It’s disconcerting, to say the least, to see ads in the daily newspaper with photos of Catholic priests, placed by lawyers seeking past victims of sexual abuse by clergy in Hawaii.
Distressing because the sexual abuse of minors is a horrible thing, all the more repulsive when perpetrated by priests and religious.
But the ads are disturbing in another way. Some of the men have substantiated accusations against them, but some do not. Some of the names and photos are of men who are dead and unable to defend themselves. Yet all are given the “most wanted” poster treatment.
The lawyers are looking for potential plaintiffs to file lawsuits against allegedly abusive priests and the institutions, like the Diocese of Honolulu, that supervised them.
Several years ago, these lawsuits would not have been possible because of the existing statute of limitations laws, which limited the period of time in which a victim could sue his or her abuser. Generally speaking, a victim could file a complaint up to two years after he or she turned 18. After that, it would be too late.
Statutes of limitations exist for good reason. The passage of time erodes the likelihood of a just judgment as essential elements in the case — witnesses, evidence, memories — drop away.
The crime of murder, because it is so heinous, is an exception. Time does not close a murder case.
Two years ago, our state legislature created another exception — sexual abuse of a minor. The reasons given hinge on the nature of the crime. Because it is hidden and committed against children, and because much of its damage is psychological, it is not unusual for sexual abuse of a minor to remain unacknowledged for years. But the wounds are real and they don’t go away.
Legislators argued that the existing time permitted to file a grievance was too short for the unique protracted nature of this particular crime.
So Hawaii lawmakers got rid of the statute of limitations for two years to allow the victims of older, expired cases to have their day in court. During that two-year window, approximately 30 sex abuse lawsuits were filed against the Diocese of Honolulu. Most of them are currently being litigated.
Apparently the legislature this year had second thoughts about the two-year window, which closes on April 24. Proposed bill SB 2687 would extend it further, though not forever. This time the limit is not two years, but the age of the victim – 55. If a child victim does not file a complaint before he or she turns 55, then it’s too late.
SB 2687 has another difference. The bill also makes it easier for a plaintiff to prove a defending entity (such as the diocese) guilty by lowering the standard of proof from a finding of “gross negligence” to simple “negligence” — a big difference.
It’s plain that these bills were provoked by the notoriety of Catholic clergy sexual abuse. And indeed, it’s the church that has been the target of intensified lawyering on the part of local and mainland firms that specialize in these kinds of cases.
It is also plain that the Diocese of Honolulu sees itself as a target of SB 2687 and has therefore submitted strong testimony against it. The diocese opposes the law because it is essentially unfair.
Its unfairness was exposed by the office of the state attorney general David M. Louie. Deputy attorney general Caron Inagaki testified against the bill March 13 before the House Committee on Human Services.
Inagaki said that the extension of the statute of limitations “raises due process concerns because the bill could severely prejudice the defendants in a lawsuit who may not be just the accused perpetrator but also any entity that may be subject to the law.
“With this further extension, a victim could theoretically bring a lawsuit more than four decades after the sexual assault. Over the passage of time, memories fade, witnesses move or pass away, and documents are lost or destroyed,” she said.
The attorney general office’s testimony also stated that the wide swath of time would open more room for legal shenanigans:
“A claimant could conceivably wait to file a lawsuit until the most strategically opportune time to prevent a defendant from defending against the lawsuit. A lawsuit could even be brought against an individual after his or her death and there would be no opportunity for the accused to establish his or her innocence.”
Of course, four-decade-old claims and dead defendants are not “theoretical” or “conceivable” in the cases brought against the diocese. They’re real.
Another flaw in the bill, this time noted by one of its supporters, the Sex Abuse Treatment Center at Kapiolani Medical Center, is that it “expressly exempts claims against the state.” The center offered this example: “If the survivor was subject to abuse in a school setting, a suit could only be brought against a private school and not a public school.”
In other words, Damien alumni can seek compensation, but Farrington grads cannot. So much for justice.
If the bill reaches the desk of Gov. Neil Abercrombie, which it most likely will, he should do the right thing and follow the advice of his attorney general and veto it. California Gov. Jerry Brown did so with a similar California bill. He said it was unfair that only victims abused in private settings, not in public schools and prisons, were eligible to submit their grievances.
Clever lawyers and perhaps opportunist victims will try to take advantage of a church weakened by the poison of abusive and unresponsive clergy. But it is important that the church not think of itself as a victim. It will always be the subject of loathing by some and avarice by others, but nothing – nothing – can equalize the sexual abuse of children. For that the church can only say, and repeat, we’re sorry.
But it does not mean that the diocese — that is, today’s parishioners — should be expected to passively write out checks for each and every claim, no matter how old and questionable. Any compensation must be a just compensation arrived at through a fair process.
It must be noted that, in light of the clergy sex scandal, the Catholic Church in the U.S. has introduced rigorous measures to prevent further abuse. Church workers are given background checks and must undergo safe environment training. Any credible accusation of abuse must be investigated, police must be called and the accused immediately removed from their positions. Guilty priests are defrocked, even if the credible accusation is made decades after the incident.
But even though these safeguards have been in place for over a decade, the abuse crisis still roils the waters and will for a long time to come — as long as there are victims and memories. And, may we add, lawyers.
