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
INDIANA SUPREME COURT
TAMMY ROBINS, )
) 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, )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Michael Eldred, Judge
Cause No. 84D01-9712-CT-2199
On Petition To Transfer
June 6, 2002
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.
See footnote 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
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
SULLIVAN, Justice, dissenting.
Although the majoritys 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 e
xcept for its analysis of the availability of consent as a
defense to the plaintiffs 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 Robinss sexual assault claim. On
that issue, the Court of Appeals said:
We also note that consent is not available has a defense to Robinss
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 Robinss 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 states civil law should further the public policy objective
the Legislature has adopted in the criminal context.
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).