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.
