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Hawaii’s Battle Over Its Statutes of Limitations for Child Sex Abuse: Why the Legislature Was Right to Unanimously Vote for Reform, and Why the Governor Should Not Fulfill His Veto Threat

Hawaii now wobbles on a precipice: It could become the leader in child protection in the United States, or it could miss a crucial chance to assume that role.

The balance is precarious.  While the Hawaii legislature unanimously passed legislation to better protect child sex-abuse victims, Governor Neil Abercrombie is threatening to veto that legislation.

We should all hope that the Governor changes his mind forthwith. The cost of a veto would be devastating for abuse survivors and the Hawaiian children now being abused by the perpetrators not yet identified.

Why Enacting the Hawaii Bill Into Law Is the Right Choice

Sen. Maile Shimabukuro, survivors of child sex abuse, and others, including me, have worked hard over the past year to achieve the passage of legislation to reform Hawaii’s child sex-abuse statutes of limitations. Eventually, both Hawaii’s House and the Senate passed SB217 unanimously.  (The law is virtually identical to legislation passed in Delaware in 2007.)

The new Hawaii law would create a two-year-long window of opportunity for victims to file civil claims against their abusers, and against those who aided the abusers, even if the former statute of limitations had previously expired.  Moreover, the law would eliminate the civil statutes of limitations entirely – allowing victims to sue when they are psychologically able to come forward and face their abusers.  (Empirically, most must attain the maturity of full adulthood to be able to face the horrible violation they suffered, and the abuser who perpetrated it.)

The policy behind such a law is laid out in my book, Justice Denied: What America Must Do to Protect Its Children.  Here is the short version of the argument: Our legal system has created a society where child predators are given the privilege of avoiding responsibility for their despicable acts through arbitrary and ridiculously short statutes of limitations.  Victims are essentially second-class citizens, when compared to their tormentors, because of those same statutes of limitations.

Institutions with abusing employees have avoided accountability as well through our skewed system.  Hawaii is not alone.  Most states have had statutes of limitations that favor adult predators over child victims until recently.

The right thing to do now is to ensure that victims get justice; that predators get identified before they can strike yet again; and that the long-term cost of abuse is shouldered by the abusers and any institutions that support them, rather than by the victims, their families, and taxpayers.

Decency demands that such legislation be passed in every state.  To date, we have seen laws to this effect pass in Minnesota, California, Guam, and Delaware.  Hawaii was slated to be the next state to stand up for victims.  This week, though, Governor Abercrombie issued his list of bills to be vetoed by July 12, and the list includes SB217.

The Governor’s Reasons for His Anticipated Veto, and Why They’re Unpersuasive

Here are the Governor’s stated reasons for his anticipated veto:

Senate Bill 217 eliminates the statute of limitations for civil actions brought by victims of sexual offenses as a minor against the person who committed the act(s) and authorizes suits against a legal entity in certain circumstances. This bill appears to allow an employer, including the state, to be sued for the criminal acts of its employees.  This is contrary to well-established tort and agency law and is in direct contravention of the State Tort Liability Act (STLA), Chapter 662 of the Hawaii Revised Statutes.

Under the STLA, the State cannot be sued for the criminal or intentional acts of its employees.  The elimination of a statute of limitations for a civil claim also raises grave constitutional and fairness concerns. If a claim can be brought after an unlimited passage of time, it is likely that documents will be lost or destroyed and witnesses will die or move away.  The accused, even those falsely accused, will not be able to defend himself, herself, or itself and true justice will not be achieved.

With all due respect to the Governor, who is popular with Democrats, these reasons have no legal merit.  Moreover, they read like copy provided by the one true enemy of child sex abuse victims, in every state – the respective state’s Catholic Conference.

Why the First Argument Isn’t Valid:  Gross Negligence Must Be Shown, and Children Must Be Shown to Have Been Exposed to Abusers

The Governor’s first paragraph appears to be based on a misunderstanding of the bill.  These cases are not brought against employers on a theory of employer responsibility for intentional acts or criminal acts, as the Governor’s language suggests.  Rather, the employers are sued for their negligence in putting children at risk by exposing them to employees with propensities for child abuse.

Moreover, in response to the Governor’s concern that corporations can be sued too easily, the statute specifies that negligence alone on the employer’s part is not sufficient. Survivors must prove gross negligence.  So the first paragraph of the Governor’s statement does not provide any legally sound reason to veto the bill despite the entire legislature’s endorsement of it.

Notably, it is Abercrombie’s planned veto alone that is blocking real change from occurring for child sex-abuse survivors who were abused in Hawaii.  Fortunately, longstanding Hawaii common-law doctrine in such cases is favorable for survivors, which means that they are being kept from court now solely because of the statutes of limitations.

Why the Second Argument Isn’t Valid:  The Abuse Victim Plaintiffs Must Put Forward Evidence in Order to Proceed

The second paragraph of Governor Abercrombie’s statement – purporting to justify his veto by saying that the law is unconstitutional and unfair – merely sounds exactly the same drumbeat that the Catholic Conference has been sounding in every state where such a bill has been introduced.

