Tort Answers to the Problem of Corporate Criminal Mens Rea

62 Pages Posted: 12 Sep 2018 Last revised: 20 Oct 2018

See all articles by Erin L. Sheley

Erin L. Sheley

University of Oklahoma - College of Law

Date Written: August 30, 2018

Abstract

The respondeat superior (vicarious liability) standard by which courts hold corporations liable for the crimes of their employees has been widely criticized as being overly inclusive insofar as it punishes fault-less entities. Less acknowledged is that, due to its requirement that the employee have intended in part to benefit the corporation, the standard is also under inclusive in cases of sexual violence facilitated by a corporate entity. This article argues that, to solve these problems within the criminal law, we should learn from their parallel development in the sphere of tort law, from which respondeat superior was derived in the first place. No comprehensive effort has yet been made to examine how courts have, in tort respondeat superior, addressed the problems of over- and under-inclusiveness that emerge in that realm. In light of the lessons revealed in the tort case law, I argue that criminal respondeat superior should apply only where the government can show 1.) an omission by the corporation to take reasonable steps to prevent a crime; 2.) that the substantial risk of such a crime was objectively foreseeable to a reasonable person undertaking the corporation’s enterprise and 3.) that such a crime occurred, regardless of whether or not any individual employee had the intent to benefit the corporation.

Keywords: mens rea, white collar crime, torts, respondeat superior

Suggested Citation

Sheley, Erin L., Tort Answers to the Problem of Corporate Criminal Mens Rea (August 30, 2018). North Carolina Law Review, Vol. 97, 2019. Available at SSRN: https://ssrn.com/abstract=3241533

Erin L. Sheley (Contact Author)

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
51
rank
367,062
Abstract Views
250
PlumX Metrics