Insane – 3rd Party Prosecution for Sex Offender Acts

Dear Members and Advocates:

Could you imagine if the owner of a gun shop were arrested if one of his customers used a gun legally purchased from their store to commit a crime? How about a bar owner being criminally charged if someone got a DUI after a few drinks? A math teacher going to jail if one of their students grew up to become an engineer and made a miscalculation that caused a bridge to collapse?

The idea to prosecute third parties for the criminal acts of another is something a Massachusetts victims advocacy group, Community Voices, is trying to do. They want psychologists who treat sexual offenders to be criminally charged if their patients re-offend. It may seem far-fetched, but can this actually happen and what would it mean for the field of sex offender treatment providers and their patients?

There exists a legal concept called “vicarious liability” that can impose civil liability on a superior, for acts of a subordinate. It’s a concept that is generally only used in employer/employee or agent situations. Say, for example, an appliance repair company sends a technician out to service an AC unit. The technician negligently breaks the unit. The company can be held responsible for the negligent act of their technician and be on the hook to repair the unit. This theory of liability is actually quite common in non-criminal situations.

In the criminal context, there have been situations, still under the employer/employee context, where vicarious liability has been applied. For example, Commonwealth v. Koczwara, where the owner of a bar was criminally charged when one of his bartenders served alcohol to minors. Criminal law also recognizes vicarious liability under theories of conspiracy. For example, a co-conspirator can be punished for an offense committed by one of his co-conspirators so long as the offense is reasonably foreseeable and is committed in furtherance of the conspiracy. Pinkerton v. United States.

If such a law is passed, it will undoubtably be devastating to treatment providers and to patients. Even though sex crime re-offense rates are very low, presuming that a treatment provider has 100 patients and knowing that 3 of them might re-offend, what treatment provider would ever graduate a patient from therapy at the risk of going to jail? How about drug rehab that has high recidivism rate? It could cause therapists to stop treating drug addictions for fear of criminal liability, which in turn hurts those who would otherwise benefit from rehab. It’s a slippery and dangerous slope.

As far-fetched as Community Voices’ concept might be; in this country, in this day and age, you never know what irrational laws might be passed. In Florida, where private, for-profit prison company (and Ron Book client), CCA, runs our civil commitment center, it’s particularly concerning. This is one to keep our eyes on.

This Thursday, two representatives from FAC will be attending the NARSOL conference in Ohio. The conference is an annual gathering for reform advocates from across the country. Speakers and attendees, include attorneys, treatment providers and other stake holders. It’s our opportunity to share what’s going on in Florida and learn what others are doing across the country. Since Florida is recognized to be the breeding ground for many of the insane laws that spread into other states, we always have an active presence at these conferences. We plan to report on what we learned and accomplished in next week’s update.

Join us tonight for the Monthly Membership call where we discuss 1) the new law going into effect July 1st, 2) warning of scams and letters from non-FAC acquainted law firms 3) Brevard Coutnty Re-Entry Task Force update, and 4) Guest Speaker who is conducting research for Harvard University.  See call-in number at the end of this message.

Sincerely,

The Florida Action Committee

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