Just over a year ago, I reported on the disgusting decision handed down by an Ohio court in the case of a young woman who was raped by her pastor. Originally, the jury granted her $3.5 million for pain and suffering, but a ridiculous “tort reform” law forced the court to reduce the award due to a mandatory cap on non-economic damages. After a failed appeal, wherein the Fifth District Court of Appeals upheld the trial court’s decision, the case was taken to Ohio’s Supreme Court. That esteemed panel of judges recently upheld the damages reduction, essentially telling child rape victims their suffering’s irrelevant.
The story began in 2008 when the victim, Jessica Simpkins, was 15 years old. She was meeting with her pastor, Brian Williams of the Grace Brethren Church in Sunbury, OH for a counseling session pertaining to her parents’ separation and her falling grades. During the session, this “man of God” forced Ms. Simpkins to perform oral sex on him and then forced her to have intercourse with him.
The family sued the church, alleging it had been negligent in hiring the Pastor Williams. Why? Apparently, Mr. Williams had a history of sexual misconduct with teenage girls. In fact, he’d been accused of such behavior twice in the past and Grace Brethren was aware of the incidents and still allowed him to see underage girls privately.
Mr. Williams served eight (too short) years in prison for sexual battery and was released in July 2016 at age 54. One certainly hopes he is now restricted from ever being alone with underage girls.
Ms. Simpkins’ lawyers argued, unsuccessfully, that the “tort reform” law capping non-economic damages was unconstitutional as it did not allow child rape victims due process and equal protection. John K. Fitch, one of her lawyers, said it even “protect[ed] those who would rape a child.” He went on to say that Ms. Simpkins is still traumatized.
In the end, she was given $311,400 and her father got $75,000. Legal expenses and attorneys’ fees must still be paid from this amount.
The Ohio Supreme Court chose to defer to the General Assembly in its construction of the non-economic damages cap. Justice Judith L. French wrote the majority-opinion, stating that the circumstances necessary for the cap on Ms. Simpkins’ damages to be unconstitutional were not present.
The following is taken directly from Justice French’s opinion. Emphasis of any point was added by this author.
“In enacting S.B. 80 [the cap], the General Assembly reviewed evidence demonstrating that uncertainty related to the civil-litigation system was harming the economy: ‘It noted that noneconomic damages are inherently subjective and thus easily tainted by irrelevant considerations. The implicit, logical conclusion is that the uncertain and subjective system of evaluating noneconomic damages was contributing to the deleterious economic effects of the tort system.’
Appellants also seize upon the Fifth District’s acknowledgment that ‘there may be nonphysical injuries the effects of which approximate those listed in R.C. 2315.18(B)(3)’ as an acknowledgment that subjecting all nonphysical injures to a damage cap might be arbitrary and unreasonable. 2014- Ohio-3465, 16 N.E.3d 687, at ¶ 78. But we leave that question for another day. Because that situation does not exist here, we need not opine whether there may be some instance in which application of the damage caps to emotional injuries that rise to the level of the physical injuries excepted from the damage caps by R.C. 2315.18(B)(3) would violate due process.
[The law in question] excludes from the damage caps in R.C. 2315.18(B)(2) noneconomic damages for ‘[p]ermanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system’ or for ‘[p]ermanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.’ The exceptions to the damage caps in R.C. 2315.18(B)(3) require ‘extreme qualifications.’
The Fifth District acknowledged the testimony of Dr. Jeffrey Smalldon, a psychologist who examined Simpkins, who testified that Simpkins suffers from post-traumatic-stress disorder and low-grade depression as a result of the sexual assault by Williams. The court also noted evidence that Simpkins is afraid of the dark, suffers from anxiety, and has trust issues with men. But it also recognized evidence that ‘Simpkins played basketball in high school and college, got good grades in college, is currently employed full-time, has not sought or participated in mental health treatment or counseling since 2008 and does not have current plans to seek treatment.’ 2014-Ohio-3465, 16 N.E.3d 687, at ¶ 78.
Based on that evidence, the court concluded that Simpkins ‘is able to independently care for herself and perform life-sustaining activities.’ Id. While we do not doubt the reality and seriousness of Simpkins’s emotional and psychological injuries as a result of Williams’s conduct, Simpkins’s noneconomic injuries do not meet the ‘extreme qualifications’ that the law requires in order to avoid the operation of the damage caps in R.C. 2315.18(B)(2).”
One hopes one’s readers will pardon the lapse in decorum as one asks what the majority was smoking when it came to this decision. Point-by-point commentary, based on the emphasized sections, follows
- “Irrelevant considerations”: Fully understanding that the Ohio legislature is more concerned with protecting businesses and insurers than it is its constituents, one still finds it hard to believe that the emotional impact of rape on a 15-year-old girl is “irrelevant” when it comes to assessing a damages award. The only way such evidence becomes “irrelevant” is when the focus is on protecting those who would need to write a check as opposed to those who have been victimized.
