Did a Maryland citizen, doctor, or rape crisis counselor have to report a suspected adult sexual assault to police in 1989?

Plain-English summary

A Frederick County prosecutor asked the Attorney General, in mid-1989, whether ordinary citizens, physicians and other mental health providers, and rape crisis center employees were legally required to report a suspected adult rape or sexual assault to police. The Attorney General concluded that, outside a specific set of statutes protecting especially vulnerable people such as children, nursing home residents, and adults with developmental disabilities, Maryland had no general law requiring anyone to report a suspected crime, whether felony or misdemeanor. The opinion traced this back to a 1979 Maryland Court of Appeals decision that had abolished the old common-law crime of failing to report a felony. It went further for mental health providers: psychiatrists, psychologists, and licensed certified social workers were not just free of a reporting duty, they were legally barred from disclosing a patient's report of sexual assault without the patient's consent, under the statutory patient privilege.

Currency note

This opinion was issued in July 1989 and analyzed the statutes and case law on crime-reporting duties and health care confidentiality privileges as they existed at that time, including a then-brand-new 1989 law, Chapter 634 (House Bill 50), allowing limited disclosure of a patient's threat of imminent physical injury to a specific victim. Maryland's mandatory reporting statutes, health care confidentiality law, and rape crisis center statutes have had decades to change since 1989. This page is a historical record of how the Attorney General analyzed these reporting obligations at the time. It describes what the opinion concluded then and is not a statement of current Maryland law on crime reporting or patient confidentiality. Verify current statutes directly before relying on anything here.

Common questions

In 1989, did an ordinary Marylander have to call the police if they suspected an adult had been sexually assaulted? No, according to the opinion, unless a specific statute applied (such as one covering a developmentally disabled victim or a resident of certain institutions). Outside those statutes, reporting was a civic duty, not a legal one.

Could a Maryland psychiatrist or therapist in 1989 report a patient's disclosure of sexual assault to police without the patient's permission? No. The opinion concluded that CJ §9-109(b) and §9-121(b) affirmatively prohibited psychiatrists, psychologists, and licensed certified social workers from disclosing a patient's or client's communications, including a report of sexual assault, without the patient's consent, based on the Court of Special Appeals' reading of the privilege statute in Shaw v. Glickman.

Did rape crisis center employees have a legal duty to report a client's sexual assault to police? No. The opinion concluded that, absent a specific statute, an employee of a rape crisis center who learned that an adult had been raped or sexually assaulted had no legal obligation to report that information to police.

Why did the opinion say there was no general crime-reporting law in Maryland at all? Because the opinion explained that the old common-law crime of "misprision of felony," which criminalized simply failing to report a known felony, had been rejected by the Maryland Court of Appeals in Pope v. State as impractical and incompatible with modern law, and the General Assembly had never replaced it with a general reporting statute.

Background and statutory framework

The opinion identified a specific set of Maryland statutes imposing mandatory reporting duties for suspected abuse of particular vulnerable groups: child abuse under §§5-704 and 5-705 of the Family Law Article, abuse of a nursing home resident under §19-347(b) of the Health-General Article, abuse of a resident of a mental health facility under HG §10-705(b), abuse of a developmentally disabled individual under HG §7-1005, and abuse of an adult lacking the capacity to provide for daily needs under FL §14-302, though even that last statute made reporting mandatory only for health practitioners, police officers, and human service workers, leaving reporting by everyone else permissive. Outside these specific statutes, the opinion found no general Maryland law requiring anyone to report a suspected crime, contrasting Maryland with a few other states that did have general reporting statutes.

The opinion grounded this conclusion in Pope v. State, a 1979 Maryland Court of Appeals decision that abolished the old common-law crime of misprision of felony, which had punished a person merely for concealing knowledge of a felony. The Court of Appeals in Pope found the crime impractically broad, inconsistent with Maryland's own hodgepodge classification of felonies and misdemeanors, and out of step with modern law, while making clear the General Assembly remained free to create a statutory reporting duty if it chose to. Applying Pope, the opinion concluded no citizen, physician, or rape crisis center employee had a legal duty to report a suspected adult sexual assault unless a statute said otherwise, though it stressed this did not discourage the civic duty to report suspected crimes to authorities.

