.@SenatorSusanLee Comment on Your Bill: "psychiatrists who treat pedophiles have looked for a backdoor way to reinstate it. They have found it in SB 568/HB 787 (your bill).

Oppose SB 568/HB 787 Crimes - Child Abuse and Neglect - Failure to Report

Submitted by Ellen Mugmon

March 27, 2019

Former Legislative Chair of the State Council on Child Abuse and Neglect

No State or the Federal Government Has a Law Like This

The purpose of SB 568/HB 787, as amended, is to take the child abuse reporting penalty issue off everyone’s plate and at the same time protect from accountability powerful professional groups and institutions by establishing an impossible evidentiary standard under Maryland law, ”actual knowledge,” and secondly, by overruling a significant 1993 Attorney General’s opinion that requires the reporting of child abuse after the victim turns eighteen. See Md. Op. Atty. Gen. 189 (Dec. 3, 1993). The bills also have a one year statute of limitations, which means that if the failure to report is not found out by authorities within a year, there could not be a prosecution.

Then Attorney General Curran stated the following: “If we accept the proposition that no reporting were required if the victim is now an adult, we would be saying that there would be no duty to report if an eighteen year old had been subject to recent abuse and had younger siblings at home in the care of the abuser. That would be an untenable construction of the statute, one that we cannot imagine the General Assembly intended.”

As the Baltimore City State’s Attorney noted in her written testimony in 2018 on SB 132/ HB 500, the same bill as SB 568/HB 787, except for the penalty: “It is nearly impossible from a legal perspective to prove that an individual had “actual knowledge” of abuse, especially if the mandatory reporter contends that they did not see the abuse occur and did not believe the child’s disclosure.”

Requiring “actual knowledge” of the abuse before a mandatory reporter could be prosecuted for failure to report it is a higher standard of knowledge than beyond a reasonable doubt. Jurors do not need to witness a crime as it is occuring in order convict an individual for committing it.

Thus, this bill is NOT a compromise as proponents claim. It is NOT a small step forward either. Rather, it is a complete and harmful capitulation to the Maryland Catholic Conference and powerful professional groups which once and for all want to end the pressure to bring Maryland law into the mainstream with legislation that that could actually result in convictions.

To argue about the differences in a penalty that will never be applied egregiously misses the point. The Committee has a moral obligation to acknowledge all the defects in this bill and then reject it.

Those Who Don’t Know History Are Doomed To Repeat It.

The Maryland Catholic Conference has for 26 years attempted, whenever the opportunity arose, to get out from under 78Md. Op. Atty. Gen. 189 (Dec. 3, 1993). In the face of this third explosion of the horrific clergy abuse scandal, it would be unconscionable for the Committee to agree to the restrictions in this bill, which would be unique to Maryland.

While the Committee should be commended for voting favorably on HB 687, which remediates a statute which was supposed to remediate the previous statute of limitations law, it is understood that it is not likely to make it out of the Senate. The passage of SB 568/HB 787 will be another slap in the face to the survivors who supported that bill and equally oppose this one.

After the SOL bill was enacted during the 2017 session, the press, advocates and survivors mistakenly hailed its passage. They did not realize that the extension of the time period to allow a suit to be filed was meaningless because the bill had been drafted behind the scenes to make it impossible for survivors to prevail.

It would be wrong for any legislator to claim a so called victory for child protection, should this bill pass, knowing full well that it is unworkable and that the “[i]nclusion of subsection (c) in proposed Crim. L. 3-602.2 could well be read by the courts to mean that the General Assembly has now taken a policy view counter to that of the of the A.G.’s Opinion-- that reporting when an identified victim has reached the age of majority is unimportant. Such a reading would leave at risk innumerable children in an abusers sphere.” (Professor Lynn Mclain, February 26, 2018)

Since the notorious Berlin pedophile exemption (unique to Maryland) was repealed in 1989, psychiatrists who treat pedophiles have looked for a backdoor way to reinstate it. They have found it in SB 568/HB 787. Disclosures by pedophiles do not meet the “actual knowledge” standard, the highest form of knowledge in law. Pedophiles do not rape children in front of those providing treatment to them. In the pre-1993 handling of his cases, Dr. Berlin refused to report when a relative molested his niece because she was nineteen even though she had a younger sister at risk. This bill would not penalize him if he did so again

Attorney General Frosh is currently investigating the Catholic Church in Maryland. Why is this Committee jumping the gun to provide new protections from accountability for the hierarchy when it fails to report? The Committee should not rely on Bishop Lori’s reforms, which call for parishioners to report child sexual abuse to the Church, first and foremost, rather than to the authorities. Setting up internal investigations prior to reporting to determine credibility by the Church’s own standards, thereby compromising police and social services investigations, is a self serving procedure which will not lead to the truth. Bishop Lori, while usurping governmental functions in plain sight, is supporting these bills.

