There are two standards of proof for those seeking a protective order. The rigid standard of proof is “clear and convincing evidence,” which is tantamount to beyond a shadow of a doubt. The other standard of proof is “the preponderance of evidence,” which gives the judge more latitude in determining the truth.
The preponderance of evidence is the standard used by Maryland courts in most civil actions, including divorce and child custody. Nevertheless, Maryland clings stubbornly to the rigid burden of proof to justify issuing a protective order.
Senate Bill 28 will be considered by the Judicial Proceedings Committee, on which I serve, to change the standard of proof for protective orders to the preponderance of evidence. In years past, this bill usually received Senate approval only to be killed by the House Judiciary Committee.
According to Maryland’s administrative office of the courts, in 2012, there were 1,777 victims who were denied protective orders because they were not able to present clear and convincing evidence. Approximately 14 percent of those seeking protective orders are denied.
In 2010, Amy Castillo could not meet the test of clear and convincing evidence when she sought a protective order for her children. She claimed her husband, from whom she was separated, had threatened to harm the children. He denied it. In March 2010, her estranged husband drowned all three children – ages 6, 4 and 3 – in a hotel bathtub. This tragedy may have been prevented
All 50 states have law on their books to require professionals (teachers, doctors, police, social workers, etc.) who deal with children to report suspected child abuse to law enforcement officials. Of the 50 states, 47 impose civil penalties on those who knowingly and willfully fail to report suspected child abuse. Maryland is one only three states, in addition to North Carolina and Wyoming, that fails to impose a penalty on those who knowingly and willingly fail to report suspected child abuse.
It is questionable how effective a law can be when it imposes no penalty on those who knowingly break it. For the past several years, legislation to correct this glaring omission usually gets Senate approval, but is always rejected by the House Judiciary Committee and therefore, never gets consideration by the full House of Delegates.
During this session, the legislation (SB 210) to impose civil penalties on those who knowingly and willfully fail to report suspected child abuse also will be considered by the Senate Judicial Proceedings Committee.
The abused child has no voice. He or she must depend largely on strong and effective reporting laws to be rescued from their daily and potentially deadly abuse. Maryland’s child abuse reporting law is weak. A child’s life may depend on someone reporting suspected abuse to a law enforcement agency.
Arizona, Florida and Minnesota consider failure to report suspect child abuse as a serious crime and classify it as a felony.
The statistics are compelling. The Every Child Matters education fund reports that 15,510 children are known to have died from abuse between 2001 and 2010. It is estimated that more than 2,000 children die from abuse and neglect each year, with nearly 82 percent of the victims under the age of 4.
Tragically, 90 percent of child abuse victims suffer physical and sexual abuse by someone they know. Experts estimate that one out of every six boys and one out of every three girls are at risk of becoming victims of abuse before they reach adulthood. For these children, someone reporting their abuse to the police is just about their only hope of rescue.
I will support both SB 28 and SB 210 to provide the abused with stronger and more effective protection that puts the law on their side.
Hershey represents the Upper Shore in the state Senate.
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