Holding the Federal Government Accountable for Sexual Assault

• Author: Gregory C. Sisk
• Position: Laghi Distinguished Chair in Law, University of St. Thomas School of Law (Minnesota)
• Pages: 731-792

731

Holding the Federal Government

Accountable for Sexual Assault

Gregory C. Sisk*

ABSTRACT: The average American would be shocked to learn that the

United States government holds itself absolutely immune from civil liability

for most sexual assaults by its employees. Even the average lawyer might be

surprised to discover that the federal employee who commits a sexual assault

may also be shielded from individual tort liability by a special federal statute.

The Federal Tort Claims Act bars assault and battery claims against the

sovereign United States, even if committed by an agent acting within the scope

of most types of federal employment—that includes military recruiters, postal

workers, and daycare employees. At the same time, the Westfall Act grants

federal employees immunity from state tort claims for acts within the scope of

employment. The scope of employment for both federal statutes is defined by

state respondeat superior law, which over the decades has evolved to hold

employers legally responsible under more circumstances for the intentional

wrongdoing of employees. As a consequence of these statutes and evolving

liability doctrines, both the federal government as an entity and the federal

employee as an individual may well be immune from tort liability for assault

and battery.

Absent legislative reform, the victim of a sexual assault at the hands of a

federal employee may be left without any remedy against either the government

or the individual in any venue, state or federal. In this article, the preclusion

of a remedy for sexual assault by a federal agent and the avoidance of federal

responsibility is highlighted, together with a proposed legislative resolution.

*

Laghi Distinguished Chair in Law, University of St. Thomas School of Law (Minnesota)

(gcsisk@stthomas.edu). For generously reviewing earlier drafts, I thank Jeffrey Axelrad, Paul

Figley, James Pfander, and Thomas Wall. I also benefited from and appreciated the generosity of

participants in faculty workshops at the University of Iowa College of Law, the University of

Minnesota Law School, the Antonin Scalia Law School at George Mason University, and the

University of St. Thomas School of Law. I thank my research assistants, Lee Bennin, Maggie

Owen, and Shana Tomenes for background research on the hundreds of reported cases on the

assault-and-battery liability of the United States.

732 IOWA LAW REVIEW [Vol. 104:731

I.INTRODUCTION ............................................................................. 733

II.THE COLLECTIVE LIABILITY OF THE UNITED STATES

GOVERNMENT: FEDERAL SOVEREIGN IMMUNITY AND

SEXUAL ASSAULT .......................................................................... 740

A.THE ASSAULT-AND-BATTERY EXCEPTION TO THE FEDERAL

TORT CLAIMS ACT .................................................................. 741

1.The Immunity of the United States Under the

FTCA Against Claims for Assault and Battery ............. 742

2.The Narrow “Exception to the Exception” for

Batteries in the Course of Medical Treatment ............ 744

3.The Broader “Exception to the Exception” for

Assaults or Batteries by Law Enforcement

Officers ........................................................................... 746

4.The Likely Unavailability of Claims for Negligent

Hiring and Supervision of a Federal Employee

Who Commits an Assault or Battery ............................ 749

5.The Clumsy and Confined Alternative Remedy

of a Claim for Intentional Infliction of

Emotional Distress......................................................... 755

B.SPECIAL GOVERNMENT SHIELDS AGAINST SEXUAL

ASSAULT CLAIMS BY FEDERAL EMPLOYEES ................................ 759

C.THE UNAVAILABILITY OF CONSTITUTIONAL TORT

REMEDIES AGAINST THE UNITED STATES .................................. 760

III.INDIVIDUAL LIABILITY OF THE FEDERAL EMPLOYEE:

WESTFALL ACT IMMUNITY AND SEXUAL ASSAULT ......................... 761

A.THE COLLISION BETWEEN WESTFALL ACT EMPLOYEE

IMMUNITY AND CHANGES IN STATE RESPONDEAT

SUPERIOR DOCTRINE IN THE CONTEXT OF SEXUAL

ASSAULT ................................................................................. 761

1.The Westfall Act and Immunity for Federal

Employees from State Tort Liability ............................ 761

2.The Evolution of State Respondeat Superior

Doctrine for Intentional Torts Including

Sexual Assault by Employees ........................................ 765

3.The Westfall Act and State Law Changes May

Combine to Confer Immunity on Federal

Employees Committing Sexual Assault ....................... 769

B.THE QUESTIONABLE AVAILABILITY OF A BIVENS

CONSTITUTIONAL TORT FOR SEXUAL ASSAULT ......................... 770

1.The Decline (If Not Yet Fall) of the Bivens

Constitutional Tort Claim ............................................ 772

2019] HOLDING THE FEDERAL GOVERNMENT ACCOUNTABLE 733

2.The Now Dubious Proposition That the Bivens

Claim May be Extended to the New Context

of Sexual Assault ............................................................ 773

3.Recovering the Past by Legislative Reform.................. 775

IV. PROPOSED “FEDERAL SEXUAL ASSAULT RESPONSIBILITY

ACT” .............................................................................................. 777

A.ALLOWING CLAIMS UNDER THE FTCA FOR ASSAULT

AND BATTERY ......................................................................... 777

B.FEDERAL GOVERNMENT LIABILITY FOR SEXUAL VIOLENCE,

AND THE TRADITIONAL PURPOSES AND PROCESS OF

TORT LAW .............................................................................. 781

1.Compensating the Victims of Sexual Violence

Perpetrated by Federal Agents ..................................... 781

2.Deterring Sexual Violence by Federal Agents ............. 782

3.Maintaining a Public Judicial Forum, Rather

Than Administrative Remedies, for Tort

Claims Involving Intentional Torts .............................. 784

C.DELETING THE GENERAL ASSAULT-AND-BATTERY

EXCEPTION OUTRIGHT ............................................................ 786

D.CONTINUING QUESTIONS ABOUT SCOPE OF EMPLOYMENT

AND NEGLIGENT HIRING AND SUPERVISION AFTER REPEAL

OF THE ASSAULT-AND-BATTERY EXCEPTION .............................. 788

V.CONCLUSION ................................................................................ 791

ADDENDUM: TEXT OF PROPOSED “FEDERAL SEXUAL

ASSAULT ACCOUNTABILITY ACT” .................................................. 792

I. INTRODUCTION

Over the past few decades, public attention has been increasingly

directed to the scourge of sexual assault. Sexual violence has not only been

rightly castigated as an egregious offense against human dignity but

recognized as a discriminatory obstacle to full participation in the workplace,

the military, and higher education. Rejecting retrograde attitudes about

gender roles and refusing to regard degrading behavior as culturally

acceptable or some kind of rite of passage for women seeking entry into male-

dominated fields, government at all levels has mandated action to protect

against and offer just relief to the victims of sexual misconduct.

The federal government has been at the forefront of legal initiatives to

prevent and remedy sexual violence. In 1994, Congress enacted the Violence