Play Live Radio
Next Up:
0:00 0:00
Available On Air Stations

Justices To Decide If Cap On Non-Economic Damages Is Constitutional In Sex Crime Case

OGT/The Ohio Channel

The Ohio Supreme Court will decide if caps on damages to assault victims who don’t have permanent physical injuries are constitutional.

The case comes from Delaware County, where a 15 year old girl was raped twice by her church pastor in 2008. The girl and her father sued Grace Brethren Church, claiming the pastor had committed inappropriate acts with other teens before and church leaders knew it. The jury awarded the girl and her father $3.7 million, including $3.5 million in non-economic damages. But the court reduced that to $350,000, based on a 2005 law that caps non-economic damages. John Fitch argued for the girl and her father, claiming that the law is unconstitutional, especially when it comes to underage victims of sex crimes. “This court has historically recognized that you do give special consideration to children,” Fitch said. “This court has noted that sexual abuse is a profound and devastating issue in our society, and we believe the nature and character of sexual abuse of a child, the rape of a child, is different.”

William Curley argued for the church, saying that this is a matter for state lawmakers to deal with, since they are the ones who passed the law setting the cap. And he says they did that because awards for non-economic damages have inherent problems.  “They are unpredictable, they are difficult to evaluate, and they lead, in some cases, to consideration of improper factors, such as the reprehensibility of the defendant’s conduct,” Curley said. “We believe that’s exactly what happened here with this verdict.”

And Curley noted that the state’s association of trial attorneys supports the argument that non-economic damages should not be capped. But Fitch pointed out there are no caps on permanent physical injuries, which he says is unfair. “If in the course of fleeing from the first rape, she falls, she trips and she scars her leg, then this case goes from $250,000 to $3.5 million, because she has a disfigurement,” Fitch said. “That, we say, is incredibly arbitrary and irrational.”

Curley noted that cases involving post-traumatic stress disorder, depression and schizophrenia are covered by the cap, but he could understand the argument for removing the cap for victims with non-physical injuries he called catastrophic. “I think that argument could legitimately be made, but that’s not the plaintiff we have here,” Curley said. “There was no evidence she could not care for herself – she played basketball and went to college and got good grades. There’s certainly no evidence that she cannot perform life-sustaining activities.”

The girl and her father also claim that if the Court agrees that the cap is constitutional, she is entitled to $700,000 in non-economic damages, since the pastor was charged with two counts of sexual battery. But the church says since these incidents happened on one day in a single place, they count as one occurrence.

Contact Karen at 614-578-6375 or at