United States v. David W. Lanier

DAUGHTREY, Circuit Judge,

dissenting.

Apparently because the United States Supreme court has never held, specifically, that 18 U.S.C. § 242 proscribes sexual assault by a sitting state judge, committed against litigants, court personnel, or those involved in court-related programs, the majority today reverses the defendant’s convictions under § 242 and declares that the charges against him should not have been brought. This result rests on the majority’s conclusion that the federal constitution offers no protection against such assaults. Because I conclude, to the contrary, that such constitutional pro-teetion is well-entrenched, I respectfully dissent.

I.

In its opinion, the majority sets out, at some length, the fruits of its exhaustive research into the legislative history of § 242. Missing, however, is even a brief sketch of the factual history of this case, so necessary to put the constitutional analysis in context. Those facts were fairly and dispassionately summarized by the three-judge panel that first heard this appeal, as follows:

The evidence presented at trial showed that defendant was born in Dyer County, Tennessee, and had lived there virtually all his life. Defendant is from a politically prominent family. He served as alderman and mayor of Dyersburg, Tennessee, before first being elected Chancery Court Judge of the Twenty-Ninth Judicial District in 1982. Defendant was reelected in 1990. He continued to serve as a chancery court judge until he was removed from his position pending resolution of this case.

As a chancery court judge, defendant principally presided over divorces, probate matters, and boundary disputes. Although the circuit court also has concurrent jurisdiction ... over divorce cases, defendant presided over 80 to 90 percent of the divorce cases in Lake and Dyer Counties, including child support and other matters related to the divorce cases. Further, ... defendant also served as juvenile court judge in said counties.

In 1989, defendant hired Sandy Sanders to be the Youth Service Officer of the Dyer County Juvenile Court. Sanders was to supervise the Youth Service Office. During her job interview, defendant told Sanders that he had sole hiring authority for the Youth Service Officer position. Defendant also had the authority to fire the Youth Service Officer.

As part of her job duties, Sanders was required to have weekly meetings with defendant to review the work performed by her office. During one of these weekly *1404 meetings, which occurred in defendant’s chambers, defendant got up from his desk, sat beside Sanders in a chair, and, during their conversation, grabbed and squeezed her breast. Sanders became upset and tried to remove defendant’s hand; however, defendant told her not to be afraid.

Sanders left the meeting as quickly as possible. She did not tell anyone about what had occurred because she thought that no one would believe her since defendant was a judge and was influential in the community. Subsequently, Sanders telephoned defendant and told him she needed to meet with him. She went to defendant’s chambers, told him she did not appreciate his action, and received an apology from him.

Sanders continued to have weekly meetings with defendant. However, after she confronted him about his actions, he began complaining about the quality of her work, and, eventually, he took away her supervisory authority. Sanders testified that she believed defendant took away her supervisory authority in retaliation for her confrontation with him. She testified that she considered quitting her job, but she remained in her position because she believed she was helping the children she worked with.

Defendant testified that he was often alone with Sanders in his chambers; however, he denied ever touching her breast. He testified that prior to the alleged incident, he and Sanders would hug and kiss each other as a friendly greeting. Defendant testified that he stopped such behavior after Sanders told him she was no longer comfortable hugging him.

In the fall of 1990, defendant hired Patty Mahoney to be his secretary. Mahoney was recently divorced and had two young children to support. Mahoney understood that defendant was her supervisor and had the power to fire her. Mahoney was uncomfortable with defendant because she felt that he had inappropriately hugged her during her job interview. However, she accepted the job because, for a person without a college degree, it was a good job in Dyersburg.

Mahoney testified that she worked for defendant for two weeks, but she quit when it became apparent that he was not going to leave her alone. She testified that while she worked in defendant’s chambers, he would hug her or touch her on her breasts or buttocks. By the second day of her employment, defendant began to firmly place his hands on her breasts.

Mahoney testified that defendant eventually became more aggressive, grabbing and squeezing her breasts, rather than just placing his hands on them. [Defendant also telephoned Mahoney at her home, invited her to vacation with him in the Bahamas, and told her, “If you will sleep with me, you can do anything you want to. You can come in to work any time you want to, you can leave any time you want to.”] She confronted him about his behavior, but he told her that if she reported his behavior it would hurt her more than it would hurt him. Mahoney testified that since the La-nier family was so powerful, she thought that no one would hire her if she reported defendant’s behavior.

Despite her confrontation with defendant and her efforts to avoid being alone with defendant, the touching and grabbing of Mahoney’s breasts continued on a daily basis. After deciding she would quit, Ma-honey telephoned defendant from her home and informed him of her decision. Mahoney went to work the next day and met with defendant in his chambers. She broke down crying, telling him that she needed the job and wanted him to leave her alone. At that point, defendant put his arms around her, lifted her off the floor, and aggressively hugged her. Then, with one hand on the lower part of Mahoney’s back, defendant slid her down his body and pressed his pelvis against her. That same night, Mahoney called defendant and told him she was quitting. She worked one more week because she needed the job.