For mental health providers specifically, the opinion went a step further than "no duty": CJ §9-109(b) and §9-121(b) created a patient/client privilege barring psychiatrists, psychologists, and licensed certified social workers from disclosing confidential communications without consent, and the opinion read the Court of Special Appeals' decision in Shaw v. Glickman as extending that privilege beyond judicial and administrative proceedings to bar disclosure altogether absent the patient's consent. The opinion noted one narrow, then-new exception: a 1989 law, Chapter 634 (House Bill 50), allowed a mental health provider to disclose a patient's stated intention to inflict imminent physical injury on a specific victim, but that exception did not change the analysis for reporting crimes already committed. Physicians who were not psychiatrists faced no comparable statutory bar, though the opinion noted they still had to weigh the confidential physician-patient relationship and professional ethical obligations before deciding whether to report.

Citations and references

Statutes:

• §§5-704 and 5-705 of the Family Law Article, mandatory child abuse reporting
• §19-347(b) of the Health-General Article, mandatory reporting of suspected abuse of a nursing home resident
• HG §10-705(b), mandatory reporting for residents of mental health facilities
• HG §7-1005, mandatory reporting for developmentally disabled individuals
• FL §14-302, §14-302(a), and §14-302(c), mandatory reporting (for certain professionals) and permissive reporting (for everyone else) of abuse of a vulnerable adult
• CJ §9-109(b) and CJ §9-109(a)(3), the psychiatrist-psychologist patient privilege against disclosure
• CJ §9-121(b) and CJ §9-121(a)(4), the parallel privilege for licensed certified social workers and their clients
• CJ §5-315, the 1989 exception allowing disclosure of a patient's threat of imminent physical injury to a specific victim, enacted by Chapter 634 (House Bill 50), Laws of Maryland 1989
• HG §4-301, the general medical records confidentiality statute
• Article 88A, §130(a)(2), describing the services a rape crisis center provides
• House Bill 758 and Senate Bill 237, failed 1989 legislation that would have extended a similar privilege to psychiatric-mental health nursing specialists

Cases:

• Pope v. State, 284 Md. 309, 335, 396 A.2d 1054 (1979), the Maryland Court of Appeals decision abolishing the common-law crime of misprision of felony
• Marbury v. Brooks, 20 U.S. (7 Wheat.) 556, 575-76 (1822), quoted by Pope for the proposition that punishing every failure to report an offense is "too harsh for man"
• Bailey v. State, 440 A.2d 997, 999 (Del. 1982), State v. Novak, 502 So. 2d 990, 994 (Fla. App. 1987), and Booker v. Eddins, 359 S.E.2d 211, 212 (Ga. App. 1987), out-of-state cases cited for the civic (non-legal) duty to report suspected crimes
• McClain v. State, 10 Md. App. 106, 115, 268 A.2d 572 (1970), on the elements of accessory-after-the-fact liability, distinct from a mere failure to report
• Brinsfield v. Howeth, 107 Md. 278, 289, 68 A. 566 (1908), on the privilege protecting good-faith crime reports from defamation liability
• Cover v. State, 297 Md. 398, 466 A.2d 1276 (1983), on the common law offense of resisting, hindering, or obstructing a police officer
• Shaw v. Glickman, 45 Md. App. 718, cert. denied 288 Md. 742 (1980), the Court of Special Appeals decision reading the psychiatrist-patient privilege to bar disclosure outside judicial or administrative proceedings absent consent
• Robinson v. State, 249 Md. 200, 221, 238 A. 2d 875 (1968), cited for the absence of a comparable disclosure bar on physicians generally

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 128-135 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CRIMINAL LAW

Reporting Of Suspected Crimes - Circumstances Affecting Reporting By Ordinary Citizens, Physicians, Mental Health Care Providers, And Rape Crisis Center Employees

July 18, 1989

Stephen M. Meyers, Esquire
Assistant State's Attorney
Office of State's Attorney
for Frederick County

You have requested our opinion on several questions concerning the obligation to report suspected rapes or other sexual assaults. Specifically, you ask:

1. Must an ordinary citizen who suspects that an adult has been raped or otherwise sexually assaulted report this information to the police?1

