Vicarious liability (criminal)
Encyclopedia
The legal
principle of vicarious liability applies to hold one person liable
for the actions of another when engaged in some form of joint or collective activity.
While communities were relatively small and homogeneous, CRS could work well, but as populations increased and merchants began to trade across ever wider territories, the system failed to match the emerging societies' needs for more personal accountability and responsibility. In England, Henry I
allowed London
to opt out of the CRS and to appoint a sheriff and justices in 1133, and between 1225 and 1232, Henry III
assured the merchants of Ypres
that none of them "will be detained in England nor will they be partitions for another's debts".
Nevertheless, the idea of imposing liability on another despite a lack of culpability
never really disappeared and courts have developed the principle that an employer can incur liability for the acts and omissions of an employee if committed by the employee in the course of employment and if the employer has the right to control the way in which the employee carries out his or her duties (respondeat superior
). Imposition of vicarious liability in these circumstances has been justified on the following grounds:
These justifications may work against one another. For example, insurance will increase the ability to do risk spreading, but will reduce incentives for exercise of control.
is that there is no vicarious liability. This reflects the general principle that a crime is composed of both an actus reus
(the Latin
tag for "guilty act") and a mens rea
(the Latin tag for "guilty mind") and that a person should only be convicted if he, she or it is directly responsible for causing both elements to occur at the same time (see concurrence
). Thus, the practice of holding one person liable for the actions of another is the exception and not the rule in criminal law.
where the verb used to define the action in the actus reus is both the physical action of the employee and the legal action of the employer. For example, the activity of "driving" is purely a physical activity performed by the person behind the wheel. But when a cashier takes money as payment for goods, this is only the physical activity of selling. For goods to be sold, the owner of the goods must pass legal title to those goods. In default, the customer would commit the actus reus of theft
. So the owner sells the goods at the same time that the employee takes the money. Similarly, only the holder of rights can grant a licence to another or permit another to do something that would otherwise have been unlawful. The verbs "possess", "control" and use may also have dual relevance depending on the context. Many of these are strict liability
or regulatory offences
, but the principle has been used to impose liability on a wide range of activities undertaken in a business or commercial environment.
. The Supreme Court
reversed and remanded the case. The majority held that the defendant needed actual knowledge about the nature of his weapon in order for him to be convicted. The dissenting opinion states that it was irrelevant that he did not know about the modification because statutes regulating dangerous weapons are public welfare statutes and can be interpreted to exclude the mens rea requirement of knowledge. Hence, as long as defendants knows that they are dealing with a dangerous product or device that places them in a responsible relationship to the public, they should recognise that strict regulations are more likely and assume that the United States Congress
would intend to place the burden on the defendant to ascertain at his peril whether his conduct comes within the inhibition of the statute.
The courts generally convict employers for the illegal conduct of their employees even though the employers had no knowledge and so were not at fault. But in State v. Guminga where a waitress served alcohol to a minor, the court found that the conviction of her employer violated the Due Process Clause and so was not constitutional under Minnesota law. Consequently, the defendant should only be given civil not criminal penalties. It is noted that this prohibition had been in force since 1905 which had given the legislature many years in which to reform the law. The majority rejected the argument of implied legislative intent. The issue of constitutionality in the form of a substantive due process clause requires a balancing of public interests and personal liberty. Although a statute making employers vicariously liable for their employee’s actions may serve the public interest by providing deterrence
, the private interests affected (i.e. liberty, damaged reputation, etc) outweigh the public interests, especially when there are alternative means to reach the same end of deterrence, say by civil fines or license suspension.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
principle of vicarious liability applies to hold one person liable
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
for the actions of another when engaged in some form of joint or collective activity.
History
Before the emergence of states which could bear the high costs of maintaining national policing and impartial court systems, local communities operated self-help systems to keep the peace and to enforce contracts. Until the thirteenth century, one of the institutions that emerged was an involuntary collective responsibility for the actions committed by one of the group. This was formalised into the community responsibility system (CRS) which was enforced by a fear of loss of community reputation and of retaliation by the injured community if the appropriate compensation was not paid. In some countries where the political system supported it, collective responsibility was gradually phased out in favour of individual responsibility. In Germany and Italy, collective systems were in operation as late as the sixteenth century.While communities were relatively small and homogeneous, CRS could work well, but as populations increased and merchants began to trade across ever wider territories, the system failed to match the emerging societies' needs for more personal accountability and responsibility. In England, Henry I
Henry I of England
Henry I was the fourth son of William I of England. He succeeded his elder brother William II as King of England in 1100 and defeated his eldest brother, Robert Curthose, to become Duke of Normandy in 1106...
allowed London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
to opt out of the CRS and to appoint a sheriff and justices in 1133, and between 1225 and 1232, Henry III
Henry III of England
Henry III was the son and successor of John as King of England, reigning for 56 years from 1216 until his death. His contemporaries knew him as Henry of Winchester. He was the first child king in England since the reign of Æthelred the Unready...
assured the merchants of Ypres
Ypres
Ypres is a Belgian municipality located in the Flemish province of West Flanders. The municipality comprises the city of Ypres and the villages of Boezinge, Brielen, Dikkebus, Elverdinge, Hollebeke, Sint-Jan, Vlamertinge, Voormezele, Zillebeke, and Zuidschote...
that none of them "will be detained in England nor will they be partitions for another's debts".