At trial, defendant denied that he ever touched Mahoney in a sexual manner or grabbed either her breasts or buttocks. However, defendant testified that he and Mahoney hugged every day.

*1405 Vivian Archie grew up in Dyersburg and was acquainted with the Lanier family. She married in 1988 and gave birth to a daughter. She was divorced the following year. Defendant presided over her divorce proceedings and awarded the custody of her daughter to her.

In 1990, Archie was out of work and living with her parents. Archie learned that a job was available at the courthouse. She went to the courthouse, filled out an application for a secretarial position, and met with defendant in his chambers. At the outset of their meeting, defendant told Archie that her father had come to see him that day. Defendant said that Archie’s father had told him that she was not a good mother, and he wanted custody of her child.

Archie became frightened and asked defendant if he was going to take her daughter away from her. Defendant told her that he could not talk about it because he was the judge who would preside over any such case. Defendant told Archie that he had already promised the job to someone else. Archie replied that she needed the job and would do anything to get a job. She testified that she stated this because, otherwise, defendant would have leverage to take her child away.

When Archie was ready to leave, she reached across the desk to shake defendant’s hand. At that point, defendant grabbed her hand, pulled her around to the end of his desk, and grabbed her hair and neck. When Archie told defendant to stop and tried to push him away, he twisted her neck and tried to fondle her. Defendant kept pulling Archie's hair and neck, and finally, he turned around and threw her into a chair. Defendant then [placed his hand under her jacket and repeatedly tried to force his tongue into her mouth], and each time she tried, to get away, he would squeeze her neck harder. Finally, defendant stood over Archie, exposed his penis, and pulled her head down and her jaws open. He then forced his penis into her mouth and moved his pelvis back and forth with great force. Archie testified that this hurt her throat and jaw.

Defendant did not stop until he had ejaculated in Archie’s mouth. Archie, who was crying, got up and went into defendant’s bathroom to clean her mouth and face so that she could leave the courthouse. Archie testified that when she got home, her head was tender where defendant had pulled her hair; her neck was sore, and when she brushed her hair where defendant had pulled it, some of her hair fell out. Archie also testified that she did not scream when defendant attacked her or report the incident because she was afraid he would take custody of her child from her [and because defendant’s brother was then the prosecutor for the area].

A few weeks later, defendant telephoned Archie’s residence and told her mother he had a job for her. Defendant did not tell Archie’s mother where the job interview would be located. Rather, he told her mother that Archie would have to come by his chambers to get the information. Archie was reluctant to call defendant; however, at her mother’s insistence, she returned his telephone call. Although Archie repeatedly asked defendant to tell her where the job interview was, he insisted that she return to his chambers for the information. Archie then returned to defendant’s chambers believing that if she did not, her parents would be furious with her and defendant would believe that she had told her parents about the assault.

When she arrived at defendant’s chambers, he told her about a secretarial position in the office of Dr. Lynn Warner. Archie told defendant she knew where Dr. Warner’s office was located because he had been her doctor since she was a child. While they were talking, defendant walked around his desk towards Archie. She tried to get out of the room, but he slammed the door closed and began kissing her. She told him to stop, but he began pulling her hair and threw her into a chair. As she was saying “no,” defendant again exposed himself, turned her head, pulled her mouth open, and forced her to perform oral sex. During this period, defendant continued to grab Archie by the hair, squeeze her neck and shoulders, and pull her head back, all of which caused her great pain. Archie *1406 also testified that during this period she was crying, gagging, choking, and having trouble breathing. Defendant again ejaculated in her mouth. She ran crying into his bathroom and cleaned up her mouth and face so that she could go to her job interview.

Archie did not report either of the assaults because her child custody case had been in defendant’s court, and she was afraid that defendant would take her daughter away from her. Archie testified that she subsequently met with defendant and that he asked her if she had said anything to anyone and also asked why she had not been back to see him. Defendant then asked Archie how her family life was going. Archie testified that she interpreted defendant’s remarks to mean that he would permit her to keep custody of her daughter if she did not tell anyone what had happened.

At trial, defendant acknowledged that he was alone with Archie in his chambers on both of the occasions mentioned in her testimony, but he denied ever assaulting her or having oral sex with her. He testified that Archie came to him looking for a job and he told her he did not have one available, but he would let her know if he learned of one. He also admitted telling Archie that he had met her father and that her father wanted to know how to go about getting custody of Archie’s daughter.

Defendant admitted that he told Dr. Warner that Archie needed a job and that he set up an interview for her with Dr. Warner. Defendant also admitted that he told Archie to come to his chambers so he could tell her where the interview was. Defendant testified that Archie did come to his chambers and that he sent her to Dr. Warner for the interview.