2. Must a physician, psychiatrist, psychologist, or therapist who is told by an adult patient that the patient has been raped or otherwise sexually assaulted report this information to the police over the patient's objections?2

3. Must an employee of a rape crisis center who learns that an adult has been raped or otherwise sexually assaulted report this information to the police?3

1 All of your questions concern the suspected rape or sexual assault of an adult, not a minor.
2 A "therapist" is not, as such, a legally recognized health care provider in Maryland. Other recognized health care providers, like social workers and nurses, often counsel victims of sexual assaults.
3 A rape crisis center offers services "to address the special needs of a rape victim." Article 88A, §130(a)(2).

4. Do the answers to questions 1 through 3 remain the same regardless of whether the crime involves a felony or a misdemeanor?

For the reasons set forth below, we conclude as follows:

1. Under some circumstances, a citizen has a statutory duty to report that a person has been raped or otherwise sexually assaulted - for example, if the victim is developmentally disabled or resides at certain institutions. Apart from duties imposed by such statutes, an ordinary citizen has no legal obligation to report that an adult has been raped or otherwise sexually assaulted. This conclusion certainly is not intended to discourage a citizen who suspects that such a crime has occurred from reporting his or her suspicions to the proper authorities. This civic duty, however, is not a legal one.

2. Except as otherwise required by statute, a physician, psychiatrist, psychologist, or therapist generally has no legal obligation to report that an adult patient has been raped or otherwise sexually assaulted. Indeed, §§9-109 and 9-121 of the Courts Article ("CJ" Article) generally prohibit a psychiatrist, psychologist, or licensed certified social worker from disclosing information obtained from a patient, unless the patient consents.

3. Except as otherwise required by statute, an employee of a rape crisis center who learns that an adult has been raped or otherwise sexually assaulted has no legal obligation to report this information to the police.

4. The answers to questions 1 through 3 apply regardless of
   whether the alleged crime is a felony or a misdemeanor.

                              I
   
                  Duty to Report a Crime
   

A. Statutory

The General Assembly has identified certain particularly vulnerable populations and has imposed statutory reporting requirements on those who learn of abuse (which would certainly include sexual assault) of members of these populations. For example, §§5-704 and 5-705 of the Family Law Article ("FL" Article) set forth mandatory reporting requirements if the victim of suspected abuse is a child. Similarly,
§19-347(b) of the Health-General Article ("HG" Article) imposes a statutory obligation to report the suspected abuse of a nursing home resident. There is a similar statutory duty to report the suspected abuse of a resident of a mental health facility, HG §10-705(b); of an individual who is developmentally disabled, HG §7-1005; and of an adult who lacks the physical or mental capacity to provide for his or her daily needs, FL §14-302.4

Apart from particular provisions of this kind, in Maryland there is no general statutory obligation to report a crime, whether it be a felony or a misdemeanor. Some other states have such provisions. See N.J.S.A. §2A:97-2; Ohio Rev. Code §2921.22; Wash. Rev. Code §9.69.100. Maryland, however, does not.

B. Common Law

At common law, a person could be prosecuted for failing to report a felony. The crime of misprision of felony was "the concealment of a felony which a man knows, but never assented to; for, if he assented, this makes him either principal or accessary." 4 W. Blackstone, Commentaries *121. There was no comparable duty to report a misdemeanor.

4
FL §14-302(a) requires reporting by "each health practitioner, police officer, or human service worker who contacts, examines, attends, or treats an alleged vulnerable adult .... " Reporting by all other persons is permissive. FL § 14-302(c).

Misprision of a felony was developed as part of a system to create communal responsibility for the apprehension of criminals. Pope v. State, 284 Md. 309, 335, 396 A.2d 1054 (1979). The duty imposed was for the benefit of the State. 284 Md. at 346. Although misprision of a felony was an actionable offense in England until the twentieth century, there is little evidence to suggest that its use was widespread. 284 Md. at 335-6. Similarly, "'No court in the United States has been prepared to ... hold that a mere failure to disclose knowledge of a felony is itself an offence....'" 284 Md. at 337 (quoting Glazebrook, How Long, Then, Is the Arm of the Law to Be?, 25 Mod. L. Rev. 301, 307 n.51 (1962)). In Pope v. State, the Court of Appeals rejected the crime of misprision of felony as incompatible with "our local circumstances and situation and our general code of laws and jurisprudence." 284 Md. at 352. In determining whether a defendant could be charged in this State with such a crime, the Court considered in detail the crime's origin, use, scope, practical application, and potential effect on constitutional and common law privileges. The Court was troubled by much of what it observed. First, the Court was concerned that the crime was "impractically wide" and in fact differed from most other common law offenses of omission:

