Submitted testimony for H.B. 2034 on Mar 19, 2014 10:00AM

View as PDF: Hawaii H.B. 2034 HD2 submitted

Marci A. Hamilton Paul R. Verkuil Chair in Public Law

PHONE: 215-353-8984 FAX: 215-493-1094 E-MAIL: hamilton.marci@gmail.com

March, 18, 2014

VIA DROPBOX/EMAIL SUBMISSION

Senator Clayton Hee, Chair

Senator Maile S.L. Shimabukuro, Vice Chair

Honorable Members
Senate Committee on Judiciary & Labor
Conference Room 016
415 South Beretania Street
Honolulu, Hawaii 96813

Hearing: March, 19, 2014, 10:00 AM

RE:  Hawaii H.B. 2034 HD2 (Removes the statute of limitations for criminal actions arising from sexual assault in the first and second degrees and continuous sexual assault of a minor under the age of fourteen years, and for civil actions against the perpetrator of sexual assault in the first and second degrees and continuous sexual abuse of a minor under the age of fourteen years.)[Effective 7/1/2050].

Dear Senator Hee, Senator Shimabukuro, and Members of the Committee:

I commend the Committee for taking up H.B. 2034 HD2, which would eliminate the civil and criminal statutes of limitation (“SOLs”) for victims of sexual assault in the first and second degree and continuous sexual assault of a minor under the age of 14.   This is a valuable addition to Hawaii’s laws to protect children and to identify the perpetrators preying on children in Hawaii.   It will shift the balance of power from the perpetrators who now can breathe a sigh of relief when the SOLs end, to the victims, who will have access to justice when they are ready.

 

While every extension or elimination of a statute of limitation is a positive policy, change, I do feel compelled to mention that I support the addition of language which would function as to extend  or eliminate the civil SOL against employers and institutions who cover-up and perpetuate child sex abuse via serious negligence as well. H.B 2034 would be a stronger bill for Hawaii’s children if it were amended to include language referencing employers similar to that currently contained in S.B.2687 SD1 HD1:

 

“A claim may also be brought under this subsection against a legal entity, except the State or its political subdivisions, if:

(1)  The person who committed the act of sexual abuse against the victim was employed by an institution, agency, firm, business, corporation, or other public or private legal entity that owed a duty of care to the victim; or

(2)  The person who committed the act of sexual abuse and the victim were engaged in an activity over which the legal entity had a degree of responsibility or control.”[1]

 

By way of introduction, I hold the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, where I specialize in church/state relations and constitutional law.  My book, Justice Denied: What America Must Do to Protect Its Children (Cambridge University Press 2008, 2012), makes the case for statute of limitations reform in the child sex abuse arena.  I am the leading expert on the history and constitutionality of retroactive statutes of limitations with respect to child sex abuse and have advised many child sex abuse victims on constitutional issues, and testified in numerous states where SOL reform is being considered.  I also track the SOL movement in all 50 states on my website, www.sol-reform.com.

 

Statute of limitations reform is the one tried and true means that will identify the many hidden child predators who are grooming children in Hawaii right now.  Hawaii put itself at the vanguard of the movement to increase access to justice for victims when it enacted the “window,” which is now open. See, http://sol-reform.com/News/hawaii/#news  Hawaii provided child sex abuse victims from many walks of life, who were previously blocked from justice, to be able to seek justice.

 

The lawsuits filed under the window, which revived previously expired SOLs, have been critical in identifying to the public the abuse and suffering that existed in Hawaii and was until the window appeared, secret.   Minnesota followed Hawaii and now also has an open window, and is having the same experience: victims have been freed to seek justice, perpetrators are being named, and those who make the abuse possible are being held to account to the public. See, http://sol-reform.com/News/topics/mn-post-window/

 

Elimination of SOLs for child sex abuse is ideal, because the vast majority of victims need decades to come forward.  There is an extensive and persuasive body of scientific evidence establishing that child sex abuse victims are harmed in a way that makes it extremely difficult to come forward and, therefore, victims typically need decades to do so.[2]  On average, victims come forward in their early 40s.  If passed, this bill will dramatically improve justice for children who were sexually abused in Hawaii.

 

Given that most child perpetrators abuse many children over the course of their lives,^[3] SOL extension does far more than create justice for today’s victims.  It also forestalls future abuse of tomorrow’s children by identifying perpetrators to the public.

 

This is a crime where the victims routinely are incapable of filing charges or a lawsuit for damages until mid-life.  The current SOL is configured so that it shuts the vast majority of victims out of the courts, before they can ever get there.  That means, as currently configured, Hawaii law protects predators and disables victims.  Who pays for that?  The public, as opposed to those who caused the abuse.

 

There is no unfairness to defendants in eliminating the SOL for sexual assault of a child, because the only alteration to the law is the date of filing.  The law governing at the time of the offense still governs, and the burdens on the parties remain the same, with the prosecutor or plaintiff bearing the initial burden of proof.  If they do not have the evidence to carry their initial burden of proof, the case will be dismissed.

 

There are three compelling public purposes served by SOL Reform, including the removal and/or revival of SOLs for child sexual abuse:

 

(1)  It identifies previously unknown child predators to the public so

children will not be abused in the future;

(2)  It gives child sex abuse survivors access to justice; and

(3)  It cures the injustice wreaked by the current unfairly short statutes of

limitation that protect child predators and silence child sex abuse

victims.

