Appendix — United States v. Lanier

— | Supreme Court, U.S. |

Ob-1LT1¢e FILED

APR 22 1996

In the Supreme Court of the Gn

OCTOBER TERM, 1995

UNITED STATES OF AMERICA, PETITIONER

DAVID W. LANIER

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT N

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

Drew S. Days, III

Solicitor General

DEVAL L. PATRICK

Assistant Attorney General

PAUL BENDER

Deputy Solicitor General

PAUL R.Q. WOLFSON

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

THOMAS E. CHANDLER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

TABLE OF CONTENTS

Appendix A (court of appeals opinion dated Jan. 23,

Appendix B (court of appeals’ opinion dated Aug. 19,

1994)

Appendix C (district court’s order on pending

motions dated Oct. 30, 1992)

Appendix D (district court’s judgment dated Apr. 19,

1993)

Appendix E (court of appeals’ order dated Jan. 4,

1995)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 93-5608

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

*.

Davip W. LANIER, DEFENDANT-APPELLANT

Filed: Jan. 23, 1996

Before: Merritt, Chief Judge; Kirn, KENNEDY,

MARTIN, JONES, WELLFORD, NELSON, RYAN, Bodds,

NORRIS, SUHRHEINRICH, SILER, BATCHELDER,

DAUGHTRY, and Moore, Circuit Judges.

Merritt, C.J., delivered the opinion of the Court for

nine judges, in which KENNEDY, MARTIN, BoGGs,

NORRIS, SUHRHEINRICH, and SILER, JJ., concurred in

full and in which RYAN and BATCHELDER, II.,

concurred in Parts I and III. WELLFORD (pp. 1394-1397

[33a-41a]), and NELSON (pp. 1397-1399 [42a-46a]), JJ.,

delivered separate opinions concurring in part and

dissenting in part, with Judge WELLFORD also

concurring in Judge NELSON’s opinion. KEITH (pp.

1399-1400 [47a-49a]), JONES (pp. 1400-1403 [50a-56a)),

and DAUGHTREY (pp. 1403-1414 [57a-86a]), II.,

delivered separate dissenting opinions, with Judges

KEITH and MoorE concurring in Judge DAUGHTREY’S

dissenting opinion.

MERRITT, Chief Judge.

(la)

2a

I. The Question Presented

This is a direct criminal appeal by a convicted

Tennessee state judge. He raises a question of inter-

pretation about 18 U.S.C. § 242, perhaps the most

abstractly worded statute among the more than 700

crimes in the federal criminal code. Section 242 was

adopted as a codification of prior law in 1874 during

the period of Reconstruction in the aftermath of the

Civil War. It criminalizes without any further defin-

ition the willful “deprivation of any rights

protected by the Constitution” committed by any

person under “color of any law.“ That is the broad

' The evolution of the language of the statute is as follows.

In 1874, the crime read:

SEC. 5577. Every person who, under color of any law,

statute, ordinance, regulation, or custom, subjects, or

causes to be subjected, any inhabitant of any State or

Territory to the deprivation of any rights, privileges, or

immunities, secured or protected by the Constitution and

laws of the United States, or to different punishments,

pains, or penalties, on account of such inhabitant being an

alien, or by reason of his color or race, than are prescribed

for the punishment of citizens, shall be punished by a fine

of not more than $1,000, or by imprisonment not more

than one year, or by both.

2 Cong.Rec. 828 (1874).

In 1909, it was amended to add the requirement of

wilfulness. 43 Cong.Rec. 3599 (1909). In 1988, it was amended

so that the penalty provision would contain: “and if bodily

injury results shall be fined under this title or imprisoned not

more than ten years, or both.” 102 Stat. 4396 (1988).

In 1994, after the indictment was returned in this case, § 242

(along with many other criminal statutes) was amended to add

the death penalty and other enhanced penalty provisions. The

statute now reads as foliows (with the new part underlined):

3a

language we must interpret. The specific question

before us is whether the sexual harassment and

assault of state judicial employees and litigants by

the judge violates this federal criminal statute. The

statute, as applied in this case, does not specifically

mention or contemplate sex crimes, and including

sexual misconduct within its coverage stretches its

meaning beyond its original purpose. Thus, the

fundamental question before us is whether the

statute—tied by its language simply to “consti-

tutional rights“ should receive a fixed definition of

criminal liability or should be interpreted as evolving

or expanding over time to include the abridgement of

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, or to dif-

ferent punishments, pains, or penalties, on account of such

person being an alien, or by reason of his color, or race,

than are prescribed for the punishment of citizens, 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 or if such acts

include the use, attempted use, or threatened use of a

dangerous weapon, explosives, or fire, shall be fined under

this title or imprisoned for not more than ten years, or

both; and if death results from the acts committed in

violation of this section or if such acts include kidnapping

or an attempt to kidnap, aggravated serual abuse, or

an attempt to commit aggravated sexual abuse, or an

attempt to kill, shall be fined under this title, or im-

prisoned for any term of years or for life, or both, or may

be sentenced to death.

18 U.S. C. A. § 242 (West 1969 & 1995 Supp.), 108 Stat. 1970-71,

2109, 2113, 2147 (1994).

da

new constitutional rights as they are recognized in

our civil constitutional law. The courts have devel-

oped theories or ingredients of constitutional viola-

tions primarily in the civil context, and there is no

developed law of constitutional crimes. Section 242 by

its terms criminalizes violations of “constitutional

rights” only in the abstract, not conduct which is

described specifically by federal or state statute. The

problem here is to articulate as nearly as possible a

theory of constitutional crimes consistent both with

constitutional rights declared in civil cases and also

consistent with established canons of statutory

construction of federal criminal laws.

In Screws v. United States, the Supreme Court

upheld the constitutionality of § 242 by one vote, with

the majority unable to agree on a single rationale. 325

U.S. 91 (1945). In a five-four decision, the Court nar-

rowly rejected arguments, accepted by the dissenters,

that the statute is too indefinite and vague to meet

due process standards. These standards require fed-

eral criminal statutes to be written with sufficient

definiteness to give notice of the criminal conduct for

which a person may be punished in federal court.

In a long line of cases before and after the Screws

case, the Supreme Court has sought to apply a fun-

damental principle limiting the judicial power

to extend criminal statutes by interpretation, a

long-standing principle articulated in 1820 by Chief

Justice John Marshall for a unanimous Court:

The rule that penal laws are to be construed

strictly, is perhaps not much less old than con-

struction itself... It is the legislature, not the

court, which is to define a crime, and ordain its

punishment .... It would be dangerous, indeed, to

5a

carry the principle, that a case which is within

the reason or mischief of a statute is within its

provisions, so far as to punish a crime not

enumerated in the statute, because it is of equal

atrocity, or of kindred character, with those

which are enumerated.

United States v. Wiltberger, 18 U.S. 76, 93-94, 5

Wheat. 35, 43-44, 5 L.Ed. 37 (1820). This case stands

for a number of fundamental propositions that form

the basis of our criminal law, in addition to the prin-

ciple of strict construction. No matter how out-

rageous a defendant’s actions may be, he has to be

charged with the appropriate offense created by

federal law. Courts may not create or extend crim-

inal law by using a common-law process of interpre-

tation. If Congress has not been clear about the type

of conduct that it wishes to criminalize, courts should

not hold a defendant criminally liable by creating a

new federal crime.

More recently, Justice Thurgood Marshall ob-

served that reasons of federalism, as well as the

necessity of public notice and fair warning, underlie

this principle of interpretation:

[Unless Congress conveys its purpose clearly, it

will not be deemed to have significantly changed

the federal-state balance. Congress has tradition-

ally been reluctant to define as a federal crime

conduct readily denounced as criminal by the

States.

United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515,

523, 30 L.Ed.2d 488 (1971).

In this case, the defendant, a state Chancery Court

judge from a rural county in West Tennessee, was

indicted in eleven counts, three of which were felony

6a

counts. The three felony counts charged him with

instances of willfully “coercing” a woman “to engage

in sexual acts” with him which caused bodily injury

(counts 6, 7 and 10). Eight of the counts were misde-

meanor counts charging him with various types of

“willful sexual assault” by “touching,” “grabbing the

breasts and buttocks of” or “exposing his genitals to”

awoman. The three felony counts charging coercive

sexual acts involved two women, and the other eight

misdemeanor counts involved six other women. In

each count, the constitutional deprivation is described

in abstract terms as “the right not to be deprived of

liberty without due process of law” under the Four-

teenth Amendment. The government alleges that in

each instance the defendant acted “under color of law”

by using his official position as a Chancellor to

engage in the “willful sexual assault.”

The District Court overruled the defendant’s mo-

tion to dismiss the indictment for failure to state a

crime under § 242. Seeking to narrow the potential

reach of the statute in sex crime cases, it charged the

jury that “it is not ... every unjustified touching or

grabbing” that constitutes a constitutional violation,

only “physical abuse ... of a serious and substantial

nature... which is shocking to one’s conscious [sic}”

(emphasis added). The jury convicted the defendant of

two of the three felony counts and five of the eight

misdemeanor counts, for which the District Court

sentenced him to a total of twenty-five years im-

prisonment. He has appealed on numerous grounds,

including the failure of the District Court to dismiss

the indictment for failure to state a federal crime

under § 242.

After consideration of the legislative history of this

statute, the case law, the long established tradition of

7a

judicial restraint in the extension of criminal

statutes, and the lack of any notice to the public that

this ambiguous criminal statute includes simple or

sexual assault crimes within its coverage, we con-

clude that the sexual harassment and assault indict-

ment brought under § 242 should have been dismissed

by the District Court upon motion of the defendant.

Thus the conviction and sentence of the defendant is

reversed and the indictment dismissed.

In asserting that sexual assault is a constitutional

crime, the prosecution proposes that this substantive

due process, sexual assault offense be defined as

“interference with bodily integrity that shocks the

conscience of the court and the jury.“ The prose-

cution relies exclusively on this theory. It has

neither articulated nor proposed the recognition of a

gender-based crime for sexual assault involving dis-

crimination against or oppression of women in

violation of the Equal Protection Clause. Nor did the

prosecution allege in the indictment, or attempt to

prove as an element of the offense, that the state

criminal process in Tennessee was incapable of en-

forcing its own criminal statutes prohibiting sexual

assault, nor did the prosecution allege as an element

of the § 242 offense that state law enforcement

officials have laws, customs, policies or practices that

discriminate against or oppress women as a class.

There is no claim that state law enforcement officials

and state prosecutors, judges or jurors are any less

concerned about such crimes than their federal

counterparts. Therefore, our opinion addresses only

the substantive due process, “shock-the-conscience”

crime alleged by the prosecution, not a crime based on

equal protection, state-sanctioned abuse, or some

other legal theory.

8a

II. The Legislative History of § 242

Section 242 is an unusual statute, perhaps unique

in our legislative history. Scholars and judges

frequently question how much emphasis or reliance

one should attempt to put on “legislative intent”

derived from studying legislative history. Although

it is problematic to presume that any deliberative

assembly comprised of many legislators will have one

cohesive, coherent and decisive “intent” when it

passes such an ambiguous statute, or that judges will

be able to discern it, see Max Radin, Statutory Inter-

pretation, 43 HARV. L. REV. 863, 872 (1930), we

continue to find it useful to examine the legislative

history to confirm or exclude certain interpretations

of a statute like the one now before us.

Section 242 was adopted in 1874 as a part of a

codification of federal statutes. It attempted to merge

three previous sections that had been adopted as part

of the 1866 and 1870 Civil Rights Acts and the 1871

Ku Klux Act. In 1909, the Congress added the word

“willfully” to the statute. Those legislative acts cre-

ated the basic language of the statute.

