bill that pretends to address the absence of any criminal penalty for mandatory reporters (for example, MCPS administrators) who fail to report suspected sexual abuse of children (for example, former MCPS teacher John Vigna).  

Maryland and Wyoming are the ONLY two states in the nation that do not have a penalty for a mandated reporters' (for example MCPS administrators) failure to report the sexual abuse of a child.  

Montgomery County Senator Susan Lee has again filed a bill that pretends to address this problem but in reality does not protect children because the standard written into the proposed law is almost impossible to ever attain. 

Below is public comment from child advocate and sexual abuse expert Ellen Mugmon on Senator Susan Lee's Senate Bill 568.  

Isn't it time for Montgomery County elected officials to stand up for the children of Maryland who have been sexually abused by public school staff?  

----------------------------

SB 568

CRIMES- CHILD ABUSE AND NEGLECT - FAILURE TO REPORT

Prepared by Ellen Mugmon

Senate Judicial Proceedings Committee

February 22, 2019

OPPOSE

   FACT SHEET

The underlying purpose of this bill is not to protect Maryland’s children.  Its real purpose is to continue to ensure that powerful, self-serving professionals and institutions remain unaccountable, as has been the case for over thirty years. No other state has enacted such a restrictive penalty for failing to report child abuse and neglect as proposed in this bill.  If mandatory reporters do not have “actual knowledge” of abuse or, in other words, did not witness it, then they cannot be subject to the penalty in SB 568 for failing to report, even when they suspect abuse or have other evidence that it occurred.  

Currently, certain professionals can be disciplined by licensing or certification boards for failing to report child abuse, but there is no way to discipline other mandatory reporters who do not have occupational boards. However, to our knowledge, only one professional since 1986 has ever been disciplined by a board for failure to report notwithstanding another bill, HB 245, enacted in 2016 which was supposed to increase disciplinary actions. Last session, its sponsor mentioned during a hearing that so far it has been ineffective.

Certain proponents of SB 568 know full well that the reporting law has no teeth and want to keep it that way. One dentist representing the Maryland State Dental Association previously had the temerity to testify publicly against penalties stating that she did not want to take the time to report head injuries she suspected or knew were caused by abuse. In addition, on Boychat, a pedophile chat line, pedophiles deemed a particular psychiatrist as “safe.”

It should be noted that all mandatory reporters are given immunity from both civil and criminal liability when they make good faith reports to encourage reporting. But the fact that there is no real enforcement of the law makes it, in reality, discretionary and rather than mandatory. 

Witnessing child abuse is extremely rare. Consequently, the federal law, enacted in response to the horrendous USA gymnastics scandal states: "When a mandatory reporter learns of facts that give reason to suspect that a child has suffered an incident of child abuse...and fails to make a timely report...the mandatory reporter shall be fined or imprisoned not more than a year or both.” Except for Maryland and Wyoming, other states’ laws are written similarly. 

In 1989, the General Assembly repealed a 1987 amendment named for Dr. Fred Berlin, a psychiatrist who treats pedophiles. This amendment had exempted health practitioners who provided psychiatric treatment to pedophiles from the mandatory reporting law.  It was unique to Maryland.  Since then the Maryland Psychiatric Society has attempted to use penalty bills such as SB 568 as vehicles to essentially reinstate the so-called Berlin exemption by negating a significant 1993 Attorney General’s opinion. See Md. Atty. Gen Op. Dec. 3, 1993. which requires the reporting of past abuse committed by pedophiles. (Prior to this session, a representative of the Society also suggested reinstating regressive language repealed in 1987 which would require reporting only when mandatory reporters contacted, examined or treated a child, not when the psychiatrist learned of abuse from the pedophile or other sources.)

SB 568 targets this Attorney General’s opinion by specifically exempting from the scope of the penalty  the failure to report abuse as soon as the victim turns 25.  Under this legislation, the shocking disclosures of the notorious Maskell Case, and others like it, would never have come to light. The Maskell case is chronicled in the Netflix series, The Keepers. The Baltimore Archdiocese, on its website, admits that it only reported Maskell as a result of this significant 26 year-old Attorney General’s opinion. SB 568, nonetheless, undermines it.

This backward provision would not just apply to the Catholic hierarchy and psychiatrists who learn of abuse from sex offenders, it would affect the safety of children in all settings. Placing a cap on the victim’s age means that Rachael Denhollander, who was one of 250 gymnasts who were victims of Larry Nassar and who was 31-years-old when she became the first one to disclose her victimization, would never come to Maryland to support SB 568 as part of her activism. Under this bill, a mandatory reporter would be able to say that she was too old to require a report  to authorities, and that her disclosure did not provide the requisite “actual knowledge” either.

The bill’s one year statute of limitations, which would require that the failure to report would have had to be discovered by authorities within one year, would further ensure that the possibility of a prosecution would be almost impossible.

The passage of SB 568 would additionally undermine Maryland’s civil reporting law.  It would muddy the understanding of the circumstances under which reporting is required. Because there would be two standards, “reason to believe” and “actual knowledge,” mandatory reporters may be confused as to which standard to apply. This would encourage them to delay reporting or not report at all.  After all, the state is only going to enforce the law if the mandatory reporter witnesses abuse.

This bill additionally appears to contravene another Attorney General’s opinion.  The phrase, “DOES NOT INCLUDE A DUTY TO INVESTIGATE,” implies that conducting internal investigations by schools prior to reporting is their choice. In a 1991 opinion, however, the Attorney General clearly stated that internal investigations conducted prior to reporting suspected abuse to the police and departments of social services to determine if there is a “reason to believe” to report are against the law. This provision is also troubling because it would sustain the Catholic bishop’s practice of conducting internal investigations prior to reporting to determine if allegations are credible. This is a long standing problem. Maryland’s reporting law does not include  the term or definition of what a credible allegation is. Apparently bishops themselves have various definitions for the term, and internal investigation prior to reporting whether in schools or other institutions compromise subsequent investigations by the police and social services and allow abusers and those who wish to cover up for them the opportunity to destroy evidence and place pressure on victims to remain silent.   

Therefore, SB 568’s ostensible purpose of protecting children is a pretext for furthering the agenda of powerful, self-interested professional groups and institutions. It would confirm that Maryland is an outlier state.

It would also be a way of getting the penalty issue off everyone’s plate by passing something.  Unfortunately, in this case, something is not better than nothing. Children’s interests deserve to be made the priority instead of mandatory reporters and certain institutions which refuse to protect them.