Civil Liability for Sexual Misconduct

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49 Mitchell Hamline Law Review 353 (2023)


In Florek v. Vannet, a case based on a claim of unconsented sexual contact, the plaintiff asserted three claims against the defendant: battery, negligence, and negligence per se based on the defendant’s violation of Minnesota’s third degree criminal sexual conduct statute. The plaintiff dismissed the negligence claim. The case was tried by a jury, which found against the plaintiff on the battery claim but in her favor on the negligence per se claim.

While the opinion is nonprecedential, it demonstrates not only the limitations on battery actions in cases involving nonconsensual sexual contact, but also the unusual application of negligence per se theory incorporating Minnesota’s criminal sexual conduct as the platform definition of what is reasonable conduct. The case effectively appears to have created a new cause of action—negligent sexual contact.

Although many cases involving sexual batteries are pursued as negligence claims against persons or entities who are either vicariously liable for the conduct of individuals who commit sexual batteries or otherwise are negligent in failing to prevent them, this Article uses Florek as a springboard to examine the potential theories of recovery for sexual abuse against the person who initiated that contact. Florek has broader implications and lessons for the use of criminal sexual conduct statutes in civil litigation, and it also suggests the need for more adequate civil remedies in cases involving sexual abuse, whether those remedies are common law, statutory, or a combination.

Part II of this Article sets out the basic facts of the case and briefly explains the plaintiff’s theories of recovery and how those theories were submitted to the jury. Part III examines battery theory in Minnesota and how it has been applied by Minnesota courts, comparing this with the approach to battery taken by the Restatement (Third) of Torts: Intentional Torts to Persons. Part IV provides a brief look at negligence theory in Minnesota. Part V explores the overlap between battery and negligence theories in cases involving sexual abuse. Part VI provides an overview of the application of criminal statutes in civil litigation, including the negligence per se issue. Part VII examines the decisions of the Minnesota Supreme Court considering whether there is a separate tort of sexual battery in Minnesota. Part VIII sets out the Minnesota approach to common law change and considers whether there could be a separate tort for sexual battery. Part IX considers the possibility of a separate statutory tort of sexual abuse. Part X examines the issue of insurance coverage in cases involving sexual abuse. Part XI concludes that there is a strong foundation for the expansion of remedies in sexual abuse cases.