Vicarious Liability in the Criminal Law

Vicarious Liability

In cases of vicarious liability, one person is held liable for the criminal actions of another. Because vicarious liability crimes are a species of liability without fault, this transfer of criminal liability occurs regardless of whether either of the defendants were aware they were committing a crime.

Vicarious liability cases usually involve an employer incurring criminal liability for her employee's actions. If the defendant ordered her employee to commit the offense then she is of course liable in the conventional fashion. However, in cases of liability without fault, the employer may incur criminal liability even if she explicitly ordered her employee not to commit the act of, for example, selling alcohol to minors. In some jurisdictions, the employee's act of disobeying this order, whether voluntary or involuntary, will transfer criminal liability to the employer, incurring fines and possibly even jail time.

Courts often punish defendants of vicarious liability crimes somewhat more lightly than defendants of strict liability cases. In fact, several states have ruled that employers should not be punished with incarceration for the actions of their employees, and in 1986 Minnesota completely rejected vicarious liability for employers who were absent at the time of the crime.