 Okay, it's the 3 o'clock block on a given Wednesday. I'm Jay Fidel. And with me is Mark Gallagher. And he is an attorney who has specialized in childhood sexual abuse survivors. Welcome to the show, Mark. Thank you, Jay. Pleasure to be here. Great to have you. So let's talk about this kind of... You're in Kailua. What kind of practice do you have? I mean, how much of your practice is this subject? This subject is consuming probably 75 to 80 percent of my practice these days. You're specializing then. I'm very focused on it. We had an opportunity to start bringing these cases about seven years ago. And we've brought probably near to a hundred over the course of that time. You must have learned a lot about it in that period of time about how it works in this community. You know, you do learn a lot. You learn about how it works in this community now. And because a lot of them are older cases, you learn about how it worked in this community years ago and why people didn't speak up at the time. Well, let's talk about that at least for a moment. So give us a thumbnail, you know, a sort of array of the kinds of cases that come to you. Well, a lot of the cases that we've had have been cases involving older survivors. The legislature back in 2012 opened a window for people to bring cases without regard to the statute of limitations. And for your viewers that don't know much about a statute of limitations, of course I know you would, it is the deadline by which someone has to bring a civil case or else they're barred from ever bringing it. So the legislature in 2012 let survivors bring these older cases without regard for how old they were. And so we started seeing a lot of cases that frankly have been buried for years. People that were abused when they were seven, eight, nine, 10, 12 years old and hadn't spoken of the abuse for 20, 30, 40 years. And oftentimes I was the first person that they would speak to. And so we brought a lot of cases against institutions that were responsible for the kids back in the day. And they were cases involving Catholic Church, schools, more private schools than public schools, but both scouting organizations. Any organization that would be responsible for kids didn't do its job in terms of keeping them safe from the abusers that really were in the midst of those institutions. Childhood being an interesting word in this context. So the specialty is not only sexual abuse cases and survivors, but it's children we're talking about. What distinguishes those cases from all the other cases? The thing that distinguishes a lot of those cases is the power dynamic that is in place at the time that the abuse occurs. You're talking about a child who looks up to an adult who believes that the adult is good and wouldn't necessarily do anything wrong, or is afraid of the adult, or afraid of the harm to the family that might result if they say something about what's happening. So in those cases, the power dynamic, I think, is the most important because the kid really doesn't have the ability in the child's mind to stand up and say something then. Well, of course, there's memory and all that, and I wonder how, it must be a break-off on the age of a child who would remember later. Not every child would remember everything when he was a toddler, but where is that break-off in general? Is it four, five, six, seven? Where is it? In my experience, we haven't had cases involving children who were younger than, say, six or seven at the time the abuse happened. I agree that if someone's a toddler, there are issues about perhaps what their recollection can be, although some of them certainly can recall everything that happened. But more often, we see them in those six years old, perhaps, and running up and all the way through childhood. And you mentioned the power of dynamic of it, but it strikes me, and maybe I'm just going on what I've seen in the media. It strikes me that there's an inherent threat involved, that the person in the power of position on this relationship, what I call it a relationship, might say to the child, don't tell anybody about this. If you tell anybody about this, x, y, and z will happen. Is that inherent in what happens? You know, that is inherent, and it's interesting that you say, I don't want to call it a relationship, because that is something that I noticed people kind of struggle with. What is that dynamic? Because it really isn't a relationship. There may be a separate relationship of teacher to student or a priest to parishioner, but the interaction between the child and the perpetrator oftentimes is fear-based. The child doesn't feel like he or she has the ability to step up and say something, oftentimes because either explicit threats are made. If you say something, I will harm you, or I will harm your family. Or fear that they will be punished, that they are somehow responsible for what's happening, and they will get in trouble with parents or other authority figures. So there's always a threat that keeps them silent at the time the abuse is taking place. And there's always a delay, a latency between the time it happens and the time when the revelation comes, for example, to you. And how long is that generally? Are there any benchmarks that you can point to there? Yeah, there are. We've found that often survivors don't say anything until they're really at an age where they're having children of their own and they're responsible for others. And they start to see the way a dynamic should work in school or in a parental setting or in a church setting and think about how old they were when they were abused when their kids are that age. So we see them start to become more conscious of it then. And sometimes that creates a situation where they'll say something about it. Alternatively, sometimes that creates a situation where it gives them more problems from a psychological and an emotional standpoint. Where they reveal. And they don't say anything. No, and they don't say anything. But we don't say anything. Because they see their kids maybe being at an age where they could be abused. They're