Justia Federal District Court Opinions

[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally 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 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 misdemeanor counts charging him with various types of "willful sexual assault" by "touching," "grabbing the breasts and buttocks of" or "exposing his genitals to" a woman. 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 Fourteenth 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 motion to dismiss the indictment for failure to state a crime under Sec. 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 imprisonment. 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 Sec. 242.

After consideration of the legislative history of this statute, the case law, the long established tradition of 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 conclude that the sexual harassment and assault indictment brought under Sec. 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 prosecution relies exclusively on this theory. It has neither articulated nor proposed the recognition of a gender-based crime for sexual assault involving discrimination 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 enforcing its own criminal statutes prohibiting sexual assault, nor did the prosecution allege as an element of the Sec. 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.

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 Interpretation, 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 created the basic language of the statute.

It turns out that the broad language of the 1874 statute, and hence the present language of Sec. 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 Sec. 242. Although in codifying the law he was charged with making no substantive changes, in fact, the one new statute that is now Sec. 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 Representatives, Congressman Lawrence read the three existing sections from the three earlier Acts into the record to illustrate that the new statute Durant proposed, which was to become Sec. 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 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.³ Finally, Congressman Lawrence 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 incorporated 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 Sec. 1983.⁴ Durant in his codification 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 parallel criminal statute that covered violations of all 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.⁵ 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 compilation 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....

....

* * *

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, ... condenses into one the three criminal sections I have cited from the acts....⁶

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 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) (emphasis 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]."⁷ Likewise, on 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 Sec. 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. Certainly Congress evidences no intent to make sexual or simple assault a constitutional crime under Sec. 242. Previously, Congress had provided liability for constitutional rights generally only by providing for civil liability.

Since 1874, Congress has not addressed the scope of the rights to be covered by the abstract language of Sec. 242. The Supreme Court has once in passing recognized that "[t]he substantial change thus effected [to Sec. 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 Sec. 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 legislative record does not support the extension of the abstract language of Sec. 242 to cover all newly-created constitutional rights. Congress has deliberately provided only federal civil liability in such cases.

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 Sec. 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 constitutional tort under Sec. 1983 or a constitutional crime under Sec. 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, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), and Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (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, 97 S.Ct. at 1412. In dicta, the Court mentioned that the Due Process Clause protects a person from "unjustified intrusions on personal security." Ingraham, 430 U.S. at 673, 97 S.Ct. at 1413.

To bolster their constitutional theory, government counsel then cite several lower court decisions in civil cases decided under Sec. 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 precedent 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 bodily integrity is beyond debate," Walton v. Alexander, 44 F.3d 1297, 1306 (5th Cir.1995) (Parker, J., concurring). These 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."

The prosecutors cite only one criminal case in which a lower court affirmed a Sec. 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 Sec. 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, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), and Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (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 individual'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 constitutional right to "bodily integrity."

The fact that government counsel find it necessary to limit the general constitutional right of "freedom from sexual assault" to conduct that "shocks the conscience" illustrates the weakness of their constitutional theory. In line with this theory, the district court below instructed the jury to convict the defendant only if the sexual assaults in this case were so 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.⁸ 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, 72 S.Ct. at 209. 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, 72 S.Ct. at 208. 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 consequences of adopting such an argument generally to extend Sec. 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, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). This language from Connally follows the three general canons that govern judicial construction of criminal statutes set out 175 years ago by Chief Justice Marshall in United States v. Wiltberger, 18 U.S. 76, 93, 5 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 that criminal statutes are normally strictly construed by the courts.

Chief Justice Marshall held that Congress has the sole responsibility to draft criminal statutes. It is the only branch of government with the authority 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.⁹

The Supreme Court has explicitly asserted this principle on a number of occasions. In Bouie v. City of Columbia, the Court reversed a conviction sustained by the South Carolina Supreme Court. 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). The state courts had convicted protestors of a criminal trespass under a novel interpretation 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, 84 S.Ct. at 1707.¹⁰ See also Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1002, 108 L.Ed.2d 132 (1990) ("legislatures, not courts, define criminal liability").

Similarly, turning assault and battery into a constitutional crime would violate the Wiltberger- Bouie principle by judicially creating a new crime under Sec. 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 characterize 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 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.¹¹ In Wiltberger, Chief Justice Marshall wrote thatthe rule that penal laws are to be construed strictly, is perhaps not much less old than construction 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, 361 U.S. 87, 91, 80 S.Ct. 144, 147, 4 L.Ed.2d 127 (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, 111 S.Ct. 461, 477, 112 L.Ed.2d 449 (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 temptation that Chief Justice Marshall warned against. The law would be punishing the defendant for committing 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 constitutional 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.

Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (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 construction of criminal law:

It was settled early in our history that prosecutions in the federal courts could not be founded on any undefined body of so-called common law. United States v. Hudson, 7 Cranch 32 [3 L.Ed. 259]; United States v. Gooding, 12 Wheat. 460 [6 L.Ed. 693]. Federal prosecutions must be founded on delineation by Congress of what is made criminal. To base federal prosecutions on the shifting and indeterminate decisions of courts is to sanction prosecutions 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, 65 S.Ct. at 1059 (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 Sec. 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, 65 S.Ct. at 1034, 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 who decide to take the law into their own hands and act as prosecutor, jury, judge, and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him.

Id. at 106, 65 S.Ct. at 1038 (citation omitted). Throughout the opinion, the plurality refers to the wrong as racial discrimination in depriving the decedent of the classic constitutional "right to be tried by a court rather than by ordeal." Id. at 107, 65 S.Ct. at 1038.