Dr. Warner testified as a defense witness. He testified that Archie never told him that defendant forced her to have sex with him. On cross-examination, Warner testified that Archie did tell him that defendant requested oral sex and that she performed oral sex. Dr. Warner also testified on cross-examination that he discussed Archie with defendant, and defendant told him that Archie might be willing to provide sexual favors. As a result, Warner agreed to interview Archie for the job.

In March 1991, defendant hired Sandy Attaway, age 26, to be his secretary. After her first month of work, defendant began making sexual comments to Atta-way. He told Attaway that he would loan her money and they could work out a payment. He also asked Attaway what she would do for him if he let her off from work. Finally, defendant told Attaway that he knew how he could relieve her stress and she could relieve his. Attaway believed these comments referred to sex.

Defendant also asked Attaway if she were afraid of him. She testified that she told him “no,” although that was untrue, because she did not want him to think she was weak and could be intimidated. Defendant told Attaway that he was a judge, and everyone should be afraid of him.

Defendant then went from sexual comments to physical contact with Attaway. He began hitting her on the buttocks when she walked by him. Further, when Atta-way was in defendant’s chambers to have him sign some papers, he walked around behind her and threw his arms around her. Defendant then[, while still wearing his judicial robes,] pushed his pelvic area into Attaway’s buttocks and began making a grinding motion. She could tell that defendant’s penis was erect because she felt him rubbing it against her. Attaway then yelled at defendant to stop. He told her to lower her voice because there were people in the courtroom, and defendant was afraid they would hear Attaway.

Attaway did not quit after the assault because she needed the job. However, three months later, defendant terminated Attaway on the ground that things were not working out. Attaway testified that she saw defendant at the courthouse after he had terminated her, and defendant told her they would have gotten along fine if she had liked to have oral sex.

*1407 Defendant testified regarding Attaway’s allegations. He denied sexually assaulting her in any way.

In the fall of 1991, Fonda Bandy met with defendant in his chambers, concerning her work for a federal program, Drug Free Public Housing. Bandy wanted to implement a new program of parenting classes for parents who lived in public housing and had children before the juvenile court. Since defendant was the juvenile court judge, Bandy arranged a presentation about the program for him. She hoped that he would refer parents to her program as part of their children’s sentencing.

Bandy testified that when she began to leave defendant’s chambers, he put his arms around her and started kissing her. As she tried to turn and pull away, defendant put one of his hands behind her head and pulled her up to him. Defendant then began to fondle one of Bandy’s breasts and she tried to push him away. When she eventually pulled herself free, Bandy saw that defendant had lipstick all over him.

Bandy was shaken and panicked, and she went into the bathroom to clean herself up before leaving defendant’s chambers. After she left the bathroom, Bandy had to walk past defendant’s desk to exit his chambers. As she walked by, defendant, who was sitting on the end of his desk nearest the door, reached out and put his hand on Bandy’s crotch. Bandy momentarily hesitated and then kept on walking towards the door. Defendant followed her to the door and told her that if she came back, she would have all the clients that she wanted for her new program.

Bandy testified that she never returned to see defendant because she did not want to have to go through that kind of treatment again. Defendant only referred two individuals to Bandy’s program. These two individuals had cases pending before defendant at the time of his meeting with Bandy, and defendant and Bandy had discussed their cases. Bandy testified that she did not report the incident with defendant because he was a judge and she did not want too many people to know about it.

Defendant testified and admitted that he had met with Bahdy alone in his chambers. He denied ever sexually assaulting Bandy. Defendant also testified that after their meeting, Bandy came over to him and hugged and kissed him.

United States v. Lanier, 38 F.3d 639, 646-50 (6th Cir.1994), vacated, 43 F.3d 1033 (6th Cir.1995).

In fight of these facts, the grand jury returned against Lanier an 11-count indictment enumerating alleged violations of “the right not to be deprived of liberty without due process of law, including the right to be free from wilfull [sic] sexual assault, ... all in violation of Title 18, United States Code, Section 242 .” At trial, the jury, after being instructed that the improper conduct must be “so demeaning and harmful under all the circumstances as to shock one’s conscience,” convicted the defendant on two felony and five misdemeanor counts in connection with the egregious behavior. The majority, however, now holds that prosecution pursuant to § 242 was improper based upon its examinations of legislative history, case law, canons of judicial interpretation, and constitutional notice requirements. I respectfully suggest that such analyses ignore historical facts and jurisprudential precepts that mandate a contrary conclusion.

II.

A. Examination of Legislative History

Presently, 18 U.S.C. § 242 provides, in relevant part:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section ..., shall be fined under this title or imprisoned not more than ten years or both....

