Institutional Liability for Sexual Violence in Prisons Based on theAided-by-Agency Theory

December 1, 2023

Sexual assault perpetrated by correctional officers in prisons and jails is a pervasive problem in women’s correctional facilities.  However, victims who choose to pursue a civil action rarely recover damages for their injuries because our legal system fails to provide adequate options for relief.  This failure leaves victims uncompensated and disincentivizes correctional institutions from implementing effective preventative measures.  Part of the reason for this failure is that most U.S. courts refuse to hold employers liable for sexual violence committed by their employees.  They find that employers cannot be held liable for the tortious conduct of their employees unless the conduct falls within the scope of their employment.  Courts consider sexual assault to be a criminal act committed out of personal motivation, which is never considered to fall within the traditional scope of employment.

However, some courts—including the U.S. Supreme Court—have adopted an “aided-by-agency” theory of employer liability that holds employers liable when they have delegated immense power to their employees and that power is used to harm others.  Aided-by-agency liability is framed as an exception to the scope of employment requirement for vicarious liability and is justified by the same policy goals underlying the doctrine of respondeat superior.  This Note considers the aided-by-agency theory and discusses the debate among courts and commentators as to whether it should apply to cases involving sexual assault.  It concludes by arguing that courts should adopt a modified aided-by-agency rule in the context of prison sexual assault.  The modified rule imposes liability on prisons and jails for sexual assaults committed by their employees when (1) the employer has delegated authority to the employee to control important elements of the victim’s life or livelihood and (2) the empowered employee was aided by the employer‑conferred authority in committing the sexual assault.

December 2023

No. 3