Vicarious Liability

Vicarious liability, which is common in some areas of the law, refers to legal responsibility for the actions of another. If a law holds X responsible for Y's actions, then X's liability is said to be vicarious. In the criminal law, however, courts and commentators use the term in several different ways. Sometimes the term vicarious liability may be intended to refer only to cases that hold X criminally responsible for Y's conduct based on the relationship between X and Y. Sometimes the term may be used to describe X having liability for Y's conduct even though X was not at fault. The term may also be used to refer to all situations in which X is held criminally liable for Y's conduct.

Under any definition, the criminal law disfavors vicarious liability. The general rule is that one is liable only for one's own actions and not for the actions of others. Although this general rule against vicarious liability has some exceptions, the principle that one is criminally responsible only for one's own actions has considerable force, influencing both legislation and judicial decisions.

Laws that punish a defendant's own act or omission that allows another person to do something unlawful impose direct liability, not vicarious liability, although such laws are sometimes mislabeled. Parents, for example, sometimes face criminal liability for allowing their minor children to use guns or automobiles or to skip school. These crimes are examples of direct liability, not vicarious liability, because the statutes explicitly hold the parent liable for the parent's own act (e.g., negligently storing a weapon) or omission (e.g., culpably failing to see that a child attended school) that caused the harm, rather than for the child's conduct.

As a general rule, the criminal law does not employ vicarious liability. Such liability would often run afoul of basic precepts that require an actus reus and fault for criminal responsibility. Although vicarious liability is employed in limited circumstances, its wisdom and constitutionality are open to question when its use creates too extreme an affront to these principles.