North Carolina Law Review

University of North Carolina School of Law

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Chapel Hill, NC 27514

TORT ANSWERS TO THE PROBLEM OF CORPORATE CRIMINAL MENS REA

June 18, 2019

97 N.C. L. REV. 773 (2019)

 

The respondeat superior (vicarious liability) standard, by which courts hold corporations liable for the crimes of their employees, has been widely criticized as being overinclusive insofar as it punishes faultless entities. Less acknowledged is that, due to its requirement that the employee intended in part to benefit the corporation, the standard is also underinclusive in cases of sexual violence facilitated by a corporate entity. This Article argues that, to solve these corporate liability problems within criminal law, we should learn from the parallel development of corporate liability 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 underinclusiveness that emerge in that realm. In light of the lessons revealed in tort case law, I argue that criminal respondeat superior should apply where the government can show (1) a crime occurred, regardless of whether or not any individual had the intent to benefit the corporation; (2) an omission by the corporation to take reasonable steps to prevent the crime; and (3) the substantial risk of such a crime was objectively foreseeable to a reasonable person undertaking the corporation’s enterprise.

 

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