Democratic National Committee Not Liable for Field Organizer's Alleged "Grooming" of 16-Year-Old Campaign Volunteer, Which Led to Sex

From yesterday's decision by Judge Gerald Pappert (E.D. Pa.) in D.F. v. DNC Servs. Corp.:

D.F. was a [16-year-old] high school student in the summer of 2012 when she volunteered with Organizing for America, an arm of the Democratic National Committee, to work on the presidential campaign.

Killackey, a 38-year-old field organizer in the office, "allegedly 'groomed' D.F., leading to a sexual relationship between the two, which D.F. contends was unwanted and abusive":

He allegedly "took an immediate and unusual interest" in D.F. and openly flirted with her, referred to her as "precocious," and gave her gifts. D.F. alleges that Killackey was "groom[ing]" her "for sexual exploitation and abuse."

In June of 2012, D.F. asked staff at the Bristol office for a ride home from work, and Killackey agreed to give her one. D.F. alleges that Killackey flirted with her in his car and that she told him "she may have a crush on him." Killackey allegedly pulled the car over and, without D.F.'s consent, touched and spoke to her in a sexual manner. D.F. alleges that later that summer, Killackey "brought [her] to his apartment" and "proceeded to initiate sexual intercourse," after which a "sexually abusive relationship" continued throughout the summer and into the school year. The alleged sexual abuse happened in Killackey's car, at his apartment or in public parks. D.F. did not reveal the relationship or the abuse to the DNC or to any staff in the Bristol office.

D.F. sued the DNC for, among other things, negligent supervision, but the court threw that claim out:

[A] claim for negligent supervision must allege that an employer "knew or should have known of a need to supervise the employee, and that, by failing to do so, exposed the plaintiff to the employee's misbehavior." … To state such a claim, D.F. must allege facts sufficient to satisfy two separate inquiries. First, that Killackey harmed her on DNC premises or on premises to which Killackey gained access via his employment, and second, that the DNC could have foreseen the need to control Killackey and that the harm he allegedly caused was reasonably foreseeable….

None of Killackey's alleged misconduct took place at the Bristol Campaign office. D.F. claims Killackey exhibited unprofessional conduct on DNC's premises: he flirted with her, sang a suggestive song about her, called her "precocious," gave her gifts, and made business calls that D.F. joined from his office with the door closed. D.F. also alleges that she and Killackey "openly held each other" and "behave[ed] like boyfriend and girlfriend" at a post-election celebration in Washington, D.C. But D.F. claims the alleged sexual conduct—the abuse—took place in Killackey's apartment, his car or in public parks. The DNC does not have a duty to supervise its employees at their homes, in their cars or in public parks.

D.F. characterizes Killackey's conduct on DNC's premises as "grooming," but none of his alleged on-premises actions were tortious. To state a claim for negligent supervision, D.F. must allege that Killackey committed an intentional tort on DNC's premises or on premises to which he was privileged to access via his employment. She does not….

I doubt that all courts would require, as a condition of negligent supervision claims, that the intentional tort was committed on the employer's "premises or on premises to which he was privileged to access via his employment"; some would allow liability so long as the intentional tort was made possible by behavior within the employment relationship (and there is other evidence of negligent supervision). But Pennsylvania law does appear to impose such an intentional-tort-on-the-premises requirement.

In addition to the premises requirement, negligent supervision claims must satisfy two foreseeability requirements. First, the employer may be liable if "it knew or should have known the necessity" for controlling their employee based on "dangerous propensities that might cause harm to a third party." Second, the harm that the "improperly supervised employee caused" must be reasonably foreseeable. Here, the foreseeability inquiry focuses on Killackey's alleged unwanted sexual acts which are the source of D.F.'s alleged harm.