None of the Penn State officials convicted of failing to report Sandusky to authorities could have been convicted in Maryland under the “actual knowledge” standard in this bill. None of them had “actual knowledge” of Sandusky’s abuse. That is why this bill is a pretense.

The Congressional bipartisan federal law enacted after the 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 as required by subsection(a) of that section, [the mandatory reporter] shall be fined under this title or imprisoned not more than year or both."

Why should it be that Maryland children in USA Gymnastics programs are better protected than all other Maryland children under SB 568/HB 787?

Without the 1993 opinion, the shocking disclosures of the notorious Maskell Case would never have come to light, as chronicled in the Netflix series, The Keepers. The Baltimore Archdiocese concedes this point in its response to the Keepers on its website. (See also in this regard: “Catholic Officials Knew of Teacher’s Abuse, Court Files Indicate,” by Tricia Bishop, The Baltimore Sun, November, 25, 2012 and“U-Md. Lawyers Didn’t Tell Police That Swim Coach Rick Curl Had Abused a Teen Girl,” by Amy Brittain, The Baltimore Sun, May 29, 2013.

Scandals in Maryland now include the cover-ups and failure to report by the Catholic Church, the ongoing scandals in the Montgomery County Schools, the Ron Price scandal in Anne Arundel County, the Deonte Carraway scandal in Prince George’s County, and more recently the scandal in the Baltimore Orthodox Jewish Community. These scandals will continue until there are successful prosecutions for failure to report, which cannot happen under this legislation.

Do Not invoke the #MeToo Movement in Support of This Bill

Proponents claim that SB 568/HB 787 is in line with the goals of #MeToo which are to increase the power of victims to be believed, to increase the protection of women and children, and to expand the possibility of justice. But this legislation is actually antithetical to the movement because it would automatically discount disclosures of abuse by child and adult victims alike, since these disclosures most assuredly would not meet the “actual knowledge” standard.

Absolutely no one, especially Rachael Denhollander, an activist and survivor of Larry Nassar’s whom proponents invoke, nor any other of the more than 250 victims of the USA Gymnastics scandal, would ever consider coming to Maryland to testify for such a backward bill. Ms. Denhollander was the first victim to come forward publicly. She was 31-years-old when she disclosed her victimization when she was 15-years-old. A mandated reporter under this bill could say that she was too old to require a report and that her disclosure did not provide the requisite “actual knowledge,” either.

It is appalling that SB 568/HB 787 mirrors provisions in the USA Gymnastics’ policy which caused the decades long cover-up of a terrible scandal. Steve Penny, the former director of USA Gymnastics, did not report the abuse because he deemed disclosures by victims and even allegations by other coaches as second or third hand information which did not prove to him that the abuse actually occurred. Moreover, his investigator stated that she did not report complaints by gymnasts who had turned eighteen because they were no longer children. It did not matter that they were children when they were abused or that other children were in the hands of a prolific 54-year-old pedophile. What mattered was the policy which protected the reputation of the organization.

Sending The Wrong Message - Undermining Maryland’s Reporting Law

Proponents insist that the bill would not undermine the underlying civil reporting law since the language of the civil reporting law would not be changed. This is false. Two reporting standards muddy the obligation to report suspected abuse and complicate and confuse training. Because there would be no criminal penalty based on the "reason to believe" standard, why would mandatory reporters follow the civil law, especially those not subject to professional penalties? Consequently, this bill would delay or have an overall chilling effect on reporting. It would encourage reporters to wait until they knew for sure that abuse has occurred or eventually fail to report at all. It would also encourage administrators such as those in Montgomery County continue to keep secret lists of possible perpetrators and perform internal investigations prior to reporting instead of reporting immediately. This endangers children.

Child Protection Lip Service

Supporters of this bill are up front. They admit that the bill is intended to protect mandatory reporters. They state that the bill “would be the most lenient toward adults, i.e. mandatory reporters, than any other law in the entire United States or its territories.” During a meeting prior to the session, it was stated that the Committee in 2018 had concerns about the “actual knowledge” language and it was out for this session. Why must we now accept the nonsensical mantra from proponents that something is better than nothing, when this legislation is worse than nothing?

Mandatory reporting of child abuse and neglect is the very foundation of the child protection system. But this bill is so flawed that if it were enacted, the safety and protection of children would be compromised far more than it is under current law. For these reasons, I request 568/HB 787 be given an unfavorable report. 

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