Vicarious liability (criminal)

The primary exception arises through statutory interpretation where the verb used to define the action in the actus reus is both the physical action of the employee and the legal action of the employer. For example, the activity of "driving" is purely a physical activity performed by the person behind the wheel. But when a cashier takes money as payment for goods, this is only the physical activity of selling. For goods to be sold, the owner of the goods must pass legal title to those goods. In default, the customer would commit the actus reus of theft. So the owner sells the goods at the same time that the employee takes the money. Similarly, only the holder of rights can grant a licence to another or permit another to do something that would otherwise have been unlawful. The verbs "possess", "control" and use may also have dual relevance depending on the context. Many of these are strict liability or regulatory offences, but the principle has been used to impose liability on a wide range of activities undertaken in a business or commercial environment.

This is generally applied to crimes that do not require criminal intent, e.g., those that affect the public welfare but which do not require the imposition of a prison term. The principle is that in such cases, the public interest is more important than private interest, and so the vicarious liability is imposed to deter or to create incentives for employers to impose stricter rules and supervise more closely. In Commonwealth v. Koczwara,[2] the defendant was the licensed operator of a tavern which was found to have supplied minors with alcohol. The offence became one of strict or absolute liability when applied vicariously because of the need to protect weak and vulnerable members of society, and the omission of words such as "knowingly", "willfully" or "intentionally" in some of the offences indicated a legislative intent to permit this eventuality. In Staples v United States,[3] the defendant was initially convicted of being in possession of an unregistered machine gun. It was a rifle that had been modified for rapid fire, thereby putting it in violation of the National Firearms Act. The Supreme Court reversed and remanded the case. The majority held that the defendant needed actual knowledge about the nature of his weapon in order for him to be convicted. The dissenting opinion states that it was irrelevant that he did not know about the modification because statutes regulating dangerous weapons are public welfare statutes and can be interpreted to exclude the mens rea requirement of knowledge. Hence, as long as defendants know that they are dealing with a dangerous product or device that places them in a responsible relationship to the public, they should recognize that strict regulations are more likely and assume that the United States Congress would intend to place the burden on the defendant to ascertain at his peril whether his conduct comes within the inhibition of the statute.

The courts generally convict employers for the illegal conduct of their employees even though the employers had no knowledge and so were not at fault. But in State v. Guminga[4] where a waitress served alcohol to a minor, the court found that the conviction of her employer violated the Due Process Clause and so was not constitutional under Minnesota law. Consequently, the defendant should only be given civil not criminal penalties. It is noted that this prohibition had been in force since 1905, which had given the legislature many years in which to reform the law. The majority rejected the argument of implied legislative intent. The issue of constitutionality in the form of a substantive due process clause requires a balancing of public interests and personal liberty. Although a statute making employers vicariously liable for their employee’s actions may serve the public interest by providing deterrence, the private interests affected (i.e. liberty, damaged reputation, etc.) outweigh the public interests, especially when there are alternative means to reach the same end of deterrence, say by civil fines or license suspension.