The DNC could not, based on the amended complaint's allegations, have known Killackey had a propensity to commit sexual abuse…. D.F. concedes that no one with the DNC had actual knowledge of Killackey's propensity to commit harm. She alleges that she told no one with the DNC about the nature of their relationship, and that the DNC never discovered it. D.F. claims only the DNC should have known Killackey had a propensity to sexually abuse her because DNC staff was aware that:

• Killackey was flirtatious with D.F. and called her "precocious";
• Killackey agreed to give D.F. a ride home;
• D.F. and Killackey went canvassing together;
• Killackey gave D.F. a book and other unidentified gifts;
• Killackey exchanged text messages with D.F. on his personal phone;
• Killackey sang a suggestive song from a movie after D.F. made a reference to the film;
• D.F. and Killackey sat in his office with the door closed while he made calls;
• D.F. joined DNC staff to watch election results at a bar, where she and Killackey sat next to each other;
• At an inaugural ball in Washington, DC, the two "held each other" and "openly behav[ed] like boyfriend and girlfriend." …

The prior conduct need not be an exact match for the tortious conduct, but the employee "must have committed prior acts of the same general nature as the one for which the plaintiff brings suit—acts that show the employee is 'vicious or dangerous and … intended to inflict injury upon others.'" While D.F.'s allegations could allow the inference that DNC staff witnessed unprofessional conduct in the workplace, they do not establish that the staff should have foreseen Killackey might sexually abuse her outside the workplace. And the harm Killackey allegedly caused was not reasonably foreseeable for the same reasons the DNC could not have known of Killackey's propensity to commit sexual abuse. "A harm is foreseeable if it is part of a general type of injury that has a reasonable likelihood of occurring." D.F. has not alleged facts to plausibly establish that the harm—Killackey's alleged sexual abuse—was reasonably foreseeable….

The claim of negligent failure to report child abuse fails for the same reason: D.F. insufficiently alleges the DNC had reason to suspect Killackey's alleged abuse…. [A]t most, D.F. alleges DNC staff were aware of Killackey's unprofessional conduct—not that they were aware of the alleged abuse, which took place away from the workplace and which D.F. never mentioned or alluded to….

The plaintiff's conspiracy and aiding and abetting claims were also thrown out, since to show that one needs to show even more than negligence—agreement "to perform an unlawful act" for conspiracy, and "'actual knowledge' of the tort, which knowledge may be inferred by 'willful blindness'" for aiding and abetting. And plaintiff's vicarious liability claim were thrown out as well:

An employer may be vicariously liable for its employees' tortious acts committed during the scope of their employment. But if "an assault is committed for personal reasons or in an outrageous manner, it … is not done within the scope of employment." Pennsylvania courts "have consistently held that sexual abuse of minors falls outside an employee's scope of employment." D.F. fails to allege that Killackey's conduct was "actuated by any purpose of serving" his employer and she therefore fails to state a claim for the DNC's vicarious liability….

The assault, battery, and intentional infliction of emotional distress claims against Killackey are pending. Note that the general age of consent for sex in Pennsylvania is 16, but plaintiff alleges that much of the behavior was actually nonconsensual.

Comments

[Mark In Florida]

When I was a 16 year old volunteer on Nixon's campaign the older dude who was giving me projects to do was trying to groom me but I told him that I wasn't interested.

[David Nieporent]

Why did she file a suit thirteen years after the events in question?

[Bunny495]

Maybe the most important consideration. Not my area of expertise (and I know capital crimes often don't have a statute of limitations) but it seems D.F.' lawyers almost literally threw the book at Killackey with some of the charges thrown out.

So my question concerns statute of limitations in general. I can hardly remember what I had for dinner last night and waiting years to bring charges often means foggy memories and unavailable witnesses. Not trying to diss D.F. but it is not unheard of for consensual sex to morph into unconcensual sex over the years. Bottom line is waiting sixteen years raises a lot of red flags.

[Stupid Government Tricks]

I don't like statutes of limitations, but did think about them some. I see two rationales:

1. Evidence goes bad, memories get corrupted.

2. If someone has lived a quiet reformed-ish life on the run for some time, always with the fear of being found out, that can be considered to have fulfilled the purpose of justice: he's reformed, and being in fear of going to jail is close enough to actually being in jail.

