A northern Indiana town and school corporation’s motion to dismiss a case stemming from an unreported gang rape was affirmed Thursday, with one appellate judge apologizing to the victim for being unable to find an ‘adequate remedy’ under current Indiana law.
While serving as a resource officer for the Whitko Community School Corporation and a police officer for the Town of South Whitley, Indiana, Matthew Gilbert was accused of failing to report Courtney Weikart’s two alleged gang rapes, despite telling her parents that he had notified the Kosciusko and Whitley County sheriff’s departments. His failure to do so resulted in a charge of Class B misdemeanor failure to make a report and the criminal achage was widely reported. The Weikarts claim public disclosure of the events caused the family emotional distress.
The family sued the school corporation and town, alleging that Gilbert was “carrying out his employer-conferred duties, which he willfully abused such that (the school corporation and town) are liable pursuant to the doctrine of respondeat superior.”
They also alleged that Gilbert potentially jeopardized Courtney’s well-being and greatly compounded her emotional stress and trauma when he obtained information from her regarding drug activity. Likewise, they claimed that the public disclosure of the assaults also resulted in the likelihood of exposure of the drug information provided to him.
A trial court ultimately granted the defendants’ Trial Rule 12(B)(6) motion to dismiss the complaint. The Weikarts appealed, arguing the Whitley Circuit Court had erred based on Gilbert’s “breach of special duty” as a law enforcement officer.
The appellate court found that argument was waived, concluding that Estate of Tanasijevich v. City of Hammond, 178 Ind. App. 669, 383 N.E.2d 1081 (1978) was distinguishable from the facts at hand. It noted that none of Gilbert’s alleged actions narrowed his general public duty into a specific one owed to Courtney.
“The Weikarts concede that there is no private right of action stemming from a failure to report. And even if they had not waived their argument related to a ‘special duty,’ they have failed to show as a matter of law that such a duty existed in this case,” Judge John Baker concluded. “Consequently, the trial court did not err by granting the Appellees’ motion to dismiss.”
Judge Terry Crone reluctantly concurred in a separate opinion, noting that “the Indiana Supreme Court has not definitively held that the child abuse reporting statutes do not confer a private civil cause of action, and the school resource officer’s egregious violations of those statutes in the context of his special relationship with C.W. call out for a remedy for the injuries to her person and reputation as promised by Article 1, Section 12 of the Indiana Constitution.
“This child was victimized by two horrible sexual assaults, and when Officer Gilbert failed to help her, she was victimized once again by the publicity surrounding his arrest. I have great respect for law enforcement officers, and they are often faced with difficult split-second decisions that can have life-or death consequences for which they should not and do not incur civil liability. This was not one of those situations,” Crone wrote.
“I apologize to this child and her family for being neither learned enough nor wise enough to think of an adequate remedy for them given the current state of our law, which leaves the constitutional promise of a remedy unfulfilled,” Crone continued. “It is not right, and I hope one day it will change.”