Why Are Governors Vetoing Child Sexual Abuse Legislation Across The Country?
By MICHELE BETTI | b&a opinions
On July 12, 2011, Governor Neil Abercrombie signed into law the last of the measures from the 2011 legislative session. In total, Governor Abercrombie enacted 235 measures and vetoed 17; seven bills became law without his signature.
Senate Bill 217 would have eliminated the statute of limitations for civil actions brought by victims of sexual offenses as a minor against the person who committed the acts and authorized suits against a legal entity allowing an employer, including the state, to be sued for the criminal acts of its employees.
Governor Abercrombie’s thought process for vetoing the bill was flawed. Siding with the lobbyists Abercrombie stated that the bill was contrary to well-established tort and agency law and was in direct contravention of the State Tort Liability Act (STLA), Chapter 662 of the Hawai’i Revised Statutes. Under the STLA, the state cannot be sued for the criminal or intentional acts of its employees. He also postured that the elimination of a statute of limitations for a civil claim also raised grave constitutional and fairness concerns stating “if a claim can be brought after an unlimited passage of time, it is likely that documents will be lost or destroyed and witnesses will die or move away.” “And the accused (even those falsely accused) will not be able to defend itself, and true justice will not be achieved.”
It is well established though in civil litigation that a plaintiff must prove a case by a preponderance of the evidence. The strength of the plaintiff’s evidence must show that a child was in fact sexually abused and that the employer either knew or should have known that the abuse occurred, and did nothing to prevent or stop it. If the evidence is not there, then a jury will not find liability.
The average juror does have the capability to differentiate between good evidence and nonexistent evidence. The question is whether juries are better or worse than the Governor of Hawaii at scrutinizing evidence, deliberating and returning a verdict. I think they are.
Most sexual abuse cases are proven through documentary evidence. In other words, a paper trail exists showing exactly when an employer knows its employee has an unusual interest in children. This is documented in the employees personnel file by concerns of fellow employees and supervisors, complaints are cited from administrative staff members, parents, and other children, and in some cases the employee is sent away or given leave to seek “treatment” for his unusual interest in children. Indeed, more often than not, the documents prove the employer knew about the abuse and either turned a blind eye to it or covered it up exposing hundreds of other children to the same pedophile.
Hypotheticals do not work. Plaintiffs must prove their case; then it is up to the jury to do its job and decide the case based on the merits. This is how our legal system works. It is not the executive branch that determines what is or is not a meritless case; that is the role of the judiciary. And cases brought within our judicial system should be allowed to run their course.
This is a loss for children who have suffered from the violence of being sexually abused with no chance to avail themselves in our judicial system. This is also a loss for children who have yet to be abused because there is no deterrence for those who abuse. Predators know they can abuse and get away with it under the archaic laws that exist today. And so, they continue abusing without accountability. Employers know there is no liability for them hiring pedophiles even when their knowledge of the abuse is so patently clear.
One cannot put a time limit on a child’s soul. When a child is sexually molested that soul is stripped from them forever. The Governor choice was misguided. There should be no statute of limitations on sexually abusing a child. There should be no protection for the predator who commits the egregious act, and no refuge for the employer who turns a blind eye to it.
For now the civil statute remains the same: 18 years old + 2 years. The general statute of limitations for personal injury actions is 2 years, Haw. Rev. Stat. § 657-1(4), which is tolled until the victim reaches 18, § 657-13. There is a delayed discovery rule such that the statute of limitations begins to run when the victim knows or should have known that his or her injury and the abuse was causally related. See Dunlea v. Dappen, 924 P.2d 196 (Haw. 1996). Let’s hope other Governors get it right by supporting child victims’ legislation instead of vetoing it.
Copyright 2011, b&a opinions.
