Choice and Accountability  

Jessica, you are basing your statements on bad information and if Senator Jorgensen's quote is accurate, so is he. Frankly, I am disappointed that you didn't just pick up the telephone and contact me to ask about this issue. I am open to any questions about the work I do as a legislator, and I have always thought our relationship was good enough that you should have felt comfortable approaching me with your concerns. Instead, I find that you are posting inaccurate information about the bill and me based on conjecture and hearsay. Please consider the information below before you comment further on HB 125.

There are no carve-outs or special protections for the LDS Church or the Boy Scouts of America in HB125. That suggestion is totally inaccurate.

First, let me briefly explain the Bill. House Bill No. 125aa extends the statute of limitations on the civil side for child sexual abuse cases. The present statute of limitations to file a civil claim is five years from the time the child turns 18. As you know, sometimes the victim does not know about the abuse, does not connect the abuse to a particular injury, does not know about the injury, does not fully appreciate what has happened or, in some cases, does not even remember the events until after their 23rd birthday.

To address those issues, House Bill No. 125aa does what every one of our surrounding states has already done. It adds a “discovery” clause which allows the child to bring the cause of action within five years of the time the child “discovers or reasonably should have discovered” the abuse and its “causal relationship to an injury or condition” suffered by the child. It is important to be in line with our surrounding states so we are not known as a “safe haven” for abusers.

House Bill No. 125aa also makes it clear the child may bring a cause of action against the abuser’s employer for claims such as failure to properly supervise or hire only if the employer has been negligent (if the employee is "on the clock") or grossly negligent (if the employee is "off the clock").

I want to emphasize the requirement to show an independent bad act by the employer. In other words, the child cannot just file a lawsuit against the employer because it was the employer of the molester. The child has to show the employer did something INDEPENDENTLY wrong. An example of this would be a daycare business that hired a daycare worker knowing he had a criminal record dealing with child abuse of some kind and without doing a background check. If that worker subsequently molested a child during business hours while the worker was "on the clock" then the child could bring the lawsuit against the business for failure to properly hire and/or failure to properly supervise.

The standard for suing an employer is high under this legislation and it is appropriate that it is set at that level. It protects employers from being unfairly exposed to liability for the unanticipated bad behavior of their employees, but still holds the employers responsible when the employers’ actions or failures to act harm the child.

Now, with that background, let me address your concern about the difference in how the legislation treats organizations with child sexual abusers who are volunteers versus child sexual abusers who are employees. First, the legislation treats the child sexual abuser the same regardless of whether they are a volunteer or an employee. The child can file the lawsuit against the child sexual abuser regardless of his employment or volunteer status.
In addition, this legislation does not take away or change any rights a child might have to bring a cause of action against an organization which negligently supervises a volunteer. For example, I believe if an organization had a volunteer working for it and the organization knew or reasonably should have known the volunteer was molesting a child in the organization, the child could bring a cause of action against the organization for failure to properly supervise. The statute of limitations for that cause of action would be, based on my research, four years. So, organizations that use volunteers are subject to liability for their bad acts under present law.

In addition to the perpetrator, HB 125aa applies the extended statute of limitations (age of majority plus five or discovery plus five) mentioned above to employers. As we drafted the bill, the sponsors of this legislation made a conscious public policy decision to treat organizations with the bad volunteer differently than the organization with the bad employee. As I'm sure you can appreciate, organizations have much more control over employees than they do volunteers; therefore, society's expectations as to how much responsibility the organization has for the actions of the employee versus the volunteer must reflect that difference.

With employees, an organization dictates when they come to work, how long they stay, what they are paid, what tasks they do while at work, how they are disciplined, what benefits they receive, and a myriad of other issues. With volunteers, organizations have to be more careful about dictating anything for fear of having the volunteer pack their things and never coming back. To the sponsors of HB 125aa, it simply did not seem fair to expose the organization with a bad volunteer to the same amount of liability as the organization with the bad employee.

Furthermore, in setting the standard for liability exposure for organizations who have a bad employee, we relied on a pre-existing statute (Idaho Code s. 6-1607) which addressed employer liability in these sorts of situations. Because the statute already existed, we knew it satisfied the legislature's standards and, based on its legislative history, had undergone significant scrutiny.

We were concerned if we attempted to establish a similar statute for organizations with a bad volunteer that we might not be as successful. Drafting statutory language can be extremely difficult. If you aren't careful, you create loopholes and unintended consequences. I know one of the unintended consequences we feared was unduly exposing organizations to liability for their volunteers' actions.

This would cause organizations to simply get out of the business of using volunteers. Think about the many wonderful organizations which rely on volunteers -- disaster relief organizations, Girl Scouts of America, youth sports leagues, churches (Catholic, LDS, Presbyterian, Methodist, etc.) and, yes, even the Boy Scouts of America, to name just a few. I don't think any of us want organizations who do such good things to stop. Idaho has one of the highest volunteer rates in the United States. We rely heavily on these organizations to do good things for our society.

So, you can see this has nothing to do with the difference between how the LDS Church and the Catholic Church are treated under the legislation. All churches have employees. For example, the Catholic Church has priests and the LDS Church has seminary teachers. Employees in both organizations are treated the same under HB125. All churches rely on volunteers. Sunday School teachers in the LDS Church and the Catholic Church are also treated the same under HB125.

Let me address your specific concern about whether the LDS Church played a role in the drafting of the language of HB125. It did not. None of the sponsors, to include me, had any contact with the LDS Church (or the McConkie law firm, which does work for the LDS Church) about this legislation. Paul Steed, the citizen advocate who has led the charge these last few years in modernizing Idaho's child sexual abuse laws, did have discussions with the McConkie law firm about the proposed legislation. At no time did anybody from the law firm suggest any changes to the language of the legislation. Paul's purpose in contacting the firm was to make them aware of what we were doing so they wouldn't be taken by surprise. Savvy lawmakers and citizen advocates know that some of the worst opposition you can get to a bill is from groups or other legislators who are caught by surprise. Even if ultimately they don't have any problem with the legislation, they like to know what is coming; otherwise, they will distrust and assume the worst. Paul didn't want that sort of reaction. Paul has had an open dialogue with the LDS Church (via the McConkie law firm) throughout his time working on child sexual abuse legislation, so it was only natural that he communicate with them again this time.

Anyway, I hope this answers your concerns and helps you see how this legislation really came about. In today's political landscape, I suppose many people assume that in the halls of our state capitols, backroom deals are always being made and legislators' principles are being compromised. That simply did not happen here. Senator Hill, Representative Clark, Representative Shirley, Representative Boe, Paul Steed and I are all very proud of the work we did on this piece of legislation. We did it with integrity, with the right intentions, and through hard work. I hope you can see that now.

Please feel free to contact me with your questions about this Bill. My phone number is (208)233-6619(h) or (208)251-4104(c). I am also happy to communicate via e-mail. The point is that we should communicate so we can avoid these misunderstandings in the future. I look forward to hearing from you.

James D. Ruchti
State Representative
Idaho

I actually did email you, James, and I have the email sitting right here. So please don't assume that I didn't. I also spoke with Sen. Jorgensen and I don't believe he is lying or the victim of bad information.

Perhaps you missed the article that was written in North Idaho about the bill and Jorgensen's complaints.