"[T]he duty to act arises not because of the willing assumption of responsibility, the occupation of an office, or the ownership of property, but because of the mere possession of certain knowledge - knowledge possessed accidentally and undesired - knowledge which may indeed have been acquired through some malevolent person."

284 Md. at 345 (quoting Glazebrook at 311).

In addition, the Court saw no basis for the distinction the crime made between a felony and a misdemeanor. The Court held that such a distinction would be especially troubling if applied in this State, since the categorization of crimes in Maryland "is a hodgepodge, following neither rhyme nor reason." 284 Md. at 346. The Court also was extremely troubled by the practical problems associated with the crime. It was unclear to the Court when the duty to reveal a felony would arise, how that duty would be discharged, and whether a relationship with the felon would prevent the duty from arising. 284 Md. at 348-9.

The Court's most fundamental concern, however, involved the "nature of the crime" and its incompatibility with modem society:

"It may be the duty of a citizen to accuse every offender, and to proclaim every offense which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man."

284 Md. at 344 (quoting Marbury v. Brooks, 20 U.S. (7 Wheat.) 556, 575-76 (1822)).

These considerations led the Court to hold that "[m]aintenance of law and order does not demand ... application [of the crime of misprision of felony] and, overall, the welfare of the inhabitants of Maryland and society as enjoyed by us today, would not be served by it." 284 Md. at 352.5 The Court observed that "[i]f the Legislature finds it advisable that the people be obligated under peril of criminal penalty to disclose knowledge of criminal acts, it is, of course, free to create an offense to that end, within constitutional limitations, and hopefully, with adequate safeguards." Id.

Applying Pope, we conclude that no citizen has a legal obligation to the State to report a suspected crime, whether the crime is a felony or a misdemeanor, unless the General Assembly has imposed such an obligation by statute.6 This conclusion, however, is not intended to discourage an ordinary citizen who suspects that a crime has occurred from reporting his or her suspicions to the proper authorities. To do so is a civic duty. See Bailey v. State, 440 A.2d 997, 999 (Del. 1982); State v. Novak, 502 So. 2d 990, 994 (Fla. App. 1987); Booker v. Eddins, 359 S.E.2d 211, 212 (Ga. App. 1987). Moreover, citizens ought to cooperate when the police or other law enforcement officials ask for information that would facilitate the apprehension of criminals and the prevention of future criminal activity.

In 61 Opinions of the Attorney General 335, 337 (1976), this office concluded that "the offens[e] of misprision ... [of] a felony would be recognized in our law." This conclusion is invalid in light of Pope.
6
Similarly, "mere failure to disclose the commission of [a] felony, or to apprehend the felon, or mere approval of the felony is not sufficient to constitute one an accessory after the fact." McClain v. State, 10 Md. App. 106, 115, 268 A.2d 572 (1970). But see note 8 below.
7 Indeed, because "[i]t is the civic duty of citizens to give to police or other officers such information as they may have respecting crimes which have been committed, ... public policy requires that communications of this kind, at least if made in good faith, be protected as privileged" and thus not subject to a defamation action. 50 Am. Jur. 2d Libel and Slander §214, at 726 (1970). See Brinsfield v. Howeth, 107 Md. 278, 289, 68 A. 566 (1908).
8 Citizens do have a legal duty to refrain from certain actions or omissions that hinder a police officer in the performance of a duty. See Cover v. State, 297 Md. 398, 466 A.2d 1276 (1983) (discussing elements of common law offense of "resisting, hindering, or obstructing an officer of the law in the performance of his duties").

C. Health Care Providers and Rape Crisis Center Employees

The conclusion reached above applies as well to psychiatrists, psychologists, social workers, nurses, and employees of rape crisis centers: Unless a statute imposes a duty to report a crime, these persons are not legally required to do so.