#2 is more of a policy decision than anything objective. It's sort of the same as the old saw that illegal immigrants are less prone to crime because they want to keep a low profile. (The reported statistics vary way too much to be reliable, and they've been polluted recently by Biden and the Dem sanctuary cities purposely ignoring criminal backgrounds and even post-immigration crime. But otherwise it used to be a plausible policy.)

#1 bothers me. Let the evidence speak for itself. If a witness can't remember, or lab evidence has gone stale, let the prosecutor defend shaky memories and the defense poke holes in them, and let the jury decide. The idea that evidence goes stale overnight like Cinderella's coach is ludicrous. The idea that evidence remains viable but is not allowed because the calendar changed is ludicrous.

[Michael P]

I think a significant argument argument around #1 is that the government has enough resources to gather a bunch of evidence for old events, but a defendant normally does not. The people who might provide alibis don't remember, records get thrown out, etc.

[Stupid Government Tricks]

I don't see how that matters more for old evidence than new evidence. If the cost to find old evidence has risen so much that the disparity is that crippling to the defense, why would the government allocate its limited resources so poorly?

[wvattorney13]

It is also a protection for the defendant. If you are going to charge someone, do it semi-contemporaneously with the event. Don't wait until people die, documents are lost and memories fade such that the defendant cannot mount a defense.

[Stupid Government Tricks]

In other words, because the evidence goes stale, just as I said. But also the wrong way to do it, because evidence doesn't go stale by the calendar turning a new page, it doesn't turn into a pumpkin at the stroke of midnight.

[Fotheringay-Phipps]

I'm not sure I understand the point you're making, so perhaps you can clarify.

Suppose someone comes forward and says that last Wednesday Stupid Government Tricks - a completely innocent person - raped me at such and such place and at such and such time. It's very likely that you could produce all sorts of evidence refuting it. Witnesses who say you were somewhere else entirely, you might have phone records, credit card receipts, EZ Pass records, etc. etc.

But supposing that someone said SGT raped me on such-and-such date 13 years ago. What witnesses are going to remember where SGT was on some random date 13 years ago? And so on for other records that might prove innocence, but have long since been discarded.

Further, suppose some came forward and said SGT raped me some time in the last year, but I have no recollection of what date it was. That would be very weak testimony indeed. But suppose someone said SGT raped me 13 years ago but I have no recollection of what date it was. That would be a lot more believable. Or even if someone DID specify a date, which was refuted and then came back and said "oh, OK, it was actually a different date". Hard to pull off if it was recent, but much more acceptable if it's long ago. (In the Cosby case, the alleged date was revised by a full year, in response to evidence contradicting the initial claim.)

Or similarly, if your claim was that the interaction is being mischaracterized by the accuser, you are much much more likely to find witnesses to back you up if the interaction happened very recently than if it was years in the past, when you yourself might only have a vague memory of the whole thing, and most other witnesses will have forgotten it entirely, even assuming you remember who those people might be altogether.

The person who has their story the straightest will always be the accuser, whether honest or lying, whether remembering accurately or not. That's their story and possibly how they remember it now, and that's what they are going to testify as witness.

So it comes down to whether the jury believes them or not. And the nature of juries - actually the nature of people generally, whether on or off juries - is to believe anyone who can tell a sympathetic story in a compelling manner.

The accused is doomed.

[Stupid Government Tricks]

Oh, bullshit. The evidence has gone stale. You can't accept one side's evidence when the other side's evidence has gone stale.

Unless you are describing our current rotten judicial system, in which case it has statutes of limitation as a poor answer, and that's something different.

[CindyF]

See crazy E Jean Carroll v Trump.

The accuser can't remember the date so the accused has a difficult time mounting a defense. The accused is doomed.

[santamonica811]

Cindy,
I think you meant to write, "See crazy E Jean Carroll v rapist Trump."

