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
SUMMARY

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... (see full summary)

 
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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

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