MoCo Senator Susan Lee Wants to Compromise on Student Safety. MCPS Administrators can Escape Criminal Penalty Even if They Suspect Sexual Abuse of MCPS Students Under Her Bill.

Montgomery County Senator Susan Lee wants the Maryland legislature to pass her bill, Senate Bill  568, that would provide for criminal penalties for administrators who fail to report sexual abuse of children only when they have ACTUAL KNOWLEDGE of the abuse.

Senator Lee says this bill is "not as broad" as she would have preferred but that the bill has been written this way because of "anticipated resistance."  [WHO IN MARYLAND IS RESISTANT TO PROTECTING CHILDREN FROM SEXUAL ABUSE?]

Senator Lee says this bill would encourage mandatory reporters to report for the "most obvious incidences" of sexual abuse.  [IF IT ISN'T OBVIOUS, THEY DO NOT HAVE TO REPORT?]

Senator Lee says her bill is a "compromise."  Senator Lee says she "brought the stakeholders together and this was sort of a compromise."  [Senator Lee did not bring the following stakeholders together:  Professor Lynn McLain, Ernest Crofoot, Theresa Lancaster, Jennifer Alvaro, or Ellen Mugmon. None of these stakeholders agree to Senator Lee's compromise.]

Nor did Senator Lee bring to the table any of the victims of sexual abuse in MCPS schools by MCPS teachers John Vigna, Lawrence Joynes or Jose Pineda.  In each of those MCPS cases multiple administrators knew about inappropriate behavior and suspected sexual abuse but did not report that information to the police.  In each of those cases the failure of the mandated reporters to call the police contributed to the victimization of addition children.  Which of those victims have agreed to Senator Lee's compromise?

Senator Lee's bill would do nothing to get MCPS administrators to report suspected sexual abuse of students.  MCPS would continue to be able to cover up these crimes under Senate Bill 568.  Why? Because Senator Susan Lee does not want to impose criminal penalties on administrators who fail to report the sexual abuse of students unless those administrators actually witness the sexual abuse with their own eyes and identify the act that they see as sexual abuse.  

Which of the Vigna, Joynes and Pineda victims who were victims of these sexual predators after those predators were already known to MCPS administrators (as evidenced by letters telling each predator to STOP TOUCHING STUDENTS) agreed to Senator Susan Lee's "compromise?" [NONE!]

The video below shows Senator Susan Lee presenting her Senate Bill 568 to the House Judiciary Committee on March 27, 2019.  After Senator Susan Lee speaks the Chair of the Committee, Luke Clippinger brought up Ellen Mugmon to speak in opposition to the bill. 

.@SenatorSusanLee "This bill’s use of actual knowledge as well as 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 [MCPS] 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."

Oppose

HB 787 / SB 568

Crimes - Child Abuse and Neglect - Failure to Report

April 2019

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

For the past several years, I have been advocating for Maryland to fulfill its duty to protect our children, the most vulnerable among us. Having lived in Maryland my entire life, having been a social worker for 25 years, I was deeply disturbed to discover Maryland isone of only two states in the nation without a criminal penalty forfailure to report.

While always hoping professionals will act morally, ethically and legally, it has been a rude awakening to have learned this is not the case many times for those to whom we entrust our children. As a resident of Montgomery County, what I have learned in the past seven years is for decades 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 they knowingly chose not to report suspicions of severe cases of abuse to authorities. Their choice not to follow the law by reporting led to the abuse of more children.

Time after time we see systems protecting themselves instead of children because in Maryland mandated reporters have no fear of being held accountable for breaking the law. That is why, as a mandated reporter myself, I have advocated strongly for adding criminal penalties for the egregious cases of failure to report we have seen far too often in our youth serving organizations in Maryland.

Heartbreakingly, I am submitting this testimony to OPPOSE this bill. This bill, though desperately needed, is dangerous as currently written, this bill will not only fail to right a wrong, it will make things worse for children in Maryland.

This bill’s use of actual knowledge as well as 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 be forced to oppose this bill and urge you to issue an unfavorable report.   

HB 787 and SB 568 Alvaro by on Scribd

.@SenatorSusanLee Comment on Your Bill: "psychiatrists who treat pedophiles have looked for a backdoor way to reinstate it. They have found it in SB 568/HB 787 (your bill).

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. 

Oppose SB 568 HB 787 Ellen ... by on Scribd

States like Alabama, Arkansas, and Mississippi, are ahead of the State of Maryland when it comes to protecting children. SB 568, as presently constituted, makes Maryland a laughing stock. @SenatorSusanLee

The Hon. Luke Clippinger, Chair

The Hon. Vanessa E. Atterbeary, Vice-Chair

Judiciary Committee

SB0568/CFHB0787 – Crimes – Child Abuse and Neglect – Failure to Report

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

EAC Testimony SB0568 Final ... by on Scribd

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

@SenatorSusanLee Puts Forth Another Useless Bill Instead of Actually Working to Protect Children

Montgomery County State Senator Susan Lee is at it again. 

Just like last year (2018) she is putting forth a bill that pretends to address the absence of any criminal penalty for mandatory reporters (for example, MCPS administrators) who fail to report suspected sexual abuse of children (for example, former MCPS teacher John Vigna).  

Maryland and Wyoming are the ONLY two states in the nation that do not have a penalty for a mandated reporters' (for example MCPS administrators) failure to report the sexual abuse of a child.  

Montgomery County Senator Susan Lee has again filed a bill that pretends to address this problem but in reality does not protect children because the standard written into the proposed law is almost impossible to ever attain. 

Below is public comment from child advocate and sexual abuse expert Ellen Mugmon on Senator Susan Lee's Senate Bill 568.  

