Prison System Off Hook for Alleged Sex Assaults

     (CN) – A woman who said she was raped 17 times by a prison guard cannot collect damages from the West Virginia prison system, the state’s highest court ruled.
     The plaintiff, identified only as “A.B.” in the court’s opinion, was convicted in 2006 of two counts of third-degree sexual assault for having intercourse with her boyfriend’s 14-year-old son.
     She was sentenced to consecutive prison terms of one to five years. After she was released, A.B. violated her parole and was sent back to prison.
     She stated that beginning in the fall of 2009, she was raped orally and vaginally by D.H., a corrections officer, in the prison’s property room and the video arraignment room.
     D.H., not a party to the current appeal, denied the allegations. He filed an incident report stating that A.B. had propositioned him, asking if he wanted to “trade a favor for a favor” in exchange for “anything.”
     A.B. sued D.H. for constitutional rights violations, intentional torts and infliction of emotional distress.
     She also sued the West Virginia Regional Jail and Correctional Facility Authority for negligent supervision, training and retention.
     While the case continues involving D.H., the trial court denied the jail authority’s claim of qualified immunity.
     However, the five justices of the West Virginia Supreme Court of Appeals overturned the ruling in a decision written by Justice Margaret L. Workman.
     She agreed with the jail authority that it was entitled to immunity because D.H.’s alleged actions were outside the scope of his job duties.
     “D.H. did not just allegedly commit acts which also ‘happened’ to be a crime,” Workman wrote, “he allegedly committed acts which were so divergent from the scope of his duties that they were made expressly felonious if committed by him in that context.”
     In addition, Workman stated that A.B. had not identified a regulation that the jail authority had violated relating to the training and retention of D.H.
     Workman added that her opinion did not mean that the jail authority did not have the duty to prevent prison rape.
     “The undisputed facts demonstrate that D.H. was trained annually on PREA (the state’s Prison Rape Elimination Act) and unquestionably understood that sexual contact with inmates was prohibited,” Workman wrote.

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