Many young children who are sexually abused over a period of time are unable to specifically identify or recall the dates, times and places for each act of sexual abuse, even though they clearly remember what was repeatedly done to them and who did it. This makes it very difficult to prove exactly when and where each act occurred.

Hawai'i Supreme Court Justice Paula Nakayama described the problem in a 1996 opinion, dissenting when the Hawai'i Supreme Court reversed the conviction of a man for sexually assaulting his 6-year-old son: "Particularly when the accused resides with the victim ... and the abuse has occurred on a regular basis and in a consistent manner over a prolonged period of time, the child may have no meaningful reference point of time or detail by which to distinguish one specific act (of sexual assault) from another," and Justice Nakayama specifically "urg(ed) the Hawai'i Legislature to enact a 'continuous sexual abuse of a child statute' " like one adopted in California to solve this problem.

In 1997 the Legislature responded to Nakayama's plea and made it a Class A felony to engage in three or more acts of sexual penetration or sexual contact over a period of time with a child under 14. This law allowed jurors to find the defendant guilty if the jurors all agreed that the defendant sexually assaulted the child at least three times, even if the jurors didn't all agree on the precise acts. Unfortunately, in 2003 the Hawai'i Supreme Court struck down this part of the law in a 3-2 decision, claiming the Legislature somehow violated the "separation of powers" and that this part of the law violated the Hawai'i Constitution. Thus, a state constitutional amendment became the only way to solve this problem.

In 2004, a constitutional amendment virtually identical to the one on this November's ballot was proposed and approved by the voters with a 65.6 percent "yes" vote. Over the objection of my office and the Legislature, the Hawai'i Supreme Court invalidated that amendment, on the grounds that the Legislature didn't use the words "constitutional amendment" in the bill title and didn't vote enough times on the amendment before it went to the people.

We and the Legislature unsuccessfully argued that the Legislature had properly proposed the constitutional amendment in the same way it had proposed many other constitutional amendments in the past.

This "Continuous Sexual Assault of a Child under 14" constitutional amendment is supported by the governor and lieutenant governor, all of Hawai'i's police chiefs and prosecutors, and received a "yes" vote from every single member of the Hawai'i Legislature. And, groups such as the Children's Alliance of Hawai'i, the Crime Victim Compensation Commission, the Society of Military Widows, the Hawai'i State Commission on the Status of Women, and the Sex Abuse Treatment Center have supported the need to address this terrible problem through a constitutional amendment.

This amendment represents good public policy and is in the public interest, as it recognizes that children's limited capacity to specifically identify and recall the dates, times, places, and other circumstances of multiple sexual assaults should not shield an assailant from conviction of continuous sexual assault.

Defendants will continue to enjoy all rights guaranteed to them by the United States Constitution, and cannot be convicted of continuous sexual assault of a child under 14 unless 12 jurors unanimously agree that a particular defendant sexually assaulted a particular child three or more times.

Constitutional Amendment No. 4 will help protect children under 14 from continuous sexual assault and will help prosecutors convict and jail those who are guilty of this heinous offense.

Mark Bennett is the state attorney general. He wrote this commentary for The Advertiser.