Michele Grager (Grager) sued Kevin Schuder (Schuder) for engaging in sexual conduct with her while he was a jailer and she was in jail. The district court preempted Grager from recovery because she consented to the sexual acts with Schuder.
A defendant is liable for acts that remain criminal because of the class of people the crime targets, even if the victim consented to the act.
Kevin Schudar (Schudar), a jailer, had sex with Michele Grager while she was imprisoned at the Barnes County Jail. Grager sued Schudar under claims of assault, battery, intentional infliction of emotional distress, and civil rights violations. The district court instructed the jury that Grager’s consent to the sexual conduct is a complete defense against the claims precipitated by Grager, and the jury granted judgment in favor of Schudar. Grager appealed.
Is a defendant liable for acts that remain criminal because of the class of people the crime targets, if the victim consented to the act?
No. Reversed and Remanded.
Section 892(C) of the Restatement (Second) of Torts prevents recovery for the defense of consent in a tort action where a crime against a certain class of people remains a crime regardless of consent. In North Dakota, it is a crime for a jailer to engage in sexual acts with a prisoner, regardless of whether the prisoner consents to the sexual conduct. A plaintiff’s consent does not bar recovery on the part of the plaintiff unless the plaintiff’s fault is comparatively greater than the fault of the defendant. The comparative fault of each party has to be considered by the fact finder in each case and the district court erred in instructing the jury that consent is a complete recovery to Michele Grager’s claims.