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:
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 words
-- 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 Dictionary
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). "
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.
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.
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.
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