It turns out that the broad language of the 1874

statute, and hence the present language of § 242,

arose as a result of a misunderstanding or a confusion

in codifying the 1866, 1870 and 1871 Acts. In 1870,

Congress commissioned a one-volume compilation of

all federal statutes because the sixteen disparate

volumes then in existence were too cumbersome. It

hired a codifier, Mr. Durant, to redraft and codify the

laws of the United States. He decided to fuse the

three statutes from 1866, 1870, and 1871 into one new

statute that became § 242. Although in codifying the

law he was charged with making no substantive

9a

changes, in fact, the one new statute that is now § 242

dramatically expanded criminal liability for civil

rights violations if given a literal interpretation and

created a new crime that had not previously existed.

Congress adopted the new compilation of laws

apparently without realizing that any substantive

change had been made or that a new, undelineated set

of evolving constitutional crimes might be implied

from the statute in the future.

On the floor of the House of Représentatives, Con-

gressman Lawrence read the three existing sections

from the three earlier Acts into the record to illus-

trate that the new statute Durant proposed, which

was to become § 242, changed nothing. But none of

the three previous statutes criminalized deprivations

of all constitutional rights made under color of law.

The 1866 statute—which at the time of enactment

was arguably unconstitutional because passed prior

to the adoption of the Fourteenth Amendment—

criminalized interference under color of law with

certain enumerated rights, most notably, contract

and property rights and equal protection of the laws.“

2 The Act read as follows:

That all persons born in the United States, and not subject to

any foreign power, excluding Indians not taxed, are hereby

declared to be citizens of the United States; and such citizens,

of every race or color, without regard to any previous con-

dition of slavery or involuntary servitude, except as a pun-

ishment for crime whereof the party shall have been duly

convicted, shall have the same right, in every State or Ter-

ritory in the United States, to make and enforce contracts, to

sue, be parties, and give evidence, to inherit, purchase, lease,

sell, hold, and convey real and personal property, and to full

and equal benefit of all laws and proceedings for the security of

the person and property, as is enjoyed by white citizens, and

shall be subject to like punishment, pains, and penalties, and to

10a

By 1870, the Fourteenth Amendment had been

adopted, and Congress in the 1870 Civil Rights Act

passed another statute under the authority of the new

— Amendment that performed the same basic function

as the 1866 Act.“ Finally, Congressman Lawrence

none other, any law, statute, ordinance, regulation, or custom,

to the contrary notwithstanding.

Sec. 2. And be it further enacted, That any person who, un-

der color of any law, statute, ordinance, regulation, or custom,

shall subject, or cause or be subjected, any inhabitant of any

State or Territory to the deprivation of any right secured or

protected by this act, or to different punishments, pains or

penalties on account of such person having at any time been

held in a condition of slavery or involuntary servitude, except

as a punishment for crime, whereof the party shall have been

duly convicted, or by reason of his color or race, than is

prescribed for the punishment of white persons, shall be

deemed guilty of a misdemeanor, and, on conviction, shall be

punished by fine not exceeding one thousand dollars, or

imprisonment not exceeding one year, or both, in the discretion

of the court.

2 Cong.Rec. 827 (1874) (citing 14 Stat. 27 (1866)) (emphasis

added).

The relevant portions of the 1870 Act read by Con-

gressman Lawrence were:

Sec. 16. And be it further enacted, That all persons within

the jurisdiction of the United States shall have the same right

in every State or Territory of the United States to make and

enforce contracts, to sue, be parties, give evidence, and to the

full and equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed by white citi-

zens, and shall be subject to like punishment, pains, penalties,

taxes, licenses, and exactions of every kind, and none other,

any law, statute, ordinance, regulation, or custom, to the

contrary notwithstanding ....

Sec. 17. And be it further enacted, That any person who,

under color of any law, statute, ordinance, regulation, or

custom, shall subject, or cause to be subjected, any inhabitant of

lla

mistakenly cited—based on the fact that Durant had

mistakenly included—a portion of the 1871 Ku Klux

Act as the third predecessor criminal statute incor-

porated in the new condensed criminal statute. That

statute provided only for a civil remedy for violations

under color of law of any constitutional rights. It was

the civil predecessor of § 1983.“ Durant in his codifi-

cation continued civil liability for the violation of all

constitutional rights—a rendition true to the 1871

Act—but he then created what is essentially a par-

allel criminal statute that covered violations of all

any State or Territory to the deprivation of any right secured

or protected by the last preceding section of this act, or to

different punishment, pains, or penalties on account of such

person being an alien, or by reason of his color, or race, than is

prescribed for the punishment of citizens, shall be deemed

guilty of a misdemeanor, and, on conviction, shall be punished

by fine not exceeding $1,000, or imprisonment not exceeding

one year, or both, in the discretion of the court.

Id. at 827-28 (citing 16 Stat. 144 (1870)) (emphasis added).

* [SJection 1... That any person who under color of any

law ... of any State, shall subject, or cause to be subjected,

any person within the jurisdiction of the United States to

the deprivation of any rights, privileges, or immunities

secured by the Constitution of the United States, shall .. .

be liable to the party injured, in any action at law, suit in

equity, or other proper proceeding for redress ....

Id. at 828 (citing 17 Stat. 13 (1871)) (emphasis added).

The Ku Klux Act provided for both civil and criminal

liability. Section 1, however, was purely civil, and provided an

action for individuals to get either damages or injunctions

against those who deprived them of their civil rights. The

criminal provision of the 1871 Act is Section 2, which is the

predecessor of current § 241. The compiler mistakenly used

language from the civil section of the 1871 Act and created a

statute like the civil statute, tied simply to “constitutional

rights” and not limited to any specific conduct.

12a

constitutional and federal statutory rights under

color of law. Previously, one could only be held

criminally liable if one acted under color of law and

violated contract, property or equal protection

rights.“ But the new statute codified by Durant

criminalized violations of all constitutional rights

and all rights protected under federal statutory laws.

In effect, the recodification grafted the much broader

scope for civil liability onto the criminal statute.

Congressman Lawrence explained that the compil-

ation in the “civil rights” area might have resulted in

some minor “misconstruction” and errors “bordering

on [new] legislation,” but that the process was still

“valuable in securing uniformity.” Congressman

Lawrence’s remarks provide only the most oblique

reference to the large expansion in the criminal law

that the codification had in fact created:

In the revision of seventeen volumes there will

undoubtedly be not only erroneous punctuation

but some omissions of provisions of laws in force;

some misconstruction of statutes carried into the

new phraseology adopted; some provisions of

laws put down as in force which may have been

repealed, and some other errors occur which will

escape all the care, vigilance, and scrutiny that

have been or can be given to the revision

Another portion of the Ku Klux Act of 1871 provided for

criminal penalties for conspiracies to violate constitutional

rights, and became the basis for the modern day 18 U.S.C.

§ 241. This act was directed primarily at the Ku Klux Klan,

and did not include the requirement that the violation occur

under color of law. It criminalizes a conspiracy in which “two

or more persons... go in disguise upon the public highway” to

hinder the exercise of a constitutional right. 18 U.S.C. § 241

(1988).

13a

The plan adopted is to collate in one title of

“civil rights” the statutes which declare them,

which point out the remedies to be pursued, in the

manner required in judiciary and procedure

statutes; and to insert under the title of “crimes”

and under the subdivision chapter of “crimes

against the elective franchise and civil rights” the

penal provisions of the civil rights acts.

A reference to this will indicate the manner in

which the purposes of the several civil-rights

statutes have been translated into the compiler,

and possibly may show verbal modifications

bordering on legislation.

[The Congressman then read from the Civil

Rights Act of 1866 and 1870, the Fourteenth

Amendment, and the 1871 Ku Klux Act, and

continued:

Mr. Durant, in his Revision of General Laws, .. .

condehses into one the three criminal sections I

have cited from the acts... .°

While the three acts contain each a criminal

section differing in words each from the other, and

each section covering some crimes perhaps not

covered by either of the others, the one

consolidated section of Durant is made applicable

This is a serious mistake. The section quoted from the

1871 Act was civil only, and it was the broad language of the

civil statute that was adopted as § 242.

14a

to the violations of rights alike in the three acts.

It requires great care to compare and examine the

effect of all this, and it is possible that the new

consolidated section may operate differently

from the three original sections in a very few

cases. But the change, if any, cannot be

objectionable, but is valuable as securing

uniformity.

2 Cong. Rec. 827-28 (1874) (empliasis added).

Contrary to the reference by Congressman

Lawrence to possible “errors,” “misconstruction”

and minor changes “bordering on legislation,” the

Congressional leaders in both the House and the

Senate flatly stated that the Durant codification

would result in no changes to the laws. In the House,

Congressman Poland, the manager of the bill, stated,

“we purpose to present the law, when we have gone

over it, as a reflex of existing statutes in force on the

first day of this session [Dec. 1, 1873].”" Likewise, on

The following passages are excerpts of Congressman

Poland’s statements to the House assuring other represen-

tatives that the recodification would not change the law.

Mr. Wood: If the gentleman from Vermont would permit

me, I would like to ask him a question.

It is, whether there will be anything in this revision of

the laws that we have not already in the Statutes at

Large?

Mr. Poland: Nothing; At least we do not intend there

shall be.

2 Cong. Rec. 129 (1873).

Later, Mr. Poland again made it clear that no substantive

changes were intended:

15a

the Senate floor during the course of a very short

discussion of the new codification, Senator Conkling

attempted to assure his colleagues that the revision

did not represent a change in the law, but added the

caveat—which turns out to be an understatement—

that he had “no expectation that this work is free

from error.” 2 Cong. Rec. 4284 (1874).

Accordingly, we can only conclude that, although

members of Congress may have realized that in

passing a large recodification of the existing body of

federal law they might unwittingly be changing

something, they had no actual knowledge that they

were expanding criminal liability to cover violations

of rights beyond certain enumerated rights, primarily

those of contract, property, and equal protection.

Congress does not evidence in § 242 a deliberate

intent to create an evolving criminal law which

expands to include new constitutional rights as they

become a part of our civil constitutional law. Cer-

tainly Congress evidences no intent to make sexual

or simple assault a constitutional crime under § 242.

Previously, Congress had provided liability for

constitutional rights generally only by providing for

civil liability.

Mr. Poland: As I have already said, the commissioners

have made some changes in the law, as they were author-

ized to do under the law. Mr. Durant [the compiler] was

employed by the sub-committee of the House . to go

over this work and strike out everything in the nature of

a change of the law. We purpose to present the law,

when we have gone over it, as a reflex of existing statutes

in force on the first day of this session | Dec. 1, 1873].

2 Cong. Rec. 648 (1874).

16a

Since 1874, Congress has not addressed the scope of

the rights to be covered by the abstract language of §

242. The Supreme Court has once in passing recog-

nized that t he substantial change thus effected [to

§ 242] was made with the customary stout assertions

of the codifiers that they had merely clarified and

reorganized without changing substance.” United

States v. Price, 383 U.S. 787, 803, 86 S.Ct. 1152, 1161,

16 L.Ed.2d 267 (1966). This neglected and confused

episode in the early history of civil rights legislation

indicates that the 1874 Congress never deliberately

intended to criminalize in § 242 the greatly expanded

scope of modern-day constitutional rights even

though the literal language of the statute—recodified

from a previous civil statute by mistake—is open to

that interpretation. Thus our reading of the legis-

lative record does not support the extension of the

abstract language of § 242 to cover all newly-created

constitutional rights. Congress has deliberately

provided only federal civil liability in such cases.

