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. The 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.
