Monthly Archives: May 2011

On Thursday, May 26 to Saturday, May 28, 2011, I attended the Basic Trial Advocacy Training at Makena Resort in Maui hosted by the Department of the Prosecuting Attorney, County of Maui.  After the conference, I spent some time visiting former Hawaii State Senator Joe Tanaka and sightseeing. I returned to Honolulu, Hawaii on Monday, May 30, 2011.

On Sunday, May 22 to Tuesday, May 24, 2011, I was in Washington D.C. for a Human Rights Campaign Conference regarding equal rights. I also visited Hawaii’s congressional offices to encourage equal rights legislation. All of our members are on board on practically all of the issues we mentioned. I returned to Honolulu, Hawaii on Wednesday, May 25, 2011.

The Department of the Prosecuting Attorney, City and Countyof Honolulu introduced and supported bills to help make Hawaii a safer place. The bills range in prevention, education, prosecution, and rehabilitation.

2011 Prosecuting Attorney Legislative Package:

Passed

4 out of 12 of the policies in our 2011 Prosecuting Attorney Legislative Package passed out of conference and his heading to final reading by both houses:

1. High priority for witness security in promoting prostitution cases (HB 240);
2. Increased penalties for promoting prostitution (HB 240);
3. Increased penalties for habitual solicitation of prostitution (HB 240); and
4. Killing another person’s animal without the person’s consent (SB 1068).

Did Not Pass

1. Unfortunately, our funding bill was not included in the State Budget bill.
2. Enhanced penalties for violation of TRO.
3. Enhanced penalties for violation of order for protection.
4. Victim notification rights.
5. Increase per diem for witnesses.
6. Civil commitment of sexually violent predator.
7. Mandatory minimum for certain offenses against victim who is 60 years or older.
8. No probation for person convicted of property theft over $100,000.

Bills Passed that the Department Supported:

1. The TRO timeline bill passed and included our recommendation of extending the effective time from 90 days to 180 days.  We gave this bill to HPD for their legislative package (HB 986).
2. The LEC bill passed that enhanced penalties for murder 1, murder 2, assault 2, and terroristic threatening 1 when there is a violation of a court restraining order, the victim was being protected by a police officer who ordered the defendant to leave, or the victim was a witness in a family court proceeding (HB 1003) – ACT 63.
3. Dogfighting: Creates dogfighting 2nd degree (attendance) and increases penalties for dogfighting 1st degree (SB 1069).
4. Killing of insects, rodents, vermin, or other pests must be in accordance with acceptable pest control practices (SB 1533).
5. OHA task force bill reflects our language of disproportionate representation and all decriminalization recommendations were deleted per our request (SB 986).
6. BOE and DOE to create policy on Bullying and Cyberbullying (HB 688).
7. Persons convicted of violation of privacy in the 1st degree shall register as sex offenders since the violation is sexual in nature (SB 52).
8. Update controlled substances to federal law (HB 1085).
9. Language to help PSD get federal support in electronic monitoring of pseudoephedrine in our market (SB 40).
10. DOH to provide a fitness restoration program for defendants unfit to proceed with court proceedings and on conditional release, and to report information regarding the defendant’s program and compliance to the prosecutor (HB 1071).
11. Include firefighters and water safety officers in Assault 2nd degree.  Creates unauthorized entry into a dwelling 1st degree and 2nd degree (SB 1025).
12. Fireworks: Inventory, labeling, importation, and permit revocation or suspension (SB 172).
13. Amended list of crimes that require mandatory minimum sentencing for repeat offenders.  Addressed some of our concerns (HB 1155).

Bills Passed that the Department Tracked:

1. Court can order community service in lieu of graffiti cleaning, especially if it is a dangerous location (HB 555).
2. Enhanced penalty for solicitation of prostitution near schools (HB 44).
3. PSD to establish performance indicators for inmate reentry system. (SB 44).
4. Exempts court interpreters who appear at the request of the courts from parking violations of expired meters (HB 298).
5. Allow child service providers to provide emergency shelter and related services to a minor (SB 921).
6. TRO by electronic application (SB 1054).
7. “Jane Doe” and “John Doe” filings (SB 946).
8. State can retain fingerprints of employment and licensing applicants for whom criminal history record checks are authorized statutorily (HB 1009).
9. Judiciary Budget (HB 300) – ACT 61.
10. Amend statute of limitations for civil actions for sexual offenses against minors (SB 217).
11. Prohibition against explosive devices (SB 782).