 

I have been involved in statute of limitations reform in numerous states, and it is, without exception, the most effective means for the public to learn who the secret predators are.  As Professor Timothy Lytton has documented, civil tort claims have been the only means by which survivors of clergy abuse have been able to obtain any justice. Timothy Lytton, Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Sexual Abuse (Harvard University Press, 2008).

 

Legislative reform for statutes of limitations for child sex abuse victims continues to mount every year. Criminal SOL elimination has become the norm, with Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Mexico, New York, North Carolina, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin, Wyoming and the Territory of Guam having already eliminated the criminal SOL for at least some child sex crimes.[4]

 

Last year, more progress was made in opening up abuse victims’ access to justice than at any point in history. Sixteen states introduced bills to increase victims’ access to justice by scaling back the SOLs.[5] In 2013 alone, SOL reform was enacted in Arkansas, where the state eliminated the criminal SOL;[6] Illinois, where both the civil and criminal SOLs were eliminated;[7] Vermont, where the SOL was increased for certain sex crimes against children;[8] Nevada, where the criminal statute of limitations was extended;[9] and Minnesota, which removed its SOL for child sexual abuse and enacted a 3-year retroactive civil “window.”[10] Bills were introduced for at least the second time in Pennsylvania (window; civil and criminal elimination);[11] New Jersey (window and extension of discovery rule);[12] and Massachusetts (civil extension to age 55 with a window).[13] They were also introduced in New York (window; civil and criminal elimination);[14] Missouri (elimination of civil and criminal);[15] Oregon (elimination criminal for certain sex crimes against minors);[16] Washington (extension of criminal to 30);[17] and Wisconsin (elimination of civil with a window).[18]

 

Opponents argue that Hawaii’s 2-year civil “window” and modest extension in 2012 was sufficient.[19]   Once the window closes in several months, Hawaii’s civil SOL will revert to an age that is unreasonably young for most survivors of abuse.

 

The fact that a window has been in place for nearly two years is no reason to believe that Hawaii has completed the project of protecting its children adequately.  The movement is progressing so quickly that many states are realizing that previous bills have been insufficient and are adding further extensions or outright elimination of the statutes of limitation; multiple extensions within a few years’ time are becoming quite common in many states.  For example, in 2007, Delaware enacted its Child Victims Act (“CVA”), which (1) eliminated the SOL for civil child-sex-abuse cases, and (2) created a two-year window.[20]  Experience taught, however, that the Delaware CVA did not cover health care providers, and so Delaware enacted a new window for health care providers.[21] Further, Illinois had extended its SOL in 2011, only 3 years prior to opting for full elimination last year.[22] Illinois had previously extended its SOL in 2003 as well.[23] California had a civil window open for the calendar year of 2003, yet is already seriously considering further SOL extensions. Already, in 2014, Sen. Jim Beall has introduced a bill that would again extend the civil and criminal SOL in California.[24]  Returning to the inadequacy of Hawaii’s civil SOL now, after learning that victims will not have adequate access to justice after the window closes is rational and important.

 

Other state legislatures are already active on this issue in 2014 as well: Assemblywoman Markey has reintroduced her bill to eliminate the civil SOL; eliminate the criminal SOL for incest and continuing course of conduct crimes (felonies are already exempt); and create a 1-year civil “window” in New York.[25] Iowa is also considering a bill that would extend the statutes of limitation for civil and criminal actions brought by minor victims of sexual offenses to twenty-five (25) years from majority.[26]  In addition, SOL reform bills are pending in Pennsylvania, Massachusetts, and New Jersey.

 

SOL reform has very few detractors in the United States other than the Roman Catholic bishops, who are primarily concerned that the courts will force them to divulge the secrets they still harbor in their Secret Archives.  This may well be changing soon, however, as the United Nations last month pressed the Vatican to dramatically improve its policies to protect children from sex abuse, including a strong suggestion to support SOL reform: “(e) Promote the reform of statute of limitations in countries where they impede victims of child sexual abuse from seeking justice and redress”[27]

 

Some detractors claim that as time passes there is a higher risk of false claims and thus they serve an important role in protecting the rights of innocent persons. Yet, there are very few false claims regarding sexual abuse.[28]  The plaintiff still bears the initial burden of proof, and if he or she lacks evidence, the case does not go forward.  Victims of child sex abuse rarely make false claims, as we learned when windows were open in California and Delaware. In cases brought under California’s last window there were a total of about 5 false claims in over 1000, and none to my knowledge in Delaware.

 

The SOL reform Hawaii is spearheading will make Hawaii one of the safest states in the country for children.  I applaud you and the Committee for considering this legislation, which will help childhood sexual abuse victims.  Hawaii’s children deserve the passage of this bill, which would permanently tip the balance toward the victims and away from the predators.  This bill represents a huge step forward for Hawaii’s children now and in the future.

 

Please do not hesitate to contact me if you have questions regarding statute of limitations reform, or if I can be of assistance in any other way.

Sincerely,

 

Sincerely,

 

Marci A. Hamilton

Paul R. Verkuil Chair in Public Law

Benjamin N. Cardozo School of Law