The
Hon. Luke Clippinger, Chair
The
Hon. Vanessa E. Atterbeary, Vice-Chair
Judiciary
Committee
Hearing:
March 27, 2019 – 1:00 p.m.
Written
Testimony of Ernest A. Crofoot, Attorney
Think
about this: ALABAMA, ARKANSAS, and MISSISSIPPI!!!
Good
afternoon. I am Ernest A. Crofoot. I am an attorney, graduate of the
University of Baltimore School of Law, a Fellow of the Maryland Bar
Foundation, member of the Peer Review Committee of the Attorney
Grievance Commission, and an Ethics instructor for the Academy for
Excellence in Local Government. My written and oral testimony on this
bill are my own personal assessments and do not reflect the position
of any group, organization, board or commission. I recently began
providing assistance on this topic to other advocates.
Let
me say first that I support, encourage, and beg the Legislature to
pass legislation in this area – one with teeth, one with effective
protection for child abuse victims, and one that values children
victims over the concerns of highly funded special interest groups.
Senate
Bill 568 is a half-hearted, flawed, and short sighted attempt to
create an incentive for the timely and compassionate reporting by
statutorily required reporters of suspected child abuse.
Unfortunately, its shortcomings swallow any meager benefits it may
otherwise offer.
First,
and most importantly, SB 568 sets an impossible evidentiary standard
by, in effect, requiring that one must have “actual knowledge”
before one is required to report child abuse. In other submitted
testimony, you will see that none other than Professor Emerita LynnMcLain, University of Baltimore School of Law, the author of the“gospel” on Maryland Evidence, has maintained consistently the
“actual knowledge” is an impossible standard under Maryland law.
In effect, it would require witnessing the actual abuse before
requiring a subject person to make a report of child abuse. Professor
McLain taught many of the members of this body the rules of evidence
and I give the utmost deference to her interpretations and opinions.
Forty-eight states and the District of Columbia have standards that
can be generally described as “reasonable suspicion.” NONE
have an “actual knowledge” evidentiary standard. This
means that states like Alabama, Arkansas, and Mississippi, are ahead
of the State of Maryland when it comes to protecting children. Only
Wyoming and Maryland lack the more than generally accepted standard.
Only Wyoming and Maryland lack criminal penalties.
The
actual knowledge standard is a higher standard than that required for
a search warrant and, in fact, a higher standard than that which
would be used to convict someone of child abuse. How can this be? It
does work, however, if one’s intention is to protect special
interests groups and curry favor with certain key legislative
officials.
Last
fall, this writer, together with about twenty other persons on both
sides of this issue, was advised by a key member of this committee
that whatever bill language might come about, “actual knowledge”
would be out. As Paul Simon said, “All lies in jest.”
Any
attorney worthy of the name knows that the actual knowledge standard
is a red herring of gigantic proportion. It purpose is only to give
lip service to this issue so that one may say “we did something,”
when, in fact, it/they/you do nothing.
Second
(actually a “tie” for first), is that this bill refuses to
acknowledge the historic, longstanding, and pathetic record of the
clergy in this area – not only in participating in child abuse but
using church practices to cover up rampant child abuse, physical and
sexual. Any serious bill addressing the underreporting of child abuse
MUST include the clergy and members of all religious orders and sects
as required reporters.
Third,
the bill does creates another “will do little, if nothing”
provision. The bill provides for a very short one-year period for
charging the offense. That is the same period for spitting on the
sidewalk or failing to obtain a permit. Often, the salient facts are
not known within one year of the failure to report, e.g., as abusers
often “shop” their victims from doctor to doctor to avoid
detection or otherwise conceal abuse. A more reasonable standard is
to have the limitations period run the same length of time for an
abused person to bring charges (or, at a minimum, file a civil
action). The seriousness of the failure to report on a child warrants
the same charging period of limitations as felonies, i.e., NONE.
Fourth,
the elimination of any provision requiring reporting after an abused
child becomes an adult is ludicrous. There is a significant, logical,
and compelling need for a required reporter to report even when the
patient, etc., is an adult because the abuser may be victimizing
persons other than the person undergoing treatment. For example, a
twenty year old patient may report that her father abused her up
until she reached puberty. That father, though, may be abusing other
pre-pubescent children, and not requiring a report would further
endanger those children.
We
must protect children, not special interest groups. The clergy,
educators, and doctors will all tell you that they are doing a great
job as they conduct their own investigations. Look only to events in
the Catholic Church, Wicomico County Schools, Key School in
Annapolis, and elsewhere to see that this is definitely not the case.
I
strongly urge this committee to give SB 568 an unfavorable vote or,
in the alternative, to amend SB 568 in a manner consistent with the
above. SB 568, as presently constituted, makes Maryland a laughing
stock.
Thank
you.
Respectfully.
Ernest
A. Crofoot
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The last minute machinations
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By the esteemed delegation
To keep safe the population.