Fifteen years ago, the Ohio legislature enacted a law placing a cap on what a jury could determine that a wrongdoer should have to pay to their victim. Since the enactment of that legislation, any time a jury decides the wrongdoer owes the victim more than $250,000 ($350,000 in certain scenarios) in noneconomic damages, the verdict will be reduced by the judge, as required by this law. While there are a few very narrow exceptions to this cap, the majority of civil cases have been significantly impacted by the vise grip that the Ohio legislature has placed on the jury system.

The fairness of this law has been heavily debated, but perhaps even more so when it has been applied to victims of rape and sexual assault.

Back in 2008, Jessica Simpkins was raped twice by her pastor when she was 15 years old. Adding insult to injury, Simpkins found out that her church knew that this pastor had been implicated in two prior incidents with teenage girls but continued to employ him despite his predatory conduct.

Simpkins filed a civil suit against the pastor as wells the church, for allowing this predator to stay in contact with church youth, ultimately exposing her to her rapist. In his criminal case, the pastor, Brian Williams, pled guilty and was sentenced to 8 years in prison. In the civil suit, a jury determined Simpkins was owed $3.6 million in damages.

However, as a result of the damage cap enacted by the Ohio legislature, Simpkins’s verdict was reduced. Simpkins’s lawyers challenged the constitutionality of a law that infringes on a person’s right to a trial by jury as well as whether or not a single cap should be applied to the multiple rapes she endured.

Ohio Supreme Court Justice Judy French authored the opinion for the court, holding that not only did these caps apply to victims of rape, but also held that Simpkins was not entitled to compensation for each act of rape she endured; she was limited to one recovery, regardless of the number of times she was assaulted.

In January 2020, a jury determined that a woman who was repeatedly raped when she was 11 years old should be paid $20 million dollars. As in the Simpkins case, the court reduced the verdict according to the statutory damage cap.

State Rep. Bill Seitz (R-Cincinnati) recently appeared on NPR to discuss the damage cap bill he worked on and defended the legislation and the goal of limiting the financial accountability of companies, organizations (including churches), and universities that negligently and/or knowingly hired and supervised criminals, saying “the deep pocket” did not commit the sexual assault and was only liable on the theory of negligence.

The case raises an important question about public policy: Is capping damages the right thing to do? Or is a jury, after weighing the testimony and evidence, in a better position to determine what the victim is owed? Secondly, what message does this practice send to abusers or the organizations that knowingly turn a blind eye to the abuser’s behavior?

Many are concerned that affording these defendants civil protection is counterproductive to promoting the change that the civil justice system is designed to affect. Not only does this practice protect wrongdoers, it further victimizes the abused when they are told that they are not entitled to what a jury has valued their trauma to be worth.

Two state legislators recently reintroduced a bill that would remove the caps on damages from cases involving rape and sexual assault. This same bill was introduced during the last legislative session, but leadership in the Ohio House of Representatives refused to give the bill any hearings. Interested individuals should contact their legislators to find out their position on this bill.

Voters will also have a chance to weigh in with their thoughts this November. Justice French, who wrote the decision in Simpkins’s case, is up for re-election to the Ohio Supreme Court. Her challenger, Judge Jennifer Brunner, who is currently sitting on the Tenth District Court of Appeals, has questioned why an abuser could be charged criminally for each rape offense but is only subject to one civil damage amount.

There is no doubt that damages caps, a form of tort reform, have become a political issue. Chambers of commerce and businesses lobby that they need the certainty afforded by jurisdictions that limit their liability for their wrongdoing. Those opposed to damage caps believe that businesses can limit their financial exposure by simply doing the right thing and not enable abusers and rapists an opportunity to offend. Furthermore, when innocent mistakes are made, businesses already have purchased insurance policies to indemnify them for these types of losses.  

If someone you love was abused at work or by a trusted teacher, coach, or leader, would you want to protect the company or organization that employed them, especially if they had knowledge of other victims, and did nothing to stop the abuse? As advocates for victims and as members of the Ohio community, we believe we can do better for victims and need to rethink the consequences of damage caps and how they are applied.