Vous êtes sur la page 1sur 5

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.

1
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

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:

2
"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

3
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.

4
5

Vous aimerez peut-être aussi