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The Honolulu Advertiser
Posted on: Friday, July 15, 2005

Bill on sex assault of children is challenged

By David Waite
Advertiser Staff Writer


The American Civil Liberties Union, Hawai'i chapter, asked the state Supreme Court yesterday to throw out a constitutional amendment ratified by voters last fall, one which law enforcement officials say will make it easier to prosecute adults accused of repeatedly sexually assaulting a child.

The ACLU claims that the title of a bill that worked its way through the Legislature never indicated it could lead to an amendment and voters were never given a chance to testify for or against the bill when it was before the lawmakers.

But state Attorney General Mark Bennett said that nothing in the state constitution requires legislators to hold public hearings on proposed constitutional amendments.

Bennett said the measure in question started out as a bill to change a state law having to do with sex offenders who prey on children, but evolved into a proposed constitutional amendment when lawmakers realized the state constitution would have to be amended to change in the law.

The court took the matter under advisement yesterday.

The amendment was aimed at reversing a 2003 decision in which the Hawai'i Supreme Court voted 3-2 to overturn the conviction of a Maui man under the state's "continuing sexual-assault law," which carries a maximum 20-year prison term.

The statute allows for convictions if juries unanimously find that defendants commit three or more acts of sexual assault or molestation of minors younger than 14. The high court majority ruled that defendants' rights are violated by not requiring juries to unanimously agree on each specific act.

The proposed amendment received 282,841 "yes" votes, compared with 148,307 "no" votes and blank and other ballots.

Lois Perrin, legal director of the ACLU's Honolulu chapter, said that while the organization is concerned about erosion of "due process" rights, the issue before the high court has to do only with whether the Legislature used a flawed process to put the measure on the Nov. 2 ballot for voters to decide.

"The question before this court is whether the Legislature is entitled to propose a constitutional amendment at the 11th hour, after the period for public notice and comment has passed," Perrin told the justices.

Perrin said the state constitution's framers believed it should not be changed in response to periodic whims and came up with a deliberately difficult process to amend the document.

In response to questions from Associate Justices Steven Levinson and Simeon Acoba, Perrin said the public never had an opportunity to testify on the amendment while the proposal was going through the Legislature. But Bennett told the court there was ample opportunity for public debate between the time the Legislature adjourned and when voters cast their ballots.

Bennett said there have been at least six other times when what started out as a legislative bill to amend a Hawai'i law later evolved into a proposal for a constitutional amendment.

Bennett told the high court's members that if they sided with the ACLU, they would be invalidating an amendment that sailed through the Legislature "without a single negative vote" and which was ratified by "an overwhelming majority of voters."

That observation drew a sharp response from Levinson, who asked Bennett how legislative and public support had to do with whether proper procedures were followed in getting the measure on the ballot. Bennett said the question before the court involves "extraordinary issues" that have to do with separation of powers and "one branch of government reviewing the actions of another."

Bennett declined to say after the hearing if the questions posed by the justices appeared to support or go against his position.

Perrin, however, said that the questions Acoba and Levinson asked suggested to her that the two justices may have been interpreting the constitution in a way favorable to the ACLU.

Even if the court invalidates the amendment, supporters will "have an opportunity to do this again the right way," Perrin said.