@KathleenDumais1 SB132/HB500, contrary to proponents’ statements would not in fact give justice to the children victimized by Lawrence Joynes, Jose Pineda, John Vigna, Mark Yantos or Daniel Picca.

Oppose SB132/HB500

Crimes - Child Abuse and Neglect - Failure to Report

March 27, 2018

Written testimony respectfully submitted by

Jennifer Alvaro
Licensed Certified Social Worker – Clinical, MD
Licensed Clinical Social Worker, VA
Certified Sex Offender Treatment Provider, VA
Clinical Member, ATSA

During the past 24 years, I have worked in the field of child sexual abuse; as a child protective services worker, sex offender therapist and also conducting prevention and mandated reporter trainings. Most recently, I have been advocating for changes in Maryland due to what I have learned in the past 6 years. And what I have learned in the past six years is for decades many, many, many mandated reporters in the Montgomery County Public School system and other systems across the state have violated the law by failing to report their suspicions of child abuse. This is not a baseless accusation or unfounded speculation. I say this because advocates and news media have documented proof via court testimony, MPIA requests, interviews and admissions in public meetings. Admissions made by mandated reporters showed that they knowingly chose not to report suspicions and knowledge of severe cases of abuse to authorities.

Disgracefully, Maryland is one of only two states in the country with no penalty for failure to report.
Because many mandated reporters have no fear of being held accountable for breaking the law, they
have, far too often sacrificed children to further abuse in order to protect themselves or the systems
reputation.

That is why for the past six years, I have advocated strongly for adding criminal penalties for the
egregious cases of failure to report we have seen far too often in MCPS schools.

Heartbreakingly, I am submitting this testimony to OPPOSE this bill.​ This bill will not only fail to right a wrong, it will make things worse and more dangerous for children in Maryland.This bill’s use of actual knowledge and not including mandated reports of victims after they turn 18, will set safety for our children back, instead of moving it forward.

This bill, contrary to proponents’ statements would not in fact give justice to the children victimized by Lawrence Joynes, Jose Pineda, John Vigna, Mark Yantos or Daniel Picca. All MCPS teachers, all left in the classroom by MCPS officials who knew for a fact they were dangerous and had them on written “restrictions” to stop touching children.

For those reasons, I am dismayed to be forced to oppose this bill and urge you to issue
an unfavorable report.

Letter: [This] compromise might better be described as merely a pretense that would allow legislators to get this issue off their plate without, in reality, protecting children #SB132/HB500 #MGA18

To the Editor:

Neither Shanta Trivedi (“Abuse reporting bills would criminalize teachers,” March 12) nor Joyce Lombardi (“Punish those who knowingly fail to report,” March 14) gets it right.  I agree with Ms. Lombardi in her response to Ms.Trivedi that the knowing failure to report should be punished. But Ms. Lombardi misrepresents the scope of the bill in one direction as much as Ms. Trivedi does in the other.   She fails to mention that the bill undermines an important 1993 Attorney General's opinion that requires mandatory reporters to report after the child victim turns eighteen. Pedophiles do not stop abusing children because a timeline on one victim is added in Maryland law. They go on to abuse other children.

Without this 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 affirms on its website, in an answer to a question about the NetFlix documentary, that it reported the Maskell case in 1993 only because of that opinion.

One only needs to look again at the USA Gymnastics scandal to find out what is wrong with SB 132/HB 500. Its provisions are in line with the USA Gymnastics policy which caused this horrendous scandal in the first place.  One gymnast, who was twenty years old at the time, reported to organization officials that team physician Larry Nassar sexually abused her as a child. He is a middle-aged prolific pedophile who was still sexually abusing young girls. Its investigator never reported because she was twenty-years-old.  Moreover, its former director, followed the “actual knowledge” standard in the bill as well. If he personally did not see the abuse, even if he received complaints from other coaches or victims, he did not report it to authorities.

Ms. Lombardi talks about compromise. But the federal government and no other states have a compromise anything like this. The inclusion of the radical “actual knowledge” language (undefined in the bill) would chill reports and prompt those without a professional penalty to delay reporting until they witness the abuse. Having two reporting standards would muddy the obligation to report and encourage internal investigations prior to reporting to determine which standard applies.  Congressional bipartisan legislation just enacted, Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act, criminally penalizes the failure to report abuse in U.S. Amateur Athletic Organizations on the grounds of “reason to suspect,” not “actual knowledge” of abuse or “witnessing the act of abuse.”

Most important, it is wrong to claim that prosecutors could ever use this language to prosecute anyone.  According to the Baltimore City State’s Attorney, in her testimony on SB 132, “It is nearly impossible from a legal perspective to prove that an individual had ‘actual knowledge’ of abuse. . . “  That kind of compromise might better be described as merely a pretense that would allow legislators to get this issue off their plate without, in reality, protecting children.