*1408 At first blush, the provisions of the statute would seem to- outlaw unambiguously the willful deprivation under color of law “of any rights ... secured or protected by the Constitution.” (Emphasis added.) Ordinarily, such a lack of ambiguity would preclude a foray into the uncertainties of legislative history. As Chief Judge Merritt himself announced in United States v. Winters,. 33 F.3d 720, 721 (6th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1148 , 130 L.Ed.2d 1107 (1995), “[o]nly if the language of the statute is unclear do we look beyond the statutory language to the intent of the legislature.” Nevertheless, in this case, simply by declaring § 242 to be “perhaps the most abstractly worded statute among the more than 700 crimes in the federal criminal code,” the majority justifies its extensive recounting of the historical development of the provision. Then, despite acknowledging that the forerunner of today’s § 242 clearly expanded the scope of criminal liability for constitutional violations, the majority would have us ignore the clear language of the statute and conclude that Congress did not intend to criminalize all willful violations of constitutional rights committed under color of law.

The majority’s analysis and conclusions are interesting as an academic exercise attempting to divine the motivations of a disparate collection of legislators, acting over a century ago on what appears (as is often the case with legislative action) to be a less than fully educated basis. That analysis fails, however, to accord appropriate deference to the holdings of Supreme Court decisions that are binding upon this tribunal today. Specifically, in Screws v. United States, 325 U.S. 91, 104 , 65 S.Ct. 1031, 1036-37 , 89 L.Ed. 1495 (1945), the Court recognized that § 242 reached not only to a static, limited group of super-constitutional rights, but also to any right “which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.” (Emphasis added.) Similarly, in United States v. Price, 383 U.S. 787, 803 , 86 S.Ct. 1152, 1161 , 16 L.Ed.2d 267 (1966), the Court noted that § 242, like its companion provision, 18 U.S.C. § 241 , includes in its protections a “wide range of rights: ... ‘any rights, privileges, or immunities, secured or protected by the Constitution or laws of the United States.’ ” 1 Thus, “the ‘customary stout assertions of the codifiers that they had merely clarified and reorganized without changing [the] substance’ [of § 242] cannot be taken at face value.” Maine v. Thiboutot, 448 U.S. 1 , 8 n. 5, 100 S.Ct. 2502 , 2506 n. 5, 65 L.Ed.2d 555 (1980) (quoting United States v. Price, 383 U.S. at 803 , 86 S.Ct. at 1161 ).

Moreover, over the years, and through subsequent amendments, Congress has not seen fit to alter § 242 in the face of Supreme Court decisions that contradict the position espoused by the majority. If Congress itself has not found it necessary to correct the supposed misconstruction of the reach of § 242, this court should be hesitant now to fill in the gap that the majority attempts to create. Instead, we should limit our inquiry in this ease to the relevant question of whether court decisions had “made specific,” by the time Lanier committed the acts for which he was convicted, a constitutional right to be free from interference with bodily integrity.

B. Examination of Case Law

At the outset, it should be noted that the majority appropriately does not contend that judges are immune from prosecutions under § 242. See Briscoe v. LaHue, 460 U.S. 325 , 345 n. 32, 103 S.Ct. 1108 , 1121 n. 32, 75 L.Ed.2d 96 (1983). Also, the majority does not, and indeed cannot, contend that Lanier did not perform the reprehensible acts that form the basis of the jury’s verdict in this matter. Finally, the majority does not question the conclusion that those acts were committed under “color of law.” Instead, in deciding to dismiss the indictment issued against Lanier, the majority insists that the constitutional right upon which the prosecution based its case, the right to be free from *1409 interference with bodily integrity that shocks the conscience, had not been recognized in a United States Supreme Court opinion at the time the defendant committed the acts of which he was accused.

As mentioned earlier, Screws held in 1945 that the reach of § 242 extends to any right “which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.” Screws v. United States, 325 U.S. at 104 , 65 S.Ct. at 1037 . In this case, the government does not rely upon any express constitutional provision “making specific” the right of individuals to be free from interference with their bodily integrity. Instead, the prosecution submits that principles of substantive due process, as interpreted by the federal courts, protect and make specific the very right asserted in this prosecution.

This court has previously recognized that deprivations of due process fall into two categories: “violations of procedural due process and violations of substantive due process .... ” Mansfield Apartment Owners Assoc. v. City of Mansfield, 988 F.2d 1469, 1473-74 (6th Cir.1993). In turn, substantive due process violations themselves can be grouped into two separate classifications. “The first type includes claims asserting denial of a right, privilege, or immunity secured by the Constitution or by federal statute other than procedural claims under ‘the Fourteenth Amendment simpliciter.’ ” Mertik v. Blalock, 983 F.2d 1353, 1367 (6th Cir.1993) (quoting Parratt v. Taylor, 451 U.S. 527, 536 , 101 S.Ct. 1908, 1913 , 68 L.Ed.2d 420 (1981)). “The other type of claim is directed at official acts which may not occur regardless of the procedural safeguards accompanying them. The test for substantive due process claims of this type is whether the conduct complained of ‘shocks the conscience’ of the court.” Mertik v. Blalock, 983 F.2d at 1367-68 . It seems obvious to me, as it did to the prosecution, the district court, the federal jury, and the original panel that heard this appeal, that federal case law establishes that interference with an individual’s bodily integrity under circumstances similar to those involved in this case is in fact so repulsive and deviant as to fall within this second category of substantive due process violations.