the age that the survivor was. And they become very defensive. They become hyper-vigilant. They start rehashing it in their own brains. Still not ready to say anything. But feeling the effects of it in their current life. Yeah. Sort of projecting their experience on the child. Yes, yes. The other thing about that is it would seem to me that there's a fear factor in if I go public on this. That means that people outside of my little world will know. And they think they will think of me differently. They will cast a shadow on me. I would be wearing a burden in the community about what people think of me. Everybody will look at me in a different way. So I think that may be subjective. But my question to you is, is that a real concern? Well, I think it's a real concern that survivors have. And certainly as the survivor is older at the time of the abuse, they become more concerned with it. An example is a lot of these cases have been adult male on minor male. And you see the child who's really just at the age of discovering his own sexuality and realizing that he is a sexual being and starting to develop in those early teenage years. They have something like this happen. And it causes them to question themselves about, well, I'm not sure about my own sexual identity now. And all kids go through that as they discover who they are. But it can throw tremendous confusion on a child who thinks, well, if I come out and say something about what happened to me, maybe that's making a statement about who I am. And I don't know who I am at that particular time. Is it real, though, that people see this individual once he comes out on the issue and makes it public? They see him differently. They see him as flawed in some way? Currently, I don't think that's the case. I think that there's been a lot of support in the community. We've certainly seen an outpouring of attention from press and other groups about trying to do things about this. So I don't think that's the case now. I do think that that was the case. There is a well-known case involving an allegation that was made against Bishop Ferraro, Catholic Bishop in the early 1990s. And the church and the supporters of Bishop Ferraro mercilessly attacked the survivor who had brought forth a comeback. That compounds the felony, doesn't it? It did. It was harming the gentleman as a child and then attacking him again as an adult. And that did affect how the community viewed him. And I think how he probably felt about himself. Yeah, he started off fragile because of the experience. And then they made it worse. Exactly. You know, there's a piece on television about Michael Jackson. Michael Jackson had children sleeping in his bed. And it wasn't just for optics. It was real abuse. And they have, it's playing now on one of the educational channels, I guess, PBS or CNN or one of those. And cable somewhere. And these people are stepping forward. And they're in their 30s, maybe more. And the stories are really horrendous how they were sucked into this and felt that it was OK. They were told it was OK. And later on, they realized it wasn't OK. And I think just observing, and I'm not a psychiatrist, that they were having real trouble in dealing with this. I think they went to the media for maybe economic reasons, because this was a serious documentary movie somebody had to pay to appear. But in terms of their own self-image, as you say, I think they were profoundly damaged. And you could see it. And your earlier point about when they're ready to talk about it, you'd share those individuals are probably in their 30s now. And they're ready to talk about it. Some people aren't ready until they're 40s. Some people aren't ready until they're 50s to talk about it. Some people never talk about it. Some people talk about it to one person. I've had people in their 60s, 70s, call me up and say, look, I'm not going to do anything about this. But I just want you to know what happened to me in case it happened to somebody else. I've never told anybody else, and I'm not going to tell anyone else. You become their confessor. Yes. Very interesting. So that puts you in a very unusual role as a lawyer. It gets you right inside the things that are really sensitive and really delicate. And I just wonder if you could explain to us how it works. Somebody calls you up and says, Mark, I really got to talk to you. We've had a revelation here in the family about our son or daughter or whatever the case may be. Where does it go from there? From there, it depends upon how old the claim is. If it's one of these older claims, we have certain procedures that we have to follow in order to be able to bring a civil claim. If it is against an entity or an offender that we know from past cases, sometimes we can approach them directly prior to filing a lawsuit and try and get something worked out that allows the survivor to basically take back his or her power in the equation. That's one of the things that these cases do. Oftentimes when it's a child being abused, a child has no power. So as an adult, when they're able to say something and do something about it, they take back the power. It's part of their recovery, and it helps. So we can either try to reach some sort of resolution on a non-litigation basis, or if necessary, we file a lawsuit. And most of the suits that we have filed, the vast majority, we file protecting the identity of the survivor. They're filed as John Rose or Jane Rose with a number assigned and an order of the court to prevent any disclosure of the identity. There's nobody in the courtroom but the parties. Yep, so it keeps the identity protected, and then we're able to litigate the issues in the case, and hopefully get it to a point of a resolution. So a couple of questions about success factors. I mean, have you seen cases that come to you which are actually not valid, where the claim is either unintentionally fabricated or intentionally fabricated, and what happens then? But if it's a case that you can catch in the early phases so that you don't feel like there's enough evidence, I really don't try to make