The Catholic Conference always ignores the legal rule that the victim bears the initial burden of proof in these cases.  If documents have been “lost or destroyed” or there is a false claim, the case ends.  No defendant has to defend him- or herself against a plaintiff with no evidence.  All that such laws do is open the courthouse door.  They do not change any other aspect of the case, including burdens of proof and what it takes to prove a plaintiff’s claims.

In addition, the bill has a “certificate of merit” provision that requires a health professional to sign off on the victim’s claims. This provision has offered an effective way of weeding out the few false abuse claims that have been brought in such cases in California and Delaware.

This second paragraph of explanation is also troubling, because it borrows the language of justice to perpetuate injustice.  There is no justice in permitting the Catholic bishops to keep their secrets from the justice system while all victims of child sex abuse are muzzled.

Decency and Integrity Require that Governor Abercrombie Sign This Vital Law – or that the Legislature Use Its Override Power

In sum, Governor Abercrombie’s arguments hold no legal weight.  Moreover, the law is perfectly constitutional, as I explained in testimony for both Hawaii’s House and its Senate.

So what is really going on here?  Sadly, the Governor appears to have been persuaded by those without integrity on this issue. But that does not mean that the people of Hawaii – or any other state – have to accept that situation.

The politics of bishops’ dictating that there will be no justice for the victims of their priests, and callously ignoring the needs of all of the other victims, must be exposed for what they are and stopped.  And politicians who are willing to let victims wait, wait, and wait some more for justice – even as these same lawmakers bow down to the bishops – need to understand that they are making a miscalculation that, someday in the not-too- distant future, will cost them votes.

With one in four girls and one in five boys suffering abuse at some time in their lives, there are a lot of victims out there.  And among them are many who are waking up from the nightmare of their past into an emerging dawn of justice.

Last week, the New York bishops learned that they could not win the culture war against gay couples when New York passed its marriage bill.  The New York legislators chose civil liberty for gay couples over the demands of Archbishop Timothy Dolan that New York law mirror canon law.  Similarly, one day – and that day is coming soon – legislators will choose justice for the victims over the self-serving and misguided lobbying of the bishops on this issue.

Gov. Abercrombie, along with any legislators dragging their heels on an override, need to understand that the Catholic hierarchy’s moral failures actually only account for a small percentage of the child sex abuse out there.  By vetoing SB217, Gov. Abercrombie would be siding with the fathers, uncles, and grandfathers who sexually abused their daughters, nieces, and granddaughters, and the mothers, aunts, and grandmothers who sexually abused their sons, nephews, and grandsons.  Is that a position that is comfortable for the Governor?

I start my book, Justice Denied, with an email from a daughter who finally was able to face her abuser when she was in her 40s to tell him – her father – that she was suing him for destroying her life.  His answer?  A smug smile and a brief statement of the law: it was too late.  The statute of limitations had passed and she had no recourse for what he had done to her when she could not defend herself.

Victims like her are the reason I wrote the book and the reason I continue to fight for all victims.

In the end, there will be an answer to Governor Abercrombie’s veto if he does choose to exercise it: The Hawaii House and Senate can override the Governor’s veto.

SB217 passed unanimously in both Houses, so this should be a successful scenario.  Survivors of child sex abuse should not give up hope.  But it requires the leadership in each House to hold an override session.  Whether they will do so has yet to be seen.  But for them to abandon the victims of child sex abuse at this point, after they have passed the bill unanimously, for the groundless reasons floated by the Governor, would be beyond reason.

Marci A. HamiltonMarci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is hamilton02@aol.com.
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  • traveler15

    The statute of limitations for criminal charges need to be repealed.  

  • paul

    While I agree that all children everywhere need exceptional resources to protect them from abuse, I must disagree with your statement “The Abuse Victim Plaintiffs Must Put Forward Evidence in Order to Proceed”.  I was charged, tried, and convicted solely upon an accusation; served eighteen years of a fifty-year sentence before finally convincing new prosecutor of my innocence.

  • Anonymous

    It looks like Professor Hamilton doesn’t understand the purpose of statutes of limitation.  By her logic, all of them should be done away with.   My let someone who doesn’t understand the law write about it?
     

  • Anonymous

    It looks like Professor Hamilton doesn’t understand the purpose of statutes of limitation.  By her logic, all of them should be done away with.   My let someone who doesn’t understand the law write about it?
     

  • Helen Dawson

    Statute of Limitations for Minors and People with Disabilities is being
    abolished in Victoria Australia May 2013. The Royal Commission in
    Australia into Child Abuse will go a long way to uncover the corruption
    in religious and government processes that allows crimes against
    children and vulnerable people to go unreported to Police, and ignored
    by families and communities. There will be an end to the culture of
    turning a blind eye to the rape of children.

  • Stephen B. Cheung

    I was abducted and raped by Fr. George De Costa. He abducted me and there is no statue of limitations on kidnapping. Not only did he sexually abuse me. he did what is describe statue for kidnapping. He stopped me, re-directed me from my course of
    travel through coercion, confined me and threatened me with his authority. This man needs to be arrested and put into jail. I’m going to see to it that he is removed from freedom, he needs to pay before he is free.

 

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