Ellen Mugmon

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

http://www.baltimoresun.com/news/opinion/readersrespond/bs-ed-rr-child-abuse-letter-20180315-story.html

House & Senate Bill would not apply to 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

More on why the Bill proposed in the Maryland House and Senate to create criminal penalties for administrators who fail to report the sexual abuse of students will actually be a virtually useless law. Is this Bill being proposed to actually protect children or just to make legislators "look" like they are doing something? 

Statement from Lynn McLain, 

Professor and Dean Joseph Curtis Faculty Fellow Emerita,

University of Baltimore School of Law

The definition in Maryland House Bill 500 of its "knowledge" element as requiring "actual knowledge" will restrict its application to only those highly rare cases where the State could prove that the mandated reporter actually witnessed the child abuse or neglect as it was being committed.

   Maryland House Bill 500 2018 Session by Parents' Coalition of Montgomery County, Maryland on Scribd

Legislature Proposes Bill that would be "Nearly Impossible" to Use

 Children will Continue to be Victimized by Known Sexual Predators in our Schools when Administrators Fail to Report without Consequences.

A Washington Post article today  discusses legislation that has been proposed by the Maryland General Assembly to add a criminal penalty for professionals, including public school administrators, who fail to report suspected child abuse of children.  (Click here to read about MCPS administrators, including the superintendent, who failed to report MCPS teacher John Vigna to the police or Child Protective Services when they were informed he was lap sitting with his female students.)

As reported by ABC7, only Maryland and Wyoming do not have penalties for failure to report child abuse.  The legislation proposed in this session of the General Assembly would supposedly change that for Maryland, except that if the bill is useless what will actually change?  

Below is the Statement of Baltimore City State's Attorney Marilyn Mosby on Senate Bill 132 - Child Abuse and Neglect - Failure to Report. Her statement below explains why Senate Bill 132/House Bill 500 as written will not be useful to prosecutors if passed. 

"...I suggest amending the "actual knowledge" standard to "knowledge." To prove a crime occurred under the current language, the listed professionals must have "actual knowledge" of the abuse or neglect. 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."

   Jan. 23, 2018:  Baltimore City State's Attorney Marilyn Mosby Letter on Senate Bill  132 by Parents' Coalition of Montgomery County, Maryland on Scribd

Should teachers [Administrators], doctors and social workers face jail time for failing to report child abuse?

A judge last year sentenced Deonte Carraway, an aide who molested more than 20 students at a Maryland elementary school, to 100 years in prison on 23 counts of child sex abuse and pornography.
But prosecutors did not have the option to seek charges against anyone who they felt should have reported the abuse but failed to do so, because Maryland is one of only two states that does not allow criminal penalties for that type of violation.

“We were able to hold Mr. Carraway accountable for his actions . . . but what we have not done is further close the loophole that would make us able to say to parents that we can assure to them that this will never happen again,” Prince George’s State’s Attorney Angela Alsobrooks recently told a panel of state lawmakers.

The General Assembly is now considering whether mandatory reporters — health practitioners, police officers, educators and human service workers — should face a misdemeanor charge and up to six months in jail or a $1,000 fine for failing to report child abuse if they have “actual knowledge” that it has occurred.

Maryland and Wyoming are the only states that do not impose criminal penalties for failure to report, which can lead to felony charges in several states, including Arizona, Minnesota and Connecticut...

...Jennifer Alvaro, a longtime clinician in the field of child sexual abuse, said she supports criminal penalties but doesn’t support the bill because “actual knowledge” is “an impossibly high standard.”..

https://www.washingtonpost.com/local/md-politics/should-teachers-doctors-and-social-workers-face-jail-for-failing-to-report-child-abuse/2018/02/15/1d3281c2-119e-11e8-9065-e55346f6de81_story.html?utm_term=.38c048dfd9d5

Senator Susan Lee, Please Read: Absolutely no one, especially Rachael Denhollander, a victim of Larry Nassar’s whom proponents invoke, nor any other of the more than 250 victims, would ever consider coming to Maryland to testify for such a backward bill.

Oppose HB 500/SB 132 Crimes - Child Abuse and Neglect - Failure to Report
Prepared by
Ellen Mugmon
February 8, 2018

Maryland has the dubious distinction of being one of ten states that does not have a criminal
penalty for the failure to report suspected child abuse or neglect, even though false reporting
has been prosecuted.1

The purpose of HB 500/SB 132 is to get the longstanding penalty issue off everyone’s
plate by passing something. ​Unfortunately, in this case, the proposed penalty provision
is ineffective, regressive and harmful. Powerful, self-serving professional
organizations, institutions and individuals have fought for over thirty years any
legislative proposal based on the “reason to suspect or believe” standard.

This standard is used in the other forty states’ laws, as well as the Congressional
bipartisan federal law just enacted in response to the horrendous USA Gymnastics
scandal. See ​Protecting Young Victims from Sexual Abuse and Safe Sport
Authorization Act​, which criminally penalizes the failure to report abuse in U.S.
Amateur Athletic Organizations, including those in Maryland. None of these laws is
based on an undefined, restrictive “actual knowledge” standard.

