Court Watch

Court Reverses $6.7 Million Rape Verdict

Federal appeals court rules county not liable for employee raping county jail inmate.

By , Wisconsin Justice Initiative - Sep 17th, 2018 10:51 am
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Milwaukee County Jail and Milwaukee County Courthouse. Photo by Jeramey Jannene.

Milwaukee County Jail and Milwaukee County Courthouse. Photo by Jeramey Jannene.

A federal appeals court on Friday reversed the $6.7 million verdict against Milwaukee County awarded in a lawsuit brought by a woman who was raped by a corrections officer in the Milwaukee County Jail.

The Seventh Circuit Court of Appeals panel found that former Corrections Officer Xavier Thicklen was acting outside the scope of his duties for the county when he raped the woman and forced her to perform oral sex on him.

The court threw out the jury verdict only against the county. Thicklen also was named as a defendant. The verdict against him still stands.

The three-judge panel, in an opinion written by U.S. Circuit Judge Daniel A. Manion, said U.S. District Judge J.P. Stadtmueller should have relied on what he believed the Wisconsin Supreme Court would do when he ruled on a county motion to dismiss the case against it because Thicklen acted outside the scope of his job; instead, Stadtmueller relied on one of his own decisions and let the lawsuit move forward.

Manion referred to the the Wisconsin Supreme Court’s standard as “time-worn.”

“Conduct is not in the scope if it is different in kind from that authorized, far beyond the authorized time or space, or too little actuated by a purpose to serve the employer,” he wrote.

Manion was joined in the decision by U.S. Circuit Judge Amy Coney Barrett and U.S. District Judge Robert W. Gettleman.

Thicklen, the corrections officer, resigned from his job when his activities came under investigation. He eventually pleaded guilty to felony misconduct in office for providing the inmate with contraband and calling her grandmother, and served three days in the House of Correction. He did not attend the three-day federal civil trial.

Thicklen raped the woman in the jail when she was 19 and eight months pregnant. Four days after she gave birth, he demanded she perform oral sex, according to testimony. There was additional sexual contact as well.

After running through previous Seventh Circuit interpretations of scope of duties, Manion wrote, “even when viewing the evidence in the light most favorable to (the woman) and the verdict, we hold no reasonable jury could find the sexual assaults were in the scope of his (Thicklen’s) employment. …The evidence negates the verdict.”

Milwaukee County trained Thicklen not to have sex with inmates and how to avoid invitations to have sex with inmates, Manion wrote.

“The undisputed facts and reasonable inferences point ineluctably to the conclusions that Thicklen’s abhorrent acts were in no way actuated by a purpose to serve County,” Manion wrote. “He raped (the inmate) for purely personal reasons, the rapes did not benefit County but harmed it, he knew the rapes did not serve County, and the rapes were outside the scope.”

Manion expressed sympathy for the woman who, with the county’s dismissal from the case,  “loses perhaps her best chance to collect the judgment. But (the law) does not make public employers absolute insurers against all wrongs.”

Gretchen Schuldt writes a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.

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