I fixed your oversight for you. You're welcome.

[wvattorney13]

Sure it does. Do you remember what you did yesterday better than what you did on September 27, 2008?

Do you have more documentary evidence do prove it for yesterday than on that date? Have you lost family or friends since that date that might have been a witness for you?

[Stupid Government Tricks]

Like I said, the evidence has gone stale. Why is that such a hard concept?

[MollyGodiva]

"Let the evidence speak for itself. If a witness can't remember, or lab evidence has gone stale, let the prosecutor defend shaky memories and the defense poke holes in them, and let the jury decide."

I disagree. In those cases the judge should rule that evidence inadmissible.

[Stupid Government Tricks]

Then you do not believe that deciding facts is the jury's job.

You get a tenth of a point for recognizing that the evidence should be judged on its own merits and that rationale #1 is nonsense.

[Drewski]

Admissibility is a question of law, not fact. I suppose you could argue that it's okay to introduce e.g. forged or hearsay evidence to a jury and count on them to suss out what's real, if you were building a fictional legal system that is not our legal system.

[Stupid Government Tricks]

The the jury is not, in fact, the decider of facts, is it?

[Drewski]

Do you think that's a clever point that nobody's made before? It's a standard bull session topic for college students, and not just law students. Most of us are past that and recognize that philosophical perfection is a childish metric when dealing with the real world. Grow up.

[David Nieporent]

Admissibility is a question of law, not fact.

What you say isn't wrong, but (as everyone who has filed a motion in limine to exclude evidence has heard from a judge), most objections like the ones Molly describes "go to weight, not admissibility."

[Lee Moore]

Presumably she just lost patience, and wasn't willing to wait another quarter of a century until Killackey was nominated to the Supreme Court.

[Longtobefree]

"knew or should have known of a need to supervise the employee, and that, by failing to do so, exposed the plaintiff to the employee's misbehavior."

Absolutely impossible to foresee a democrat seducing an underage girl.

[loki13]

You know ... given EVERYTHING we've been seeing recently, I'd say that you're engaging in delicious irony, but that is obviously lost on you.

We literally just went through TRUMP trying to appoint GAETZ as AG, and this is what you come up with?

[TwelveInchPianist]

This comment is terribly unfair to Democrats.

According to the allegation, the girl was not underage, just non-consenting.

[santamonica811]

12,
Don't you mean, ...the girl was consenting, and then, eventually, at some point in time, non-consenting?

[DaveM]

The offense occurred in 2012? I don't doubt it still hurts, but victims have a responsibility to come forward quickly enough that any evidence and memories are still fresh.

Even just talking to a trusted confidant at the time it happens can be helpful. It's enough to provide one proof point that the crime itself happened. Letting 13 years pass before bringing charges makes things very difficult.

[Dr. Ed 2]

"Note that the general age of consent for sex in Pennsylvania is 16, but plaintiff alleges that much of the behavior was actually nonconsensual."

So grooming a 35-year-old would be grounds for litigation?

And the thing I never understood was why two 15-year-olds having sex with each other wasn't two counts of date rape.

[John F. Carr]

It could be mutual rape depending on the state. I remember a story about two middle school students in Detroit being charged when one gave the other a blow job under a classroom desk.

Or the prosecutor could charge the boy and not the girl. I think Michael M. v. Superior Court of Sonoma County is still good law. At the time, California's statutory rape law punished sex with girls but not with boys. The Supreme Court ruled 6-3 that only girls could get pregnant. There are still three votes against that proposition. Are there five?

[TwelveInchPianist]

"There are still three votes against that proposition."

How do you know? No one on the court is still there.

In any event, California amended its law to be gender-neutral, so "mutual rape" is now possible.

[Stupid Government Tricks]

There was a case, covered in Volokh I believe, about two teenagers of different ages having mutually consensual legal sex, but a different law had different age limits for indecent exposure or something, and they busted one of them for the other seeing the illegal genital exposure.

