Over the holiday break, my wife and I watched the documentary series Surviving R. Kelly. In six hour-long episodes, alleged victims of R&B singer Robert Kelly (known by his stage name “R. Kelly”) provided first-hand, detailed accounts of sexual, physical, and emotional abuse by Kelly. In addition to adult women, Kelly preyed upon teenage girls, relying on their naiveté and promising to promote their music careers.
For me, the allegations discussed in Surviving R. Kelly were not entirely surprising. In 2008, in a highly publicized trial, R. Kelly was acquitted on 14 counts of child pornography based on a 27-minute sex tape that prosecutors claimed showed him engaged in sexual acts with an underage girl. Prior to that, in 1994, Kelly reportedly married 15-year old singer Aaliyah Houghton. That marriage was annulled in 1995.
Even taking into account Kelly’s disturbing past, I was still shocked by several instances of abuse described in Surviving R. Kelly. I was also disgusted by what seemed to be a systematic method used by Kelly to recruit his victims, isolate them from their families, and cover up his abuses. Tragically, Kelly’s conduct appears to have been facilitated by various handlers, hangers-on, and individuals within the music industry who enabled the abuse of numerous women over many years. As one recap of the third episode of Surviving R. Kelly notes:
With success, Kelly leveraged control of everyone around him, those in his circles claim. This meant paying employees to be complicit in recruiting more girls. The music industry turned a blind eye because Kelly’s music was lucrative. He could afford to hide his actions from his wife and children. His fanbase was loyal to Kelly’s pockets, even after a sex tape allegedly showed him performing sex acts with an underage girl. His supporters put the genius of his music before the lives of innocent girls at this moment, cultural critics said in part three of the Surviving R. Kelly documentary.
If the allegations against Kelly as discussed in Surviving R. Kelly are to be believed—and for what it’s worth, I believe them—there appear be several potential grounds for bringing civil tort claims against Kelly (statute of limitations issues, notwithstanding). Such claims could include assault, battery, false imprisonment, and intentional infliction of emotional distress. But to what extent might his employees who facilitated his abuse be potentially liable themselves?
Under the common law rule for aiding and abetting, as described in Austin B. v. Escondido School District (a 2007 California appellate case), liability may be imposed on “one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and give substantial assistance or encouragement to the other to so act or (b) gives substantial assistance the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.”
In Austin B. v. Escondido School District, the court noted “mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting” (emphasis in original). However, to the extent that the conduct by Kelly’s employees as described in Surviving R. Kelly surpassed “mere knowledge,” they could be on the hook for potentially aiding and abetting Kelly in the commission of his unlawful activities. For example, in McMahon v. Valenzuela—a 2015 case—a federal district court held that a police officer serving as “lookout” during his partner’s sexual assault of a detainee could be liable for aiding and abetting in his colleague’s illegal conduct.
Assuming the allegations described in Surviving R. Kelly are true, Kelly will hopefully be held accountable for his years of abusing women. The same goes for the employees whom he paid and who enabled his disgusting behavior.