PA: AG’s Office Invokes Victim Fault in Rape Suit

A 24-year-old typist at a prison in Bellefonte, PA was brutally raped last year by one of the inmates.  The inmate had been convicted three times previously of sex-related crimes and then transferred from a different prison for assaulting a female employee there.  Despite this, the inmate had access to the typist’s office, even after she states she complained to her bosses about the inmate’s behavior toward her.  The victim filed suit in federal court against the state Department of Corrections and several individual employees.  The AG’s office, charged with defending the lawsuit, included in the answer the allegation that the woman “acted in a manner which in whole or in part contributed to the events.”  In essence, the AG’s office was pleading comparative fault, resulting in a political firestorm.  The issue was covered on CNN and the Attorney General herself felt compelled to address the filing. 

The best defense of the allegation is that it was necessary to preserve a defense of comparative fault for trial.  A lawyer has to defend his or her client and FRCP 8 requires the pleading of, among other things, contributory negligence.  It seems to me, however, that this should have been handled differently.  Given:  (1) the sensitive nature of the plaintiff’s complaint; (2) the fact that Rule 15 allows liberal amendments; and (3) the fact that the DA in the county fully supported the typist and successfully prosecuted the inmate for rape, apparently without uncovering any evidence that the she contributed to the attack on herself, this allegation should not have been included in the answer.