## Facts

- Michele DeeAnn Grager was incarcerated in the Barnes County Jail in November 2004.
- Grager alleged jailer Kevin Schudar engaged in a sexual act with her while she was a prisoner.
- Schudar later pled guilty to sexual abuse of a ward under N.D.C.C. § 12.1-20-06, which criminalizes a jailer’s sexual act with a prisoner regardless of the prisoner’s consent.
- Grager sued Schudar for assault, battery, intentional infliction of emotional distress, and civil rights violations, and sued Barnes County for negligent supervision and civil rights violations.
- A jury found Barnes County was not negligent in supervising Schudar and found Grager consented to Schudar’s conduct.
- The district court instructed the jury that if Grager consented to or participated in the sexual conduct, consent was a complete defense to her claims.
- The district court entered judgment dismissing the action and denied Grager’s motion for a new trial.

## Issues

1. Whether the district court erred by instructing that Grager’s consent to or participation in the jailer’s sexual conduct was a complete defense to her tort and civil rights claims.
2. Whether, given N.D.C.C. § 12.1-20-06, an inmate’s apparent consent can legally bar civil recovery for a jailer’s sexual act.
3. Whether consent, if relevant, should be considered only within North Dakota’s comparative-fault allocation rather than as an absolute bar.
4. Whether challenged instructions and rulings on scope of employment, judicial notice, and evidence required reversal or needed clarification for retrial.

## Decision

- The Supreme Court of North Dakota reversed the judgment and the order denying a new trial and remanded for further proceedings.
- The court held it was legal error to instruct that Grager’s consent or participation was a complete defense to claims for assault, battery, intentional infliction of emotional distress, and civil rights violations.
- The erroneous consent instruction was prejudicial because the jury’s verdict turned on the finding of consent under an instruction that made consent dispositive.
- The court concluded the scope-of-employment instructions were correct or not prejudicial and did not provide a separate basis for reversal.
- The court found no independent reversible error in the judicial-notice instruction or the evidentiary rulings, though it addressed points likely to recur on remand.

## Legal Principles

- When a statute is designed to protect a defined class and criminalizes conduct regardless of the victim’s consent, consent is not a complete defense in a related tort action.
- N.D.C.C. § 12.1-20-06 reflects a legislative judgment that sexual acts between jailers and prisoners are prohibited irrespective of prisoner consent; civil instructions must be consistent with that rule.
- In a comparative-fault regime, a plaintiff’s conduct may affect allocation of fault and damages, but does not automatically bar recovery unless the plaintiff’s comparative fault exceeds the defendants’ combined fault.
- A jury instruction that converts alleged consent into an absolute bar, contrary to governing law, constitutes reversible error when it likely affected the verdict.

## Conclusion

The court ordered a new trial because instructing that a prisoner’s consent or participation completely defeats civil claims arising from a jailer’s sexual act contradicts the governing criminal statute and comparative-fault principles; any relevance of consent is limited to comparative-fault assessment rather than serving as a total defense.


Grager v. Schudar, 770 N.W.2d 692 (N.D. 2009)