Jon Riki Karamatsu Speech on Elder Abuse to Hawaii Caregivers Association

Saturday, April 30, 2011, 6:00 P.M. at Pearl Country Club

Hawaii, like other states in the union, has created civil and criminal laws to protect our older adults from abuse. The abuse of the elderly can be physical abuse, psychological abuse, sexual abuse, financial exploitation, caregiver neglect, or self-neglect. There are challenges regarding elder abuse. Part of the problem is that people do not like to talk about the abuse. The silence around elder abuse is similar to other crimes such as domestic abuse and sexual abuse. Based on a 2007 study by the Hawaii Legislative Reference Bureau, Hawaii has a relatively low level of adult abuse reports compared generally to other states and to other state of comparable size. However, at the Department of the Prosecuting Attorney of the City and County of Honolulu, there are increasing numbers of elder abuse cases. In 2008, the department had 37 cases; in 2009 it had 57; and in 2010 it had 102. There are various factors that could be contributing to the increasing amount of cases of elder abuse such as better education and awareness on this issue, bad economy, drug abuse, and the growing elderly population.

I will go over the various Hawaii laws that intend to protect our elders from such abuse. Hawaii criminal law, under Section 706-660.2, HRS, has enhanced penalties for offenders who in the course of committing or attempting to commit a felony, causes the death or inflicts serious or substantial bodily injury on a person who is 60 years of age or older and such is known or reasonably should be known to the offender. Under Section 706-662, there are enhanced penalties if the offender attempts or commits any of the following crimes: murder, manslaughter, a sexual offense that constitutes a felony under chapter 707, robbery, felonious assault, burglary, or kidnapping; and the defendant, in the course of committing or attempting to commit the crime, inflicts serious or substantial bodily injury upon a person who has the status of being 60 years of age or older and the person’s status is known or reasonably should be known to the offender.

In most Hawaii civil laws, “elderly person” is defined as a person who is 62 years of age or older. Section 412:3-114.5, HRS mandates financial institutions to report suspected financial abuse that is directed towards, targets, or is committed against an elder to the Department of Human Services. The department in turn is required to report this to the police. Persons who report have immunity from liability, civil or criminal. Section 485A-603.5, HRS and Section 485A-604.5 allows the court or the Commissioner of Securities respectively, to impose additional penalties up to $50,000 for each securities violation against persons age 62 years of age or older. Section 454F-12, HRS, imposes a fine up to $10,000 for each violation committed against an adult 62 years of age or older, by a mortgage broker or mortgage solicitor. Section 480-13.5, HRS, imposes penalties up to $10,000 for each consumer fraud violation against a consumer who is 62 years of age or older. If a person commits unfair competition, practices, declared unlawful, towards an elder, the court may award the elder additional sum up to the restitution ordered.

In contractor law, “elderly person” is defined as a person who is 65 years of age or older. Under Section 444-10.7, the court may impose a fine up to $10,000, or imprisonment up to 1 year, or both, if a person acts, or assumes to act, or advertise, as general engineering contractor, general building contractor, or specialty contractor without a contractor license towards a person who is 65 years of age or older.

Currently, Hawaii law makes no distinction between adults and elder adults in qualifying for adult protective service. Part X, Chapter 346, Hawaii Revised Statutes (HRS), applies to any “dependent adult” age 18 and over. The legislature recognized that it is a person’s vulnerability, not necessarily age, which is often encountered in cases of abuse, neglect, and exploitation. While advanced age alone is not sufficient reason to intervene in a person’s life, the legislature found that many elders have become subjects of abuse, neglect, and exploitation, and substantial public interest exists to ensure that this segment of the population receives protection. Thus, the legislature created the adult protective services law for the protection of its citizens who may be vulnerable to abuse, including the elderly.

The State of Hawaii’s adult protective service law was created to increase the protection of vulnerable adults from abuse by mandating health professional to promptly report to the Department of Human Services on any elderly abuse. Any person who knowingly fails to report or who willfully prevents another person from reporting can be guilt of a petty misdemeanor. The Department of Human Services has authority to conduct investigations on any abuse. Any person intentionally or knowingly obstructing or interfering with the department’s access to or communication with the vulnerable adult can be guilty of a misdemeanor.

Upon investigation the department shall take action to prevent abuse and shall have the authority to do any or all of the following: (1) Resolve the matter in an informal fashion as is appropriate under the circumstances; (2) Exercise its right of entry; (3) Seek an order for immediate protection; (4) Seek a temporary restraining order; (5) File a petition with the court under this part; and (6) Seek any protective or remedial actions authorized by law. Any individual who assumes a duty or responsibility pursuant to this law shall have immunity from civil liability for acts or omissions performed within the scope of the individual’s duty or responsibility.

I would like to note that all elderly abuse criminal cases are handled by the Department of the Prosecuting Attorney in the county where the crime was committed, and the Attorney General handles all the elderly abuse civil cases.

Thank you for inviting me to give an overview of the laws on elderly abuse. Together, we can make Hawaii a better and safer place for all, especially our elderly.