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Veto looms over pedophilia bill

Lawmakers passed legislation removing the statute of limitations for the sexual molestation of children

By Derrick DePledge

LAST UPDATED: 9:26 a.m. HST, Jul 12, 2011

Christine Johnson thinks anyone who sexually molests a child should have to worry about the potential legal consequences for the rest of their lives.

The retired nurse, whose son was molested by a Catholic priest in California, acted in time to get some measure of criminal and civil relief. But many others, often because of fear or shame, wait too long to come forward.

A bill approved by state lawmakers would lift the statute of limitations on civil lawsuits by victims of child sexual abuse, which is now two years from the victim's 18th birthday or, in certain instances, two years from the time the victim discovered the injuries or damage arising from the abuse.

Victims could also seek damages from churches, community groups, businesses and the state if there was gross negligence that contributed to the abuse. The bill also opens a two-year window for victims who have been barred from filing lawsuits because the statute of limitations had expired to now sue.

While Senate Bill 217 glided through the Legislature — not a single lawmaker voted against it — Gov. Neil Abercrombie put the bill on his potential veto list, warning that it raises grave constitutional and fairness concerns.

Eliminating the statute of limitations for civil lawsuits, the state attorney general's office told lawmakers, would be "troubling and unprecedented" in Hawaii and could threaten due-process rights and expose the state to unknown liability.

The Hawaii Catholic Conference told lawmakers that not only the state, but churches, preschools, child care centers, camps and recreational programs could find such lawsuits difficult to defend against. The reason for statutes of limitation, the church contends, is because individual memories fade, written records might no longer be available and witnesses and the alleged abusers themselves might have died during the lapse of time.

Abercrombie has until Tuesday — the deadline for vetoes — to decide.

"It tells child molesters that they will be held accountable, no matter how much time has passed," said Johnson, who lives in Makaha.

Johnson, who became an activist against child sexual abuse in the Roman Catholic Church after her son's experience, urged state Sen. Maile Shimabukuro (D, Nanakuli-Makaha) to introduce the bill. It was co-sponsored by the eight other women in the Senate.

Shimabukuro, a Legal Aid Society of Hawaii attorney, and her mother, Karen Young, a retired nurse practitioner, have seen many adults with social problems they believe could be traced back to child sexual abuse.

"There really needs to be a clear message sent out — this is from the victim's perspective — that this is wrong," Shimabukuro said. "For perpetrators out there, this is a crime against humanity that won't be tolerated."

Walter Yoshimitsu, executive director of the Hawaii Catholic Conference, the public-policy voice of the Roman Catholic Church in Hawaii, said the church's opposition to the bill should not be construed as minimizing child sexual abuse.

While Yoshimitsu said people often single out the Catholic Church, he said there is potential for abuse at any institution that cares for children. In testimony to lawmakers, he highlighted the potential liability for the state and cited national reports about the prevalence of sexual abuse at public schools and juvenile detention facilities.

"My intent for doing that was to make the state aware that they are a big potential target," he said.

The state, at one point in a House version of the bill, was exempted from liability. The attorney general's office also told lawmakers that the Abercrombie administration would support the bill with a statute of limitations for civil lawsuits that extended for eight years after a victim's 18th birthday or three years after a victim discovers injuries caused by abuse, as in California.

But House and Senate conference committee negotiators decided that all entities, including the state, should be subject to civil actions. They also chose to lift the statute of limitations for civil lawsuits entirely, modeling the bill after a 2007 law in Delaware that was passed in response to a pattern of child sexual abuse by Catholic priests.

The Delaware Supreme Court upheld the law in February, ruling that the state's General Assembly has the power to determine the statute of limitations and that the law can be applied retroactively without violating constitutionally protected due-process rights.

The Delaware case involved a man who sued a Catholic school and congregation over his sexual abuse by a priest in 1962. The priest had died in 1985, but witnesses and church records documented his behavioral problems.

As safeguards against frivolous lawsuits, the Hawaii bill requires a victim to provide a certificate of merit with a notarized statement from a psychologist, a marriage and family therapist, a mental health counselor, a clinical social worker or a registered nurse attesting that the claims of abuse are reasonable.

Defendants would also be able to recover attorney's fees if a court rules that a false accusation was made with no basis in fact and with malicious intent.

"If the Legislature is truly interested in justice for the victims, then the wider the window, the wider the opportunity for justice," said state Sen. Clayton Hee (D, Kahuku-Kaneohe), who served on the conference committee.

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