In order to reach a contrary conclusion, the majority twice dons blinders that hinder it from according § 242 the power to battle the forces of oppression that prompted enactment of the Fourteenth Amendment and the various statutes 'executing its protections. First, the majority constructs on its own the requirement that only Supreme Court case law be referenced when determining whether a constitutional right has been made specific for purposes of § 242 because reliance upon lower court decisions to define those rights raises the possibility of inconsistent enforcement across the country.

Acceptance of such an argument again necessitates another misreading of Supreme Court precedent. In Screws , when listing the sources capable of defining protected constitutional rights, Justice Douglas included “decision's interpreting [the Constitution and laws of the United States],” not only Supreme Court decisions providing such interpretations. Screws v. United States, 325 U.S. at 104 , 65 S.Ct. at 1037 (emphasis added). Moreover, the Screws plurality opinion clearly states, “In the instant case the decisions of the courts are, to be sure, a source of reference for ascertaining the specific content of the concept of due process.” Id. at 96 , 65 S.Ct. at 1033 (emphasis added). Such language is plainly inconsistent with a requirement that only the decisions of a specific court define the scope of due process rights.

Furthermore, the fears that prompted the majority’s attempt to limit the possible sources of explication of rights listed in Screws are not relevant in this instance. Where all federal courts addressing analogous situations have accepted the long-standing existence and viability of a right to freedom from interference with bodily integrity protected by the substantive provisions of the due process clause, no danger of inconsistent interpretations and enforcement of the law is present.

Even more troubling than the majority’s restriction of the Screws holding, however, is the fact that in order to arrive at the conclusion it does today, the majority is also forced *1410 to reject or ignore, without logical explanation, the import of the holdings of a number of Supreme Court decisions that clearly recognize a constitutional right to bodily integrity. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833 , 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992); Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 , 110 S.Ct. 2841 , 111 L.Ed.2d 224 (1990); Youngberg v. Romeo, 457 U.S. 307 , 102 S.Ct. 2452 , 73 L.Ed.2d 28 (1982); Ingraham v. Wright, 430 U.S. 651 , 97 S.Ct. 1401 , 51 L.Ed.2d 711 (1977). These decisions do not specifically mention sexual assaults upon individuals under color of law. Consequently, even though Lanier’s conduct in this matter is, in many ways, far more egregious than the actions discussed in the cited cases, the majority concludes that such precedent cannot support the contention that the “right to be free from rape and sexual assault and harassment has also been recognized by the Supreme Court generally as a component of an enforceable general constitutional right to ‘bodily integrity.’ ”

In K.H. Through Murphy v. Morgan, 914 F.2d 846 (7th Cir.1990), however, the Seventh Circuit recognized that the logical interpretations of existing law cannot be ignored by the courts simply because factually similar cases are not presented. Instead, the underlying principles of relevant case law should be given vitality in such instances. As the court noted:

The easiest cases don’t even arise. There has never been [,for example,] a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.

Id. at 851.

Likewise, here, no Supreme Court decision has explicitly ruled that constitutional principles protecting bodily integrity forbid a sitting judge, in his chambers, and in some cases, while in his judicial robes, from fondling and raping women with business before his court. Such a scenario, however, is the “easy” case that demonstrates a blatant violation of those Supreme Court and courts of appeals precedents that have “made specific” the fact that interference with personal security and bodily integrity that shocks the conscience is proscribed by the substantive due process principles of the Fourteenth Amendment.

1. Supreme Court Treatment of Bodily Integrity

Short of attempting to catalogue every possible factual situation involving an intrusion upon personal security or bodily integrity, it is impossible to see how the Supreme Court could have more explicitly stated over the years that violations of that precious right cannot be tolerated in a free and civilized society. For example, the Court chronicled the fact that 780 years ago, the Magna Carta provided that “an individual could not be deprived of this right of personal security ‘except by the legal judgment of his peers or by the law of the land.’ ” Ingraham v. Wright, 430 U.S. at 673 n. 41, 97 S.Ct. at 1413 n. 41. As recognized by the Court, when the drafters of the Bill of Rights met more than 500 years later, they attempted to provide Americans with “at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown” by engrafting that same principle from the Magna Carta into our constitution’s due process clause. Id. at 673 , 97 S.Ct. at 1413 .