III. ANALYSIS

A. Case Law on Sexual Assault

as a Constitutional Crime

Government counsel in their briefs and at oral

argument recognized that in order to sustain the

indictment here they must more specifically define

the theory behind the “constitutional right” that has

been “deprived” under § 242. They recognize that it

would not be sufficient simply to point to bad behavior

by a state employee or official criminalized under

state law. They also recognize that assault and

battery and rape are state law crimes and that the

Supreme Court has not held or implied that simple or

sexual assault by state officials constitutes a consti-

17a

tutional tort under § 1983 or a constitutional crime

under § 242.

Counsel argue at an extremely high level of

generality. They assert that the constitutional right

at issue is one of substantive due process. Their

constitutional argument is that “freedom from sexual

assault” is a part of a general constitutional right

against interference with “bodily integrity” in a way

that “shocks the conscience.” They construct a

constitutional right against sexual assault from

language taken from two cases, Ingraham v. Wright,

430 U.S. 651 (1977), and Rochin v. California, 342

U.S. 165 (1952).

Counsel, like our dissenting colleagues, do not cite

a Supreme Court opinion enforcing such a right.

Instead, counsel construct the right from language in

Ingraham, in which the Court said that schools must

afford rudimentary procedural due process to children

before paddling them but that such punishment is not

subject to the Eighth Amendment. 430 U.S. at 671. In

dicta, the Court mentioned that the Due Process

Clause protects a person from “unjustified intrusions

on personal security.” Ingraham, 430 U.S. at 672.

To bolster their constitutional theory, government

counsel then cite several lower court decisions in

civil cases decided under § 1983. These are civil cases

which created a general constitutional right to be

free from sexual harassment and coercion. All of

these civil decisions, rather than pointing to prece-

dent establishing the right, make assertions such as:

“surely the Constitution protects a schoolchild from

physical sexual abuse . by a public schoolteacher,”

Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th

Cir. 1994) (en banc); or “the notion that individuals

have a fundamental substantive due process right to

18a

bodily integrity is beyond debate,” Walton v. Alex-

ander, 44 F.3d 1297, 1306 (5th Cir. 1995) (Parker, J.,

concurring). These broad statements are not sup-

ported 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.”

The prosecutors cite only one criminal case in

which a lower court affirmed a § 242 conviction

involving the deprivation of constitutional rights

through sexual assault. In United States v. Davila,

two border patrol officers conditioned entry into the

United States upon receipt of sexual favors. 704 F.2d

749 (5th Cir. 1983). In that case, the defendants did

not challenge the extension of § 242 to sex crimes.

The opinion addresses only evidentiary and other

procedural issues. The Davila case does not decide

or address the issue before us.

In Cruzan v. Missouri Department of Health, 497

U.S. 261 (1990), and Planned Parenthood v. Casey,

— U.8. . 112 S. Ct. 2791 (1992), neither of which

are cited by government counsel, the Court mentions

“bodily integrity” as a significant value. Cruzan

discussed bodily integrity in the context of an indi-

vidual’s decision to terminate life support. Similarly,

in Casey, the Court recognized that the right to an

abortion was related to “bodily integrity.” Neither

case dealt with an assault, and neither supports the

Government’s contention that the state 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 constitu-

tional right to “bodily integrity.”

The fact that government counsel find it necessary

to limit the general constitutional right of “freedom

19a

xual assault” to conduct that “shocks the

— illustrates the weakness of their consti-

tutional theory. In line with this theory, the district

court below instructed the jury to convict the defen-

dant only if the sexual assaults in this case were 80

severe that they “shock the conscience” of the jury.

Conditioning the right on whether the particular

acts of a defendant “shock the conscience” leaves the

definition of the crime up in the air.” The “shocks the

conscience” language comes from Rochin, a case

holding that pumping a suspect’s stomach for drugs

“shocked the conscience” and therefore violated his

due process rights. 342 U.S. at 172. But the Court

intended the standard to be one of law, to be

interpreted and applied by judges, not an element of a

criminal offense. Id. at 170. When a jury is asked to

make a factual determination of whether a particular

act “shocks the conscience,” the instruction requires

them to make an essentially arbitrary judgment.

“Shocks the conscience” is too indefinite to give

notice of a crime. The language as applied in different

cases will yield results that depend too heavily on

factual particularity of an individual set of events and

upon biases and opinions of individual jurors. Counsel

for the defendant observes in his en banc brief that

® The dissenting opinions of Judges Wellford and Nelson

also note the difficulty of applying this amorphous standard,

but their solution is to concur in dismissing only oe

misdemeanor counts. This solution is incommensurate e

because they fail to follow their own rationale by

applying it to the two felony counts as well. They fail to recog-

nize that the legislative choice in labelling sexual misconduct a

misdemeanor instead of a felony provides no coherent principle

for deciding whether conduct in question is a constitutional

crime under § 242.

20a

the consequences of adopting such an argument

generally to extend § 242 to sex crimes leaves the

statute open-ended:

The Congressional intent to punish corruptions

and distortions of a lawful state process by state

officials will be displaced by a judicially-created

rule of criminal liability, applicable to physical

assaults committed by state officials which a

particular jury finds “shocking.” Such a drastic

expansion of this criminal statute is not only a

judicial encroachment upon legislative authority,

it is also an unwarranted encroachment of federal

law enforcement authority into the ambit of state

law enforcement.

Further Supplement to Defendant’s En Banc Brief at

5, United States v. Lanier (No. 93-5608) (May 5, 1995).

B. Canons of Interpretation of Criminal Statutes

In Connally v. General Construction Co., the

Court said that “the terms of a penal statute creating

a new offense must be sufficiently explicit to inform

those who are subject to it what conduct on their part

will render them liable to its penalties... .” 269 U.S.

385, 391 (1926). This language from Connally follows

the three general canons that govern judicial con-

struction of criminal statutes set out 175 years ago

by Chief Justice Marshall in United States v. Wilt-

berger, 18 U.S. 76, 93, 56 Wheat. 35, 43, 5 L.Ed. 37

( 1820), quoted earlier: (1) the legislature, not the

judiciary, is the primary lawmaking body in the field

of federal criminal law and must give the courts

something definite to construe; (2) the “rule of lenity”

provides that ambiguous criminal statutes should be

construed in favor of the defendant; (3) the corollary

21a

that criminal statutes are normally strictly con-

strued by the courts.

Chief Justice Marshall held that Congress has the

sole responsibility to draft criminal ee the

only branch of government with the ty to

create new crimes. As he observed, “the power of

punishment is vested in the legislature, not the

judicial department. It is the legislature, not the

court, which is to define a crime and ordain its

punishment.” 18 U.S. at 93. This is an articulation of

a basic principle of the separation of powers, as well

as due process. The theory is that behavior should

only be criminalized if the democratic will so ordains.

Unelected judges do not have the authority to enact

new criminal laws.”

The Supreme Court has explicitly asserted this

principle on a number of occasions. In Bowie v. City

of Columbia, the Court reversed a conviction

sustained by the South Carolina Supreme Court. 378

None of the dissenting opinions even mentions the basic

point that unelected judges do not have the authority to enact

new criminal laws or expand old ones to include new crimes.

They do not recognize that each day at all levels of govern-

ment, legislators, judges, administrators, prosecutors, police

officers, school teachers and coaches, public health and hospital

doctors, nurses and employees, military officers, tax collectors

and many others interfere, sometimes unreasonably (often

arguably maliciously and “shockingly”), with the property

rights, personal liberty and bodily integrity of individuals in

our society. The open-ended expansion of criminal liability

under § 242 by our dissenting colleagues to include any sort of

deprivation of a liberty or property interest, or bodily integ-

rity, would presumably turn each such wrong by one of these

millions of public actors into a federal constitutional crime.

Any rational discussion of the issue must come to grips with

this problem.

22a

U.S. 347 (1964). The state courts had convicted pro-

testors of a criminal trespass under a novel inter-

pretation of a state trespass statute. The court

decision had the effect of creating a new crime. In

Bouie, the Supreme Court condemned the attempt to

use a judicial construction to achieve an “ex post

facto effect” and concluded that such an extension of a

criminal statute violated Wiltberger. Id. at 362." See

% The Bouie opinion concludes as follows:

We think it clear that the South Carolina Supreme Court,

in applying its new construction of the statute to affirm

these convictions, has deprived petitioners of rights

guaranteed to them by the Due Process Clause. If South

Carolina had applied to this case its new statute prohib-

iting the act of remaining on the premises of another after

being asked to leave, the constitutional proscription of ex

post facto laws would clearly invalidate the convictions.

The Due Process Clause compels the same result here,

where the State has sought to achieve precisely the same

effect by judicial construction of the statute. While such a

construction is of course valid for the future, it may not be

applied retroactively, any more than a legislative enact-

ment may be, to impose criminal penalties for conduct

committed at a time when it was not fairly stated to be

criminal... .

In the last analysis the case is controlled, we think, by the

principle which Chief Justice Marshall stated for the Court in

United States v. Wiltberger, 5 Wheat. 76, 96:

“The case must be a strong one indeed, which would

justify a Court in departing from the plain meaning of

words, especially in a penal act, in search of an intention

which the words themselves did not suggest. To deter-

mine that a case is within the intention of a statute, its

language must authorize us to say so. It would be dan-

gerous, indeed, to carry the principle, that a case which is

within the reason or mischief of a statute, is within its

provisions, so far as to punish a crime not enumerated in

23a

also Crandon v. United States, 494 U.S. 152, 158

(1990) (“legislatures, not courts, define criminal

liability”). .

Similarly, turning assault and battery into a

constitutional crime would violate the Wilt-

berger-Bouie principle by judicially creating a new

crime under § 242. To do so would subject the

defendant to the “ex post facto effect” rejected in

Bouie.

in Wiltberger, Chief Justice Marshall also relied on

the rule of lenity which mandates that in the case of

an ambiguous criminal statute, the ambiguity should

be resolved in favor of the defendant. The underlying

reason for the rule is that the judiciary should not

criminalize behavior that Congress may or may not

have intended to prohibit by federal law, particularly

when the conduct violates state law and comes within

a traditional area of state police power. Of course,

courts should not go to extreme lengths to charac-

terize criminal statutes as ambiguous when they can

be read as relatively well-defined. The courts should

adopt a construction that gives a defendant the benefit

of ambiguities, if any, but which also gives effect to

the attempts of legislatures to address a particular

problem. As Marshall wrote in 1820, “where there is

the statute, because it is of equal atrocity, or of kindred

character, with those which are enumerated ... .”

The crime for which these petitioners stand convicted was

“not enumerated in the statute” at the time of their con-

duct. It follows that they have been deprived of liberty

and property without due process of law in contravention

of the Fourteenth Amendment.

378 U.S. at 362-63.

—

24a

no ambiguity in the words, there is no room for

construction,” Wiltberger, 18 U.S. at 95-96.

The final and most general principle enunciated in

Wiltberger—that criminal statutes normally should

be construed strictly—can be traced back to Heydon’s

Cace, 76 Eng. Rep. 637 (1584), in which Chief Justice

Coke referred to the principle to limit the reach of a

broad statute.” In Wiltberger, Chief Justice Marshall

wrote that

the rule that penal laws are to be construed

strictly, is perhaps not much less old than con-

struction itself. It is founded on the tenderness

of the law for the rights of individuals .... To

determine that a case is within the intention of

the statute, its language must authorize us to say

so.

18 U.S. at 95-96. In addition, Chief Justice Marshall

said in language equally applicable to the case before

us:

It would be dangerous, indeed, to carry the

principle that a case which is within the reason

or mischief of a statute, is within its provisions,

so far as to punish a crime not enumerated in the

statute, because it is of equal atrocity, or

of kindred character, with those which are

enumerated.

