ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES ATTORNEY FOR
APPELLEE
William G. Brown WILLIAM HARRIS, MICHAEL SOULES
Brown & Somheil C. JOSEPH ANDERSON, Edward Liptak
Brazil, Indiana JAMES DIEHL, BILL DECKER Bloomington,
Indiana
James S. Stephenson
Stephenson, Daly, Morow & Kurnik
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
TAMMY ROBINS, )
Plaintiff-Appellant, )
)
v. )
) No. 84S01-0106-CV-00315
WILLIAM HARRIS, as Sheriff of Vigo )
County, C. JOSEPH ANDERSON, )
JAMES DIEHL, BILL DECKER, as )
Commissioners of Vigo County, Indiana, )
and MICHAEL SOULES, )
Defendants-Appellees. )
)
________________________________________________
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Michael Eldred, Judge
Cause No. 84D01-9712-CT-2199
________________________________________________
On Petition To Transfer
June 6, 2002
DICKSON, Justice
In this personal injury case, the plaintiff-appellant, Tammy Robins,
sought damages, alleging that deputy Michael Soules sexually assaulted her
while she was an inmate at the Vigo County Jail.[1] The trial court
granted summary judgment for the Sheriff and the County Commissioners. The
Court of Appeals affirmed summary judgment for the Commissioners, but
reversed summary judgment for the Sheriff and directed the entry of partial
summary judgment for Robins, holding "that Sheriff Harris is liable for the
assault committed by Soules against Robins and that the Commissioners are
not liable for Robin's alleged injuries." Robins v. Harris, 740 N.E.2d
914, 919 (Ind. Ct. App. 2000), aff'd on reh'g, 743 N.E.2d 1142 (Ind. Ct.
App. 2001). Chief Judge Sharpnack dissented from both the original
majority opinion and the opinion after rehearing on the issue of consent as
a defense to the battery claim. 740 N.E.2d at 919-20, 743 N.E.2d at 1143.
The Sheriff petitioned for transfer, which we granted, Robins v. Harris,
753 N.E.2d 17 (Ind. 2001)(table), thereby automatically vacating the
opinion of the Court of Appeals pursuant to Indiana Appellate Rule 58(A).
Six months after filing his petition for transfer, the Sheriff and
the County Commissioners filed a Motion to Dismiss Appeal, reporting that
"the parties have entered into a settlement agreement, terminating this
litigation" and that the attorneys for appellant Tammy Robins and appellee
Michael Soules have authorized the dismissal pursuant to settlement.
Having previously granted transfer for the purpose of addressing the issue
of consent as a defense, thereby vacating the opinion of the Court of
Appeals and transferring jurisdiction of this appeal to this Court, we now
summarily affirm[2] the original and rehearing opinions of the Court of
Appeals except as to the availability of consent as a defense to the claim
of battery, and we grant the motion to dismiss the appeal.
The appeal is dismissed.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur. SULLIVAN, J.,
dissents with separate opinion.
SULLIVAN, Justice, dissenting.
Although the majority’s opinion dismisses this appeal, the effect of
it is to affirm summarily the opinion of the Court of Appeals in this case
on all issues except for its analysis of the availability of consent as a
defense to the plaintiff’s claim of battery. Because I agree with the
Court of Appeals on this issue, I respectfully dissent.
In this case, plaintiff Robins sued a county jail officer named
Soules, the county sheriff, and the county commissioners alleging that they
were liable for injuries she suffered when Soules sexually assaulted her
while she was an inmate in the county jail. Soules had previously pled
guilty to Official Misconduct as a Class A misdemeanor in exchange for the
dismissal of a charge of Sexual Misconduct by a Service Provider, a Class D
felony. One of the issues addressed by the Court of Appeals in its opinion
was the availability of consent as a defense to Robins’s sexual assault
claim. On that issue, the Court of Appeals said:
We also note that consent is not available has a defense to
Robins’s sexual assault claim. Under I.C. § 35-44-1-5 (b), a service
provider may not claim consent as a defense for sexual misconduct with
a detainee. Given Robins’s general lack of autonomy as an inmate, it
would be incongruous to withhold the defense of consent in the
criminal context but to allow Soules the defense in a civil claim.
Robins v. Harris, 740 N.E.2d 914, 917 (Ind. Ct. App. 2000). I agree with
this analysis.
Our Legislature has made a public policy determination that the
position of authority a jailer holds over a prisoner dictates that there be
no exception for consent in our criminal law to the rule against sexual
contact between jailer and prisoner. Our state’s civil law should further
the public policy objective the Legislature has adopted in the criminal
context.
-----------------------
[1] Soules admitted to the sexual conduct and pled guilty to official
misconduct, a class A misdemeanor. Soules did not join the other
defendants' motion for summary judgment. For additional facts, see the
Court of Appeals decision, Robins v. Harris, 740 N.E.2d 914 (Ind. Ct. App.
2000).
[2] App.R. 58(A).