The Hon.

Luke Clippinger, Chair

The Hon. Vanessa E. Atterbeary, Vice-Chair
Judiciary Committee

SB0568/CF HB0787 – 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 Lynn McLain,
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