“In the damages part of the legal process, some defendants were still using the argument that a person could be responsible for their assault,” said one of the sponsors of the bill.
By Norah White
Legislators are discussing a new bill that would prohibit the blame of sexual assault survivors for their assault as a legal defense in civil cases.
Vermont is one of 33 states where those accused of wrongdoing in civil cases can deploy a defense claim called modified comparative negligence, which can allow defendants to limit how much money plaintiffs can win in a lawsuit. The idea is that plaintiffs can seek damages only if their share of responsibility falls under a certain bar, as determined in court — some states allow a plaintiff to win compensation only if they’re deemed less than 50% at fault in the incident, other states increase that bar to 51%.
For sexual assault survivors launching civil suits in Vermont against alleged offenders, that means they can be prevented from recovering damages if a judge or jury finds them more than 50% at fault.
“In other words, a plaintiff’s damages can get reduced by comparing their responsibility with the defendant … rather than the defendant’s responsibility with respect to the plan of injuries,” Celeste Laramie, an attorney speaking on behalf of the nonprofit Vermont Association for Justice, said at a Senate judicial committee meeting Feb 1.
Where comparative negligence claims make no sense is in sexual assault cases, Laramie said.
“In the damages part of the legal process, some defendants were still using the argument that a person could be responsible for their assault,” said Sen. Andrew Perchlik, D/P-Washington, one of the sponsors of the bill, S.278, in an interview.
If the bill becomes law, comparative negligence will be prohibited in all civil cases in which a defendant allegedly sexually assaulted the plaintiff.
“By applying comparative negligence to sexual assault cases, we tell sexual assault survivors that they bear some amount of responsibility to predict and therefore prevent their own sexual assault,” Laramie said in the Feb. 1 committee meeting.
At the same meeting, Zach Blondin, a sexual assault survivor, spoke about his experience being accused of partial negligence when he sued the Milton Town School District after he was sexual assaulted by football teammates in 2012.
“They took 40% of my allotted lawsuit away because they found me negligent,” Blondin said.
Supporters of the bill believe it’s damaging to a survivor to blame them for any part of their own assault.
“I don’t think, ever, is there a scenario where if you’re assaulted it’s because of the shirt you wore or the place you went to. It’s irrelevant,” Blondin said.
Blondin told legislators about how hurt he felt after that trial.
“There was this heavy weight of failure because I put myself here, then I started questioning all of my own doings,” Blondin said.
Supporters of the bill hope it would prevent an extra burden on survivors like Blondin as they navigate their recovery.
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