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In a rare move, the West Virginia Supreme Court will reconsider its decision that the Regional Jail Authority cannot be held liable in a lawsuit that alleges one of its male correctional officers raped a female inmate.

In an order filed Tuesday, justices said they would issue a modified opinion “in due course,” based on new information presented to the court after it issued its opinion at the end of March. More arguments aren’t needed, the order states.

Justices Menis Ketchum and Allen Loughry dissented.

“This does not happen very often; we are really pleased,” said attorney Mike Woelfel, who petitioned the court for a rehearing. “My guess is we were able to raise some legal issues that had not been presented previously in the case.”

The high court’s decision sparked outrage from state and national organizations, which joined to file a brief in support of the petition asking the court to reconsider its decision.

In a 4-1 ruling, the Supreme Court found that the RJA qualifies for immunity in the lawsuit because, if the alleged rapes took place, the correctional officer was not acting within the scope of his employment.

Chief Justice Robin Davis dissented from the original opinion, saying her colleagues decided, “In essence, that the Regional Jail does not have a duty to protect female prisoners from being raped by the correctional officers it employs.”

Woelfel took over as attorney for an inmate, only identified in court documents as “A.B.,” who sued, claiming a correctional officer at the Southern Regional Jail raped her 17 times in 2009. He filed his petition last month arguing that A.B. has a constitutional right to remain free of sexual assault while at the regional jail.

The matter went before the Supreme Court when the RJA requested to be dropped from the lawsuit, citing qualified immunity. The jail authority said it was not liable for the correctional officer’s actions because the alleged sexual assaults were not within the scope of his duties.

Kanawha County Circuit Judge Carrie Webster disagreed and said the RJA could be named in the lawsuit. The Supreme Court reversed that ruling.

According to its opinion, A.B. failed to show how the jail authority was negligent in hiring and training the correctional officer. She also failed to name specific individuals responsible for hiring and supervising the correctional officer, the court found.

The matter should have been left up to a jury to decide, wrote attorney Lonnie Simmons, who filed a brief in support of the petition for a rehearing.

Simmons filed the brief on behalf of the state chapter of the American Civil Liberties Union; the National Organization for Women; the state division of the National Association of Social Workers; West Virginia Council of Churches; West Virginia Employment Lawyers Association; WV Free; and the state Association for Justice.

“The harmful message sent by this Court with this decision is entities may not be held liable for the life-altering and permanent injuries inflicted by one of its agents, contractors, or employees committing a sexual assault, even where the assault occurred in the workplace at a time when the employee was on the job and being paid by the employer and in a situation where the employer had invested in the employee a tremendous amount of power and authority over the person sexually assaulted,” the brief stated.

Simmons called the court’s decision rare and said he is very pleased.

“This at least gives us another shot,” he said.

M. Andrew Brison, who represents the RJA, couldn’t be reached for comment Thursday.

Jennifer Meinig, executive director of the state chapter of the ACLU, said she also is pleased the court is willing to reconsider its decision.

“The court’s initial decision set a dangerous and disturbing precedent. We are pleased that the court has agreed to rehear the case,” Meinig said. “The constitutional right for all persons — including inmates — to be free from an invasion of their personal security and bodily integrity is clearly established.

“The facts show that the guard was clearly acting within the scope of his employment and, thus, the Regional Jail Authority should be held liable,” she said. “Guards, through the very nature of their employment, exercise complete authority and control over the inmates.”

Reach Kate White at or 304-348-1723.