Id. at 96.

Since Wiltberger, the Supreme Court, and the

federal courts generally, have repeatedly reaffirmed

this canon of construction. Commissioner v. Acker,

u For a discussion of the historical development of this

canon, see Max Radin, A Short Way With Statutes, 56 HARV.

L. REV. 388, 389 (1942).

25a

361 U.S. 87, 91 (1959) (“The law is settled that ‘penal

statutes are to be strictly construed.’”) (citations

omitted). The Wiltberger language is frequently

quoted, see Moskal v. United States, 498 U.S. 103, 132

(1990) (“The temptation to stretch the law to fit the

evil is an ancient one, and it must be resisted.”)

(Scalia, J., dissenting).

A holding here that the defendant is criminally

liable under federal law would succumb to the temp-

tation that Chief Justice Marshall warned against.

The law would be punishing the defendant for com-

mitting a series of repugnant acts that may be of

“equal atrocity, or kindred character” with crimes

punishable under the statute, but no language of the

statute and no holding of the Supreme Court suggest

that such behavior constitutes a federal constitu-

tional crime. There has been no notice to the public of

such a federal crime. To hold otherwise would violate

the Rule of Law as it has developed in criminal cases

from the time of Chief Justice Marshall.

C. The Screws Case Interpreted

Screws v. United States, 325 U.S. 91 (1945), as the

three dissenters (Justices Jackson, Frankfurter, and

Roberts) in that case repeatedly pointed out, diverges

in part from these well established canons of con-

struction of criminal law:

It was settled early in our history that prose-

cutions in the federal courts could not be founded

on any undefined body of so-called common law.

United States v. Hudson, 7 Cranch 32; United

States v. Gooding, 12 Wheat. 460. Federal

prosecutions must be founded on delineation by

Congress of what is made criminal. To base

federal prosecutions on the shifting and indeter-

26a

minate decisions of courts is to sanction prose-

cutions for crimes based on definitions made by

courts. This is tantamount to creating a new body

of federal criminal common law.

It cannot be too often emphasized that as basic a

difference as any between our notions of law

and those of legal systems not founded on

Anglo-American conceptions of liberty is that

crimes must be defined by the legislature.

Id. at 152 (citation omitted).

Although the majority sought to minimize the

deviation from precedent, Screws is the only Supreme

Court case in our legal history in which a majority of

the Court seems willing to create a common law

crime. (Justice Douglas wrote a plurality opinion in

which Chief Justice Stone and Justices Black and

Reed concurred while-Justice Rutledge concurred

separately.) In Screws, a Georgia sheriff and two

other officers arrested a black man and brutally

executed him without a trial or a hearing. The

plurality opinion by Justice Douglas upheld the

indictment under § 242 because they believed that (1)

it fit within the specific original purpose of the act,

i.e., “in origin it was an antidiscrimination measure

(as its language indicated), framed to protect Negroes

in their newly won rights,” id. at 98, and (2) the

wrongful conduct fit within the specific original

purpose of the right of procedural due process going

back to the Magna Charta, i. e., that punishment may

not be imposed prior to a trial:

It is plain that basic to the concept of due process

of law in a criminal case is a trial—a trial in a

court of law, not a “trial by ordeal.” .... Those

27a

who decide to take the law into their own hands

and act as prosecutor, jury, judge, and execu-

tioner plainly act to deprive a prisoner of the trial

which due process of law guarantees him.

Id. at 106 (citation omitted). Throughout the opinion,

the plurality refers to the wrong as racial discrim-

ination in depriving the decedent of the classic consti-

tutional “right to be tried by a court rather than by

ordeal.” Id. at 107.

In Screws, the plurality opinion expressly observed

that the Court believed that it was pushed to the

difficult choice between declaring § 242 unconsti-

tutional and adopting a “saving construction” that

would greatly narrow the statute to the deprivation of

obvious, well-established and publicly known consti-

tutional rights. (“Only if no construction can save the

Act ... are we willing to reach that result.”) Id. at

100. Justice Douglas expressed the view that the

plurality wanted to “save” the statute by limiting it

to constitutional rights that any reasonable person

should know about. The plurality called its construc-

tion a “narrow construction” that preserves the

principle of strict construction of criminal statutes,

and “so construed has a narrower range in all its

applications than if it were interpreted in the manner

urged by the government.” Id. at 105. This saving

construction held that a criminal defendant could

receive the required notice that a constitutional right

existed (and therefore that its breach was a crime)

from “the express terms of the Constitution or laws

of the United States or by decisions interpreting

them.” Id. at 104. It is this phrase, which includes

rights enunciated by “decisions,” that makes Screws

unique among criminal law precedents. It is

28a

clear, however, that the Screws exception to the

Wiltberger-Connally-Bouie principles must be

confined (1) to cases under § 242 in which the

constitutional right “deprived” is specifically stated

in the Constitution itself (e.g., unconstitutional

searches or seizures) and understood by the literate

public to be a well-settled constitutional right, and

(2) to well-established procedural due process rights

like the right to be tried before being punished by law

enforcement officers.

The right deprived in the instant case—the right

not to be assaulted—is a clear right under state law

known to every reasonable person. The defendant

certainly knew his conduct violated the law. But it is

not publicly known or understood that this right rises

to the level of a “constitutional right.” It has not

been declared as such by the Supreme Court. It is not

a right listed in the Constitution, nor is it a

well-established right of procedural due process like

the right to be tried before being punished.

Lower court decisions are not sufficient to

establish and make definite a particular constitu-

tional crime so as to provide the constitutionally-

required notice necessary to support an indictment

under § 242. Only a decision of the Supreme Court

establishing the constitutional crime under § 242 can

provide such notice. To accept lower court authority

would result routinely in making federal criminal

liability under § 242 turn on new crimes recognized

only by the circuit or district court where the

defendant engaged in the conduct at issue. A crime

recognized in the Sixth Circuit but not in the Eighth

Circuit would mean that felonious conduct crimin-

alized in Memphis would not be a federal crime across

the river in Arkansas. Only a Supreme Court de-

cision with nationwide application can identify and

make specific a right that can result in § 242 liability.

Although a rule permitting the Supreme Court to

create a new crime obliquely in this way is an

exception to the Wiltberger-Bouie canons, Screws

does contain language that creates a narrow excep-

tion under § 242.

Screws limits the reach of § 242 to cases in which

the Supreme Court itself for the nation as a whole has

made a particular constitutional right sufficiently

clear that a violation of that right constitutes a crime

as well as a civil wrong. Moreover, in both cases

since Screws in which it has addressed the scope of

§ 242, the Supreme Court has cited one of its own

precedents as clearly enunciating the constitutional

right violated. See United States v. Price, 383 U.S.

787, 793 (1966) (citing Screws); Williams v. United

States, 341 U.S. 97, 101 (1951) (citing Chambers v.

Florida, 309 U.S. 227, 237 (1940), and Brown „.

Mississippi, 297 U.S. 278, 285-86 (1936)). Screws does

not extend § 242 to conduct not addressed in the

statute, nor ever addressed by the Supreme Court.

In Screws, the Supreme Court reasoned that only

its own opinions could provide sufficient notice under

§ 242 to make “specific” the constitutional right in

question. 325 U.S. at 104. As we interpret the “make

specific” requirement, the Supreme Court must not

only enunciate the existence of a right, it must also

hold that the right applies to a factual situation

fundamentally similar to the one at bar. If the Court

enunciates a right, but leaves some doubt or

ambiguity as to whether that right will apply to a

particular factual situation, the right has not been

“made specific” as is required under Screws and

30a

under traditional canons of construction of criminal

statutes.

The “make specific” standard is substantially

higher than the “clearly established” standard used

to judge qualified immunity in section 1983 civil

eases. The Court normally reviews constitutional

rights in the context of section 1983 cases. In those

civil, constitutional tort cases, the parties accused of

violating constitutional rights have the protection of

the qualified immunity doctrine. Anderson

v. Creighton, 483 U.S. 635, 639 (1987) (the operation of

qualified immunity “depends substantially upon the

level of generality at which the relevant ‘legal rule’ is

to be identified”). Government counsel do not admit

the existence of such a ‘qualified immunity” defense

in criminal cases. So interpreted, § 242 would mean

that the criminal statute is much broader in scope

than its civil counterpart. The government’s theory

of § 242 criminal liability would visit long criminal

sentences on defendants who could successfully de-

fend a constitutional tort case for damages on

grounds that the federal constitutional law has not

yet become “clearly established.” Criminal liability

would be much easier to establish for the same wrong

than civil liability.

Civil law usually exacts less severe penalties, and

consequently, the law allows for a more fluid inter-

pretation in civil cases than in criminal cases. But

here, according to the government, § 242 would be

carried along on the currents of these civil law

interpretations without the corresponding defenses

allowed in civil damage cases.

Furthermore, unlike other criminal statutes, § 242

criminalizes violations of abstract rights at an ex-

tremely high level of generality and not particular

3la

conduct that may be illegal under state law. As the

Screws plurality noted, murder and assault com-

mitted under color of law may or may not violate § 242

depending on whether other factors are present that

raise the conduct to the level of a constitutional

deprivation. Screws, 325 U.S. at 108-09 (“The fact

that a prisoner is assaulted, injured, or even mur-

dered by state officials does not necessarily mean that

he is deprived of any right protected or secured by the

Constitution or laws of the United States.”). For

example, in Screws, the murder had to constitute a

“trial by ordeal” to rise to the level of a procedural

due process violation. In this case, we do not hold that

simple or sexual assault may never violate § 242. For

example, a sexual assault raising an equal protection

gender discrimination claim may present an entirely

different case. We only conclude that sexual

assaults may not be prosecuted as violations of a

constitutional substantive due process right to bodily

integrity, the only theory presented by government

counsel. In doing so, we cons. ue Screws narrowly,

as we normally construe criminal statutes.

2 Our dissenting colleagues in their various opinions repeat

the refrain that local prosecutors and law enforcement officials

in West Tennessee are so corrupt that they would not prose-

cute a member of the Lanier family for sexual assault. For

example, Judge Wellford states, “it was clear that Judge David

W. Lanier was not going to be called into account for his mis-

deeds and judicial misconduct by local or county officials who

had been beholden to the longstanding sway of the Lanier

dynasty.” There is no factual basis in the record for such

statements. There is no basis in the record for assuming

anything other than that state and local officials cooperated in

the investigation of the defendant in the normal way and then

stepped aside when the federal prosecutor decided to take the

case.

32a

As counsel for defendant argues, permitting federal

prosecutions for “conscience shocking” simple and

sexual assaults committed by federal, state and local

employees or officials places unparalleled, unprece-

dented discretion in the hands of federal law enforce-

ment officers, prosecutors and judges. In the absence

of any definition or limitations on the extent of the

crime—and given that such prosecutions are useful

political weapons—permitting such discretion is a

particular risk for due process. Many public officials

and employees have recently been accused of similar

deviant conduct, but no other case has been prose-

cuted. Such an unprecedented, selective application of

the statute in this case was possible only by giving

the broadest possible construction to the most

ambiguous of federal criminal statutes. The indict-

ment in this case for a previously unknown, unde-

clared and undefined constitutional crime cannot be

allowed to stand. Accordingly, the judgment of the

court below is reversed and the Court is instructed to

dismiss the indictment.”

This appeal has produced five separate opinions, passion-

ately and in some passages eloquently stated, in addition to the

Court's opinion for nine judges. Allowing the defendant who is

guilty of reprehensible conduct to go free is not a satisfying

result, but it is the result required by longstanding principles

of federalism, separation of judicial and legislative powers and

the right to formal public notice when new crimes are enacted.