a determination as this a fabricated or non-fabricated claim that wouldn't be the dynamic of what I would be thinking about it would be in terms of what kind of evidence we have that can support this claim. And part of bringing these cases requires a certificate of merit to be filed under seal with the court. That is an evaluation of the survivor by a psychologist or a licensed clinical social worker who sits down and does an assessment and is able to say from a professional perspective that there is a reasonable basis to believe that this abuse did happen and that the person would have been harmed by it. So we've always had with the older cases that screening device to make sure that we're just dealing with cases that have merit and it frankly provides a level of protection for defendants that they have that kind of screening. Sure, sure, sure. Well, yeah, that's really interesting and that's a matter of law then. That has to happen. That has to happen. Yeah, I think that's a good piece of procedure. So let's take a short break, Mark. We'll come back and I'd like to know more about how these cases are litigated, what has to be proven, what kind of defenses you could imagine and how the results go in terms of settlement if you can talk about it or a judge or potentially a jury trial. We'll be right back after this break. Aloha, I'm Wendy Lo and I'm coming to you every other Tuesday at two o'clock live from Think Tech Hawaii and on our show we talk about taking your health back and what does that mean? It means mind, body and soul. Anything you can do that makes your body healthier and happier is what we're gonna be talking about. Whether it's spiritual health, mental health, fascia health, beautiful smile health, whatever it means, let's take healthy back. Aloha. Hi, Mabuhay. My name is Amy Ortega Anderson inviting you to join us every Tuesday here on Pinoy Power Hawaii. With Think Tech Hawaii we come to your home at 12 noon every Tuesday. We invite you to listen, watch for our mission of empowerment. We aim to enrich and lighten, educate, entertain and we hope to empower. Again, maraming, salamat po, Mabuhay and Aloha. Okay, we're back, we're live. We're here with Mark Gallagher, an attorney practicing in Kailua. He specializes in childhood sexual abuse survivors. Very interesting practice, like, good, disgraceous. Some day, anonymously, you're gonna have to write a book. It would have to be anonymously and there certainly are many tales to tell. Oh, sure. Anyway, so let's talk about the window statue. You referred to it earlier. It was the statue adopted in 2012 and it opens up the statute of limitations, makes it easier for a surviving child or I suppose his family or her family to come forward later on, years later, after the ordinary statute would have passed. How does that work? How has it affected the practice in this area? Well, the first window statue was in 2012 and that gave us the ability to bring these older cases without having to worry about that statute of limitations deadline. The legislature has given us basically three statutes or three windows, rather. So three time periods of relief from that statute of limitations to bring these cases. The impact that it's had is we went from having to tell survivors, look, we can't do anything for you with older cases to actually being able to do something for them. So it put the calendar back in terms of the year of the abuse so that we'd be able to help more people. So that basically has been the impact. We're able to help people when they're ready to talk about it. Before the statute would run, before the person was ready to talk about it and do anything. You know, I want to think strikes me just looking out of an ordinary tort point of view, a tort, and I assume this is a tort. It is. A harm. A failure of performing a duty to the other individual. It's two years in this state, right? Generally speaking. So if I don't know, two years from discovery, so if I don't know about it, then it could go on a long time without any requirement, without any bar. Because I didn't know, I only found out that the tort had been committed. So I'm wondering if that played into the practice in this area before the window statute of 2012. Before the window statute, that would be the one way that survivors could bring older cases. You're right, most of these things happen. It was a two-year statute of limitations start running when the child turns 18, closes when the child's 20. After that, if the child didn't know about the, well normally they would know about the abuse, but it would be the connection of the abuse to some sort of harm that they saw. For the psychology of it. Right, and so that would give them, under a discovery rule, the ability to bring a case that would reopen the statute. But those are very challenging because in most cases the survivor, if you talk to them about it when they're 35 and say, well, you knew about this when it happened you were 10, and they would say, yeah, of course I did. And wasn't that bothering you all through high school in all your 20s? And I say, yeah, I knew that was a problem. You know, I had a problem with relationships or emotional upset or depression, I connected it. So it was a very tough standard. It really limited the number of cases that could be brought. And you wind up, if you go forward on the case, you wind up litigating a state of mind. You wind up when a revelation took place and that's not the right issue. Exactly. The right issue is what happened. You're exactly right. It's what happened. It's really what these cases are about. What happened and how to prevent it. Okay, so the family or the young person or maybe you might say young person comes in to see you, how does it go then? Do you suggest mediation? Do you contact the institution involved and suggest mediation? How does that work? Most of the time we end up filing litigation first. As I said, some of them, if we've had prior experience with the particular defendant, we may consider doing it directly. But oftentimes we'll file the suit under the John Rowe pseudonym