Guest Post: Abbie Schaub of "The Keepers" on MD Bill to eliminate Statute of Limitations in Civil Cases re: Sexual Abuse of Children #Netflix

The New Jersey legislature just passed a bill allowing adults who were sexually abused as minors to file civil lawsuits until age 55, and also added a unique inclusion saying anyone can file a suit up until the age of 55 OR seven years after they make “the discovery” connecting emotional and psychological injury to their abuse. That phrase creates a 7 year window when anyone regardless of age can file a civil suit. Took them two decades to get that done due to opposition from the Catholic Church. I think nine states have opened some form of limited time window that allow civil lawsuits for damages done in the past regardless of someone’s age.

Meanwhile in Maryland, current SOL [Statute of Limitations] law bans civil lawsuits by anyone harmed if they are older than 38. Maryland House Bill 687, the Hidden Predator Act of 2019, has passed the House and is in the Senate. This bill will abolish time limits going forward for people sexually abused as minors but that would not help anyone harmed before the bill passes. It has an amendment creating a two year window during which those older than 38 now could file civil lawsuits. The Archdiocese of Baltimore, The Archdiocese of Washington DC and the Wilmington, Delaware diocese (all three have parts of Maryland under their domains) fund a professional lobbying group called the Maryland Catholic Conference which is working to defeat the bill. It seems language banning retroactive windows was slipped into a footnote as codified language on the 2017 Statutes of Limitations, unknown to us as was not in the bill itself. First senate hearing will be in afternoon session of the Senate Judiciary Process group [March 28, 2019]  and I and others will attend - not allowed to give testimony as only bill sponsor [Delegate] CT WIlson can do that.

With clergy sexual abuse of minors, most people harmed will never speak of it; it’s estimated only 6% ever do, and the average

“age of disclosure” in one study was thought to be 52 years old.

They are not asking for rules of evidence to be changed, or special treatment in the court system - they are asking for what I thought was an American right - for their day in court to present their case. Right now, arbitrary time limits designed to protect the abusers and organizations which foster them ban them from civil action. This is unfair and needs to be corrected.

Abbie Schaub

Netflix "The Keepers" Survivor Teresa Lancaster to MD Delegates: "Should this bill pass, legislators would be putting their stamp of approval on a dangerous excuse for failing to report. They would be undermining current law, which has protected children for 26 years. This would be an inexcusable, backward step."

Testimony in Opposition to SB 568/HB 787, Crimes--Child Abuse and Neglect--Failure to Report

March 27, 2019

My name is Teresa Lancaster. I am an attorney and a survivor who was featured in the Emmy-nominated documentary, The Keepers, currently on Netflix. I am also an activist and advocate for victims of sexual abuse.

I strongly oppose this bill. The proposed "actual knowledge" standard is so high that had it been in place during the Maskell scandal, no one could have been subject to prosecution for failing to report, had they suspected or even known about the terrible crimes that had occurred at Archbishop Keough High School when Maskell was there. Moreover, in accordance with the "actual knowledge" language, they would have been required to have seen for themselves the multiple rapes and the horrendous sexual abuse that took place in his office and failed to notify authorities before any prosecution could even be considered. It is clear in the child abuse literature that sexual abuse is not perpetrated in public. Consequently, I respectfully cannot understand, after all the scandals that have come to light, how supporters of this bill could claim that it would encourage reporting child abuse.

SB 568/HB 787 has been amended to make it worse. All this change would do is to undermine reporting based on suspected child abuse, which is the current standard in civil law. Legislators should ask themselves why no other state has such a standard in its reporting law.

I must emphasize that the part of the bill I find most offensive is Subsection C, because it undercuts an Attorney General opinion, 78 Md. Op. Atty. Gen. 189 [Dec.3, 1993]. This opinion finally required that the Archdiocese report to the authorities in my case, as well as the notorious Merzbacher case. Section C is a slap in the face to all the survivors of both of these scandals. Should this bill pass, legislators would be putting their stamp of approval on a dangerous excuse for failing to report. They would be undermining current law, which has protected children for 26 years. This would be an inexcusable, backward step.

Committee members must therefore, for the reasons above, look to their consciences and reject SB568/HB787.

Thank you for considering my views.

Lancaster Testimony (1) by on Scribd

Professor Lynn McLain to MD Legislature: "These bills fall far short of the national standard for criminal penalties for failure to report child abuse." #sexualabuse #failuretoreport @SenMikeMiller

SB 568 RE: FAILURE TO REPORT CHILD ABUSE AND NEGLECT

Testimony in Opposition

Respectfully Submitted by Lynn McLain, Professor and Dean Joseph Curtis Faculty Fellow Emerita, University of Baltimore School of Law, March 22, 2019

HONORABLE CHAIRMAN CLIPPINGER, VICE-CHAIR ATTERBEARY, AND COMMITTEE MEMBERS:

These bills fall far short of the national standard for criminal penalties for failure to report child abuse. None of the 48 states or D.C. has anything coming close to the total lack of remedy these bills offer, especially in sexual abuse cases.

