Vicarious Liability

Vicarious liability imposes criminal responsibility on a defendant on the basis of a special relationship.  Under vicarious liability, the defendant need not commit the criminal conduct. Instead, the defendant simply needs to be involved with the primary criminal actor in a legally defined relationship.  Vicarious liability is common in civil law and is generally applied to impute liability to employers for the actions of their employees.  Generally speaking, criminal law disfavors criminal vicarious liability, the exception being organizational liability.  Criminal vicarious liability is available to hold legal organizations (e.g., corporations) criminally accountable for specific criminal acts of their agents.  AS 11.16.130.

Vicarious liability should not be confused with accomplice liability. Accomplice liability is based on the defendant’s complicity (participation) in a criminal enterprise.  Vicarious liability is also different than strict liability.  Strict liability requires the defendant to personally engage in the criminal conduct. Vicarious liability imputes a defendant’s criminal responsibility to a different defendant because of a legal relationship. Similar to accomplice liability, however, the primary defendant remains criminally responsible for his conduct.

At early common law, corporations were not criminally responsible for the unauthorized criminal acts of their employees.  Modern criminal codes have moved away from this rule and recognize that businesses entities are private enterprises able to control the actions of its agents. Failure to control an agent’s actions can seriously injure other individuals and the economy. The resulting blameworthiness should be shared between corporations and agents, alike. Alaska law holds a corporation criminally liable for the conduct of its agents under two circumstances: (1) the principal was an agent and the criminal offense was within the scope of the agent’s employment; or (2) the organization solicits the agent’s conduct or subsequently ratifies (adopts) the agent’s criminal conduct.

Vicarious criminal liability is not limitless.  First, not all business entities are organizations; sole proprietorships are excluded. AS 11.81.900(b)(44). Second, not all corporate employees are “agents.” AS 11.16.130(b).  Agents only include high managerial employees that are engaged in the active management of a corporation.  High managerial employees include directors, officers, or specific employees authorized to act on behalf of the corporation. Low-level employees are normally excluded.  Also, a corporation does not ratify or adopt an agent’s criminal conduct when it merely tolerates the misconduct.  Ratification or adoption requires both an awareness of the criminal conduct and some action that demonstrates ratification or adoption. See State v. Greenpeace, Inc., 187 P.3d 499, 506 (Alaska App. 2008).

The criminal punishment for a corporation is generally the payment of a fine; a corporation cannot be imprisoned. See generally AS 12.55.035.

Example of Corporate Liability

Harry, a vice-president of human resources of Burger King Corporation, shreds corporate documents in his office when Burger King is sued civilly for sexual harassment in a million-dollar lawsuit. Under the theory of criminal vicarious liability, both Harry and Burger King could be criminally prosecuted for Falsifying Business Records, a class C felony. AS 11.46.630.  Note that Burger King’s liability is vicarious and depends on its relationship with Harry as an agent and the fact that Harry is acting within the scope of employment. Vicarious liability is distinguishable from accomplice liability, where the accomplice must be complicit with the criminal actor. The owners of Burger King, who are the corporate shareholders, did not actively participate in Harry’s conduct, although they will share in the punishment if the corporation is fined.