and then proceed through a mediation process. So that we're moving on both tracks. Is the mediator somebody experienced in this area? You can agree on a mediator, but are there mediators who are experienced in this area? There are. We have some mediators here in town who are very experienced in this area. And if one needs to bring in somebody from the mainland one can, but we have an excellent mediator right in Honolulu who has a lot of experience with these cases. You know, the other thing that strikes me is that you mentioned that sometimes you go quote direct and that evokes in my mind the notion that there are some institutions that really don't have a policy about this who don't try to stop it, who have created a kind of climate within their institution that perpetuates it and allows it to repeat their repeat offenders essentially. Do you find that? And how does that affect your judgment in going forward? You know, we have found a large number of repeat offenders. Unfortunately, pedophiles don't just abuse once. It's a lifetime of abuse for them. And if they're in a situation where they have access to kids, we see it time after time. We've had some institutions who have had up to nine cases against the institution arising from the conduct of one perpetrator. So the institutions- But they knew after the first time. Well, that becomes a question that gets litigated in the case. What did they know and when did they know it? And what should they have known? And what procedures did they have in place to protect the children at the time? So those are the issues that are often litigated in the cases. Okay, so you have the mediation and or the trial by jury waves or possibly with a jury, I suppose? Normally it's filed for a jury. For a jury, because you want people to see this. Although it's going to be a closed courtroom, you still, you want people to, you want a jury. Well, you know, a jury I think is the best mechanism to hold a defendant or a defendant entity accountable in these cases. Yeah, and this is a community issue. It's a community morality issue. So you want to bring people in and have the community participate in the process. Yes. Okay, so we're in the trial and you're assuming you don't have a statute of limitations problem as you usually don't now, I guess. What's it like to prove up? How do you prove it up? And if the child is younger, whether the person is younger, I suppose it's harder to get, you know, necessary testimony from a younger person. But how does that work? You put the complaining person on the stand, maybe his family. What kind of, you know, proof do you adduce? Well, we have been fortunate with the vast majority of these cases that we've resolved them through a mediation process before we get to the point of having to put people on the stand. Ultimately, it is the testimony of the survivor that is pivotal in these cases. But in a mediation process, we'll have a closed deposition so they provide sworn testimony so that the other side is aware of what it is they're going to say. Trial within the trial. Exactly. And then we're able to sit with a mediator where everybody knows what the facts are without having to get into a public forum. So we try to do it that way if we can. If they cannot be resolved that way, then of course they have to go to trial and the survivors need to testify. The representatives of the defendants and the perpetrators need to testify. Are insurance defense carriers ever involved in these cases? They are. We see a combination of covered claims and non-covered claims. So oftentimes we'll have a insurance defense counsel hired to represent an entity that employed a perpetrator because the argument being that, well, the entity was negligent. Say the Catholic church was negligent permitting this priest to be in the parish for so many years and so that becomes a covered claim. So we do see a combination. We see perpetrators reaching into their pockets to resolve cases as well. Yeah, so, but to be clear though, perpetrator is not going to be the one who has the insurance. It'll be the institution. You can't find insurance for sexual abuse cases as an individual, am I right? Oh right, for an intentional act, for the perpetrator. Your insurance is not going to cover that. Your insurance will not cover that. That's never going to be covered. You're going to be personally responsible. Yeah. Okay, so the economics for a moment. I assume you're working on a contingency as in most court cases in this state? Oh, we do. Like you say, any court cases, we operate on a contingent fee basis of fairly typical arrangement. So it doesn't cost the plane of any costs. Well, I don't know if you charge for costs, but it doesn't cost legal fees going forward. How does that work? Well, it doesn't cost the survivor legal fees and it doesn't cost the survivor costs of the litigation. We fund all the expense and we build it in so that they don't have to reach into their pocket to be able to try and get a little bit of justice for themselves. Yeah, the economics now for a minute in terms of the, so if you were, not that you would be, not in this life, but if you were representing the other side here, the institutions that are involved, what advice would you give them and how to handle this sort of thing? Because for most institutions, except the ones who are really sloppy, this is a crisis, a crisis of public relations, a crisis of the personnel issue within the organization, a crisis of its relationship with the children and the parents, it's a crisis completely, it could bring them down any time. What's your advice to them about defending it, settling it and what kind of settlement to contemplate? Well, I think that they have to own the fact that things were wrong in the past. Hopefully you're not wrong now, but they have to own it. They have to come forward and say, look, we did wrong and we're willing to make up for it and that making up for it is in context of a settlement, the financial arrangement that differs depending upon a multitude of circumstances, but it also is taking account of what