Sexual assaults are incredibly harmful, prevalent, and violent, and the law must evolve as times change. Thankfully, in recent years, society has begun to recognize just how devastating and harmful sexual assaults are. As a result of increased awareness, collective acknowledgment, and the imposition of new laws, sexual assault victims are finally beginning to receive the support and compensation they have long been owed.
The drafters of the Restatement of Torts hope to be a part of this increased show of support for sexual assault victims. In attempting to perform this goal, the drafters of the Restatement have introduced section 5A to the Restatement (Third) of Torts, which will create a new rule encompassing the elements necessary for vicarious liability claims against employers for sexual assaults committed by their employees. While at first glance, this rule might seem to be a deviation from the longstanding vicarious liability doctrine, it encompasses this aspect of tort law as it currently exists in jurisdictions like Louisiana. Section 5A accomplishes this feat by crafting its elements through a combination of doctrinal hooks, which are presently being implemented in jurisdictions that are willing to extend vicarious liability to claims involving sexual assaults. Hopefully, it will become evident that this new section is not a complete and utter deviation from current law and allows victims to receive compensation directly from the employer of the individual who caused them great harm. In doing so, it is the hope that the rule could also serve as a deterrent and encourage employers to make significant changes in their policies to lessen the number of sexual assault victims.
While some critics might argue that section 5A would extend vicarious liability far beyond current law, this new rule includes four specific elements to ensure that only the employees of certain professions fall under this rule when they commit assaults on particularly vulnerable victims. To emphasize how prevalent sexual assaults are in certain occupations, Part II of this Comment provides sexual assault statistics committed by the employees of the specific occupations that this rule would apply to. Part III lays out a brief overview of the basics and rationale behind the vicarious liability doctrine. It also explains the requirements of this doctrine, including the motivated-to-serve test, that courts must apply to find an employee’s conduct within their scope of employment. This Part also explores the ability to hold an employer vicariously liable for an employee’s commission of a sexual assault.
Part IV explores the American Law Institute’s (ALI) newly proposed rule on vicarious liability for sexual assault, which was first offered in Preliminary Draft No. 5 of the Restatement (Third) of Torts: Miscellaneous Provisions. This Part explains each of the four elements of this new rule and, in doing so, demonstrates how this new rule does indeed fall in line with current law. Part V concludes that, despite many jurisdictions continuously finding sexual assaults to be outside of the scope of employment under the motivated-to-serve test, the Restatement’s new rule is not a complete deviation from current law.
