Second mistake in child sex abuse bill shields employers, advocates say
A law scheduled to go into effect this November would make it harder to sue Oklahoma employers for negligence if their employee sexually abuses a child.
The bill signed into law this month raises the standard for those civil lawsuits from general negligence to gross negligence, a change that some attorneys believe is unfair to victims of child sexual abuse.
Cameron Spradling, who represents six girls who are accusing a former Perry schoolteacher’s aide of fondling them, has been pushing lawmakers and the governor’s office to reverse the change before the Legislature adjourns on Friday.
Advocates say they never wanted the higher standard. Originally, House Bill 1470 was meant to extend the time a victim can come forward to the age of 45, but the amendments were added during its course through the Capitol.
The new law is open for editing because attorneys also caught a mistake on the bill that would force losers to pay legal fees in nearly every Oklahoma lawsuit, which drastically changes a centuries-old legal practice.
Spradling said that parents and guardians
Not even the proponents of the bill ever mentioned any discomfort with the gross negligence provision, so I just assumed they wrote it. It is only since the bill was signed that third parties have raised concerns about it.” Sen. David Holt, R-Oklahoma City, one of the bill authors
traditionally could sue employers based on the negligence standard of “a failure to exercise reasonable care.”
Gross negligence, he said, is a conscious and voluntary disregard of the need to use reasonable care.
It is “likely to cause foreseeable grave injury or harm to persons, property, or both,” Spradling said. “It is conduct that is extreme when compared with ordinary negligence, which is a mere failure to exercise reasonable care.”
McAlester attorney Tod Mercer wrote in a statement that the law creates different standards depending on the age of the victim.
“Under Oklahoma’s latest abomination of law, if an employee sexually assaults your wife, the legal standard to hold his employer liable is negligence,” Mercer said. “But if the same employee sexually assaults your daughter, you must show gross negligence to hold his employer responsible.”
Another attorney, Alex Yaffe, said the new law shields wrongdoers from liability.
“And ultimately, it puts the burden of those acts back on the state” as social services fill the gap in recovery, said Yaffe, president of the Oklahoma Association for Justice. “It seems like a pretty benign kind of amendment, but it’s a very significant change in the law.”
Virginia Lewis helped introduce the original language and said the gross negligence addition was a mistake.
Lawmakers are working to fix some of the changes that are scheduled to become law Nov. 1 with a bill that could appear in the last week of session.
One of the authors, state Sen. David Holt, R-Oklahoma City, said the gross negligence provision was added before he ever saw the bill.
“Not even the proponents of the bill ever mentioned any discomfort with the gross negligence provision, so I just assumed they wrote it,” he said. “It is only since the bill was signed that third parties have raised concerns about it.”
Even then, he said, repealing the new gross negligence provision is under consideration to be included in House Bill 1570, the bill that also will reverse the “loser pays” provision.
The bill signed into law this month raises the standard for those civil lawsuits from general negligence to gross negligence, a change that some attorneys believe is unfair to victims of child sexual abuse.