they're doing now and making sure that they have processes in place so that we don't have a continuation of these cases. And you're gonna be seeking that. We do seek that in cases. We require change in institutions that haven't changed yet. And obviously the fact that they have cases being filed against them is motivation for them to try to effect change so that we don't have cases like this in the future. That's a community service. Yeah, I would like nothing better than not to do these cases anymore. You know, we have the legislation that we're gonna talk about. I would like for no cases to be filed under that. Well, I would like it to pass, but then I would like no cases to be filed under it or very few so that we have some evidence that maybe would handle this problem. Yeah, that'd be good if it was a societal point of view. So let's go to that. Let's go to that. The reason I called you this morning was because I saw the article in Civil Beat. You were mentioned there. And it was about a bill that would have, what, taken, it would have repealed all the statutes of limitation that might have applied to these kinds of cases. So there would be no statute of limitations whatsoever. And as I recall, the article indicated that that was not likely to pass. So there was resistance about it passing. Can you tell us the circumstances here? Yeah, well, there's concern. You know, I had mentioned the windows before we've had windows periods of time where we could file these cases without having to worry about the statute of limitations. And the window is going to end in April of 2020. So what happened this session is that Representative Cynthia Thielen introduced a bill to eliminate the statute of limitations permanently with regard to childhood sexual abuse claim. So it would apply to instances where individuals under 18 were abused and they would be able to bring claims later in life without having to worry about the statute of limitations. Now that bill, it's HB 18, went through the house without a problem or an apparent problem, went over to the Senate, came back without an apparent problem. And I say apparent problem because it was one change which can fall down into the weeds on these things. But the one change in the house was that they took the effective date which said effective upon passage and they put in a date for a 2081 date. It's a full state. Which you see often in legislation. It's kind of a placeholder type thing. So it gave everyone in the house the ability to vote, hey, we're in favor of this, we should do it. The Senate gets it, actually fixes that kick the can thing. That was the one change they made. Not goes to conferees. They put it back in to say effective upon passing and then it gets sent back over to the house. Now if the house wanted, the house could have just accepted that change which isn't the substantive change other than, which would be the reasonable thing to do. Instead we have the house appointing conferees. We're right on the end of the time for something to come out of conference. So it places the bill in jeopardy. And so you could have a situation where because of this maneuvering, the bill fails and everybody can say it wasn't me. I voted for him when I was up there on the floor. I voted for him. It smells like Mark. That's why I'm concerned and that's what the Civil Beat story was about. Is that concerned? And I'm not the only one who's concerned. If the bill fails, then you said the window, which is established by earlier legislation, closes in what, 2020? What do you mean by that window? How does that work? Well the window is the legislature had given us a time period where we could file older cases without worrying about statutes and limitations. So effectively right now there is no statute of limitations on childhood sex abuse claims. That is gonna change again in April of 2020 that window closes and there will be a statute of limitations again. Well it's been revised over the years so it's not the two year anymore. There's actually an eight year now. Why do that though? That doesn't sound. Why make a temporary window or such a long term problem? You know I think that when the initial window was passed it was a compromise. It was a way to do a couple of things. One to give survivors who were out there the ability to bring claims. And so it did help a lot of people by doing that. And I think it also gave the state a test case. I mean we can see what it's like to have no statute of limitations on these claims because some people were crying doom and gloom before it was passed that oh there'll be an avalanche of these cases and there hasn't been an avalanche. And we've had years to do it and there has not been an avalanche. Yes there have been cases and people have been helped and settlements have been reached and perpetrators exposed. But those are all good things. Those are things that we should want. So we've had basically a test period that supports passing the abolition of the statute of limitations because we know what it looks like. We're almost out of time Mark. I want to offer you the opportunity to speak to the conferees. They're right on the other side of camera one. They're in conference if not now then soon in the legislature and they're gonna be making this decision. What is your advice, comment, advocacy to them now? Well my initial advice wouldn't even be to the conferees because we wouldn't have to have agreement among conferees if the house would just agree to the modification that the Senate made to the bill which is that it's effective upon passage. Makes perfect sense. If you're for the bill then it should be effective at some point in time and upon passage would make sense. So that is who I would speak to first. The conferees certainly can just agree to that as well. It's very easy to get together and say everybody voted for this bill and the public wants the bill and we know that it will work to help people. So let's agree to make it effective upon passage. We'll all be watching Mark. With fingers crossed. Thanks so much. All right, thank you Jay. You're welcome.