In Youngberg v. Romeo, 457 U.S. at 315 , 102 S.Ct. at 2458 , the Supreme Court reiterated, citing Ingraham , that “[i]n the past, this Court has noted that the right to personal security constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause.” Then, in Cruzan , the Court again referenced the “notion of bodily integrity” and recognized:

Before the turn of the century, this Court observed that “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”

Cruzan v. Director, Missouri Dept. of Health, 497 U.S. at 269 , 110 S.Ct. at 2846 (quoting Union Pacific R. Co. v. Botsford, *1411 141 U.S. 250, 251 , 11 S.Ct. 1000, 1001 , 35 L.Ed. 734 (1891)).

As recently as 1992, the Supreme Court yet again affirmed the long-standing constitutional principle that the majority now overlooks when that Court stated, “It is settled now, as it was [in 1971 and 1972] when the Court heard arguments in Roe v. Wade [ 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973) ], that the Constitution places limits on a State’s right to interfere with a person’s ... bodily integrity.” Planned Parenthood v. Casey, 505 U.S. at 849 , 112 S.Ct. at 2806 . Although Planned Parenthood v. Casey and the other Supreme Court cases cited above admittedly did not involve a sexual assault, and although those cases may not have dealt with actions taken by a state judge, such factual differences among the cases are immaterial to the underlying reality that the Supreme Court has clearly and consistently proclaimed that the constitution’s due process clause protects an individual from interference with bodily integrity under color of law under circumstances that would shock the conscience of the court.

2. Appellate Court Treatment of Bodily Integrity

Furthermore, all circuit courts that have addressed this or similar issues have likewise recognized the seemingly axiomatic principle that a citizen’s right not to be deprived of life, liberty, or property without due process of law encompasses the right not to be intentionally and sexually assaulted under color of law. In United States v. Davila, 704 F.2d 749 (5th Cir.1983), for example, Davila and a co-defendant, officers of the United States Border Patrol, were charged under 18 U.S.C. § 242 with coercing two women to submit to sexual intercourse with them in return for allowing them to enter the country illegally. The Fifth Circuit unanimously affirmed the convictions without commenting on the basis for the prosecution.

Similarly, in United States v. Contreras, 950 F.2d 232, 236 (5th Cir.1991), cert. denied, 504 U.S. 941 , 112 S.Ct. 2276 , 119 L.Ed.2d 202 (1992), the defendant, a police officer, was charged under § 242 with the criminal offense of “willfully depriving [the victim] of her constitutional rights, while acting under color of law, by sexually assaulting her ...” while he was on duty. Again, the appellate court found no constitutional error in the convictions and affirmed the judgment of the district court.

Because the defendants in Davila did not expressly challenge their convictions under § 242 on appeal, the majority dismisses the importance of that ease to the discussion presently before us. The defendant in Contreras also did not dispute the fact that a sexual assault perpetrated under color of law fell within the proscriptions of the due process clause. Presumably, therefore, the majority would also dismiss the precedential value of that ease for the same reasons advanced in its discussion of Davila . Despite the majority’s casual treatment of prosecutions for sexual assaults under § 242, however, these eases provide further support for the proposition that court decisions had already recognized and “made specific” the constitutional right to be free from interference with bodily integrity prior to initiation of Lanier’s actions that resulted in this prosecution.

Other circuit court decisions rendered in civil actions brought pursuant to 42 U.S.C. § 1983 also recognize acceptance of this idea of the reach of substantive due process principles. 2 See, e.g., Walton v. Alexander, 44 *1412 F.3d 1297, 1302 (5th Cir.1995) (en banc) (reiterating the Fifth Circuit’s recognition that “[t]he right to be free of state-occasioned damage to a person’s bodily integrity is protected by the fourteenth amendment guarantee of due process”); Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir.1994) (quoting Casey for the proposition that “[i]t is settled now ... that the Constitution places limits on a State’s right to interfere with a person’s ... bodily integrity”); Doe v. Taylor Independent Sch. Dist., 15 F.3d 443, 451 (5th Cir.) (en banc) (concluding that if due process considerations protect school children from arbitrary paddlings and other corporal punishment, “then surely the Constitution protects a schoolchild from physical sexual abuse”), cert. denied, — U.S. -, 115 S.Ct. 70 , 130 L.Ed.2d 25 (1994); Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476, 479 (9th Cir.1991) (finding that the defendant clearly “used his position in the state government to deprive these women of their constitutional right to be free from sexual assault”); Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 , 726-27 (3d Cir.1989) (en banc) (holding that the constitutional right to freedom from invasion of personal security through sexual abuse was well-established even before Ingraham because “a teacher’s sexual molestation of a student could not possibly be deemed an acceptable practice”), cert. denied, 493 U.S. 1044 , 110 S.Ct. 840 , 107 L.Ed.2d 835 (1990); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981) (recognizing that “[t]he right to be free of state-occasioned damage to a person’s bodily integrity is protected by the fourteenth amendment guarantee of due process”); Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980) (recognizing that not all criminal assaults will constitute violations of a constitutional right, but that the right to be free from intrusions into bodily security that shock the conscience “is unmistakably established in our constitutional decisions as an attribute of the ordered liberty that is the concern of substantive due process”); Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir.1974) (stating that “[t]he right violated by an assault has been described as the right to be secure in one’s person, and is grounded in the due process clause of the Fourteenth Amendment”). Rather than giving credence to the underlying constitutional principles forming these decisions, however, the majority discounts the cases as irrelevant because the opinions, for the most part, accept without debate the uncontroverted principle that, throughout our jurisprudential history, it has been assumed that due process principles protect us from sexual assaults of the kind at issue here.