1. Unlike the penalty laws in 48 other states and D.C., both SB 568 (and HB 787, as amended) apply only if the mandatory reporter who failed to report can be proved to have had "actual knowledge of the abuse or neglect."

The courts will look to the "plain meaning" of these words¹ -- which is firsthand, direct knowledge of the facts at issue. In the child abuse and neglect context, this would mean personally witnessing the acts of abuse or neglect as they were being committed, and realizing that it was abuse, as opposed to, for example, "horsing around."

Black's Law Dictionary² defines "actual knowledge" as "Direct and clear knowledge, as distinguished from constructive knowledge (the employer, having witnessed the accident, had actual knowledge of the worker's injury). "³

Black's defines "constructive knowledge," in contrast, as "Knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person." A mandated Family Law 5-704 reporter is much more likely to have "constructive knowledge "of abuse than "actual knowledge."

Only "constructive knowledge" would result from hearing allegations of abuse or neglect from the child or seeing bruises, vaginal or anal tearing, or other injuries which cause the reporter to suspect abuse. In those situations, the mandated reporter would have a duty to report "suspected abuse" under Family Law 5-704. But that reporter would not have "actual knowledge" of the abuse or neglect, so even an intentional failure to report, as part of an intentional cover-up, could not be charged under these current bills.

These bills would not cover situations such as where persons at the US Olympics Committee or Michigan State University were told of allegations by minor gymnasts that they had been abused by Dr. Larry Nassar, even if they had spoken directly to the gymnasts.⁴

These bills would not even cover anyone in the most extreme example of the Penn State scandal -- the assistant coach who saw Mr. Sandusky in the shower with the young boy said that he was not sure that it was sexual abuse, but he thought it might be. So even he could not have been prosecuted successfully under this Maryland bill, if the jury had reasonable doubt as to whether he really knew it was sexual abuse! Let alone the higher-ups to whom that man reported but who failed to act. They were held criminally liable under Pennsylvania law -- but they couldn't have been charged if these Maryland bills were the governing law.

2. Because these bills do not state otherwise, the statute of limitations under them is one year from the initial failure to report. Most sexual abuse does not come to light until much, much later. Those who intentionally failed to report child sexual abuse and covered it up for over a year would get away with it "scot-free."

These bills create a misdemeanor. Under Courts 5-106(a), the default statute of limitations for all misdemeanors is one year. To give a different statute of limitations, the particular misdemeanor must be either explicitly made "subject to Courts 5-106(b)" or have a separate statute of limitations provided for in a new subsection of Courts 5-106.

3. These bills undermine the current reporting structure established by Family Law 5-704 and 5-705, which have been construed as applying even when the reporter learns of the suspected abuse or neglect when the child has reached adulthood.⁵ Reports to Social Services or law enforcement are still required, so that the State authorities can investigate to determine whether there are other children who may be at risk. ⁶

Instead, these bills choose to leave at risk innumerable other children in an abuser's sphere.

4. Unlike the laws of 35 other states, these bills inexplicably do not cover bishops and other clergy who fail to promptly report suspected abuse or neglect.

For these reasons, I respectfully oppose SB 568 and HB 787 as amended.

Lynn McLain

lmclain@ubalt.edu

410-778-4515

1 Breslin v. Powell, 421 Md. 266, 286-87 (2011) ("In attempting to discern the intent of the Legislature, courts 'look first to the plain language of the statute, giving it its natural and ordinary meaning. ' If the language of thestatute is clear and ambiguous, courts will give effect to the plain meaning of the statute....").

2 10th ed. 2014.

3 In numerous Maryland statutes, too, "actual knowledge" is used to mean direct, firsthand knowledge of the fact at issue, in contrast to lower alternative standards, such as "a reasonable basis for knowledge." Where lesser alternatives are permitted, they are listed with the use of the disjunctive "or." See, e.g., Md. Code, Crim. L. 11-209(a) ("A person may not [do act X]..., if the person knows, or possesses facts under which the person reasonably should know...").

4 See, e.g., Gymnasts Fault Olympic Committee, Wall St. J., A3, col. 1, Feb. 20, 2018.

5 78 Md. Op. Atty. Gen. 189 (Dec. 3, 1993).

6 See L. McLain, vol. 6 MARYLAND EVIDENCE: STATE AND FEDERAL sec. 504:2 at nn. 44-48 (3d ed. 2013).

2019 March 22 Lynn McLain by on Scribd