A simple change that would save children

March 16, 1997|By Sara Engram

WHY SOLVE A problem when you can opt for a quick fix? Ask the House Judiciary Committee, which chose the quick and easy way of addressing a problem in Maryland law governing testimony in child abuse cases.

But don't ask Julie Drake. She'll break your heart telling stories that can ruin your day. As chief of the division of physical child abuse and child homicide in the Baltimore City state's attorney's office, she knows the horrific forms abuse can take and how it can blight a young life.

A 4-year-old boy apparently angered his mother's boyfriend by taking too long on the toilet. He was grabbed and beaten so badly that he is now institutionalized, unable to speak.

A 3-year-old told his day-care teacher, his social worker, a police officer and the emergency room physician that his mother's boyfriend had beaten him so badly he could not stop shaking.

It's bad enough hearing such stories. It's worse knowing that a legal technicality means that many cases like this cannot be successfully prosecuted.

Our too-strict hearsay law

Unlike other states, Maryland law severely restricts hearsay testimony when a child cannot be present or is too young or incoherent to qualify as a credible witness. In practice, these restrictions largely affect cases involving poor, often city, children.

Why? Because Maryland strictly limits the people who can qualify to give "hearsay" testimony -- testifying not to an event they actually saw, but rather to what the child told them about the incident soon after it occurred.

Police officers, social workers, nurses, physicians, child care providers, parents, principals, teachers -- all could be in a position to hear the child's version of an incident and testify as a hearsay witness. But in Baltimore City, virtually none of them can qualify to testify in court.

Maryland law allows such testimony only from licensed social workers, licensed physicians, teachers or licensed psychologists -- but poor city kids rarely have access to such professionals.

Most human service workers with the city's Department of Social Services are not licensed social workers and would not qualify as witnesses. Licensed social workers can earn more money elsewhere, performing less stressful work.

Likewise, many city hospitals are staffed with residents or other M.D.s who may not be planning to open a practice in Maryland and do not need a state license to serve on a hospital staff. And, of course, nurses aren't on the list at all.

The law allows for "teachers" to qualify as a witness. But that doesn't help pre-school children whose child-care providers don't qualify as teachers under the law. Neither does it help in cases like the 10-year-old with Downs syndrome, who was able to make his principal understand how he got his welts and bruises. The law specifically says "teacher," not "educator" or "principal."

As for licensed psychologists, few poor children in Baltimore City would ever have access to one. School counselors aren't licensed.

When to allow hearsay evidence and when not to is a highly technical area of the law, with plenty of safeguards to protect defendants from irresponsible use of hearsay. But no other state has seen fit to restrict this kind of evidence in child abuse cases so tightly. As Julie Drake sees every day, these categories let a lot of disturbing cases go untried and unpunished.

Needless hair-splitting

Chief Judge Joseph F. Murphy, who heads the Court of Special '' Appeals, testified in favor of the bill. But it ran afoul of the committee's traditional reluctance to change laws that might make a defense attorney's work more difficult.

The bill also attracted the opposition of the Maryland State Teachers Association, which worries about teachers' vulnerability to false allegations of child abuse, even though most cases affected by this change would be those of children younger than school-age.

In fact, Ms. Drake says that of more than 700 cases of physical child abuse she has supervised in the last 18 months, only two involved teachers. Most complaints against teachers are resolved outside the courtroom.

The quick-fix solution of the Judiciary Committee was to remove the term "licensed," allowing for any social worker, physician or psychologist lawfully practicing his or her profession to be considered eligible to give hearsay testimony, and to include nurses.

But why keep the categories at all? Why couldn't a judge use the safeguards already written into law to determine whether a police officer or a parent or any other adult is reliable enough to offer testimony?

The committee's action "doesn't do it for me," says Del. Nancy Jacobs, a conservative Harford County Republican who fought hard for this bill.

Neither does it satisfy her ideological opposite and best friend, Del. Sharon Grosfeld, a liberal Democrat from Montgomery County.

It's a sad day when even the pair known as the "odd couple" of the Judiciary Committee can agree on the best interests of children, while teachers and lawyers prefer to keep splitting hairs.

Sara Engram is deputy editorial page editor of The Sun.

Pub Date: 3/16/97

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