Nevertheless, the idea of imposing liability on another despite a lack of culpability
Culpability
Culpability descends from the Latin concept of fault . The concept of culpability is intimately tied up with notions of agency, freedom and free will...
never really disappeared and courts have developed the principle that an employer can incur liability for the acts and omissions of an employee if committed by the employee in the course of employment and if the employer has the right to control the way in which the employee carries out his or her duties (respondeat superior
Respondeat superior
Respondeat superior is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment...
). Imposition of vicarious liability in these circumstances has been justified on the following grounds:
- Exercise of control: If penalties are serious enough, it is assumed that rational employers will take steps to ensure that employees avoid injuring third parties. On the other hand, rational employers may choose to rely on independent contractorIndependent contractorAn independent contractor is a natural person, business, or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when...
s for risky operations and processes. - Risk spreading: Many consider it socially preferable to impose the cost of an action on a person connected to it, even if a degree removed, rather than on the person who suffered injury or loss. This principle is also sometimes known as the "deep pocket" justification.
- Internalizing the social costs of activities: The employer usually (though not always) passes on the cost of compensating injury or loss to the customers and clients. As a result, the private cost of the product or service will better reflect its social cost.
These justifications may work against one another. For example, insurance will increase the ability to do risk spreading, but will reduce incentives for exercise of control.
Modern vicarious liability
The general rule in the criminal lawCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
is that there is no vicarious liability. This reflects the general principle that a crime is composed of both an actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
(the Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
tag for "guilty act") and a mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
(the Latin tag for "guilty mind") and that a person should only be convicted if he, she or it is directly responsible for causing both elements to occur at the same time (see concurrence
Concurrence
In Western jurisprudence, concurrence is the apparent need to prove the simultaneous occurrence of both actus reus and mens rea , to constitute a crime; except in crimes of strict liability...
). Thus, the practice of holding one person liable for the actions of another is the exception and not the rule in criminal law.
Vicarious liability in English law
The primary exception arises through statutory interpretationStatutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
where the verb used to define the action in the actus reus is both the physical action of the employee and the legal action of the employer. For example, the activity of "driving" is purely a physical activity performed by the person behind the wheel. But when a cashier takes money as payment for goods, this is only the physical activity of selling. For goods to be sold, the owner of the goods must pass legal title to those goods. In default, the customer would commit the actus reus of theft
Theft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
. So the owner sells the goods at the same time that the employee takes the money. Similarly, only the holder of rights can grant a licence to another or permit another to do something that would otherwise have been unlawful. The verbs "possess", "control" and use may also have dual relevance depending on the context. Many of these are strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
or regulatory offences
Regulatory offences
A regulatory offence or quasi-criminal offence is a class of crime in which the standard for proving culpability has been lowered so a mens rea element is not required...
, but the principle has been used to impose liability on a wide range of activities undertaken in a business or commercial environment.
Vicarious liability in the United States
This is generally applied to crimes that do not require criminal intent, e.g., those that affect the public welfare but which do not require the imposition of a prison term. The principle is that in such cases, the public interest is more important than private interest, and so vicarious liability is imposed to deter or to create incentives for employers to impose stricter rules and supervise more closely. In Commonwealth v. Koczwara, the defendant was the licensed operator of a tavern which was found to have supplied minors with alcohol. The offence became one of strict or absolute liability when applied vicariously because of the need to protect weak and vulnerable members of society, and the omission of words such as "knowingly", "willfully" or "intentionally" in some of the offences indicated a legislative intent to permit this eventuality. Staples v United States, the defendant was initially convicted of being in possession of an unregistered machinegun. It was a rifle that had been modified for rapid fire, thereby putting it in violation of the National Firearms ActNational Firearms Act
The National Firearms Act , 73rd Congress, Sess. 2, ch. 757, , enacted on June 26, 1934, currently codified as amended as , is an Act of Congress that, in general, imposes a statutory excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms. The...
. The Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
reversed and remanded the case. The majority held that the defendant needed actual knowledge about the nature of his weapon in order for him to be convicted. The dissenting opinion states that it was irrelevant that he did not know about the modification because statutes regulating dangerous weapons are public welfare statutes and can be interpreted to exclude the mens rea requirement of knowledge. Hence, as long as defendants knows that they are dealing with a dangerous product or device that places them in a responsible relationship to the public, they should recognise that strict regulations are more likely and assume that the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
would intend to place the burden on the defendant to ascertain at his peril whether his conduct comes within the inhibition of the statute.
The courts generally convict employers for the illegal conduct of their employees even though the employers had no knowledge and so were not at fault. But in State v. Guminga where a waitress served alcohol to a minor, the court found that the conviction of her employer violated the Due Process Clause and so was not constitutional under Minnesota law. Consequently, the defendant should only be given civil not criminal penalties. It is noted that this prohibition had been in force since 1905 which had given the legislature many years in which to reform the law. The majority rejected the argument of implied legislative intent. The issue of constitutionality in the form of a substantive due process clause requires a balancing of public interests and personal liberty. Although a statute making employers vicariously liable for their employee’s actions may serve the public interest by providing deterrence
Deterrence (psychological)
Deterrence is a theory from behavioral psychology about preventing or controlling actions or behavior through fear of punishment or retribution...
, the private interests affected (i.e. liberty, damaged reputation, etc) outweigh the public interests, especially when there are alternative means to reach the same end of deterrence, say by civil fines or license suspension.
See also
- Amnesty lawAmnesty lawAn amnesty law is any law that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for crimes committed.Most allegations involve human rights abuses and crimes against humanity.-History:...
- Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- Criminal lawCriminal lawCriminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
- Universal jurisdictionUniversal jurisdictionUniversal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...