It should be noted also that the defendant’s conduct has not

remained unnoticed. He has lost his robes, his income and his

reputation. He was incarcerated for two years in federal

prison pending appeal and will remain subject to prosecution

in state court for many years to come. Tenn. Code Ann.

$§ 39-13-502 through 506 (Supp. 1995) defines the crimes

of “Aggravated Rape,” “Rape,” “Aggravated Sexual Battery”

and “Sexual Battery” and §§ 40-2-101 provides statute of limita-

33a

HARRY W. WELLFORD, Circuit Judge, concurring in

part and dissenting in part.

To the extent that the majority has set aside the

convictions of this state judge on five misdemeanor

counts for sexual assault, without any resulting

serious bodily injury to the victims, I concur in the

result reached, although I do not agree with the

majority decisions’s rationale. I do so in order that 18

U.S.C. § 242, a venerable criminal statute that was

originally designed to protect the rights of those

recently freed from the bonds of slavery, not be

trivialized. It is simply better to recognize that

immofal, abusive conduct of a state judge should not

be prosecuted in federal court if that deplorable

conduct amounts to nothing beyond a state

misdemeanor offense.

I dissent from the reversal of the convictions for

the two felony offenses that I believe fall within the

spirit and the meaning of 18 U.S.C. § 242. I agree

with and adopt the separate dissenting opinion of

Judge Daughtrey in this regard. I recognize that this

is a difficult case, the first of its kind in our court

(fortunately), and perhaps the first of this type

against a state judge in any federal court. Further, |

do not concur in the majority’s condemnation of the

prosecution for bringing the charges against a de-

fendant who possessed great political and judicial

power in his community and who abused that power

shamelessly against those who came within the grasp

of his authority.

The fundamental question in this case is whether

gross abuse of state authority and state law (and

tions periods of 15, 8, 8 and 2 years respectively for these

crimes.

34a

custom) by a state actor amounts to deprivation of

rights protected by the Constitution and laws of the

United States. This defendant and his family have

occupied positions of power and political authority in

Dyersburg, Dyer County, Tennessee, for several

generations. It was clear that Judge David W. Lanier

was not going to be called into account for his

misdeeds and judicial misconduct by local or county

officeholders who had been beholden to the long-

standing sway of the Lanier dynasty. The bringing of

this indictment and the pursuit of a trial against

Lanier was not, however, a political maneuver, nor

was it an effort to impose federal will and law upon an

opponent. It was not in any sense a “useful political

weapon,” but it was instituted to set a new precedent

if Lanier were to be prosecuted at all.

The felony offenses, of which David Lanier was

determined to be guilty by a court and jury, was

expressly found to be shocking to the conscience of

the court. As stated by the majority, the two felony

counts charged “coercive sexual acts,” which were

found to be deprivations of liberty without due process

of law by willful conduct of the defendant “using his

official position as a [state] Chancellor.”

The Supreme Court in Screws v. United States, 325

U.S. 91 (1945), as was rather grudgingly conceded by

the majority, did uphold the constitutionality of 18

U.S.C. § 242 in the face of a challenge similar in many

respects to that expressed by the majority and by the

defendant himself. The objections expressed by Chief

Judge Merritt are essentially that this statute was

“too indefinite and too vague to meet due process

standards.” The crime in Screws involved a major

state felony offense which deprived the victim under

color of law “of certain constitutional rights guaran-

35a

teed to him.” Screws, 325 U.S. at 94. The defendant

in Screws claimed, as does Lanier, that there was no

noticed, determinable “standard of guilt” set out in 18

S.C. § 242. Id. at 95.

153 Betts v. Brady, 316 U.S. 455, 46 (1942),

however, the Court in Screws upheld a then novel

application of § 242:

The phrase [due process] formulates a concept

less rigid and more fluid than those envisaged in

other specific and particular provisions of the Bill

of Rights. Its application is less a matter of rule.

Asserted denial is to be tested by an appraisal of

the totality of facts in a given case. That which

may, in one setting, constitute a denial of funda-

mental fairness, shocking to the universal sense

of justice, may, in other circumstances, and in the

light of other considerations, fall short of such

denial.

Id. (emphasis added).

In upholding the constitutionality of the Act, the

Court concluded:

We hesitate to say that when Congress sought

to enforce the Fourteenth Amendment in this

fashion it did a vain thing. We hesitate to con-

clude that for 80 years this effort of Congress,

renewed several times, to protect the important

rights of the individual guaranteed by the Four-

teenth 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 priv-

ileges and immunities clause ( Madden v. Ken-

tucky, 309 U.S. 83) and the equal protection clause

36a

(Smith v. Texas, 311 U.S. 128) of the Fourteenth

Amendment are involved.

We do say that a requirement of a specific intent

to deprive a person of a federal right made definite

by decision or other rule of law saves the Act

from any charge of unconstitutionality on the

grounds of vagueness.

Id. at 100, 103 (footnote omitted).

In addition, Screws established the principle that a

defendant charged with a violation of § 242 is not

saved or excused by any claim that, when doing the

assaultive acts, was not “thinking in constitutional

terms;” when, however, his “aim was ... to deprive a

citizen of a right ... protected by the Constitution.”

Id. at 106. The emphasis in Screws, as in United

States v. Classic, 313 U.S. 299 (1941), and in this case,

was upon the misuse of official state powers to the

injury of a citizen who was subject to the officer’s

authority or control. Justice Rutledge described the

criminal action as a “gross abuse of authority.”

Screws, 325 U.S. at 113 (concurring opinion). He

further observed in note 5 that “[iJt does not appear

that the state has taken any steps toward prosecution

for violation of its law.” Neither has Tennessee

prosecuted Lanier in the instant case.’

The majority discusses, and disagrees with, the decision in

Screws by its “interpretation” that it “diverges ... from...

well established canons of criminal law.” There is no

discussion, however, of Classic, cited as precedential authority

in Screws.

2 In footnote 12, the majority assumes that state and local

officials were cooperating in the federal prosecution. There is

37a

As noted by Justice Rutledge in Screws, Classic

analyzed a number of cases which “sustained [the

statute] in application to a vast range of rights

secured by the Constitution.” Jd. at 121-22. Justice

Rutledge also answered another objection made in

this case: “the generality of the section’s terms

simply has not worked out to be a hazard of consti-

tutional, or even serious, proportions ... . Generally

state officials know something of the individual’s

basic legal rights. If they do not, they should.” Id. at

128, 129.

Our court has recently recognized:

“{OJnce a due process right has been defined and

made specific by court decisions, that right is

encompassed by § 242.” United States v. Stokes,

506 F.2d 771, 774-75 (5th Cir. 1975) (citing

Screws). Courts have applied § 242 to punish

police officers who have abused their authority

under “color of law.”

United States v. Epley, 52 F.3d 571, 576 (6th Cir.

1995). In Epley, the constitutional right at issue was

the] right to be free from ‘seizure’ without probable

cause.” Jd. In my view, the right to be free of sexual

assault is akin to the constitutional right recognized

in Epley. In addition, other courts have recognized

that “the Supreme Court seldom voids federal

Statutes on vagueness grounds.” Columbia Natural

Resources v. Tatum, 58 F.3d 1101, 1108 (6th Cir. 1995).

The Tatum court inferred that the court would set

aside a federal statue, such as § 242, only if “no

no question but that neither has taken any steps to prosecute

Lanier on any basis during the six years since some of his

offenses occurred in Dyer County, Tennessee.

—

38a

standard of conduct is specified at all.“ Id. (quoting

United States v. Angiulo, 897 F.2d 1169, 1179 (Ist

Cir.), cert. denied, 498 U.S. 845 (1990)). That

Congress might “have chosen ‘clearer and more

precise language’” in § 242 is not sufficient to make

out a vagueness challenge. See United States v.

Powell, 423 U.S. 87, 94 (1975) (quoting United States

v. Petrillo, 332 U.S. 1 (1947)).

The Supreme Court has recognized that persons,

especially females, have a constitutional right to

bodily integrity. Planned Parenthood v. Casey, 505

U.S. 833 (1992); see also Ingraham v. Wright, 430 U.S.

651 (1977). Such a right from physical and sexual

assault under 42 U.S.C. § 1983 was recognized in Doe

v. Taylor Independent School Dist., 15 F.3d 443 (5th

Cir.) (en bane), cert. denied sub nom., 115 S.Ct. 70

(1994).

If the Constitution protects a schoolchild against

being tied to a chair or against arbitrary pad-

dlings, then surely the Constitution protects a

schoolchild from physical abuse—here, sexually

fondling a 15-year old school girl and statutory

rape... . It is uncontrovertible that bodily

integrity is necessarily violated when a state

actor sexually abuses a schoolchild and that such

misconduct deprives that child of rights vouch-

safed by the Fourteenth Amendment.

Id. at 451.

Other federal cases have enforced 18 U.S.C. § 242 in

the context of state officers sexually assaulting or

abusing their authority to demand sexual favors. See

United States v. Contreras, 950 F.2d 232 (5th Cir.

1991), cert. denied, 504 U.S. 941 (1992) (affirming

conviction of police officer under 18 U.S.C. § 242 for

39a

sexually assaulting illegal immigrant in patrol car

and attempting to kill her to prevent her from testi-

fying); United States v. Davila, 704 F.2d 749 (5th Cir.

1983) (affirming conviction of border patrols under 18

U.S.C. § 242 for depriving illegal aliens of their liber-

ty by coercing sexual favors from them). Many other

cases have involved charges brought against state

officials for physical assaults and other types of

misuse of their power and authority. See United

States v. Brummett, 786 F.2d 720 (6th Cir. 1986)

(affirming conviction of jail officials under 18 U.S.C.

§ 242 for having inmates beat another prisoner);

United States v. Dise, 763 F.2d 586 (3d Cir.) (affirm-

ing conviction of mental health worker under 18

U.S.C. § 242 for beating psychiatric patients), cert.

denied, 474 U.S. 982 (1985); United States v. Stokes,

506 F.2d 771 (5th Cir. 1975) (police officer convicted

under 18 U.S.C. § 242 for beating prisoner); United

States v. Occhipinti, 772 F. Supp. 170 (S.D.N.Y. 1991),

aff'd, 969 F.2d 1042 (2d Cir. 1992) (INS officer con-

victed under 18 U.S.C. § 242 for violating suspect’s

rights to be free from unlawful search and seizure).“

The district judge in this case instructed the jury

that to convict the defendant the jurors had to find

him guilty of physically abusive and unconstitutional

conduct “of a serious and substantial nature”

involving “physical force, mental coercion, bodily

injury or emotional damage which is shocking to

one’s conscience.” These were serious charges, far

beyond mere sexual harassment or employment

discrimination. Despite the fact that this prosecution

8 I recognize that the absence of custody in the instant case

makes it distinguishable from the above-cited § 242 criminal

proceedings.

40a

was a first, and the substantial reservations that I

share about expansion or intrusion of federal author-

ity, I would affirm Lanier’s felony convictions under

all the circumstances.

I would also find Lanier’s actions here to constitute

an official abuse of power under color of state law, not

mere personal pursuits as he has claimed. In this

respect, I quote from Judge Milburn’s earlier opinion

(now vacated) discussing this aspect of the case:

Defendant argues that his actions in this case

were personal pursuits. However, the jury

correctly concluded that defendant’s actions in

this case were taken under color of state law.