I believe there have been similar cases of illegal photos of legal sex.

[MN2828]

Depends on state law. Many states have a Romeo/Juliet exception that deals with the situation you describe.

In Texas for example, statutory rape occurs when there is sexual penetration of or by a child under the age of 17 or younger by a person who is three or more years older than the victim. But there is an absolute bar below age 14, i.e., a child below age 14 cannot consent. So, a 14-year-old can consent to sex with a 17-year-old, a 15-year-old with an 18-year-old, a 16-year-old with a 19-year-old, and a 17-year-old with a 20-year-old. In such cases, the Romeo & Juliet Exception will apply to prevent statutory rape charges.

In this case, the 38-year-old would be committing a 2d degree felony if this had occurred in Texas.

[KenveeB]

It's not a question of cannot consent. It's that consent is irrelevant. Lack of consent is not an element to sexual assault of a child in Texas. Whether they consented or not doesn't legally matter.

[gormadoc]

I understand the reasons to pseudonymize a 16 year old victim of sexual assault in 2012 but why pseudonymize a 29/30 year old victim of a sexual assault committed 13 years ago? Only to encourage people to come forward? Is that even helpful so late?

[MollyGodiva]

Age of consent in PA is 16. If he violated consent, it is her responsibility to tell someone.

[TwelveInchPianist]

How so?

[MollyGodiva]

In order for the DNC to be liable, they would have had to know about the activity and done nothing to stop it. Since she did not tell anyone, and all the activity was in private, they can not be held liable.

[Stupid Government Tricks]

You didn't read the article.

[Stupid Government Tricks]

That's silly. The definition of a child is someone too immature to make adult decisions.

[MollyGodiva]

Possibly so, but that is what PA law is. In the US we commonly hold people even younger than 16 responsible for their actions as if they were adults.

[Stupid Government Tricks]

What does that have to do with this case? She's not the defendant.

[KevinP]

The dark cloud of the War on Women is forever descending upon Republicans, but always manages to land upon Democrats.

[Frank Drackman]

Most boring “Penthouse Forum” ever

[John F. Carr]

What's the difference between grooming, flirting, and courting?

[Frank Drackman]

25 to Life

[MollyGodiva]

Not in this case, age of consent was 16.

[Stupid Government Tricks]

Damn you are broken. Or your joke sensor is clogged.

[loki13]

How the Plaintiff's attorney chooses the words they use for a complaint.

[TwelveInchPianist]

Frank wins.

[Stupid Government Tricks]

And MollyGodiva loses.

[Krayt]

Suing lawyers, the Democrats' most important faction, turns on its bosses to get at their selfsame deep pockets. What to do?

[Bunny495]

"The assault, battery, and intentional infliction of emotional distress claims against Killackey are pending. Note that the general age of consent for sex in Pennsylvania is 16, but plaintiff alleges that much of the behavior was actually nonconsensual."

Seems like if emotional distress over assault and battery was an issue now it would have been at the time which raises the question of why the long delay. I also wonder about how much of the behavior was nonconsensual given that D.F. stated she had a "crush" on Killackey and this was not a one and done encounter. Why would D.F. go back for more if it was nonconsensual.

I do have ethical problems with a 38 year old guy in a quasi position of authority hitting on a 16 year old female and having sex with her. I am just not sure what (if any) legal remedies exist.

Maybe a bigger issue is like it or not 16 year old kids (and kids younger than 16) are having sex. The age of consent is even older than 16 in some jurisdictions. No one with a firm grasp of reality doubts high school and middle school students are having sex, and not just with each other but older partners as well. I am not trying to argue this is a good thing, just noting that the reality is kids are having sex, and I don't have a real solution for how the law should deal with it.

[wvattorney13]

A big problem I have is that in a political campaign you are pinching pennies and dealing with volunteers. If it ends up that you are responsible for supervising everyone every time a person under 18 is present, then it won't be worthwhile to have the service of that person.

Kids will be unable to take part in this type of work.

