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

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...").

1|Page
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

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).

2|Page