By Travis Crum
The Charleston Gazette
CHARLESTON, W.Va. — The West Virginia Supreme Court ruled this week that the state Regional Jail Authority cannot be held liable in a lawsuit that alleges one of its correctional officers raped a female inmate 17 times in 2009.
The Regional Jail Authority qualifies for immunity in the lawsuit because, if the alleged rapes took place, the correctional officer was not acting within the scope of his employment, the court decided in a 4-1 ruling that reversed a lower court’s decision.
Chief Justice Robin Davis dissented from the opinion, saying her colleagues decided, “In essence, that the Regional Jail does not have a duty to protect female prisoners from being raped by the correctional officers it employs.”
A woman, identified only as “A.B.,” was incarcerated at the Southern Regional Jail after being convicted in 2006 of third-degree sexual assault for having sex with her boyfriend’s 14-year-old son. The woman was paroled in early 2008, but violated her parole in August of that year and was sent back to the jail.
The woman claims that, from October 2009 to November 2009, a correctional officer, identified as “D.H.,” raped her on 17 occasions, according to the opinion.
“D.H.” denied the allegations and filed a complaint against the woman, saying she “improperly propositioned him asking if he would be willing to ‘trade a favor for a favor.’”
On Nov. 23, 2009, another inmate told police that the woman, “A.B.,” had assaulted her, giving her a black eye. That inmate also told police that “A.B.” and the correctional officer “D.H.” were having a sexual relationship, according to the opinion.
Regional Jail Authority officials asked “D.H.” about the allegations and he “snickered” and then denied any improper relationship.
“I knew, when I heard it was your name, it wasn’t you,” one of the police officers told “D.H.,” according to the opinion.
No further investigation was conducted and the alleged victim was never questioned about the allegations, according to the opinion.
Months later, in April 2010, the woman was transported to Lakin Correctional Center to serve the remainder of her sentence.
The woman later filed a lawsuit in Kanawha County Circuit Court against the correctional officer and the Regional Jail Authority. The woman claimed the jail authority was negligent in hiring, supervising and staffing the correctional officer in question.
The jail authority requested to be dropped from the lawsuit, citing qualified immunity. The jail authority said it was not liable for the correctional officer’s actions because the alleged sexual assaults were not within the scope of his duties. Kanawha County Circuit Judge Carrie Webster disagreed and said the jail authority could be named in the lawsuit.
On Thursday, the Supreme Court reversed that ruling. According to its opinion, the woman failed to show how the jail authority was negligent in hiring and training the correctional officer. The woman also failed to name specific individuals responsible for hiring and supervising the correctional officer, the court found.
“Respondent has failed to adduce any evidence bringing these alleged acts within the ambit of his employment beyond merely suggesting that his job gave him the opportunity to commit them,” Justice Margaret Workman wrote for the court.
Chief Justice Davis disagreed with the majority opinion. Under that opinion, Davis wrote, the Regional Jail Authority isn’t liable because it does not have specific regulations designed to protect female inmates from being raped.
“The State cannot be granted absolute immunity merely because no regulation was violated when its employee raped an inmate seventeen times,” Davis wrote. “Just what will it take to protect women from such assaults? Simply put, the Regional Jail was grossly negligent in not having regulations in place that would have protected the plaintiff from being alone with any male correctional officer on seventeen separate occasions.”