Isn't it time for Montgomery County elected officials to stand up for the children of Maryland who have been sexually abused by public school staff?  

----------------------------

SB 568

CRIMES- CHILD ABUSE AND NEGLECT - FAILURE TO REPORT

Prepared by Ellen Mugmon

Senate Judicial Proceedings Committee

February 22, 2019

OPPOSE

   FACT SHEET

The underlying purpose of this bill is not to protect Maryland’s children.  Its real purpose is to continue to ensure that powerful, self-serving professionals and institutions remain unaccountable, as has been the case for over thirty years. No other state has enacted such a restrictive penalty for failing to report child abuse and neglect as proposed in this bill.  If mandatory reporters do not have “actual knowledge” of abuse or, in other words, did not witness it, then they cannot be subject to the penalty in SB 568 for failing to report, even when they suspect abuse or have other evidence that it occurred.  

Currently, certain professionals can be disciplined by licensing or certification boards for failing to report child abuse, but there is no way to discipline other mandatory reporters who do not have occupational boards. However, to our knowledge, only one professional since 1986 has ever been disciplined by a board for failure to report notwithstanding another bill, HB 245, enacted in 2016 which was supposed to increase disciplinary actions. Last session, its sponsor mentioned during a hearing that so far it has been ineffective.

Certain proponents of SB 568 know full well that the reporting law has no teeth and want to keep it that way. One dentist representing the Maryland State Dental Association previously had the temerity to testify publicly against penalties stating that she did not want to take the time to report head injuries she suspected or knew were caused by abuse. In addition, on Boychat, a pedophile chat line, pedophiles deemed a particular psychiatrist as “safe.”

It should be noted that all mandatory reporters are given immunity from both civil and criminal liability when they make good faith reports to encourage reporting. But the fact that there is no real enforcement of the law makes it, in reality, discretionary and rather than mandatory. 

Witnessing child abuse is extremely rare. Consequently, the federal law, enacted in response to the horrendous 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...the mandatory reporter shall be fined or imprisoned not more than a year or both.” Except for Maryland and Wyoming, other states’ laws are written similarly. 

In 1989, the General Assembly repealed a 1987 amendment named for Dr. Fred Berlin, a psychiatrist who treats pedophiles. This amendment had exempted health practitioners who provided psychiatric treatment to pedophiles from the mandatory reporting law.  It was unique to Maryland.  Since then the Maryland Psychiatric Society has attempted to use penalty bills such as SB 568 as vehicles to essentially reinstate the so-called Berlin exemption by negating a significant 1993 Attorney General’s opinion. See Md. Atty. Gen Op. Dec. 3, 1993. which requires the reporting of past abuse committed by pedophiles. (Prior to this session, a representative of the Society also suggested reinstating regressive language repealed in 1987 which would require reporting only when mandatory reporters contacted, examined or treated a child, not when the psychiatrist learned of abuse from the pedophile or other sources.)

SB 568 targets this Attorney General’s opinion by specifically exempting from the scope of the penalty  the failure to report abuse as soon as the victim turns 25.  Under this legislation, the shocking disclosures of the notorious Maskell Case, and others like it, would never have come to light. The Maskell case is chronicled in the Netflix series, The Keepers. The Baltimore Archdiocese, on its website, admits that it only reported Maskell as a result of this significant 26 year-old Attorney General’s opinion. SB 568, nonetheless, undermines it.

This backward provision would not just apply to the Catholic hierarchy and psychiatrists who learn of abuse from sex offenders, it would affect the safety of children in all settings. Placing a cap on the victim’s age means that Rachael Denhollander, who was one of 250 gymnasts who were victims of Larry Nassar and who was 31-years-old when she became the first one to disclose her victimization, would never come to Maryland to support SB 568 as part of her activism. Under this bill, a mandatory reporter would be able to say that she was too old to require a report  to authorities, and that her disclosure did not provide the requisite “actual knowledge” either.

The bill’s one year statute of limitations, which would require that the failure to report would have had to be discovered by authorities within one year, would further ensure that the possibility of a prosecution would be almost impossible.

The passage of SB 568 would additionally undermine Maryland’s civil reporting law.  It would muddy the understanding of the circumstances under which reporting is required. Because there would be two standards, “reason to believe” and “actual knowledge,” mandatory reporters may be confused as to which standard to apply. This would encourage them to delay reporting or not report at all.  After all, the state is only going to enforce the law if the mandatory reporter witnesses abuse.

This bill additionally appears to contravene another Attorney General’s opinion.  The phrase, “DOES NOT INCLUDE A DUTY TO INVESTIGATE,” implies that conducting internal investigations by schools prior to reporting is their choice. In a 1991 opinion, however, the Attorney General clearly stated that internal investigations conducted prior to reporting suspected abuse to the police and departments of social services to determine if there is a “reason to believe” to report are against the law. This provision is also troubling because it would sustain the Catholic bishop’s practice of conducting internal investigations prior to reporting to determine if allegations are credible. This is a long standing problem. Maryland’s reporting law does not include  the term or definition of what a credible allegation is. Apparently bishops themselves have various definitions for the term, and internal investigation prior to reporting whether in schools or other institutions compromise subsequent investigations by the police and social services and allow abusers and those who wish to cover up for them the opportunity to destroy evidence and place pressure on victims to remain silent.   

Therefore, SB 568’s ostensible purpose of protecting children is a pretext for furthering the agenda of powerful, self-interested professional groups and institutions. It would confirm that Maryland is an outlier state.

It would also be a way of getting the penalty issue off everyone’s plate by passing something.  Unfortunately, in this case, something is not better than nothing. Children’s interests deserve to be made the priority instead of mandatory reporters and certain institutions which refuse to protect them.