Amid national outrage of reports about sexual abuse of children at Penn State and Syracuse universities, the Hawaii Legislature is taking a second look at a proposal to stretch the period that victims of child sexual abuse can file lawsuits against alleged perpetrators.
"There is an epidemic of child sex abuse around the world," Marci A. Hamilton, a law professor at New York City’s Yeshiva University, told Hawaii legislators in the current session. "At least one in four girls is sexually abused and at least one in five boys. Sadly, 90 percent never go to the authorities and the vast majority of claims expire before the victims are capable of getting to court."
Hamilton, author of the 2008 book, "Justice Denied: What America Must Do to Protect Its Children," said most victims are abused by family members or acquaintances.
Andre Bisquera, a 35-year-old University of Hawaii graduate student, counts himself among them.
"Besides being confused on who you can trust, there are feelings of shame and guilt that the abuse was your fault," Bisquera testified to House and Senate committees. "Imagine having these feelings as an 11-year-old child. It would be very difficult to come out and tell someone about your situation."
Bisquera said he has been in therapy for nine years and has "overcome addictions, anger and low self-esteem. Unfortunately, the statute of limitations for civil and criminal action has passed in the state of Washington, where the abuse occurred."
Last year’s state Legislature unanimously approved a bill to lift Hawaii’s threshold for filing civil lawsuits in such cases, but Gov. Neil Abercrombie vetoed it. Sponsors of that bill have made changes suggested by the state Attorney General’s Office, which now indicates the administration does not oppose it as long as the changes stick.
Unlike last year’s bill that sought to eliminate the statute of limitations entirely, this year’s bill would extend the cap beyond the present two years. It also would allow a victim to file a lawsuit not only against the perpetrator but also an institution, agency, firm, business corporation or other public or private entity that "had a degree of responsibility or control" of the situation. And unlike last year, the current legislation would exempt the state government from such lawsuits.
The current bills are "definitely a watered-down version," said state Sen. Maile Shimabukuro, sponsor of the main Senate bill, identical to House versions. Still, she added, "It’s definitely a step in the right direction."
"I think that in every state it ought to be decided separately," Hamilton said of the state exemption. Abercrombie noted in last year’s veto message that the state of Hawaii cannot be sued for criminal or intentional acts of its employees, under state law.
"That’s kind of a larger question of whether, in all different situations, do you want to make the state liable for all intentional acts by employees, not just in sex abuse," said Shimabukuro, a Legal Aid Society lawyer. "That’s a much larger policy question."
Last year’s legislative action in Hawaii preceded allegations of sex abuse of children against Penn State assistant football coach Jerry Sandusky going back 15 years, and of private Syracuse (N.Y.) University assistant basketball coach Bernie Fine as long ago as a quarter century. Sandusky was already retired from the football program, but the serial nature of the alleged abuses created a firestorm that engulfed Penn State, resulting in the firing of revered head coach Joe Paterno. Fine was terminated within a month of the allegations against him.
Lawmakers in Pennsylvania and New York have proposed legal reforms. A task force set up by the Pennsylvania Legislature has begun studying that state’s child-abuse reporting system and related laws.
"These scandals made it very clear that a culture has to be changed," said Hamilton. "At least from where I am, I’ve been contacted by many survivors in Hawaii. Just over the last week, I’ve heard from a dozen."
The Hawaii legislation is patterned after a law enacted in Delaware in 2007. Similar bills have passed or are pending in South Dakota, Connecticut, New Jersey and Oregon, according to Hamilton.
Civil lawsuits involving victims of child sex abuse in Hawaii now must be filed no more than two years after the incident at issue. The bill approved by last year’s Legislature but vetoed by Abercrombie would have eliminated that deadline entirely. The Attorney General’s Office said that would be "troubling and unprecedented," so sponsors of the measure agreed this year to take the administration’s suggestion that the limit be extended for eight years after a victim’s 18th birthday or three years after the victim began experiencing a related "psychological injury or illness."
In filing a civil lawsuit, according to the reworked bill, a person must present a notarized statement by a psychologist, a marriage and family therapist, a mental health counselor or a clinical social worker knowledgeable of the facts and issues in the claim. The administration asked legislators to add that the treatment provider "is not currently treating nor had previously treated the plaintiff."
Shimabukuro paused at that bigger burden for alleged victims, who would have to "pay out of pocket" to another doctor or therapist since "that’s not really something insurance would pay for." It would mean that a psychologically fragile person would be subjected to an expensive, time-consuming process, she added.
"It just puts a big burden — the cost burden, the time burden, and then the larger question is putting this victim through having to talk to a perfect stranger" about the abuse, she said, hoping that the doctor or therapist will say, "OK, I believe you. I think you were really harmed."
Shimabukuro said she would prefer that the amended law allow the defendant or defense attorney to order an independent medical examination of the plaintiff, but she is not adamant.
"To not have it in there," she said, "I guess I’d rather see the bill make it rather than be vetoed over that issue."
Catholic Church steadfast against extending time limit
The Roman Catholic Church is the main opponent of the bill to extend the time period in Hawaii for filing lawsuits alleging sexual abuse of children, reflecting the church’s national policy in response to a series of sexual abuse scandals and lawsuits.
Five Hawaii Catholic priests have been removed from duty for allegedly sexually assaulting minors, according to a 2004 study released by the U.S. Conference of Catholic Bishops. The study reported that 4,329, about 4 percent of the American clergy since 1950, have faced such allegations.
Walter Yoshimitsu, executive director of the Hawaii Catholic Conference, expressed concerns to state legislators last year that enactment of the bill could result in "a flood of claims filed against both government bodies and private institutions." In testimony this year, he complained that the new version of the bill would "perversely and explicitly exempt the state from liability" while "reviving such claims against all other institutions."
A 2002 California law that lifted the statute of limitations on sexual abuses for a one-year window resulted in nearly 1,000 claims against the Catholic church in that state. The Roman Catholic Archdiocese of Los Angeles agreed in 2007 to pay $660 million in settlement with people alleging sex abuse by clergy.
— Lee Catterall, Star-Advertiser
