Imposing liability on others despite their lack of culpability is sometimes used as common law and courts have evolved the principle that an employer can put responsibility for some acts onto employees when an act is committed during the course of employment. The distribution of costs of accidents and other injuries and losses has been passed along by employers through insurance and higher costs by employers to employees, customers and clients.
In criminal cases, there is no vicarious liability. The principle this relies upon is that a crime is composed of both an "actus reus" (guilty act) and a "mens rea" (guilty mind), and that a person with these two should be convicted if both are present at the same time. Therefore, it is very difficult to prove that another party is responsible for a criminal act, as the culprit has to have both a guilty act and a guilty mind, not just one, as the parent or employer might have.
Vicarious liability in the U.S. applies to crimes that affect the public welfare, but do not require prison terms as punishment. There are situations where vicarious liability applies, as we mentioned, where manufacturers of defective products are responsible for the situations that their products may cause. Also in cases where contractors are responsible for their subcontractors' work and where parents are responsible for the actions of minor children, vicarious liability can be applied....
In other cases, such as an employee serving alcohol to a minor, the employee is at fault because the punishment may include a prison term.
The question of liability arises concerning sexual or other types of harassment only after there is a determination that a violation has occurred and whether the charges rise to the level of unlawful acts. The EEOC has a long-standing guide on employer liability and it is important that an employer's procedures make an immediate and corrective action be taken. This way the remedial measures will not adversely affect the complainant or the employer. (Enforcement, 1999)
If you have charged an individual with an act that may invoke vicarious liability, you should not automatically assume that either that party or another party is guilty. A judge familiar with the complexities of these cases will have to examine the case in order to determine the limits of such a charge and decide on the most appropriate course of action. What is most important is that a criminal act has been committed and that the perpetrator will face the charges.
References
Vicarious Liability," (2006) Online Lawyer Source. Retrieved November 25, 2006 at http://www.onlinelawyersource.com/personal_injury/vicarious_liability/index.html
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment." (1999), The U.S. Equal Employment Opportunity Commission.
