Holding the Federal Government Accountable for Sexual Assault

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. T HE A SSAULT - AND -B ATTERY E XCEPTION TO THE F EDERAL T ORT C LAIMS A CT .................................................................. 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. S PECIAL G OVERNMENT S HIELDS A GAINST S EXUAL A SSAULT C LAIMS BY F EDERAL E MPLOYEES ................................ 759 C. T HE U NAVAILABILITY OF C ONSTITUTIONAL T ORT R EMEDIES A GAINST THE U NITED S TATES .................................. 760 III. INDIVIDUAL LIABILITY OF THE FEDERAL EMPLOYEE: WESTFALL ACT IMMUNITY AND SEXUAL ASSAULT ......................... 761 A. T HE C OLLISION B ETWEEN W ESTFALL A CT E MPLOYEE I MMUNITY AND C HANGES IN S TATE RESPONDEAT SUPERIOR D OCTRINE IN THE C ONTEXT OF S EXUAL A SSAULT ................................................................................. 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. T HE Q UESTIONABLE A VAILABILITY OF A BIVENS C ONSTITUTIONAL T ORT FOR S EXUAL A SSAULT ......................... 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. A LLOWING C LAIMS U NDER THE FTCA FOR A SSAULT AND B ATTERY ......................................................................... 777 B. F EDERAL G OVERNMENT L IABILITY FOR S EXUAL V IOLENCE , AND THE T RADITIONAL P URPOSES AND P ROCESS OF T ORT L AW .............................................................................. 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. D ELETING THE G ENERAL A SSAULT - AND -B ATTERY E XCEPTION O UTRIGHT ............................................................ 786 D. C ONTINUING Q UESTIONS A BOUT S COPE OF E MPLOYMENT AND N EGLIGENT H IRING AND S UPERVISION A FTER R EPEAL OF THE A SSAULT - AND -B ATTERY E XCEPTION .............................. 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 734 IOWA LAW REVIEW [Vol. 104:731 Against Women Act (“VAWA”) 1 to address “the escalating problem of violence against women.” 2 The Supreme Court invalidated the provision creating a new federal civil rights remedy for victims of gender-based violence as exceeding congressional authority to regulate interstate commerce or remedy state infringement of equal protection. 3 Yet the VAWA had an impact in other ways by providing grant money to support state, local, and tribal law enforcement, rape prevention and education programs, and victim services. 4 The statute also created new federal crimes for interstate domestic violence. 5 In Title IX of the Higher Education Amendments of 1972, Congress prohibited discrimination on the basis of sex within educational programs and activities. 6 The courts have read Title IX as providing a private right of action for damages when a person has been excluded from educational opportunity because an educational institution has been indifferent to sexual harassment or violence by employees or other students. 7 In 2013, Congress passed the Campus Sexual Violence Elimination Act, which requires colleges to disclose the campus security policy and campus crime statistics, report sexual violence incidents, publish procedures for disciplinary action, and provide training about sexual violence for school officials involved in the disciplinary process. 8 Holding colleges accountable for addressing sexual assault under the Title IX mandate, the United States Department of Education’s Office of Civil Rights has conducted more than 400 investigations of colleges for failing to properly investigate reports of sexual violence. 9 It is intolerable that the federal government should hold itself and its agents exempt from legal responsibility for sexually-motivated or other assaults and batteries against its own people. Indeed, it would be the height of hypocrisy for the United States to enforce new laws and legal initiatives against sexual assault in other contexts, while refusing to be held accountable for its own misconduct. It is unthinkable that the survivor of sexual violence 1. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796. 2. S. REP. NO.103–138, pt. 1, at 37 (1993). 3. United States v. Morrison, 529 U.S. 598, 607–27 (2000) (holding 42 U.S.C. § 13981 unconstitutional). 4. Violent Crime Control and Law Enforcement Act of 1994 § 1910A (formerly codified as 42 U.S.C. § 300w–10); id. § 2001 (now codified at 34 U.S.C. § 10441 (2017)); id. § 2102 (now codified at 34 U.S.C. § 10461); id. § 40241 (codified at 42 U.S.C. § 10409(a))...