And she wasn't 4 years old, she was 16. How much supervision is necessary? Plus they could argue that they did provide a supervisor: Killackey. Oh, but they need someone to supervise the supervisor? Who will supervise that person?

[gormadoc]

At our university in 2015 or so they changed the rules so that male adults couldn't be alone with female (and possibly male, but less scrutinized if so) high schoolers for any amount of time. This made it very hard, as an engineering lab, to justify participating in outreach programs and the like. At least we had two women, most labs had none.

[wvattorney13]

The sex based distinctions usually don't last very long. The first time a male-male incident happens (or a female-male, or female-female) the rule gets changed. Typically people observe that with a sex based distinction, the young male volunteers have a measure of autonomy while the young female volunteers are supervised heavily. This unfairness causes a gender neutral rule.

And then typically a rule that prohibits their participation entirely because it simply isn't worth it.

[Poxigah146]

So an Obama appointed judge finds for the DNC. Who could have seen that coming?

[santamonica811]

I am having a bit of a logic fail re this case. This is based on:
a. The age of consent is 16, which plaintiff was at all relevant times.
b. Penn has no law that makes sex with a 16 year old a crime (or civil wrong), regardless of the (much older) age of the other party.
c. The relationship definitely was consensual in the very beginning (given that plaintiff was the person who told the other that she had a crush on him, on that fateful first drive home).

Here's my confusion: I'll assume that the guy's motives were bad, from a moral sense. (Anyone in their mid or late 30s trying to have sex with a 16 year old is gross, IMO). But, we all agree that his goal--having sex with a 16 year old--is absolutely legal in that particular state. So, even assuming that he was 'grooming' her, is it legally wrong to groom another person who is of legal age? I usually think of grooming as applying to children. But in Penn, I don't think the law treats a 16 year old differently than an 18 year old, or a 21 year old, or a 35 year old (in terms of having sex with an adult), or in terms of being groomed to have sex. By flirting, by making suggestive comments, by buying a "target" flowers or candy, or by any of the other means that Party X engages in, in an attempt to woo Party Y.

[The one factual thing that might change my mind is (assuming) that he did ply her with alcohol. Since giving booze to a 16 year old is illegal, that might be a reason to treat this case differently.]

But, otherwise, if you groom me (the 16 year old); and you're successful; and I'm interested, and of legal age to pursue my attraction (or of legal age to accept your sexual advances); and so we start to have a sexual relationship . . . then how is your grooming activities in any way impermissible? (AGAIN, I'm talking about legally-speaking, not talking about the morally-objectionable aspect, of course.)

If, later on, the girl loses interest for whatever reason, and the sex becomes non-consensual; how does that retroactively turn the (formally) allowable grooming into after-the-fact impermissible grooming?

I feel like I'm missing something obvious. The court didn't touch on this (at least, not yet, at this early stage), so I feel like I'm missing the boat here...although I'm not sure why my above legal reasoning is wrong.

[gormadoc]

This decision was about whether the DNC is liable, not the culpability/criminality of the guy.

[santamonica811]

Gorm,
If you agree with my logic and conclude that the guy had no criminal or civil liability, then you would *have* to agree (I think) that, as a matter of law, the DNC could not have any legal exposure, yes? You can't sue X for negligent supervision, if the person being supervised has not done anything legally wrong.

That's my underlying point/argument, anyway.

[gormadoc]

I agree in principle but in this case the matter of his conduct hadn't been decided yet and was proceeding separately: it wouldn't have been prudent of the court to get into that when it already had a simple "out."

[KenveeB]

That's kind of how I've been looking at the whole thing. It's not a crime to try to convince someone to have sex with you if you are legally able to have sex with them. If that's not a crime, then DNC didn't negligently supervise anything. It sounds like the only actual crime alleged was the without consent part, which didn't happen anywhere DNC held sway. If he was trying to convince her to lawfully have sex with him and then he later just decided to rape her, that doesn't make the trying to convince her part a crime.