concurring in part and dissenting in part.
I concur with the majority opinion's resolution of all issues but one. The issue on which I disagree is whether, having established that Sheriff Harris owed a nondele-gable duty of care to Robins, the sheriff may raise consent as a defense to Robins' claim.
The statute cited by the majority, Ind. Code § 35-44-1-5, is a criminal statute, and it enforces the public policy to prevent *920guards from engaging in sexual activities with prisoners. The statute punishes such activities even if the prisoner consents to the activity. See Ind.Code § 85-44-1-5. However, the reasons supporting a criminal statute do not necessarily apply to civil litigation. See, e.g., State v. Kokomo Tube Co., 426 N.E.2d 1338, 1346 (Ind.Ct.App. 1981) (determining that a civil, not criminal, probable cause standard should apply when determining whether safety inspectors are entitled to enter and inspect businesses). There would seem to be little public interest in permitting a prisoner to recover money damages for activities the prisoner willfully engaged in. In fact, permitting such a recovery might tend to encourage the conduct that society wants to stop.
In this case, Robins is essentially raising a battery claim against Soules and, by extension, Sheriff Harris In Indiana, or express consent is a defense" to a claim of battery. 23 James R. FisuEr & Desra H. Inptana Practice: PBr-somar Injury Law anp Practice § 3.18 (1997). Consent is also a defense to a civil claim of assault and battery in numerous other jurisdictions. Seq, eg., Harris v. Leader, 281 Ga.App. 709, 499 S.E.2d 374, 377 (1998) (affirming a grant of directed verdict against a patient who sued her psychiatrist for battery because the evidence showed that she consented to their hugging and holding hands), recons. denied, cert. denied; Janelsins v. Button, 102 Md.App. 30, 648 A.2d 1039, 1042 (Md. 1994) (noting that "a plaintiff's consent may be a complete defense in a battery action"); Andrepont v. Naquin, 345 So.2d 1216, 1220 (La.Ct.App.1977) (providing that "[the defense of consent in Louisiana operates as a bar to recovery for the intentional infliction of harmful or offensive touchings of the victim"); Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 469 P.2d 399, 401 (1970) (noting that "[clonsent negates the existence of the tort [of assault and battery] and, therefore, denies liability."); Hellriegel v. Tholl, 69 Wash.2d 97, 417 P.2d 362, 366 (1966) (providing that "ilt is agreed by all parties to the suit that consent is a defense to battery,...."). If it is shown that Robins consented to Soules' touching, then there would be no tort, and there would be no reason to allow her to recover against Sheriff Harris. The application of Ind.Code $ 35-44~-1-5 in this context could undermine tort principles by compensating Robins for a tort that did not occur. An issue exists as to whether Robins willingly engaged in sexual activity with Soules. Consequently, I dissent from the majority's opinion on this issue, and would remand for trial on the issues of liability and damages.