First, all of the assaults took place in defendant’s

chambers during working hours, and during each

assault there was at least an aura of official

authority and power. Three of the victims, Sandy

Sanders, Patty Mahoney, and Sandy Attaway,

were present in defendant’s chambers because

they were working for him. On the first occasion

Vivian Archie was assaulted, she had gone to

defendant’s chambers to apply for a secretarial

position. On the second occasion Archie was

assaulted, defendant used his continuing author-

ity to determine custody of her child to coerce her

into returning to his office. Finally, Fonda Bandy

was assaulted while she was present in defen-

dant’s chambers to make a presentation about her

parenting classes for juvenile offenders.

Further, there was evidence that defendant

used his position to intimidate his victims into

silence. Prior to the first assault, defendant told

Archie that her father warted to know how he

could go about seeking custody of her child.

4la

Defendant was also able to coerce Archie back

into his office a second time because he knew she

needed a job in order to ensure that she would

keep custody of her child.

Furthermore, we wish to emphasize that his

case involves much more than a defendant who is a

mere public official. Rather, this case involves a

state judge who committed various abhorrent and

unlawful sexual acts in his chambers, oftentimes

while wearing his judicial robe. We consider such

egregious misconduct on the part of defendant to

be shocking to the conscience of the court.

United States v. Lanier, 33 F.3d 639, 653 (6th Cir.

1994), vacated, 43 F.3d 1033 (1995).

Accordingly, I DISSENT from the majority’s

reversal of the felony convictions in this case.

42a

Davip A. NELSON, Circuit Judge, concurring in

part and dissenting in part.

I do not question the validity of the general

principles set forth in the majority opinion, and I

agree with the majority’s application of those

principles to defendant Lanier's misdemeanor

convictions. It does not seem to me that the women

who were on the receiving end of the various

“touchings” and “grabbings” described in the

pertinent misdemeanor counts of the indictment were

deprived of their “liberty” in the sense in which that

term is used in the Fourteenth Amendment. Whether

or not the oafish behavior described in these misde-

meanor counts was enough to shock the conscience,

therefore, I do not believe that such behavior was

criminalized by 18 U.S.C. § 242.“ I question,

moreover, whether the jury could properly have found

all of the touchings and grabbings in question to have

been engaged in “under color of any law.

The acts that the jury found to be felonious,

however, could well be found to have been committed

The Supreme Court has rejected the “shock the con-

science” test for excessive use of force by the police, Graham v.

Connor, 490 U.S. 386 (1989), and Graham left it uncertain to

what extent, if at all, this fuzzy test may be applicable in other

contexts. See Braley v. City of Pontiac, 906 F.2d 220, 226 (6th

Cir. 1990). But see also Collins v. City of Harker Heights,

Texas, 503 U.S. 115 (1992), where the Court seemed to assume

some continuing role for the test.

With regard to n. 8 of the majority opinion, it is not the

legislative labeling of the touchings and grabbings as misde-

meanors that leads me to agree that they are not constitutional

crimes under §242. The touchings and grabbings are not

constitutional crimes, in my view, because they do not clearly

entail a deprivation of liberty.

43a

under color of law, in my view—and the victim of

those acts was so clearly deprived of her liberty, as I

see it, that the applicability of the statute strikes me

as self-evident.’ The theory of the felony counts was

that the defendant willfully—and repeatedly—used

the powers of his judicial office to coerce a woman

named Vivian Archie into fellating him on pain of

losing her child. Mrs. Archie was physically re-

strained throughout these assaults, according to her

testimony, and she was afraid to scream for help

because of the defendant’s implied threats to deprive

her of the custody of her little girl. The jury

evidently thought that Mrs. Archie was telling the

truth—and if the jury was right in this, it is hard for

me to imagine a more clear-cut deprivation of liberty.

We need not rely on emanations from the penum-

bras of Planned Parenthood v. Casey, 505 U.S. 833

(1992), to reach the conclusion that Mrs. Archie was

willfully deprived of a constitutional right—and I

confess myself somewhat mystified by the majority’s

2 One reading the statute without benefit of any judicial

gloss might not think it self-evident that Section 242 crimin-

alizes deprivations of constitutional rights regardless of motive,

as opposed to criminalizing deprivations committed on account

of the victim's “being an alien, or by reason of his color, or

race. In United States v. Classic, 313 U.S. 299, 326-29

(1941), however, the Supreme Court squarely held that the

quoted qualification applies only to the imposition of “different

punishments, pains, or penalties,” and does not apply to depri-

vations of constitutional rights generally. Under Classic, and

under Screws v. United States, 325 U.S. 91 (1945), the rule

seems to be that deprivation of any express constitutional

right—including, of course, the right not to be deprived of life,

liberty or property without due process of law—is criminalized

by Section 242 if “willfully inflicted by those acting under color

of any law, statute and the like.” Classic, 313 U.S. at 329.

14a

insistence that the right in question was a

“newly-created” one. From the day it was adopted in

1868, the Fourteenth Amendment has prohibited the

states from depriving any person of liberty without

due process of law. Section 242 has long put the

literate public on notice that any willful violation of

this prohibition, if committed under color of law, is a

crime. There is nothing ambiguous, abstract, or

unclear about the statute in this respect, and at no

point during the course of his trial did it occur to the

defendant to claim otherwise.

If the jury got its facts right, Vivian Archie was

literally (and humiliatingly) deprived of her liberty

while locked in the defendant’s foul embraces. We

must take it as given that Mrs. Archie was restrained

not only by the defendant’s hands on her throat, but

by the defendant’s none-too-subtle suggestion that

her daughter would be taken away from her if she

resisted. On these facts, I simply cannot believe that

the statesmen who framed the Fourteenth Amend-

ment, or the Congress that enacted Section 242 in

1874, would have had any doubt that the defendant’s

conduct was unconstitutional.

Although it was not a constitutional case, Union

Pacific Ry. Co. v. Botsford, 141 U.S. 250 (1891), may

serve to remind us of the sensibilities of the age in

which the provisions at issue here were adopted. The

plaintiff in Botsford was a woman who claimed to have

been injured in an accident aboard a railway car. The

defendant railway company moved for a court order

requiring the plaintiff to submit to a surgical

examination—to be conducted, the defendant was at

pains to explain, “in [a] manner not to expose the

person of the plaintiff in any indelicate manner.

Upholding a refusal by the trial court to order the

45a

examination, absent any statute authorising it, the

Supreme Court observed that:

“No 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.” Jd. at 251.

Vivian Archie, as the jury concluded in the case at

bar, was deprived of the possession and control of her

own person, and was subjected to the vilest sort of

restraint and interference. Surely the Botsford court

—a court that considered it “an indignity, an assault,

and a trespass” for anyone, “especially a woman,” to

be compelled “to lay bare the body, or to submit it to

the touch of a stranger,” id. at 252—would have had

some difficulty with the conclusion that a woman used

in the way that the defendant apparently used Mrs.

Archie was not deprived of her liberty.

It is true that the Supreme Court has not had

occasion to decide explicitly whether Section 242

criminalizes a deprivation of liberty resulting from

lust, but this does not suggest to me that lower

courts are somehow estopped to apply Section 242 in

this context. It would be passing strange, I think, if

judges could acquire by prescription a right to make

sex slaves of litigants or prospective litigants. And if

the majority opinion is correct in the conclusion it

draws from the absence of direct Supreme Court

precedent, I am not sure that I understand how such a

question could ever reach the Supreme Court in the

first place.

It is also true that in recent years other public

officials and employees may have engaged in deviant

46a

behavior similar to the defendant’s without having

been prosecuted. I do not recall any such person

having been accused of forcing a woman to choose

between her virtue and her child. But if other public

officials have escaped prosecution for using the power

of public office to subjugate women in the way defen-

dant Lanier is supposed to have done, I question

whether it follows that the prosecution of defendant

Lanier was improper. Perhaps the impropriety lies in

the failure to prosecute the others.

It might well have been preferable for defendant

Lanier to be prosecuted in a state court. For reasons

to which Judge Wellford has alluded, however, that

was probably not likely to happen. In any event,

ineffectiveness of state criminal process is no more

an element of the federal offense with which the

defendant was charged than ineffectiveness of state

drug laws is an element of a federal drug case. I

certainly do not fault the decision of the United

States Attorney to present this case to a federal

grand jury, and I know of absolutely nothing to

suggest that the defendant was a victim of “selective”

prosecution.

Concurring in the reversal of the misdemeanor

convictions, and dissenting from the reversal of the

felony convictions, I join in the opinions of Judges

Wellford and Daughtrey insofar as those opinions are

consistent with the views I have stated.

47a

Damon J. KErru, Circuit Judge, joining in the

dissent.

Today, the majority, in an opinion thoroughly

lacking in indignation for the outrageous acts

perpetrated by Judge Lanier, reverses Lanier’s con-

viction under 42 (sic: 18] U.S.C. § 242 on the grounds

that § 242 does not expressly criminalize sexual

assault committed against court employees and

litigants by a state judge. I dissent for the reasons so

eloquently stated by Judge Daughtrey. However,

because I am deeply disturbed by not only the

conclusion the majority has reached, but also by the

insensitive tone and lack of compassion permeating

the majority opinion, I add this additional comment.

In one of the most deplorable cases to come before

this Court since I have served on the federal bench,

the majority has done the public a great disservice. It

is clear that in a society that has historically

oppressed women, abuse of power by a judicial officer

appointed or elected to ensure fairness is truly

devastating. It is undeniable that Judge Lanier

wielded tremendous power and influence in the

Dyersburg, Tennessee community. His power over

his victims was augmented by his position as

employer to some and in the case of Vivian Archie, by

his contro’ over the custody arrangements of

Archie’s child. The shocking sexual assaults, forced

sex acts and threats with which Judge Lanier vic-

timized women are reprehensible. In my view, Judge

Lanier’s loathsome acts, combined with the fact that

he was found to have sexually assaulted one of his

victims while wearing his judicial robes, are more

than enough to satisfy the most stringent interpre-

tations for prosecution under § 242.

48a

However, incredibly, the majority ignores the facts

and the law to hold that § 242 does not criminalize

such behavior. In order to reach its preposterous

result, the majority not only dismisses clearly estab-

lished law protecting each person’s right to be free

from interference with bodily integrity that shocks

the conscience, but also ignores the outrageous

nature of Judge Lanier’s actions. Besides glossing

over the horrendous acts for which Lanier was

convicted, the majority, in cavalier fashion, also

devalues the fact that Lanier was tried and found

guilty by a jury of his peers and was later sentenced

to twenty-five years in prison. In consideration of the

above, the majority’s holding does nothing less than

render Judge Lanier’s egregious acts acceptable.

As judges, we are guardians and trustees of the

justice system. At a time when lack of public

confidence in the justice system is at it greatest, the

majority reaches a result that is guaranteed to

further lower the public’s trust. In a country where

the average person may go to jail for stealing a loaf of

bread, the majority releases back into the community

a judge who has used the power of his office and his

position in society to repeatedly victimize women. If

federal law is not to protect women from being forced

to sexually gratify a judicial officer at his request

under threats of losing their jobs or children, whom is

it to protect? Certainly, it was not intended to

protect judges who commit such outrageous acts. No

person is above the law, especially a judge. It is my

firm belief that for people to have faith in our system

of justice, the grossly offensive acts Judge Lanier

committed against women at his mercy cannot be

sanctioned by this Court. Sadly, the majority seems

to have forgotten that while law is a means, j justice

49a

is the end.” See THE FEDERALIST No. 51 (James

Madison) (Clinton Rossiter ed., 1961).' In this case,

law has not served the ends of justice.

Accordingly, I join in Judge Daughtrey’s dissent.

In Federalist paper No. 51, James Madison wrote: “Justice

is the end of government. It is the end of civil society. It ever

has been and ever will be pursued until it be obtained, or until

liberty be lost in the pursuit.”

