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Md. high court finds no violation in teacher’s explicit calls to teen

A Salisbury martial-arts instructor who engaged in sexually explicit telephone calls and emails with a 15-year-old female student outside of class did not violate a Maryland law prohibiting sexual exploitation of a minor by someone with temporary care, custody or supervision of the child, a divided Maryland top court ruled Tuesday.

The teacher’s behavior, though “clearly inappropriate,” did not occur during hours when the girl was with him in class, the Court of Appeals said in its 4-3 decision.

The high court’s ruling was a defeat for the Wicomico County Department of Social Services, which had argued in vain that the teacher, referred to as B.A. or Mr. A. in court documents, was still in care of his teenage student when he told her during the calls or emails that he wanted to have sex with her, “slyly touch” her private parts and that he was touching himself.

The instructor did not contest the allegations, the Court of Appeals said in ruling that he also did not violate the law.

“Mr. A. had responsibility for the supervision of Ms. K. when she was in his class, but that responsibility ended when she departed the martial arts studio and her parents resumed their responsibility – thereby terminating the implied consent of the parents and the instructor’s duty to supervise,” Judge Robert N. McDonald wrote for the majority.

“By the time Ms. K. got home and exchanged the emails and telephone calls with Mr. A., her parents had responsibility for her supervision, and Mr. A. did not,” McDonald added. “Reprehensible as some of Mr. A.’s conduct might be, without more it did not fall within the definition of child abuse under this statute.”

Indicated abuse

The court based its decision on Maryland’s Family Law Article Section 5-701, which requires local departments of social services to investigate allegations of sexual exploitation and make civil, as opposed to criminal, findings of “indicated” abuse if the behavior occurred when the perpetrator had “temporary care or custody or responsibility for the supervision of the child.” A finding of indicated abuse results in the perpetrator’s name being included in a “confidential computerized database that contains information regarding child abuse.”

The Wicomico County department’s finding of “indicated” abuse by B.A. had been overturned by an administrative law judge, citing the Maryland statute, also known as the Child Abuse and Neglect Law. The judge’s decision was affirmed by the Wicomico County Circuit Court and the intermediate Court of Special Appeals prior to the Court of Appeals.

B.A.’s attorney, Robert B. Fine, called the court’s decision a clear case of statutory interpretation.

“The interpretation is clear that in order for there to be child abuse the individual must have temporary or permanent custody, which was clearly not the case when the alleged child abuse occurred in this case,” said Fine, of Fine & Mathers in Salisbury.

The Maryland attorney general’s office, which represented the department, declined to comment on the high court’s decision.

McDonald’s opinion was joined by Chief Judge Mary Ellen Barbera and Judges Clayton Greene Jr. and Lynne A. Battaglia, a retired jurist who participated by special assignment.

‘Non-forward looking’

The high court’s ruling drew a strong dissent from Judge Shirley M. Watts, who said the decision “chips away at the legal deterrents against sexual exploitation of children.”

“The majority narrowly construes a statute that the General Assembly enacted to protect children – the most vulnerable members of society – from sexual predators,” Watts wrote in the dissent joined by Judge Glenn T. Harrell Jr., a retired jurist who sat by special assignment.

“In addition to exposing children to harm, the majority opinion is non-forward looking,” Watts added in her 20-page dissent. “In today’s digital age, with increasing frequency, children engage in remote communications (e.g., emails, telephonic conversations, or text messages) with people who have permanent or temporary care, custody, or responsibility for the supervision of them.”

Wicomico County prosecutors declined to prosecute Mr. A. under Maryland Criminal Law Article Section 3-324, which makes it a felony to use remote communications to solicit sex from a minor. The refusal to prosecute left the civil family-law provision as the only avenue for the girl and her family to get justice, Watts said.

In light of the high court’s decision, Watts urged the General Assembly to “modernize” the family-law section “so that it applies to sexual predators who use remote communications to prey on children.”

In a separate dissent, Judge Sally D. Adkins said the high court should have remanded the department’s allegations to the administrative law judge to determine if a finding of “indicated” abuse was warranted based on a “substantial connection” between B.A.’s role as the girl’s martial-arts instructor and his remote, inappropriate comments.

Adkins noted the girl responded to B.A.’s emails and spent five hours on the phone with her martial-arts instructor.

“It is reasonable to conclude that she would not have done so, absent the student-teacher relationship,” Adkins wrote.

The high court rendered its decision in Wicomico County Department of Social Services v. B.A., No. 46, September Term 2014.