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Attorney asks Supreme Court to reconsider jail’s liability in rape lawsuit

By Kate White, Staff writer

An attorney wants state Supreme Court justices to reconsider their decision that the Regional Jail Authority cannot be held liable in a lawsuit that alleges one of its correctional officers raped a female inmate.

“Citizens of our state have formed an impression that correctional officers in West Virginia are running amok,” the petition for rehearing filed Friday by Mike Woelfel states.

Woelfel took over last month as attorney for an inmate, only identified as “A.B.,” who sued claiming a correctional officer at the Southern Regional Jail raped her 17 times in 2009.

The Regional Jail Authority qualifies for immunity in the lawsuit because, if the alleged rapes took place, the correctional officer was not acting within the scope of his employment, the court decided March 27 in a 4-1 ruling that reversed a lower court’s decision.

Chief Justice Robin Davis dissented from the opinion, saying her colleagues decided, “In essence, that the Regional Jail does not have a duty to protect female prisoners from being raped by the correctional officers it employs.”

Woelfel said Friday in a telephone interview that his petition raises several issues never argued by “A.B.’s” previous attorney, Kerry Nessel.

Following Davis’ lead, Woelfel points to “a woman’s fundamental constitutional right to remain free of sexual assault and abuse that’s granted in the Fifth Amendment and the Eighth Amendment.”

Those amendments are applied to state law through the due process clause of the 14th Amendment, according to Woelfel.

A.B.’s “Eighth Amendment right to remain free of cruel and unusual punishment ought to be recognized by this Court,” the petition states. The Fifth Amendment gives her the right to remain free from sexual assault at the regional jail, Woelfel wrote.

A.B. was incarcerated at the Southern Regional Jail after being convicted in 2006 of third-degree sexual assault for having sex with her boyfriend’s 14-year-old son.

The woman was paroled in early 2008, but violated her parole in August of that year and was sent back to the jail. Her lawsuit claims that, from October 2009 to November 2009, a correctional officer, identified as “D.H.,” raped her on 17 occasions, according to the opinion.“D.H.” denied the allegations and filed a complaint against the woman, saying she “improperly propositioned him asking if he would be willing to ‘trade a favor for a favor.’”

On Nov. 23, 2009, another inmate told police that the woman, “A.B.,” had assaulted her, giving her a black eye. That inmate also told police that “A.B.” and the correctional officer “D.H.” were having a sexual relationship, according to the opinion. Regional Jail Authority officials asked “D.H.” about the allegations and he “snickered” and then denied any improper relationship. “I knew, when I heard it was your name, it wasn’t you,” one of the police officers told “D.H.,” according to the opinion.

No further investigation was conducted and the alleged victim was never questioned about the allegations, according to the opinion. Months later, in April 2010, the woman was transported to Lakin Correctional Center to serve the remainder of her sentence.

She later filed a lawsuit in Kanawha County Circuit Court against the correctional officer and the Regional Jail Authority. “A.B.” claimed the jail authority was negligent in hiring, supervising and staffing the correctional officer in question.

The jail authority requested to be dropped from the lawsuit, citing qualified immunity. The jail authority said it was not liable for the correctional officer’s actions because the alleged sexual assaults were not within the scope of his duties. Kanawha County Circuit Judge Carrie Webster disagreed and said the jail authority could be named in the lawsuit.

The Supreme Court reversed that ruling. According to its opinion, the woman failed to show how the jail authority was negligent in hiring and training the correctional officer. The woman also failed to name specific individuals responsible for hiring and supervising the correctional officer, the court found.

“It appears A.B. is likely the party solely left bearing the loss imposed by 17 alleged acts of sexual exploitation,” the petition for rehearing states.

Woelfel wants justices to consider several protections provided to A.B. through state law and regulations through the regional jail authority and the department of corrections that he says her previous attorney never pointed to. He is asking justices to vacate its previous opinion, schedule arguments and issue a new decision in the case.

The decision, as it stands now, creates “a significant shift in our public policy,” the petition states.

Reach Kate White

at kate.white@wvgazette.com

or 304-348-1723.


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