| 47 | | - | SECTION 1. The legislature finds that child sexual abuse is extremely prevalent and that most children do not immediately disclose the fact that they were abused. In the United States, one in five girls and one in twenty boys is a victim of childhood sexual abuse, and studies show that between sixty and eighty per cent of survivors withhold disclosure. Of those who delay disclosure until adulthood, the average delay has been found to be approximately twenty years, with some survivors delaying up to fifty years. The legislature further finds that there are many reasons children delay disclosing sexual abuse. These reasons range from their particular stage of cognitive development, limited capacity to understand what happened, inability to recognize the sexual abuse as the cause of their dysfunctional adult life, confusion about their feelings, or limited ability to adequately express complaints, to the fact that a majority of survivors know the perpetrator and may fear retaliation or harmful impacts on their family or community. Moreover, when survivors disclose abuse, they may also be subjected to disbelief, accusations, silencing, and retraumatizing reactions by the recipients of the disclosure. Accordingly, the purpose of this Act is to: (1) Expand the time period by which a civil action for childhood sexual abuse may be initiated; (2) Adopt procedural requirements prior to the filing of a civil action for childhood sexual abuse or naming of "Doe" defendants; and (3) Allow a court to order the personnel of a legal entity against whom a claim is brought to undergo training on trauma-informed response to sexual abuse allegations. SECTION 2. Section 657-1.8, Hawaii Revised Statutes, is amended to read as follows: "§657‑1.8 Civil action arising from sexual offenses; application; certificate of merit[.]; trauma-informed response. (a) Notwithstanding any law to the contrary, [except as provided under subsection (b),] no action for recovery of damages based on physical, psychological, or other injury or condition suffered by a victim when the victim was a minor, arising from the sexual abuse of the [minor] victim by any person when the victim was a minor, shall be commenced against the person who committed the act of sexual abuse more than: (1) [Eight] Thirty-two years after the eighteenth birthday of the [minor or the person who committed the act of sexual abuse attains the age of majority, whichever occurs later;] victim; or (2) [Three] Five years after the date the [minor] victim discovers or reasonably should have discovered that psychological injury or illness occurring after the [minor's] victim's eighteenth birthday was caused by the sexual abuse, whichever [comes] occurs later. A civil cause of action for the sexual abuse of a victim when the victim was a minor shall be based upon sexual acts that constituted or would have constituted a criminal offense under part V or VI of chapter 707. (b) [For a period of eight years after April 24, 2012, a victim of child sexual abuse that occurred in this State may file a claim in a circuit court of this State against the person who committed the act of sexual abuse if the victim is barred from filing a claim against the victim's abuser due to the expiration of the applicable civil statute of limitations that was in effect prior to April 24, 2012.] A claim may also be brought under this [subsection] section against a legal entity 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 domiciled within the State 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. Damages against the legal entity shall be awarded under this subsection only if there is a finding of gross negligence on the part of the legal entity. (c) A defendant against whom a civil action is commenced may recover attorney's fees if the court determines that a false accusation was made with no basis in fact and with malicious intent. A verdict in favor of the defendant shall not be the sole basis for a determination that an accusation had no basis in fact and was made with malicious intent. The court shall make an independent finding of an improper motive [prior to] before awarding attorney's fees under this section. (d) In any civil action filed pursuant to subsection (a) or (b), a certificate of merit for each defendant named in the complaint shall be filed by the attorney for the plaintiff, and shall be [sealed] electronically filed under seal and remain confidential. The certificate of merit shall include a notarized statement by a: (1) Psychologist licensed pursuant to chapter 465; (2) Marriage and family therapist licensed pursuant to chapter 451J; (3) Mental health counselor licensed pursuant to chapter 453D; or (4) Clinical social worker licensed pursuant to chapter 467E; who is knowledgeable in the relevant facts and issues involved in the action, and who is not a party to the action. The notarized statement included in the certificate of merit shall set forth in reasonable detail the facts and opinions relied upon to conclude that there is a reasonable basis to believe that the plaintiff was subject to one or more acts that would result in an injury or condition specified in [[]subsection[]] (a). (e) In any action filed pursuant to subsection (b), a defendant shall not be served, and the duty to serve a defendant with process shall not attach, until the court, other than a judge who is or will be the trier of fact in that action, has reviewed the certificates of merit filed pursuant to subsection (d) with respect to that defendant, and has found in camera, based solely on those certificates of merit, that there is reasonable and meritorious cause for the filing of the action against that defendant. At that time, the duty to serve that defendant with process shall attach. The failure to file certificates of merit shall be grounds for a motion to dismiss the complaint. (f) In any action filed pursuant to subsection (b), a defendant shall be named by "Doe" designation in any pleadings or papers filed in the action until there has been a showing of corroborative fact as to the charging allegations against that defendant. Notwithstanding Rule 17 of the Hawaii Rules of Civil Procedure regarding unidentified defendants, the plaintiff may at any time after the action is filed apply to the court for permission to amend the complaint to substitute the name of the defendant or defendants for the fictitious designation, as follows: (1) The application shall be accompanied by a certificate of corroborative fact executed by the attorney for the plaintiff. The