When Are You Liable For What Your Employees Do?
by John Garziglia
Earlier this week, we reported how a morning man was charged with child molestation. As if those charges weren't bad enough, it was also alleged the crime took place on the property of the radio station in which the man worked. We wanted to know the ramifications with the law and the FCC for a station owner when this happens so we took it up with attorney John Garziglia in this week's issue of "Ask The Attorney."
Radio Ink asks: What are the implications for the station and management of sexual contact between a radio personality and a listener under 18 years of age?
Well, it appears that some radio personalities, even though they may be adults well into their 40s or 50s, conduct themselves like they are pubescent teenagers with little regard for their own culpability. While this may not be a total surprise, it can make for horrible potential collateral damage to the station and others, in addition to exposing the radio personality himself or herself to potential significant criminal liability. Most states prohibit sexual contact between adults and kids under 16, and for some places, under 18. Most states prohibit any sexual contact for the purpose of arousal which includes touching and exhibiting, not just touching of private parts or intercourse.
For more information, I turned to Kurt Stakeman, a former state prosecutor who handles criminal matters at my law firm. Kurt observes it does not matter if the under-aged person is the initiator, and in most places if the under-aged person lies about his or her age. There is strict criminal liability for such sexual contact. Offenders face prison and being listed as a sexual predator. The more significant the touching, often the longer the sentence. Most states have mandatory minimum sentences measured in years.
With respect to management personnel or other employees at the radio station, Kurt warns that there can be criminal liability for those who know of such sexual contact between adults and under-aged persons but do not report it. He also forewarns that there is clear criminal liability for those who know and do not tell the truth in a police investigation.
Past all of this, offenders and their employers could also face civil liability. The liability for the employer will be a function of what the employer knew or should have known was going on in the station or any station function such as something connected with a remote broadcast or personal appearance by the personality. The employer can also be liable if it knew or should have known that the personality had a prior conviction or history of unlawful contact with under-aged persons. Once again, as with anything where there may be civil liability, it is good to confirm now that the station's liability insurance covers the station for allegations of wrongful sexual contact, rather than after such an incident occurs.
Finally, the FCC, which has rarely seen fit in the past several decades to take away licenses, reserves a special place for child molestation offenses and drug offenses. If ownership or upper management at a radio station are somehow implicated in such offenses, license revocation proceedings may follow. I could close by saying ?know the law? and ?check the ID? but that is something every radio personality has known since the beginning of time. Yet, every so often someone gets caught. The best advice for over-sexed radio personalities, past the ignored admonitions of not doing something highly illegal in the first place, is to have the direct-dial number of a criminal attorney like Kurt Stakeman (336-721-3689) with you at all times. At the first hint of trouble, whether real or alleged, the immediate assistance of a great criminal attorney can often be the difference in what happens next.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com. Have a question for our "Ask The Attorney" feature? Send to edryan@radioink.com.
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