The Maryland Senate recently passed legislation that would turn trusted community members into criminals. The House should not follow suit. The new bills propose criminal penalties for certain classes of people required to report child abuse or neglect who “knowingly” fail to do so. Such “mandatory reporters” include our state’s teachers, counselors, social workers and nurses.
Under a law passed in 2016, such a failure can already lead to a loss of the professional’s license. This is draconian enough, but the legislature isn’t stopping there. Instead, it is threatening criminal investigation and prosecution for exercising professional judgment — judgment afforded because of extensive, specialized training, expertise and community trust. For fear of serious jail time and fines, mandatory reporters would be stripped of their well-earned discretion and would be forced to err on the side of reporting, even at the slightest suspicion of child abuse or neglect. A bump on the head, a bruised knee, a small cut — usually normal signs of childhood clumsiness — would now automatically raise suspicion in terrified teachers and pediatricians.
Even Del. Kathleen Dumais, who sponsored the 2016 loss-of-license bill, thinks that the proposed law goes too far and would lead to an increase in unwarranted, fear-induced reports. Such an increase would put stress on already overburdened child welfare system. According to the Child Welfare League of America, Maryland had more than 50,000 total referrals for child abuse and neglect in 2014 — and less than half of these were referred for investigation because they lacked the necessary factual basis. Thus, Maryland already suffers from an over-reporting problem, not an under-reporting one. This law, if passed, would make the problem worse, not better.
When child protective workers have incredibly high caseloads, resources are spread thin and mistakes can be made. These public servants will simply be unable to conduct thorough and thoughtful investigations, and children will fall through the cracks. Those parents who already have children in foster care will be unable to get a meaningful review, leading to delayed reunifications and increased trauma for these children.
Further, while most involved in this debate have focused on the issue of abuse, in Maryland, as in most of the country, the majority of cases that are referred to child welfare authorities deal with neglect, not abuse. Neglect is a failure to provide for the needs of a child that causes substantial harm. Under that definition, inadequate shelter, food or clothing qualifies as neglect. Thus, mandatory reporters will be forced to report families for being homeless or being food insecure. That is, they would feel compelled to report families for being poor or risk going to jail for not doing so.
It is no secret that the majority of children in our nation’s foster homes are indigent and minorities. Many scholars argue that this is not because these communities are more abusive or neglectful but due to bias by child welfare officials. Laws such as House Bill 500 and Senate Bill 132 will lead to even more reports on families of color already struggling with the chaos of poverty and the effects of systemic racism. And they will force police and prosecutors to investigate teachers and nurses instead of fraudsters and school shooters.
If found guilty of this crime, the mandatory reporter faces up to a $1,000 fine or six months in jail. Even those not found guilty would be forced to mount costly defenses, defending their good-faith decisions in open court and draining their hard-earned pensions. While our teachers and police officers are far from wealthy, they also likely earn too much to qualify for the services of a public defender. This is a dangerous, costly doughnut hole for folks already struggling to make ends meet.
In the proposed bills, the legislature seeks to treat dedicated professionals like robots. It asks experts to draw bright white lines in situations where those lines are often necessarily gray and blurry. If passed, this law will not protect more children. Instead it will codify distrust of the most hardworking, faithful and trustworthy members of our community and distract them from their real jobs — educating, caring for and counseling our children. It will treat these folks like criminals for doing their jobs, and our children will be worse off for it.
Shanta Trivedi (firstname.lastname@example.org) is a clinical teaching fellow at the University of Baltimore School of Law’s Bronfein Family Law Clinic; she formerly represented parents in abuse and neglect proceedings.