certificate shall declare that the attorney has discovered one or more facts corroborative of one or more of the charging allegations against a defendant or defendants, and shall set forth in clear and concise terms the nature and substance of the corroborative fact. If the corroborative fact is evidenced by the statement of a witness or the contents of a document, the certificate shall declare that the attorney has personal knowledge of the statement of the witness or of the contents of the document, and the identity and location of the witness or document shall be included in the certificate. For purposes of this paragraph, a fact is corroborative of an allegation if it confirms or supports the allegation. The opinion of any mental health professional concerning the plaintiff shall not constitute a corroborative fact for purposes of this paragraph; (2) If the application to name a defendant is made before that defendant's appearance in the action, neither the application nor the certificate of corroborative fact by the attorney shall be served on the defendant or defendants, nor on any other party or their counsel of record; and (3) If the application to name a defendant is made after that defendant's appearance in the action, the application shall be served on all parties and proof of service provided to the court, but the certificate of corroborative fact by the attorney shall not be served on any party or their counsel of record. The court shall review the application and the certificate of corroborative fact in camera and, based solely on the certificate and any reasonable inferences to be drawn from the certificate, shall order that the complaint may be amended to substitute the name of the defendant or defendants; provided that one or more facts corroborative of one or more of the charging allegations against a defendant has been shown. The court shall keep under seal and confidential from the public and all parties to the litigation, other than the plaintiff, any and all certificates of corroborative fact filed pursuant to this subsection. (g) With respect to a legal entity against whom a claim is brought pursuant to subsection (b), a plaintiff may request, and a court may order, the personnel of the legal entity to undergo training on trauma-informed response to allegations of sexual abuse. As used in this subsection, "trauma-informed response" may include: (1) Fully integrating research about the effects and impacts of trauma into policies, procedures, and practices; (2) Understanding the ways in which stress and trauma may affect attention, cognition, behavior, and memory processes; (3) Creating an environment that is safe, non-judgmental, and free of gratuitous re-triggering; and (4) Listening to and documenting victims' statements without judgment." SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 4. This Act shall take effect on July 1, 2060. |
|---|
| 47 | + | SECTION 1. The legislature finds that child sexual abuse is extremely prevalent and that most children do not immediately disclose the fact that they were abused. In the United States, one in five girls and one in twenty boys is a victim of childhood sexual abuse, and studies show that between sixty and eighty per cent of survivors withhold disclosure. Of those who delay disclosure until adulthood, the average delay has been found to be approximately twenty years, with some survivors delaying up to fifty years. The legislature further finds that there are many reasons children delay disclosing sexual abuse. These reasons range from their particular stage of cognitive development, limited capacity to understand what happened, inability to recognize the sexual abuse as the cause of their dysfunctional adult life, confusion about their feelings, or limited ability to adequately express complaints, to the fact that a majority of survivors know the perpetrator and may fear retaliation or harmful impacts on their family or community. Moreover, when survivors disclose abuse, they may also be subjected to disbelief, accusations, silencing, and retraumatizing reactions by the recipients of the disclosure. The legislature further finds that in addition to protecting the rights of childhood sexual abuse victims, legal entities may also need protection from unsubstantiated or fraudulent claims. Section 340.1 of the California Civil Code recognizes this balance by requiring a plaintiff's attorney to file a certificate of merit for each defendant in the case and requiring that all defendants be identified as "Doe" defendants until a court has approved a certificate of corroborative fact as to the allegations in the complaint. Failure to comply with the above requirements may result in the award of attorney's fees and costs to the defendant. These procedural requirements help to ensure that claims of childhood sexual abuse are examined by the court prior to being associated with a particular organization or individual. Accordingly, the purpose of this Act is to: (1) Expand the time period by which a civil action for childhood sexual abuse may be initiated; (2) Adopt procedural requirements prior to the filing of a civil action for childhood sexual abuse or naming of "Doe" defendants; and (3) Allow a court to order the personnel of a legal entity against whom a claim is brought to undergo training on trauma-informed response to sexual abuse allegations. SECTION 2. Section 657-1.8, Hawaii Revised Statutes, is amended to read as follows: "§657‑1.8 Civil action arising from sexual offenses; application; certificate of merit[.]; trauma-informed response. (a) Notwithstanding any law to the contrary, [except as provided under subsection (b),] no action for recovery of damages based on physical, psychological, or other injury or condition suffered by a victim when the victim was a minor, arising from the sexual abuse of the [minor] victim by any person when the victim was a minor, shall be commenced against the person who committed the act of sexual abuse more than: (1) [Eight] Thirty-two years after the eighteenth birthday of the [minor or the person who committed the act of sexual abuse attains the age of majority, whichever occurs later;] victim; or (2) [Three] Five years after the date the [minor] victim discovers or reasonably should have discovered that psychological injury or illness occurring after the [minor's] victim's eighteenth birthday was caused by the sexual abuse, whichever [comes] occurs later. A civil cause of action for the sexual abuse of a minor shall be based upon sexual acts that constituted or would have