Unlike the majority, I believe that the very fact that the assumption is so widely held assists in establishing and making specific the constitutional right to be free from invasions of bodily integrity under color of law. The majority’s criticism that “[tjhese broad statements are not supported by precedent indicating that a general constitutional right to be free from sexual assault is part of a more abstract general right to ‘bodily integrity’ ” is also misplaced. Because the “literally outrageous abuses of official power,” Hall v. Tawney, 621 F.2d at 613 , that occasion resort to the protections of substantive due process rights are so varied, articulation or listing of the precise actions that would justify reliance on such constitutional principles is difficult. Sexual assault, however, must be considered one of the most blatant and serious invasions of the protected right to bodily integrity. If such intrusions are not plainly within the scope of protection offered by the “general right,” it is difficult to imagine what other acts could be so included.

In short, I can think of no more clearly established and specific, constitutionally-based, due process principle than one which recognizes, albeit necessarily through analogous factual situations, that judicial officials cannot wield their power over child-custody decisions, employment decisions, and other court matters so as to coerce compliance through sexual assaults and other interferences with the rights of bodily integrity of litigants, applicants, and other individuals before the court. An analysis of applicable case law, both from the Supreme Court and from our sister circuits, leads to the inescapable conclusion that, at the time of Lanier’s assaults upon his victims, a constitutional *1413 right to freedom from interference with bodily integrity that shocks the conscience had been made specific by those decisions.

C. Examination of Specificity of Notice to Defendant

In its final attacks upon the validity of Lanier’s § 242 convictions, the majority insists that reliance upon a constitutional right defined in terms of a “shocks the conscience” standard is so vague as to fail to place the defendant on notice of the acts which are criminalized. The majority also insists that use of such a standard allows the judiciary to extend the reach of the crime which should be defined by congressional action only.

Under time-honored jurisprudential principles, however, we, as an intermediate appellate court, are bound to defer to relevant precedent from the Supreme Court on this issue. In Screws , a decision from which the Supreme Court has not retreated, that Court rejected the very argument advanced by the majority and concluded that the standard of guilt in § 242 is not unconstitutionally vague if the statute is read to require of the defendant “a specific intent to deprive a person of a federal right made definite by decision or other rule of law.” Id. at 103, 65 S.Ct. at 1036 . As long as “the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law.” Id. at 102 , 65 S.Ct. at 1036 ; United States v. Reese, 2 F.3d at 881.

The majority, nevertheless, intimates that Lanier could not have been aware that sexually assaulting women in his chambers when they arrived to conduct official business with him constituted a violation of the victims’ due process rights. In light of historical explications of individual rights and liberties and the unanimity of federal courts addressing analogous circumstances, however, it is clear that the defendant in this ease either knew or acted “in reckless disregard of [§ 242’s] prohibition of the deprivation of a defined constitutional or other federal right.” Screws v. United States, 325 U.S. at 104 , 65 S.Ct. at 1037 . The prohibitions of the statute are not, therefore, so vague that the defendant could not have realized, prior to commission of his reprehensible acts, that those deeds were criminalized by § 242.

Finally, the majority argues that use of a “shocks the conscience” standard to determine whether particular acts should be criminalized “places unparalleled, unprecedented discretion in the hands of federal law enforcement officers, prosecutors and judges.” The vesting of such discretion in juries, judges, and law enforcement officials is not, however, unheard of in the criminal law. For example, one must assume that in order to maintain a consistent, intellectually honest stance on this particular matter of contention, the majority now stands ready to invalidate state pornography statutes visiting criminal sanctions upon individuals violating even less definite “contemporary community standards” of decency. See Miller v. California, 413 U.S. 15, 24, 30-33 , 93 S.Ct. 2607, 2615, 2618-20 , 37 L.Ed.2d 419 (1973). Regardless of the inherent difficulties in defining such “community standards,” however, we continue to place great confidence in the ability of American judges, juries, prosecutors, and the public at-large to discern readily those violations of substantive due process principles that are so egregious and demeaning as to shock the conscience of the courts. Consequently, I find no constitutional impediments to the prosecution of the defendant in this case under the facts presented to us on appeal.

