Virginia’s Sexual Assault Law and Respondent Superior Claims: Lawsuits Against Dr. Shannon Finch
On August 22, 2018, Dr. Shannon Finch was arrested after an unidentified woman wore a hidden camera and went to Finch’s office after telling police she had been assaulted by Dr. Finch twice at his medical practice. The first incident occurred in May, and the second in June. On July 20, the woman caught Finch on camera attempting to undress her and force her to perform a sexual act. Detectives intervened and apprehended him.
Finch has been charged with three counts of sexual battery and one count of forcible sodomy. An additional count of forcible sodomy has been added to the case after another woman approached police following Finch’s arrest. The second woman said when she went to Finch’s office, he inappropriately touched her breasts and buttocks and had her perform oral sex. According to a crime affidavit filed in Bristol Virginia General District Court, this incident occurred sometime between Oct. 1, 2015, and June 30, 2016, two years prior to the initial charges.
Deadline to File Claims
Under Virginia law, the general statute of limitations for civil claims is two years from the date of the alleged injury. Assault claims are no different. Under Va. Code § 8.01-243(A), if a plaintiff wants to sue for assault, he or she must do so within two years from the date of the alleged incident.
In Virginia personal injury cases, a plaintiff can recover for economic and non-economic damages from a sexual assault case. Economic damages are generally in the form of lost wages and medical bills. Victims frequently seek psychiatric care following sexual assault and may recover for the lost time at work and medical bills incurred. Noneconomic damages are for pain and suffering and emotional distress.
In Virginia, it is extremely difficult to hold an employer liable for its employee’s sexual assault or attempted sexual assault. That is because the law says it is generally unfair to hold an employer responsible for an intentional, criminal act.
This issue came before the Virginia Supreme Court in Plummer v. Ctr. Psychiatrists, Ltd., 252 Va. 233, 476 S.E.2d 172 (1996). In Plummer, Patient who alleged that clinical psychologist had sexual intercourse with her during counseling brought suit seeking to hold psychologist’s employer liable for damages caused by the assault and battery. The Circuit Court, City of Chesapeake, E. Preston Grissom, J., granted employer’s demurrer, and patient appealed. The Supreme Court held that whether the psychologist was acting within scope of his employment when he had sexual intercourse with patient, was a question for the jury.
Holding an employer liable for the acts of its employees is accomplished through the legal doctrine of respondeat superior. Under Virginia’s doctrine of respondeat superior, “an employer is liable for the tortious acts of its employee if the employee was performing his employer’s business and acting within the scope of his employment when the tortious acts were committed.” Plummer v. Ctr. Psychiatrists, Ltd., 252 Va. 233, 476 S.E.2d 172, 173 (1996).
An employee’s act is within the scope of his employment if (1) it was expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) it was performed, although mistakenly or ill-advisedly, with the intent to further the employer’s interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer’s business, “and did not arise wholly from some external, independent, and personal motive on the part of the [employee] to do the act upon his own account.” Lacasse v. Didlake, Inc., 712 F. App’x 231, 235 (4th Cir. 2018).
In the case of Dr. Finch, prospective plaintiffs could hold his practice liable by arguing that his actions were “naturally incident to the business.” According to news reports, Dr. Finch’s horrific actions took place during regularly scheduled check-ups and in the course of patient examinations. As such, his sexual assault of patients were “naturally incident” to his business as a physician.