II

Prohibited Disclosures By
Psychiatrists, Psychologists, and Social Workers

We turn next to the circumstance in which certain health care providers who learn of sexual assaults are prohibited from reporting them. CJ §9-109(b) generally prohibits a psychiatrist or psychologist from disclosing information obtained from a patient without the patient's consent. The privilege is worded as follows: "Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient's mental or emotional disorder." CJ §9-121(b) provides a similar privilege for the clients of licensed certified social workers.10

Because the reporting of a crime is not a disclosure in a "judicial or administrative proceedin[g]," a straightforward reading of CJ §§9- 109(b) and 9-121(b) would suggest that they do not apply to such

9
The wording of CJ §9-109(a)(3) indicates that the privilege extend not only to a patient's psychiatrist or psychologist but also to "any other person participating directly or vitally with either in rendering those services in consultation with or under direct supervision of a psychiatrist or psychologist." 10
The wording of this provision is as follows: "Unless otherwise provided, in all judicial or administrative proceedings, a client has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications made while the client was receiving counseling." The term "'witness' means a licensed certified social worker or any other person participating directly or vitally with a licensed certified social worker in rendering services to a client, in consultation with or under direct supervision of a licensed certified social worker." CJ §9-121(a)(4).
Legislation to provide a similar privilege to patients of "psychiatric-mental health nursing specialists" failed in the 1989 Session of the General Assembly. See House Bill 758 and Senate Bill 237.

disclosures. See 62 Opinions of the Attorney General 157, 159 (1977). However, in Shaw v. Glickman, 45 Md. App. 718, cert. denied 288 Md. 742 (1980), the Court of Special Appeals held otherwise:

"It seems to us that inasmuch as the statute confers a privilege of confidentiality on the communication between patient and psychiatrist-psychologist in judicial, legislative, or administrative proceedings, which privilege is that of the patient, no lesser privilege is existent when the matter is not judicial, legislative, or administrative. With the exception of those instances where the privilege of confidentiality is expressly prohibited, the lips of the psychiatrist or psychologist have been statutorily sealed shut subject solely to being unsealed by the patient or the patient's authorized representative."

45 Md. App. at 726-27 (footnotes omitted). Thus, if a psychiatrist, psychologist, or licensed certified social worker is told by an adult patient that the patient has been raped or otherwise sexually assaulted, the health care provider is prohibited from disclosing this information without the patient's consent.12

No comparable legal prohibition bars a physician (other than a psychiatrist) from disclosing this type of information. See Robinson v. State, 249 Md. 200, 221, 238 A. 2d 875 (1968).13 Nevertheless, a physician must consider the confidential relationship with a patient when deciding whether to report that a patient has been raped or

The Court of Special Appeals did not address the interplay between CJ §9- 109 and a statute that mandates reporting, like the child abuse reporting provisions. For purposes of this opinion, we likewise need not discuss that issue.
12 As a result of recent legislation, mental health care providers under certain circumstances may disclose a patient's "intention to inflict imminent physical injury upon a specified victim or group of victims." CJ §5-315 (emphasis added). See Chapter 634 (House Bill 50), Laws of Maryland 1989. This legislation does not change the law regarding the reporting of crimes already committed.
13 HG §4-301 provides that, with certain exceptions, a medical care provider who has custody of medical records may not reveal specific medical information contained in those records to any person unless authorized by the individual on whom the record is kept. One exception is "[p]roviding information to a government agency performing its lawful duties .... "

otherwise sexually assaulted. As stated in the American Medical Association's Principles of Medical Ethics, "[a] physician shall respect the rights of patients, colleagues and of other health professionals and shall safeguard patient confidences within the constraints of the law."

III

Conclusion

In summary, it is our opinion that, except as otherwise required by statute, neither an ordinary citizen, a health care provider, nor an employee of rape crisis center has a legal obligation to report that an adult has been raped or otherwise sexually assaulted.

J. Joseph Curran, Jr.
Attorney General

Sharon Krevor-Weisbaum
Staff Attorney

Jack Schwartz
Chief Counsel
Opinions & Advice