I recognize that we have consistently determined that use of a “shocks the conscience” standard is problematic in areas other than cases involving the use of excessive force or physical abuse. See, e.g., Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2742 , 129 L.Ed.2d 862 (1994); Mansfield Apartment Owners Assoc. v. City of Mansfield, 988 F.2d 1469, 1478 (6th Cir.1993); Braley v. City of Pontiac, 906 F.2d 220, 226 (6th Cir.1990). This case, however, does not fall outside those boundaries. In all the instances of misconduct for which the defendant was punished, he clearly exerted not only the force of his office and position within the community, but also physical force *1414 to exact compliance with his perverted sense of acceptable office behavior. Such physical assaults, committed within the judge’s own chambers, upon individuals with cases under his jurisdiction, upon individuals hired or appointed by him, and upon individuals dependent upon him for the proper functioning and stability of public programs, do, as explicitly found by the jury, shock the public conscience. The use of a “shocks the conscience” standard under these facts, therefore, is eminently justified, even under prior circuit precedent. Moreover, as the Supreme Court stated in Screws :

We hesitate to say that when Congress sought to enforce the Fourteenth Amendment in this fashion it did a vain thing. We hesitate to conclude that for [130] years this effort of Congress, renewed several times, to protect the important rights of the individual guaranteed by the Fourteenth Amendment has been an idle gesture. Yet if the Act falls by reason of vagueness so far as due process of law is concerned, there would seem to be a similar lack of specificity when the privileges and immunities clause and the equal protection clause of the Fourteenth Amendment are involved.

325 U.S. at 100 , 65 S.Ct. at 1035 (citations omitted).

III.

At least since the sealing of Magna Carta in 1215, Anglo-American jurisprudence has recognized the right of citizens to be free from interference with their bodily integrity, except under the clear authority of law. Today, however, the majority turns its back on 780 years of history on this subject.

The court inexplicably concludes that an individual has no recognized due process right to be free from sexual assault by a judge who is able to effect those assaults solely by his position and by his power over the jobs and families of the victims. Presumably, the majority would have no qualms in reaffirming the principle that prisoners have a constitutional right not to be assaulted by, or at the direction of, their jailers. See United States v. Price, 383 U.S. at 793 , 86 S.Ct. at 1156 ; Screws v. United States, 325 U.S. at 106-07 , 65 S.Ct. at 1037-38 ; United States v. Brummett, 786 F.2d 720 (6th Cir.1986). 3 That same majority, however, can now find that the commensurate right to freedom from a willful sexual assault at the hands of a sitting judge has not been “made specific” by prior court decision, solely because no Supreme Court case has yet explicitly involved a factual situation with a judge who so dishonored his profession or who sunk to such levels of depravity as has the defendant in this case. I cannot condone such a startling restriction of basic personal rights and liberties.

Every court that has addressed an analogous inquiry has found it beyond dispute that our constitution protects us from willful, conscience-shocking intrusions and assaults upon our bodily integrity under color of law. Because I believe that the actions of the defendant in this case clearly fall within the constitutional prohibitions made specific by such prior case law and of which all reasonable individuals should be aware, I choose to align myself with those opinions holding sacred our most basic human liberties. For that same reason, I unhesitatingly dissent from the majority’s attempt to withdraw recognition of that right.

. Concurring in Chapman v. Houston Welfare Rights Org., 441 U.S. 600 , 661 n. 34, 99 S.Ct. 1905 , 1938 n. 34, 60 L.Ed.2d 508 (1979), Justice White also noted that "[t]itle 18 U.S.C. §§ 241 and 242 encompass the same rights. See United States v. Price, 383 U.S. at 797 , 86 S.Ct. at 1158 ; United States v. Guest, 383 U.S. 745, 753 , 86 S.Ct. 1170, 1175 , 16 L.Ed.2d 239 (1966); Screws v. United States, 325 U.S. at 119 , 65 S.Ct. at 1044 (Rutledge, J., concurring).

. In United States v. Reese, 2 F.3d 870, 884 (9th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 928 , 127 L.Ed.2d 220 (1994), the Ninth Circuit concluded:

There is nothing wrong with looking to a civil case brought under 42 U.S.C. § 1983 for guidance as to the nature of the constitutional right whose alleged violation has been made the basis of a section 242 charge. The protections of

the Constitution do not change according to the procedural context in which they are enforced — • whether the allegation that constitutional rights have been transgressed is raised in a civil action or in a criminal prosecution, they are the same constitutional rights.

Furthermore, in concurring in the judgment in Chapman v. Houston Welfare Rights Org., 441 U.S. at 662 , 99 S.Ct. at 1939 , Justice White explained that both §§ 242 and 1983 had their genesis in post-Civil War legislation and seek redress for violations of rights under color of law. He continued by stating, “Apart from differences relating to the nature of the remedy *1412 involved, [the two statutes] are commensurate.” Id.

. Interestingly, Brummett was also indicted for and pled guilty to an 18 U.S.C. § 241 conspiracy charge involving a sexual assault upon another jail inmate. United States v. Brummett, 786 F.2d at 721 .