Vicarious Liability

In vicarious liability's most controversial form, the law convicts one person for the conduct of another based solely on their relationship. With the exceptions of the crimes of nuisance and libel, such liability was unknown at common law. In the twentieth century, however, this type of vicarious criminal liability, almost always in the form of an employer being held liable for the acts of an employee, became more common, particularly in the context of so-called regulatory crimes, which are designed to regulate businesses and usually entail misdemeanor punishments only. Examples include liability for employers based on the conduct of employees who mislabel drugs, sell alcohol to minors, or hire underage workers, even when such conduct runs against the employer's orders. In this context, vicarious liability is often imposed in conjunction with strict liability—the employee may be convicted for mislabeling the drugs without a showing of mental fault (strict liability) and the employer may be convicted for the mislabeling by the employee solely on the basis of the employer-employee relationship (vicarious liability).

Advocates of this kind of vicarious liability make arguments similar to those used to support strict liability. They contend that it makes employers more careful in choosing and managing their employees. They argue further that without such liability employers who encourage wrongful conduct will escape punishment because their authorization will be difficult to prove. Another argument is that the broad societal harm avoided by such regulatory crimes outweighs any injustice to the "innocent" employer held vicariously liable for the employee's conduct, particularly because the penalties imposed are usually light and often involve only fines (although in many jurisdictions employers face at least the theoretical possibility of imprisonment).

Opponents of vicarious liability, however, insist on the two basic principles set out earlier: individuals should be criminally responsible only for their own actions, and there should be no criminal liability without fault. This form of vicarious liability, they argue, directly contradicts such principles and should be precluded. The Model Penal Code adopts this view (see Model Penal Code § 2.06 cmt. at 305–306), prohibiting vicarious liability outside of the complicity and corporate liability contexts.