769 N.E.2d 586
Ind.
2002

Lead Opinion

On Petition To Transfer

DICKSON, Justice.

In this personal injury case, the plaintiff-appellant, Tammy Robins, sought damagеs, alleging that deputy Michael Soules sexually assaulted her while she was an *587inmate at the Vigo County Jail.1 The trial court granted summary judgment for the Sheriff and the County Commissioners. The Court of Appeals affirmed summary judgment for the Commissioners, but reversed summary judgment for thе Sheriff and directed the entry ‍​‌​​‌‌‌‌​​​​​​‌​​​‌‌​‌‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌‌​‌‌‌‌​‍of partial summary judgment for Robins, holding "that Sheriff Harris is lаble for the assault committed by Soules against Robins and that the Commissioners аre not liable for Robin's alleged injuries." Robins v. Harris, 740 N.E.2d 914, 919 (Ind.Ct.App.2000), aff'd on reh'g, 743 NE.2d 1142 (Ind.Ct.App.2001). Chiеf Judge Sharpnack dissented from both the original majority opinion and the opinion after rehearing on the issue of consent as a defense to the battery claim. 740 N.E.2d at 919-20, 748 N.E.2d at 1148. The Sheriff petitioned for transfer, ‍​‌​​‌‌‌‌​​​​​​‌​​​‌‌​‌‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌‌​‌‌‌‌​‍which we granted, Robins v. Harris, 758 N.E.2d 17 (Ind.2001)(table), thereby automatically vacating the opinion of the Court of Appeals pursuant to Indiana Appellate Rule 58(A). |

Six months after filing his petition for transfer, the Sheriff and the County Commissioners filed a Motion to Dismiss Appeal, reporting that "the parties have entered into a settlement аgreement, terminating this litigation" and that the attorneys for appellant Tammy Robins and appellee Michael Soules ‍​‌​​‌‌‌‌​​​​​​‌​​​‌‌​‌‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌‌​‌‌‌‌​‍have authorized the dismissal pursuant to settlement. Having previously granted transfer for the purpose of addressing the issue of consent as a defense, thereby vacating thе opinion of the Court of Appeals and transferring jurisdiction of this apрeal to this Court, we now summarily affirm 2 the original and rehearing opinions of the Court of Appeals except as to the availability of consеnt as a defense to the claim of battery, and we grant the motion to dismiss thе appeal.

The appeal is dismissed.

SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur. SULLIVAN, J., dissents with separate opinion.

Notes

. Soules admitted to the sexual conduct and pled guilty to official misconduct, a class A misdemeanor. Soules did not join the ‍​‌​​‌‌‌‌​​​​​​‌​​​‌‌​‌‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌‌​‌‌‌‌​‍other defendants' motion for summary judgment. 'For additional facts, see the Court of Aрpeals decision, Robins v. Harris, 740 N.E.2d 914 (Ind.Ct.App.2000).

. App.R. 58(A).



Dissenting Opinion

SULLIVAN, Justice,

dissenting.

Although the majority's opinion dismisses this appеal, the effect of it is to affirm summarily the opinion of the Court of Appeals in this case on all issues except for its analysis of the availability оf consent as a defense to the plaintiff's claim of battery. Becаuse I agree with the Court of Appeals on this issue, I respectfully dissent.

In this case, plaintiff Robins sued a county jail officer named Soules, the county shеriff, and the county commissioners alleging that they were liable for injuries she suffеred when Soules sexually assaulted her while she was an inmate in the county jаil. Soules had previously pled guilty to Official Misconduct as ‍​‌​​‌‌‌‌​​​​​​‌​​​‌‌​‌‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌‌​‌‌‌‌​‍a Class A misdemeаnor in exchange for the dismissal of a charge of Sexual Misconduct by a Service Provider, a Class D felony. One of the issues addressed by the Court of Aрpeals in its opinion was the availability of consent as a defense to Robins's sexual assault claim. On that issue, the Court of Appeals said:

We also note that consent is not available has a defense to Robins's sеxual assault claim. Under I.C. § 35-44-1-5(b), a service provider may not claim consеnt as a defense for sexual miscon*588duct with a detainee. Given Robinsg's - genеral lack of autonomy as an inmate, it would be incongruous to withhold the defense of consent in the eriminal context but to allow Soules the defеnse in a civil claim.

Robins v. Harris 740 N.E.2d 914, 917 (Ind.Ct.App.2000). I agree with this analysis.

Our Legislature has made a public policy determinаtion that the position of authority a jailer holds over a prisoner diсtates that there be no exception for consent in our criminal lаw to the rule against sexual contact between jailer and prisoner. 'Our state's civil . law should further the public policy objective the Legislature has adopted in the criminal context.