Hawaii: Bills may give more victims chance for justice

By Joelle Casteix
Worthy Adversary
March 23, 2014

http://theworthyadversary.com/2830-hawaii-bills-may-give-more-victims-chance-for-justice

Expanding the current two-year window, which expires next month, is unfair to the accused entities, critics argue

“Did you know these men?”

The question appeared in an ad in the Honolulu Star-Advertiser last Sunday that showed old black-and-white photographs of three Roman Catholic priests linked to child sexual abuse.

Mark Gallagher, a Kailua attorney, and Jeff Anderson, a St. Paul, Minn., attorney, are searching for possible victims of child sexual abuse before a unique two-year window to file civil claims for decades-old misconduct closes on April 24.

Two dozen civil lawsuits have been filed during the past two years in what state lawmakers initially intended as a one-time opportunity to help victims in cases where the statute of limitations had long expired.

But some lawmakers now want to leave the window open longer — perhaps permanently — an idea opposed by the state attorney general’s office and the Catholic Church because it could potentially violate the due process rights of the accused.

Churches and other private organizations could have difficulty defending against claims involving priests and others who may have died or left the church or group. Two of the three priests in the newspaper ad, for example, are dead.

Witnesses, documents and other keys to establishing whether the abuse occurred and the organization was negligent could also be hard to produce because of the passage of time.

“There will be instances where the entity may not have any liability but are unable to defend themselves,” Caron Inagaki, a deputy attorney general, told House lawmakers at a hearing this month. “We can’t think about only the plaintiffs. We’re trying to be fair about looking at this law, and the defendants have rights. They do.”

Sex-abuse survivors and their advocates believe the two-year window in Hawaii — and others like it in states across the country — has helped bring justice for victims and publicly identified predators who escaped legal consequences because the statute of limitations had expired.

A bill at the Legislature — Senate Bill 2687 — would expand the two-year window and allow victims to bring civil claims for child sexual abuse until they turn 55. The House Human Services Committee amended the bill and took out the age limitation after lawmakers thought it was too arbitrary.

The bill would lower the legal standard to bring claims against churches and other private organizations. Damages would be awarded to victims if the courts find that the institutions were negligent. Victims now have to show that organizations displayed gross negligence.

The bill would also prevent the details in the certificates of merit that victims must file in order to bring civil claims from being disclosed in court. The confidential certificates, which must include a statement from a psychologist, marriage and family therapist, mental health counselor or clinical social worker that the abuse claims are reasonable, are required to screen out frivolous allegations.

“For me, it’s such an egregious crime when something is committed against a child,” said Sen. Maile Shimabukuro (D, Kalaeloa-Waianae-Makaha), the bill’s co-sponsor and the vice chairwoman of the Senate Judiciary and Labor Committee. “As a mother to a 5-year-old you realize that a child’s brain has not fully developed.”

Shimabukuro said a “generous amount of time” is needed for children — and eventually, adults — to understand and respond to sexual abuse.

Senate Minority Leader Sam Slom (R, Diamond Head-Kahala-Hawaii Kai), the only senator to vote against the bill when it cleared the Senate this month, had voted for the law two years ago but now has concerns.

“Why this length of time? Why are we doing this?” he asked. “It has encouraged additional lawsuits. It has encouraged more judicial involvement. But the question is fairness to both sides.”

Gov. Neil Abercrombie vetoed a bill in 2011 that would have lifted the statute of limitations on civil lawsuits by victims of child sexual abuse against the state and private organizations and created a two-year window for bringing claims for older incidents. The governor had warned that the bill raised constitutional and fairness concerns by threatening due process and could have exposed the state to unknown liability.

Abercrombie signed a bill into law in 2012 that created the two-year window for old abuse claims — but exempted the state — and also extended 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 scenarios.

Given the opposition by the state attorney general’s office to the new bill, legislators may be headed toward another veto show­down with the governor.

Rep. Mele Carroll (D, Lanai, Molokai, Paia-Hana), the chairwoman of the House Human Services Committee, said she wants to give victims the opportunity to tell their stories.

Carroll has her own bill, House Bill 2034, that would remove both the criminal and civil statutes of limitations on sexual assault in the first and second degrees and the continuous sexual assault against minors under 14.

“I personally think there should not be any limitations,” she said. “And I think that if evidence is not available, I think it’s to the advantage of the ones getting sued, including the institutions.”

The accounts of abuse are chilling. The Rev. Gerald Funcheon — the only priest identified in the newspaper ad who is still alive — admitted in a videotaped deposition in 2012 to having sexual contact with more than a dozen children. The true number, other documents suggest, could be as high as 50 children. He also admitted taking nude photographs of boys.

Funcheon, who served as a priest in Minnesota, California, Indiana and other states, was the subject of the first civil lawsuit in Hawaii when the window opened. He is accused in three lawsuits of molesting students at Damien Memorial High School when he was chaplain from 1982 to 1984.

In the deposition, when Funcheon was asked whether he would have stopped his behavior had his supervisor at Damien told him it was criminal sexual conduct and he could go to jail, he said: “Absolutely.”