MUNICIPALITIES OWE A DUTY TO VICTIMS OF SEXUAL ASSAULT BY POLICE

In the Indiana Court of Appeals two cases, involving two different women, in two different cities, were combined. Each woman had been sexually assaulted by a police officer, one in Evansville, the other in Ft. Wayne. Now the combined case was being reviewed by the Indiana Supreme Court….

The legal issue at stake: Does the “Common Carrier Theory” apply here or not? Under the Common Carrier doctrine, when an employee commits a crime that was neither at the request of the employer, nor in service of the employer’s interests, the employer is not held responsible; liability falls only on the employee him/herself.

Here are the facts of each case:

1. Evansville police officer Martin Montgomery responded to a domestic disturbance call involving Jennifer Cox.  The officer followed Cox into her apartment and coerced her into sex. Montgomery was later convicted of criminal deviate conduct and sentenced to twelve years in prison.
2. Babi Beyer, after being arrested for sitting behind the wheel of a parked car while intoxicated, was taken to a hospital for a blood draw. Discharged to officer Mark Rogers’ custody, Beyer was raped on a bench by Rogers (who was armed and in uniform). Rogers pled guilty to charges of rape, sexual misconduct, and official misconduct.

Should their employers be held liable for the crimes these men committed? (The actions of those police officers were clearly not furthering their duties as officers.)  But is there a difference here due to the fact that they were policemen, sworn to protect citizens? In other words, are police departments and municipalities “common carriers”, or can they be held responsible for misdeeds that are committed by their employees when those employees are not on the job?

At Ramey & Hailey Law, we were extremely interested in the Jennifer Cox v. Evansville Police Department and the City of Evansville and the Babi Beyer v. the City of Fort Wayne cases. As a husband/wife attorney team with many years of experience helping victims of sexual molestation rebuild their lives, we believe that cities and police departments owe a duty to hire, train and monitor officers in a way that protects citizens from harm.

The Indiana Supreme Court agreed.

”Cities are endowed with the coercive power of the state, and they confer that power on their police officers. Those officers, in turn, wield it to carry out employment duties – duties that may include physically controlling and forcibly touching others without consent,” Chief Justice Loretta Rush commented. The city does not, therefore, escape liability as a matter of law for the sexual assault, the Judge Rush ruled.