Victims of childhood sexual abuse in Hawaii will have more time to bring civil lawsuits under a new state law that recognizes that many are often too afraid or ashamed to confront their abusers sooner.
The law provides victims who have been unable to file civil lawsuits because the statute of limitations has expired a two-year window — or until April 2014 — to go to court. Victims can sue their alleged abusers and churches, community groups or businesses that were grossly negligent at preventing sexual misconduct.
The law also extends the statute of limitations on civil lawsuits to eight years from the victim’s 18th birthday or three years from the time the victim discovers his or her psychological injuries are related to past abuse. State law had previously set the statute of limitations at two years under both circumstances.
Gov. Neil Abercrombie signed the law in April. The governor had vetoed a similar bill last year because it would have eliminated the statute of limitations for child sexual abuse lawsuits and included the state among the entities that could be sued. The administration warned that the bill could have threatened due-process rights and exposed the state to unknown liability.
State Sen. Maile Shimabukuro (D, Ko Olina-Makua), who sponsored both bills, said the new law is a compromise.
"I think it’s critical because the amount of time it takes — especially a child — to realize what’s happened to them and to then have the courage to come forward is really unimaginable," she said.
Sex abuse treatment experts believe the new law, modeled after laws in California and Delaware, will give victims a chance to obtain justice while also exposing long-hidden abusers.
A Honolulu man has filed suit under the law, alleging that he was abused as a 13-year-old Damien Memorial School student on a retreat in the 1980s by the Rev. Gerald Funcheon, then the school chaplain. Funcheon has been the target of several sexual abuse lawsuits on the mainland.
A victim who sues must file a certificate of merit that includes a statement from a psychologist, therapist, counselor or social worker concluding that there is a reasonable basis for the abuse claim. A defendant who is falsely accused would be entitled to attorney’s fees if the court finds there was no basis in fact for the allegation and the suit was filed with malicious intent.
The Hawaii Catholic Conference, the public-policy arm of the Roman Catholic Church in Hawaii, opposed the new law, arguing that it could cause substantial problems for churches, camps, youth programs and other nonprofits that work with children and teenagers.
Walter Yoshimitsu, executive director of the Hawaii Catholic Conference, said many groups may not have the ability to meaningfully defend lawsuits over abuse that allegedly occurred decades ago because witnesses and records may no longer be available. He said public policy should focus on preventing child sexual abuse.
"If we’re looking to protect the children, then I think what we should do is look forward," he said. "Looking back does not protect the children. It’s unfortunate that it happened — all the abuses. But going back doesn’t help the children today."
Yoshimitsu questioned why the state was excluded from the two-year window for lawsuits in cases where the statute of limitations has expired, citing abuse reports at public schools and juvenile detention facilities.
The state Attorney General’s Office and the Honolulu corporation counsel opposed including the state and counties in the law. Honolulu’s corporation counsel told lawmakers that counties, like the state, deal with thousands of people on an annual basis and often face staff changes, making it difficult to track down relevant witnesses to alleged abuse.
Lawmakers included the state in some drafts of the bill, but removed the provision before the bill was approved and sent to the governor.
State Rep. Gil Riviere (R, Schofield-Kahuku) said it was a mistake to leave the state out.
"If you’ve got sex abuse of a child in a private school or a child in a public school, there’s no difference to the crime or to the damage that’s been brought to that child," he said. "And so to say, ‘Oh, it’s OK to let those guys be sued because they’re private, but you can’t sue us because we’re the state,’ that’s just immoral, that’s wrong.
"It’s not fair."