This new federal law text 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."

The Two Major Flaws in this Maryland Bill Which Endanger Children

HB 500/SB 132 is unsurprisingly unique, unjustified, and unworkable for two main
reasons: 1) the “actual knowledge” standard and, 2) language in section 3-602.2(C)
which exempts from the scope of the penalty provision the failure to report as soon as
the victim turns eighteen. This language targets a significant 1993 Attorney General’s
opinion that has protected children for 25 years.​ Without that opinion, the shocking
disclosures of the notorious Maskell Case would never have come to light, as
chronicled in the Netflix series, ​The Keepers. T​he Baltimore Archdiocese concedes this
point in its response to the Keepers on its website.

Then Attorney General Curran, in his 1993 opinion, 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
subjected 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.”

1 Arundel Judge Frees Woman in Death of Horrible Man, The Washington Post, by Eric Rich.
November 10, 2004 where a teenager’s conviction for falsely reporting her sexual abuse by
her stepfather was vacated.


What is Actual Knowledge? Witnessing? Unknown?


SB 132/HB 500 states that mandatory reporters must have had “​actual knowledge​” of
abuse and subsequently have failed to report in order to be prosecuted. ​But every state
that criminalizes failure to report uses the “reason to believe or suspects” standard.

As the Baltimore City State’s Attorney notes in her written testimony on SB 132: “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.”

The term “actual knowledge” is undefined in the bill. There is no definition of “actual
knowledge” in Maryland statutes.​ There is also to my knowledge no definition of
“actual knowledge” in case law. No appellate court in Maryland has adopted a
definition of “actual knowledge” as some proponents claim. Rather, there are only
two concurrences in ​McCallum​ where Judges Chasanow and Robert Murphy discuss
the issue. Moreover, the Maryland Criminal Pattern Jury Instructions Committee has
not adopted a definition of “actual Knowledge.”

Proponents claim erroneously that, legislators should look at Connecticut as a good example
of a state’s law (No other state uses “actual knowledge in its reporting law.) which supports
“actual knowledge” in Maryland’s penalty provision. But Connecticut has a misdemeanor
penalty for failure to report suspected abuse without the term “actual knowledge” in it. The
“actual knowledge” language is in its felony provision,​ thereby not undermining its civil
reporting law as would be the case in Maryland should HB 500/SB 132 be enacted.
Additionally, knowing with certainty that a crime has been committed is a higher standard
than “beyond a reasonable doubt,” the standard of proof required for a conviction. Jurors do
not need to witness crimes or even have first hand knowledge of crimes in order to convict
individuals for committing them.

How could this bill possibly prevent future victimization or have helped the victims of all the
scandals that have occurred across Maryland for decades? These scandals 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 the Anne Arundel County and the
more recent scandal in Prince George’s County.

Do Not invoke the #MeToo/#TimesUp Movements in Support This Bill.

Proponents claim that HB 500/SB 132 is in line with the goals of #MeToo/#TimesUp 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. However, this legislation would
automatically discount disclosures of abuse by child and adult victims alike since
these disclosures most assuredly would not meet some “actual knowledge” standard.

Absolutely no one, especially Rachael Denhollander, a victim of Larry Nassar’s whom
proponents invoke, nor any other of the more than 250 victims, 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.​  How then does this legislation better protect
children?

It is appalling that HB 500/SB 132 mirrors provisions in the USA Gymnastics’ policy
which caused the decades long cover-up of a terrible scandal. Steve Penny, the
former head of USA Gymnastics did not report the abuse because he deemed
disclosures by victims and even allegations by other coaches as third hand
information which did not prove to him that the abuse actually occurred.​ Moreover,
his investigator 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 were rules which protected the reputation of the
organization.

Sending the Wrong Message - No Other State or the Federal Government has a
Penalty Like This

Proponents insist that the bill would not undermine the underlying civil reporting law since
the civil reporting law would not be changed. This is false. Two reporting standards muddy
the obligation to report suspected abuse and complicates 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?​ Instead they would most likely delay reporting until they knew for sure that
abuse has occurred or fail to report at all. This would endanger children. Child abuse is very
rarely “actually” witnessed and mandatory reporters are not trained to investigate suspected
abuse to determine if it actually happened.

A Mandatory Reporter Protection Bill

Supporters of this bill are up front in their testimony. They admit that the bill is
intended to protect mandatory reporters, first and foremost, not children, by severely
limiting the possibility of prosecution. ​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.”

They then wrongly argue that this penalty bill is better than nothing, even though there would
be negative consequences for the protection and safety of children, such as mandatory
reporters and institutions waiting it out until a victim’s eighteenth birthday. This is important
because HB 500/SB 132 has just a one year statute of limitations.

Mandated 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
HB 500/ SB 132 be given an unfavorable report.