Grager v. Schudar
770 N.W.2d 692 (2009)
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Rule of Law:
A prisoner's consent to a sexual act with a jailer is not a complete defense to a civil tort claim arising from that act. Instead, the prisoner's apparent consent is a factor for the jury to consider in allocating comparative fault and determining damages, taking into account the inherent power imbalance of the jailer-prisoner relationship.
Facts:
- In November 2004, Michele Grager was an inmate incarcerated at the Barnes County Jail.
- Kevin Schudar was employed as a jailer at the same facility and had supervisory and disciplinary authority over Grager.
- While Grager was incarcerated, Schudar engaged in a sexual act with her.
- A North Dakota criminal statute, N.D.C.C. § 12.1-20-06, proscribes a jailer’s sexual act with a prisoner regardless of the prisoner’s consent.
- As a result of the incident, Schudar pled guilty to the criminal charge of sexual abuse of a ward.
Procedural Posture:
- Michele Grager sued Kevin Schudar and Barnes County in a North Dakota district court (trial court).
- Grager's claims included assault, battery, intentional infliction of emotional distress, and civil rights violations against Schudar, and negligent supervision against Barnes County.
- Following a trial, the jury found that Barnes County was not negligent and that Grager had consented to Schudar's conduct.
- The trial court entered a judgment dismissing Grager’s lawsuit.
- Grager filed a motion for a new trial, which the trial court denied.
- Grager (appellant) appealed the judgment and the denial of her motion for a new trial to the Supreme Court of North Dakota.
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Issue:
Does a prisoner's consent to or participation in a sexual act with a jailer serve as a complete defense to the prisoner's civil tort and constitutional claims against the jailer and the jailer's employer?
Opinions:
Majority - Kapsner, Justice.
No. A prisoner’s consent to or participation in a sexual act with a jailer does not serve as a complete defense to the prisoner's civil claims. The public policy established by criminal statutes, which protect prisoners from sexual acts by those in authority irrespective of consent, must be harmonized with the state's comparative fault principles. While consent is generally a defense to an intentional tort, it is not effective when obtained through an abuse of power, as is inherent in the jailer-prisoner relationship. Therefore, the trial court erred by instructing the jury that consent was a complete bar to recovery. Instead, a prisoner's apparent consent or participation is a factor for the trier-of-fact to consider when allocating fault and assessing damages, not an absolute defense that defeats the claim entirely.
Analysis:
This decision significantly alters the application of the consent defense in tort cases involving individuals in positions of power over vulnerable persons. By rejecting an all-or-nothing approach, the court integrates the principles of comparative fault with the public policy of protecting institutionalized individuals. This creates a more nuanced framework where a defendant's abuse of power is central, and the plaintiff's apparent consent is weighed as a factor in liability rather than as a complete bar to it. The ruling establishes that civil liability can mirror the protective intent of criminal statutes, preventing defendants from using consent as a shield in situations where a true, voluntary agreement is legally and practically impossible.
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