50a

NATHANIEL R. JONES, Circuit Judge, dissenting.

One of the cardinal principles that guides my

appellate review of criminal cases is to insure that

outrage at the egregiousness of the complained of

conduct has not intruded upon the application of neu-

tral principles of law. Thus, in this case, the offensive

and degrading conduct of Appellant Lanier prompted

me to undertake a searching review of the record and

legal precedents related to enforcement of various

civil rights statutes. I candidly admit that my first

reading of the majority opinion impressed me so

greatly that I was forced to reexamine my initial

decision to uphold the conviction.

A meticulous review of the record now assures me

that the conviction in this case did not result in a

criminalization of conduct based upon its outrage-

ousness rather than its unconstitutionality. So

assured, I dissent.

I can readily understand the result reached by the

majority, given the premise from which it begins its

analysis. However, my view of constitutional rights

and of the evolvement principles, carries me to

another analytical starting point. My belief is now

clear that Lanier’s actions against his victims

transgressed their liberty interest enshrined in the

constitution.

For me to agree with the majority would require

that I hold, even at this late date in our civil rights

and human rights development, that section 242

should be limited to deprivation of the discrete cate-

gories of property, contract, and equal protection.

The narrow reading applied by the majority would

abandon the Supreme Court’s opinion in Screws v.

United States, which upholds section 242 as it applies

to willful violations of any constitutional right that

5la

has been made specific. 325 U.S. 91, 104 (1945).

Section 242 has proven to be a valuable tool in prose-

cuting willful violators of a number a constitutional

rights. To list only a few, section 242 convictions

have resulted from: violations of the Eighth Amend-

ment right to be free from cruel and unusual punish-

ment, United States v. Tines, et al., 70 F.3d 891 (6th

Cir. 1995); United States v. Georvassilis, 498 F.2d 883

(6th Cir. 1974); the Fourth Amendment right to be

free from excessive force during detention, United

States v. Reese et al., 2 F.3d 870 (9th Cir. 1993); the

Fourteenth Amendment procedural due process right

to a trial before conviction, United States v. Cobb, et

al., 905 F.2d 784 (4th Cir. 1990). I note particularly

that section 242 prosecutions have been brought for

violations of Fourteenth Amendment substantive due

process rights. In United States v. O’Dell et al., 462

F.2d 224 (6th Cir. 1972), this court affirmed a section

242 conviction for a violation of a pretrial detainee’s

substantive due process right to be free from ex-

cessive force amounting to punishment. I see no

barrier to applying section 242 to violations of

substantive due process rights just as it is applied to

violations of other constitutional rights. The only

hurdle is demonstrating that the right has been made

specific by decisions of the courts of the United

States.

Like Judge Daughtrey, I believe that court de-

cisions have made specific the right to be free from

invasions of bodily integrity that shock the con-

science. In my dissent from the majority opinion in

Wilson v. Beebe, I acknowledged a protected liberty

interest in personal dignity and bodily integrity. 770

F.2d 578, 594 (6th Cir. 1985) (Jones, J. dissenting).

The complainant in Wilson sustained critical injuries

52a

after being shot by a police officer who attempted to

handcuff him while holding his cocked service re-

volver in one of his hands. Id. As Judge Daughtrey

has in this case, in Wilson, I drew from the Supreme

Court’s decision in Ingraham v. Wright, 430 U.S. 651,

672 (1977), as the source of the liberty interest. I

concur in Judge Daughtrey’s discussion of the devel-

opment anc establishment of the right to bodily

integrity and accordingly see no need to repeat the

discussion in this separate opinion.

Moreover, I am not disturbed that the Supreme

Court has not held specifically that sexual assault

violates the right to bodily integrity. This reflects

only the reality that a number of ways exist to

deprive one of a right. Surely the majority would not

suggest that a deprivation of property or contract

would be any less a deprivation because it was accom-

plished by a means not previously addressed by the

Supreme Court. If a right to bodily integrity includes

freedom from corporal punishment, freedom to make

reproductive decisions and freedom from unwanted

medical intrusions, it must include protections from

forced sexual advances. Further, as Judge Daughtrey

points out, violations of bodily integrity by sexual

assault have previously been the basis for convictions

under section 242.

I must also dissent from the majority’s rejection of

the right to bodily integrity as grounds for a section

242 conviction because its bounds have been estab-

lished in civil rather than criminal cases. Once

established, a constitutional right is absolute. Of

course, the degree of infringement necessary to

support a suit may differ depending upon whether the

suit is civil or criminal. I cannot, however, endorse a

policy of denying the basic existence of a right in a

53a

criminal case because the courts have developed the

right in civil rather than criminal cases. As stated by

the Ninth Circuit:

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 Consti-

tution 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 constitu-

tional rights.

United States v. Reese, 2 F.3d 870, 884 (9th Cir. 1993),

cert. denied 114 S.Ct. 928 (1994). Likewise, in United

States v. Bigham, the Fifth Circuit stated:

Whether a case is brought on the civil or criminal

side of the docket, the actionable conduct is

deprivation of rights secured by the Constitution

or laws of the United States. The culpable intent

will vary from willfulness of a criminal charge to

something less in a civil complaint, and it may

vary according to the particular constitutional

right infringed. Otherwise, between the criminal

and civil statutes the courts recognize the intent

of Congress to cover the same cases, though pro-

viding different remedies.

812 F.2d 943, 948 (5th Cir. 1987) (citations omitted).

Once a right has been made a definite and specific part

of the body of Fourteenth Amendment due process

rights, a willful violation of that right comes within

the purview of section 242. United States v. Stokes,

54a

506 F.2d 771, 776 (5th Cir. 1975) (relying on both

criminal and civil cases to hold the right to be free

from injury while in police custody had been made

specific). Even though the parameters of the right to

bodily integrity have been forged primarily in civil

cases, the right has been made specific nonetheless.

Therefore, there should be no question that the

violation of the right may serve as the basis of a

prosecution under section 242.

I share the majority’s view that the monstrous

nature of a defendant’s actions must not lead the

courts to expand federal criminal statutes beyond

their intended reach. Principles of strict construc-

tion require this court not to do so. The Supreme

Court, however, has approved, in this unique instance,

a criminal statute that changes with the changing

nature of due process rights. The Supreme Court

recognized in Screws that not every law enforcement

officer would be aware of the full range of rights that

might be constitutional. For that reason, the

Supreme Court limited the application to section 242

to rights made specific. Screws, 325 U.S. at 104. A

criminal conviction based on a right not fully defined

and developed by the courts would violate principles of

notice and strict construction. Nevertheless, when

the courts fully define the parameters of the right,

notice has been given that violation of such a right

may result in a criminal conviction.

Some of my colleagues apparently and understand-

ably fear that a criminal statute cannot cross refer-

ence a series of rights that may be ever changing.

However, the nature of the substantive due process

right is to change to protect that values of our times.

Without elastic principles of due process, many of our

greatest civil rights challenges could not have been

55a

overcome. Although appealing on one level, I have

concluded that worries that [Section] 242 will provide

an impermissibly flexible body of criminal law are not

well founded. The Supreme Court built safeguards

into the statute by requiring the specific estab-

lishment of rights and by requiring willful violations.

Without the establishment of a right by the courts,

there is no danger that runaway or other opportun-

istic prosecutors will break open the bounds of the

statute with crimes that were never meant to be

encompassed by its reach. Courts are entrusted with

the duty to decide when a right is constitutional. Only

after this decision has been made are prosecutors

afforded the opportunity to bring indictments.’

Again, I note my agreement with the principles

behind the majority’s push to limit the application of

section 242. Without legislative action, the criminal

In its footnote 9, the majority expresses its belief that the

dissenters somehow have not contemplated the effect that

holding violations of bodily integrity are within the reach of

section 242. By listing the number of potential violators, the

majority seems to reason that because a wide range of govern-

ment employees may regularly violate citizens’ bodily integ-

rity, section 242 cannot be used to criminalize such violations.

The majority's statement lacks the support of logic. The

number of violators should not determine whether an action is

criminal. It is unlikely that the majority would decline to

affirm section 242 violations of Fourth or Eighth Amendment

rights merely because many police officers around the country

beat and abuse inmates on a regular basis. If the number of

conscience shocking violations occurring regularly is near to

what the majority suggests, criminal prosecution is perhaps

even more important. Furthermore, criminal prosecution of

some of these allegedly rampant violations may serve as a

deterrent to prevent continued encroachments on individuals’

bodily integrity.

56a

law generally cannot be freely expanded to meet the

outrage of an angry community. Such elasticity in

the law would make potential defendants of those

whose actions disturb a particular prosecutor or

community but not the populace at large. Minorities,

who have traditionally suffered the most injustice at

the hands of our criminal law, would be especially

vulnerable to a criminal law that makes unpopular

actions criminal without endorsement of the legis-

lature and without notice to the potential violator. I

am comfortable with the elasticity of section 242 only

because its growth is checked by its link to our

Constitution. I am secure in my knowledge the link

between the statute and the Constitution will prevent

section 242 from being used as a tool to prosecute

those whose actions are merely unpopular in a par-

ticular community. The disgusting and reprehensible

conduct of Appellant Lanier sinks far below any

characterization of merely unpopular or unacceptable.

Lanier’s conduct clearly violated constitutional

rights and falls squarely within the range of conduct

Congress intended to punish with section 242.

I join in Judge Daughtrey’s opinion to the extent it

is consistent with my views stated here, and I

respectfully DISSENT.

57a

MARTHA CRAIG 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 |

conclude, to the contrary, that such constitutional

protection is well-entrenched, I respectfully dissent.

In its opinion, the majority sets out, at some length,

the fruits of its exhaustive research into the legis-

lative 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 con-

text. 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. Defen-

dant 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 Dis-

trict 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.

58a

As a chancery court judge, defendant princi-

pally 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 meetings, which occurred in defen-

dant’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 defen-

dant’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 tele-

phoned 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 con-

frontation with him. She testified that she con-

sidered 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.

60a

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 Lanier

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 con-

tinued on a daily basis. After deciding she would

quit, Mahoney 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

6la

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.

E K * * &

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.

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 secre-

tarial 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

62a

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 repeat-

edly 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 court-

house. 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

63a

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 defen-

dant; 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 be-

cause 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

64a

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 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 defen-

dant’s court, and she was afraid that defendant

would take her daughter away from her. Archie

testified that she subsequently met with defen-

dant 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

65a

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.

* X X X *

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 Attaway. 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.

66a

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 Attaway was in defendant’s cham-

bers 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.

** eK *

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.

67a

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.

XR X X * *

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

68a

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 Bandy 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, 33 F.3d 639, 646-50 (6th Cir.

1994), vacated, 43 F.3d 1033 (6th Cir. 1995).

In light of these facts, the grand jury returned

against Lanier an 1l-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

69a

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 con-

stitutional notice requirements. I respectfully sug-

gest that such analyses ignore historical facts and

jurisprudential precepts that mandate a contrary

conclusion.

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 sub-

jects any person in any State, Territory, or

District to the deprivation of any rights, priv-

ileges, 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....

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 pro-

tected by the Constitution.” (Emphasis added.) Ordin-

arily, 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 729, 721 (6th Cir. 1994), cert. denied,

115 S.Ct. 1148 (1995), “[oJnly if the language of the

statute is unclear do we look beyond the statutory

70a

language to the intent of the legislature.” Never-

theless, 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 historieal 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 con-

clude 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 inter-

esting as an academic exercise attempting to divine

the motivations of a disparate collection of legis-

lators, 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, how-

ever, 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 (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 (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

71a

Constitution or laws of the United States.“ 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

(1980) (quoting United States v. Price, 383 U.S. at

803).

