“Temporal Alignment” under HRS § 657-1.8: Criminal Statutes in Force at the Time of Abuse Govern Civil Child-Sexual-Abuse Suits

Introduction

In Foresman v. Foresman, 154 Haw. 46, cert. granted and decided 17 June 2025, the Supreme Court of Hawaiʻi confronted a thorny interaction between civil claims for historic childhood sexual abuse and the ex post facto clause. William Foresman sued his uncle John for abuse that occurred in 1975-76, invoking Hawaiʻi Revised Statutes § 657-1.8—a special statute extending the limitation period for civil damages arising from child sexual abuse. The trial court instructed the jury on contemporary criminal statutes (those existing in 2016), prompting the defendant to argue—throughout appeal—that this retroactive grafting of modern criminal definitions violated the federal constitution.

Although the Intermediate Court of Appeals (ICA) rejected the ex-post-facto attack, it sidestepped the statutory-interpretation issue. The Supreme Court accepted certiorari to clarify both the nature of § 657-1.8 and the temporal reference point for the phrase “sexual acts that constituted or would have constituted a criminal offense.” The Court ultimately:

Declared § 657-1.8(a) a pure limitations statute, not a new cause of action.
Held that the operative criminal statutes are those in effect when the abuse occurred, not when suit is filed (“temporal alignment principle”).
Found the jury-instruction error harmless because defendant’s admissions satisfied pre-1977 Penal Code offenses.
Affirmed the judgment for the plaintiff and preserved punitive damages.

Summary of the Judgment

Statutory interpretation: § 657-1.8 extends the time for filing but does not create a new tort; it merely removes the procedural bar.
Temporal rule: The clause “constituted or would have constituted” demands assessment under the historic penal provisions (1975-76 here). Contemporary definitions are irrelevant.
Constitutional holding: Once construed as a limitations statute tethered to the crime definitions extant at the time of misconduct, § 657-1.8 poses no ex post facto problem.
Outcome: Although the Circuit Court mis-instructed the jury by using modern offenses, the error was harmless because undisputed evidence proved violations of 1972 Penal Code §§ 707-736 (Sexual Abuse 1°) and 707-738 (Indecent Exposure).

Analysis

Precedents Cited and Their Influence

Calder v. Bull, 3 U.S. 386 (1798) – the classic categorisation of ex post facto laws; provided the conceptual scaffolding.
Smith v. Doe, 538 U.S. 84 (2003) – two-step civil/regulatory test; Court borrowed the “clearest proof” standard to uphold § 657-1.8 as non-punitive.
Stogner v. California, 539 U.S. 607 (2003) – contrasted; that case revived criminal prosecutions, whereas § 657-1.8 deals only with civil actions.
State v. Guidry, 105 Haw. 222 (2004) & Hudson v. United States, 522 U.S. 93 (1997) – reinforced the civil-versus-criminal distinction.
Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247 (Del. 2011) – persuasive authority embracing historical-statute reference; Hawaiʻi Supreme Court expressly aligned with its reasoning.

Legal Reasoning

Textual ambiguity: The words “constituted or would have constituted” were deemed ambiguous because they plausibly point either to historic or current law.
Context & placement: § 657-1.8 sits in Chapter 657 (Limitation of Actions) and therefore presumptively addresses procedure, not substance.
Legislative purpose: Committee reports (Sen. Stand. Comm. Rep. 2473, 2012) emphasised victim relief and child protection, not penal innovation.
Canon of constitutional avoidance: Reading the statute to incorporate modern crimes would raise serious ex post facto issues. Choosing the historical-statute construction eliminates that tension.
Harmless-error calculus: Even though the wrong statutes were read to the jury, the evidence (defendant’s e-mail confession and responses to admissions) irrefutably matched 1972-era crimes; hence no prejudice.

Impact of the Decision

The ruling sets a clear roadmap for future child-sexual-abuse civil litigation in Hawaiʻi:

Predictability for litigants: Plaintiffs must plead and prove that the acts were crimes when committed. Defendants know the yardstick.
Trial-court guidance: Jury instructions must track the penal provisions in force at the time of abuse (often requiring archival research).
No constitutional cloud: By cabining § 657-1.8 to historical offenses, Hawaiʻi avoids the ex-post-facto pitfalls that forced other states to defend their revival statutes.
Affirmation of broad access: Victims still benefit from the extended or revived limitations period, but their claims remain anchored in the substantive criminal law of the past.
Precedential spill-over: The “temporal alignment principle” may influence analogous statutes (e.g., elder-abuse civil windows, human-trafficking civil remedies) across the country.

Complex Concepts Simplified

Statute of Limitations: A deadline for filing a lawsuit. § 657-1.8 extends this deadline for child-sexual-abuse claims and revives some already-expired ones.
Ex Post Facto Clause: Constitutional rule that a person cannot be retroactively criminally punished. It does not generally apply to civil statutes.
Civil vs. Criminal Proceedings: Civil trials seek compensation; criminal trials seek punishment. The distinction is crucial for ex-post-facto analysis.
Harmless Error: Even if the trial judge makes a mistake (e.g., wrong jury instruction), the verdict stands if the evidence shows the outcome would be the same.
Mens Rea Terms:
- Intentionally: Actor’s conscious objective is to engage in conduct.
- Knowingly: Actor is aware that conduct is of a certain nature or that circumstances exist.

Conclusion

Foresman v. Foresman furnishes two enduring lessons. First, Hawaiʻi’s § 657-1.8 is a procedural statute of limitations, not a substantive cause of action, and thus lies outside ex-post-facto prohibitions. Second—and more influential—the Court solidifies a “temporal alignment principle”: civil child-sexual-abuse suits must look to the criminal law in force at the time of the abuse to satisfy the statutory predicate. This preserves defendants’ due-process expectations while continuing to afford victims a generous window to seek redress. The decision not only clarifies local practice but also contributes to a growing national consensus on how revival statutes can coexist with constitutional limitations.