constituted a criminal offense under part V or VI of chapter 707. (b) [For a period of eight years after April 24, 2012, a victim of child sexual abuse that occurred in this State may file a claim in a circuit court of this State against the person who committed the act of sexual abuse if the victim is barred from filing a claim against the victim's abuser due to the expiration of the applicable civil statute of limitations that was in effect prior to April 24, 2012.] A claim may also be brought under this [subsection] section against a legal entity 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 domiciled within the State 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. Damages against the legal entity shall be awarded under this subsection only if there is a finding of gross negligence on the part of the legal entity. (c) A defendant against whom a civil action is commenced may recover attorney's fees if the court determines that a false accusation was made with no basis in fact and with malicious intent. A verdict in favor of the defendant shall not be the sole basis for a determination that an accusation had no basis in fact and was made with malicious intent. The court shall make an independent finding of an improper motive [prior to] before awarding attorney's fees under this section. (d) In any civil action filed pursuant to subsection (a) or (b), a certificate of merit for each defendant named in the complaint shall be filed by the attorney for the plaintiff, and shall be [sealed] electronically filed under seal and remain confidential. The certificate of merit shall include a notarized statement by a: (1) Psychologist licensed pursuant to chapter 465; (2) Marriage and family therapist licensed pursuant to chapter 451J; (3) Mental health counselor licensed pursuant to chapter 453D; or (4) Clinical social worker licensed pursuant to chapter 467E; who is knowledgeable in the relevant facts and issues involved in the action, and who is not a party to the action. The notarized statement included in the certificate of merit shall set forth in reasonable detail the facts and opinions relied upon to conclude that there is a reasonable basis to believe that the plaintiff was subject to one or more acts that would result in an injury or condition specified in [[]subsection[]] (a). (e) In any action filed pursuant to subsection (b), a defendant shall not be served, and the duty to serve a defendant with process shall not attach, until the court has reviewed the certificates of merit filed pursuant to subsection (d) with respect to that defendant, and has found in camera, based solely on those certificates of merit, that there is reasonable and meritorious cause for the filing of the action against that defendant. At that time, the duty to serve that defendant with process shall attach. The failure to file certificates of merit shall be grounds for a motion to dismiss the complaint. (f) In any action filed pursuant to subsection (b), a defendant shall be named by "Doe" designation in any pleadings or papers filed in the action until there has been a showing of corroborative fact as to the charging allegations against that defendant. Notwithstanding Rule 17 of the Hawaii Rules of Civil Procedure regarding unidentified defendants, the plaintiff may at any time after the action is filed apply to the court for permission to amend the complaint to substitute the name of the defendant or defendants for the fictitious designation, as follows: (1) The application shall be accompanied by a certificate of corroborative fact executed by the attorney for the plaintiff. The certificate shall declare that the attorney has discovered one or more facts corroborative of one or more of the charging allegations against a defendant or defendants, and shall set forth in clear and concise terms the nature and substance of the corroborative fact. If the corroborative fact is evidenced by the statement of a witness or the contents of a document, the certificate shall declare that the attorney has personal knowledge of the statement of the witness or of the contents of the document, and the identity and location of the witness or document shall be included in the certificate. For purposes of this paragraph, a fact is corroborative of an allegation if it confirms or supports the allegation. The opinion of any mental health practitioner concerning the plaintiff shall not constitute a corroborative fact for purposes of this paragraph; (2) If the application to name a defendant is made before that defendant's appearance in the action, neither the application nor the certificate of corroborative fact by the attorney shall be served on the defendant or defendants, nor on any other party or their counsel of record; and (3) If the application to name a defendant is made after that defendant's appearance in the action, the application shall be served on all parties and proof of service provided to the court, but the certificate of corroborative fact by the attorney shall not be served on any party or their counsel of record. The court shall review the application and the certificate of corroborative fact in camera and, based solely on the certificate and any reasonable inferences to be drawn from the certificate, shall order that the complaint may be amended to substitute the name of the defendant or defendants; provided that one or more facts corroborative of one or more of the charging allegations against a defendant has been shown. The court shall keep under seal and confidential from the public and all parties to the litigation, other than the plaintiff, any and all certificates of corroborative fact filed pursuant to this subsection. (g) With respect to a legal entity against whom a claim is brought pursuant to subsection (b), a plaintiff may request, and a court may order, the personnel of the legal entity to undergo training on trauma-informed response to allegations of sexual abuse. As used in this subsection, "trauma-informed response" may include: (1) Fully integrating research about the effects and impacts of trauma into policies, procedures, and practices; (2) Understanding the ways in which stress and trauma may affect attention, cognition, behavior, and memory processes; (3) Creating an environment that is safe, non-judgmental, and free of gratuitous re-triggering; and (4) Listening to and documenting victims' statements without judgment." SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 4. This Act shall take effect upon its approval. INTRODUCED BY: _____________________________ |
|---|