Moreover, over the years, and through subsequent

amendments, Congress has not seen fit to alter § 242

in the face of Supreme Court decisions that con-

tradict 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 case 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 fom prosecutions under § 242. See Briscoe

v. LaHue, 460 U.S. 325, 345 n.32 (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.

' Concurring in Chapman v. Houston Welfare Rights Org.,

441 U.S. 600, 661 n.34 (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; United States v. Guest,

383 U.S. 745, 753 (1966); Screws v. United States, 325 U.S. at

119 (Rutledge, J., concurring).

72a

Finally, the majority does not question the con-

clusion that those acts were committed under “color

of law.” Instead, in deciding te dismiss the indictment

issued against Lanier, the majerity insists that the

constitutional right upon which the prosecution based

its case, the right to be free from 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. In this case, the government

does not rely upon any express constitutional pro-

vision “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.

73a

Blalock, 983 F.2d 1353, 1367 (6th Cir. 1993) (quoting

Parratt v. Taylor, 451 U.S. 527, 536 (1981). “The

other type of claim is directed at official acts which

muy not occur regardless of the procedural safe-

guards 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 Four-

teenth Amendment and the various statutes execut-

ing 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 “decisions interpreting [the Constitution

and laws of the United States],” not only Supreme

Court decisions providing such _ interpretations.

74a

Screws v. United States, 325 U.S. at 104 (emphasis

added). Moreover, the Screws plurality cpinion

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.” Jd. at 96 (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 major-

ity’s attempt to limit the possible sources of expli-

cation 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 enforce-

ment of the law is present.

Even more troubling than the majority’s restric-

tion of the Screws holding, however, is the fact that in

order to arrive at the conclusion it does today, the

majority is also forced 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, 112 S.Ct.

2791 (1992); Cruzan v. Director, Missouri Dept. of

Health, 497 U.S. 261 (1990); Youngberg v. Romeo, 457

U.S. 307 (1982); Ingraham v. Wright, 430 U.S. 651

(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

75a

concludes that such precedent cannot support the

contention that the “right to be free from rape and

sexual assault and harassment has also been recog-

nized 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 1933 case

accusing welfare officials of selling foster chil-

dren 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 pro-

tecting 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 prece-

dents that have “made specific” the fact that inter-

ference with personal security and bodily integrity

that shocks the conscience is proscribed by the sub-

stantive due process principles of the Fourteenth

Amendment.

76a

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 ‘act

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 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 1413.

In Youngberg v. Romeo, 457 U.S. at 315, the

Supreme Court reiterated, citing Ingraham, that

Ain 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 refer-

enced the “notion of bodily integrity” and recognized:

Before the turn of the century, this Court

observed that “[njo right is held more sacred, or

is more carefully guarded, by the common law,

than the right of every individual to the posses-

sion and control of his own person, free from all

restraint or interference of others, unless by

clear and unquestionable authority of law.”

77

Cruzan v. Director, Missouri Dept. of Health, 497

U.S. at 269 (quoting Union Pacific R. Co. v. Botsford,

141 U.S. 250, 251 (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 (1973)], that the Constitution places limits

on a State’s right to interfere with a person's

bodily integrity.” Planned Parenthood v. Casey, 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

78a

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

(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 assaul-

ting 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 case 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 case 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 cases

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

79a

substantive due process principles.’ See, e.g., Walton

v. Alexander, 44 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 “[iJt 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, 115 S.Ct. 70 (1994); Dang Vang v. Vang

2 In United States v. Reese, 2 F.3d 870, 884 (9th Cir. 1993),

cert. denied, 114 S.Ct. 928 (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, 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 involved,

[the two statutes] are commensurate.” Id.

80a

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 Jngraham because “a

teacher’s sexual molestation of a student could not

possibly be deemed an acceptable practice”), cert.

denied, 493 U.S. 1044 (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 invegrity 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 Atjhe 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

Sla

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

At hhese 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 pro-

tected 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 prin-

ciple 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

82a

that, at the time of Lanier’s assaults upon his victims,

a constitutional 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 con-

gressional 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. 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.” Jd. at 102; 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

83a

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 case either knew or acted “in reckless dis-

regard of [§ 242’s] prohibition of the deprivation of a

defined constitutional or other federal right.” Screws

v. United States, 325 U.S. at 104. 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 par-

ticular acts should be criminalized “places unpara-

lleled, 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 inval-

idate 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 (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 demean-

ing as to shock the conscience of the courts. Conse-

84a

quently, 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, ¢.g.,

Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th

Cir. 1993), cert. denied, 114 S.Ct. 2742 (1994);

Mansfield Apartment Owners Assoc. v. City of

Mansfield, 988 F.2d 1469, 1478 (6th Cir. 1993); Braley

„. City of Pontiac, 906 F.2d 220, 226 (6th Cir. 1990).

This case, however, does not fall outside those bound-

aries. 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 com-

munity, but also physical force 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. More-

over, 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

85a

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 (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 author-

ity 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;

Screws v. United States, 325 U.S. at 106-07; United

States v. Brummett, 786 F.2d 720 (6th Cir. 1986).’

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

% 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 „.

Brummett, 786 F.2d at 721.

86a

“made specific” by prior court decision, solely be-

cause 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 consti-

tution 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.

87a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 93-5608

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

Davip W. LANIER, DEFENDANT-APPELLANT

[Filed: Aug. 31, 1994]

Before: KEITH and MILBURN, Circuit Judges; and

WELLFORD, Senior Circuit Judge.

MILBURN, Circuit Judge, delivered the opinion of

the court, in which KErru, Circuit Judge, joined.

WELLFORD, Senior Circuit Judge (p. 666 [14la)),

delivered a separate concurring opinion.

MILBURN, Circuit Judge.

Defendant David W. Lanier appeals his jury

convictions, and the sentences imposed thereon, of

seven counts of the willful deprivation under color of

law of the civil rights of various female individuals in

violation of 18 U.S.C. § 242. On appeal, the issues are

(1) whether the government proved the essential

elements of 18 U.S.C. § 242 beyond a reasonable doubt;

(2) whether the district court abused its discretion in

refusing to sever the trials of the charges against

defendant; (3) whether the district court erred in

88a

refusing to dismiss the indictment on the ground that

it failed to give notice to the defendant of the charges

he was required to defend; (4) whether the district

court erred in refusing to dismiss the indictment on

the ground that the statute, 18 U.S.C. § 242, was

impermissibly vague; (5) whether the district court

erred in excluding evidence concerning the prior

sexual activity and prior drug use of one of the

witnesses, Vivian Archie; (6) whether the district

court abused its discretion in refusing to grant a

one-day continuance of the trial because a local

newspaper containing a story about the case was

found in the jury room prior to the commencement of

the trial; (7) whether the district court erred in

failing to grant a mistrial based upon the prosecutor’s

opening statement; (8) whether the prosecutor

committed prosecutorial misconduct in his closing

argument by improperly vouching for prosecution

witnesses, making inflammatory statements, and

calling the defendant names; (9) whether the defen-

dant was denied a fair trial by prosecutorial mis-

conduct throughout the trial process; (10) whether

the jury instructions were improper and prejudicial;

(11) whether the district court erred in enhancing

defendant’s sentence for obstruction of justice under

United States Sentencing Guideline (“U.S.S.G.”) §

301.1; (12) whether the district court erred in

imposing a fine and costs of incarceration; (13)

whether the district court erred in determining

defendant’s base offense level; (14) whether the sen-

tence imposed by the district court was dispropor-

tionate to the offenses under the Eighth Amendment;

and (15) whether the district court erred in refusing

to depart downward from the applicable sentencing

guidelines under U.S.S.G. § 5K2.0. For the reasons

that follow, we affirm.

On May 20, 1992, a federal grand jury indicted

defendant on 11 counts of violating 18 U.S.C. § 242. At

the time of the indictment, defendant was the elected

chancery court judge for Dyer and Lake Counties in

Tennessee, where he also served as juvenile court

judge. As the only chancellor and juvenile court

judge in said counties, all of the employees of each of

the courts, including secretaries, clerks, and juvenile

officers, worked at the pleasure of defendant Lanier.

The indictment alleged that between 1988 and 1991,

defendant sexually assaulted eight women who either

worked for him at the state chancery court, worked

for or with him in the juvenile court of Dyer County,

or had a case pending before defendant. Count 1 of the

indictment alleged that in July 1988, defendant, acting

under color of state law, sexually assaulted Patricia

Wallace, an employee of the Circuit Court of Dyer

County, depriving her of her liberty without due

process; namely, the right to be free of sexual assault.

The indictment alleged that defendant willfully

touched Wallace on and near her crotch and otherwise

molested her.

Counts 2 and 3 of the indictment similarly alleged

that during the period from May to August 1989,

defendant sexually assaulted Sandra Sanders, an

employee of the Dyer County Juvenile Court. The

In view of all the publicity surrounding the trial of this

matter from the various media and the fact that the record was

not filed under seal, we have used the victims’ names herein.

We would not have done this had the circumstances been

otherwise.

90a

indictment alleged that defendant willfully grabbed

Sanders’ breasts and buttocks and otherwise molested

her.

Counts 4 and 5 of the indictment similarly alleged

that in either September or October 1990, defendant

sexually assaulted Patty Mahoney, an employee of the

Chancery Court of Dyer County. The indictment

alleged that defendant willfully grabbed Mahoney’s

breasts and buttocks, touched his pelvis to her body,

and otherwise molested her.

Counts 6 and 7 of the indictment likewise alleged

that in September 1990 (Count 6) and again in October

1990 (Count 7) defendant sexually assaulted Vivian

Archie by willfully coercing her to engage in sexual

acts with defendant Lanier, which resulted in bodily

injury to her. Count 8 of the indictment also sim-

‘larly alleged that during the period from February

through May 1991, defendant sexually assaulted

Sandy Attaway, an employee of the Chancery Court of

Dyer County, by willfully touching his pelvis to her

buttocks and otherwise molesting her.

Similarly, count 9 of the indictment alleged that in

either February or March 1991, defendant sexually

assaulted Ruby Sipes by willfully exposing his

genitals to her and urging her to engage in sexual

acts with him. Count 10 of the indictment similarly

alleged that in April 1991, defendant sexually

assaulted Lisa Couch by willfully coercing her to

engage in sexual acts with him, resulting in bodily

injury to her. Finally, count 11 of the indictment

similarly alleged that in September 1991, defendant

assaulted Fonda Bandy by willfully grabbing her

breasts and crotch, and otherwise molesting her.

Defendant’s trial began on November 30, and

concluded on December 16, 1992. The evidence

9la

presented at trial showed that defendant was born in

Dyer County, Tennessee, and had lived there vir-

tually 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 along with chancery court

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, as earlier

stated, 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 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

92a

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 defen-

dant and told him she needed to meet with him. She

went to defendant’s chambers, told him she did not

appreciate his actions, 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 super-

visory 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 inapprop-

riately hugged her during her job interview. How-

93a

ever, she accepted the job because, for a person with-

out 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 secend 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. 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 Lanier 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 touch-

ing and grabbing of Mahoney’s breasts continued on a

daily basis. After deciding she would quit, Mahoney

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, defen-

dant 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.

94a

Dinah Rone, a friend of Mahoney’s, testified that

during a meeting she had with Mahoney, Mahoney

became distraught and told Rone that defendant would

not keep his hands off her. Rone testified that

Mahoney also told her that when she told defendant

she was going to quit her job, he picked her up and

rubbed his body against her.

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.

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 then 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 be-

95a

cause, 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 tried to kiss her, 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 testi-

fied 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

This text is long and has been trimmed here. Open the source document for the complete record.