- “…there may be nonphysical injuries the effects of which approximate those listed… Because that situation does not exist here… That is precisely the question that does exist. In challenging the lower courts’ decisions, Ms. Simpkins’ legal team asked that question. The Supreme Court employed a constitutional analysis that allowed it to bypass addressing this important issue, as can be seen in the dissent.
- ‘…extreme qualifications.’ Here, the law states that only the loss of a limb or an organ system can exclude an injured party from the damages cap. No, Ms. Simpkins did not lose a limb, nor did she lose the loss of an organ system. However, she is a 23-year-old woman with PTSD, depression, anxiety, fear of the dark and experiencing issues with men.It would seem that the law, and the Court, is biased against those who suffer mental health issues based on being victimized. What has Ms. Simpkins lost that could rise to the level of “extreme qualifications”? Her mental well-being, for one. Even today, mental illness is still stigmatized. No one understands how difficult it is to function on a daily basis when suffering from a mental illness, unless one has experienced such suffering personally.
- Furthermore, with the resulting trust issues with men she is experiencing, Ms. Simpkins, like many who have suffered sexual violence, may never be able to have a healthy, lasting relationship. One is forced to wonder why the ability to have a trusting, healthy relationship is not included in “life sustaining” activities. Under most injury claims, if a victim lost the ability to perform sexually, he or she would be entitled to compensation for such a loss and so would his/her significant other. In fact, one could argue that this cap on damages would not apply to a victim who lost “an organ system” (functionally). Yet, the Court refused to see that possible impact on Ms. Simpkins’ life.
- The Court justifies its bias by homing in on the fact that Ms. Simpkins “played basketball in high school and college, got good grades in college, is currently employed full-time, has not sought or participated in mental health treatment or counseling since 2008 and does not have current plans to seek treatment.” Not to disparage victims who have lost limbs, etc., but the last one checked it was entirely possible to do everything Ms. Simpkins is now doing with only one leg or one arm. It is even possible to play basketball in a wheelchair and to do it well. Again, the ugly bias against mental illness denies that something “invisible” could have as equally a devastating impact on a person’s life as a visible, physical injury.
- The fact that she has not sought treatment for her issues is, actually, the irrelevant issue in this case. How we choose to deal with our issues is none of the Court’s business, providing such choices are legal. That we are given the ability, in this case monetary compensation, to do so is the relevant issue.
Of course, the church’s lawyers are thrilled with this decision. One of the church’s legal team, Charles Curley said, “We did not suggest in any way that this rape had not been emotionally traumatizing to her. Certainly it was. But the argument was that in the eyes of the law you need a catastrophic injury which the legislature defined, to get away from these damage caps.”
He is technically correct. However, years ago, it was legal to own other people. As society became more enlightened and humane, that law was abolished. In the 1900s, it was legal to prevent members of different races from marrying. Society evolved and the law changed. In this century, it was illegal for members of the same gender to marry. Again, society evolved and the law changed. Perhaps it’s time for another evolutionary burst and the resulting change in law.
Sadly, even Ms. Simpkins’ own lawyer, Mr. Fitch, isn’t optimistic that such will happen any time soon. A bill in the Ohio House of Representatives to exempt victims of sexual violence from the damages cap was defeated. According to Mr. Fitch, “Given the extraordinary influence of the insurance industry within the legislature, I am not optimistic they will do anything about it.”
wo very vocal dissenters on the Court, Justices Paul E. Pfeifer and William M. O’Neill, wrote separate dissenting opinions. According to Justice Pfeifer, “It turns out that ‘tort reform’ (and the justices who sanctioned it) also ensured that rapists and those who enable them will not have to pay the full measure of damages they cause — even if they rape a child.” He went on to say that the caps were “designed to protect doctors and corporate interests.”
Justice O’Neill was no less damning in his opinion. “I cannot accept the proposition that a teenager who is raped by a pastor fits into a preordained formula for damages … a cookie-cutter approach simply does not work. This child was raped in a church office by a minister and a duly empaneled jury established an appropriate level of compensation for loss of her childhood innocence. We have no right to interfere with that process. Shame on the General Assembly. The children are watching. And I for one do not like what they are seeing.”
This may not be the end of the story. The Supreme Court did not rule on a list of issues that were raised on appeal. This gives Ms. Simpkins’ an opportunity to ask for punitive damages in a new trial. One hopes that true justice prevails should she seek to do so.