In Screws, the plurality opinion expressly observed that the Court believed that it was pushed to the difficult choice between declaring Sec. 242 unconstitutional and adopting a "saving construction" that would greatly narrow the statute to the deprivation of obvious, well-established and publicly known constitutional rights. ("Only if no construction can save the Act ... are we willing to reach that result.") Id. at 100, 65 S.Ct. at 1035. 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 construction 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, 65 S.Ct. at 1037. 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, 65 S.Ct. at 1037. It is this phrase, which includes rights enunciated by "decisions," that makes Screws unique among criminal law precedents. It is clear, however, that the Screws exception to the Wiltberger- Connally- Bouie principles must be confined (1) to cases under Sec. 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 constitutional crime so as to provide the constitutionally-required notice necessary to support an indictment under Sec. 242. Only a decision of the Supreme Court establishing the constitutional crime under Sec. 242 can provide such notice. To accept lower court authority would result routinely in making federal criminal liability under Sec. 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 criminalized in Memphis would not be a federal crime across the river in Arkansas. Only a Supreme Court decision with nationwide application can identify and make specific a right that can result in Sec. 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 exception under Sec. 242.

Screws limits the reach of Sec. 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 Sec. 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, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966) (citing Screws ); Williams v. United States, 341 U.S. 97, 101, 71 S.Ct. 576, 579, 95 L.Ed. 774 (1951) (citing Chambers v. Florida, 309 U.S. 227, 237, 60 S.Ct. 472, 477, 84 L.Ed. 716 (1940), and Brown v. Mississippi, 297 U.S. 278, 285-86, 56 S.Ct. 461, 464-65, 80 L.Ed. 682 (1936)). Screws does not extend Sec. 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 Sec. 242 to make "specific" the constitutional right in question. 325 U.S. at 104, 65 S.Ct. at 1036-37. 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 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 cases. 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, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (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, Sec. 242 would mean that the criminal statute is much broader in scope than its civil counterpart. The government's theory of Sec. 242 criminal liability would visit long criminal sentences on defendants who could successfully defend 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 interpretation in civil cases than in criminal cases. But here, according to the government, Sec. 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, Sec. 242 criminalizes violations of abstract rights at an extremely high level of generality and not particular conduct that may be illegal under state law. As the Screws plurality noted, murder and assault committed under color of law may or may not violate Sec. 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, 65 S.Ct. at 1039 ("The fact that a prisoner is assaulted, injured, or even murdered 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 Sec. 242. For example, a sexual assault raising an equal protection gender discrimination claim may present an entirely different case.¹² 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 construe Screws narrowly, as we normally construe criminal statutes.

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, unprecedented discretion in the hands of federal law enforcement 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 prosecuted. 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 indictment in this case for a previously unknown, undeclared 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.¹³

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. Sec. 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 immoral, 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. Sec. 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, I do not concur in the majority's condemnation of the prosecution for bringing the charges against a defendant 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 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 longstanding 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, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), as was rather grudgingly conceded by the majority, did uphold the constitutionality of 18 U.S.C. Sec. 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 guaranteed to him." Screws, 325 U.S. at 94, 65 S.Ct. at 1032. The defendant in Screws claimed, as does Lanier, that there was no noticed, determinable "standard of guilt" set out in 18 U.S.C. Sec. 242. Id. at 95, 65 S.Ct. at 1032.

Quoting Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942), however, the Court in Screws upheld a then novel application of Sec. 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 fundamental 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 conclude that for 80 years this effort of Congress, renewed several times, to protect the important rights of the individual guaranteed by the Fourteenth Amendment has been an idle gesture. Yet if the Act falls by reason of vagueness so far as due process of law is concerned, there would seem to be a similar lack of specificity when the privileges and immunities clause (Madden v. Kentucky, 309 U.S. 83 [60 S.Ct. 406, 84 L.Ed. 590]) and the equal protection clause (Smith v. Texas, 311 U.S. 128 [61 S.Ct. 164, 85 L.Ed. 84]) of the Fourteenth Amendment are involved.

...

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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, 65 S.Ct. at 1035, 1036 (footnote omitted).

In addition, Screws established the principle that a defendant charged with a violation of Sec. 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, 65 S.Ct. at 1037-38. The emphasis in Screws, as in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (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, 65 S.Ct. at 1041 (concurring opinion).1 He further observed in note 5 that "[i]t 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.2

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." Id. at 121-22, 65 S.Ct. at 1045. 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 constitutional, 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, 65 S.Ct. at 1048, 1049.

Our court has recently recognized:

"[O]nce a due process right has been defined and made specific by court decisions, that right is encompassed by Sec. 242." United States v. Stokes, 506 F.2d 771, 774-75 (5th Cir.1975) (citing Screws ). Courts have applied Sec. 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." Id. 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 Sec. 242, only if "no standard of conduct is specified at all." Id. (quoting United States v. Angiulo, 897 F.2d 1169, 1179 (1st Cir.), cert. denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990)). That Congress might "have chosen 'clearer and more precise language' " in Sec. 242 is not sufficient to make out a vagueness challenge. See United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 321, 46 L.Ed.2d 228 (1975) (quoting United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (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, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); see also Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). Such a right from physical and sexual assault under 42 U.S.C. Sec. 1983 was recognized in Doe v. Taylor Independent School Dist., 15 F.3d 443 (5th Cir.) (en banc), cert. denied sub nom., --- U.S. ----, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994).

If the Constitution protects a schoolchild against being tied to a chair or against arbitrary paddlings, 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 vouchsafed by the Fourteenth Amendment.

Id. at 451.

Other federal cases have enforced 18 U.S.C. Sec. 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, 112 S.Ct. 2276, 119 L.Ed.2d 202 (1992) (affirming conviction of police officer under 18 U.S.C. Sec. 242 for sexually assaulting illegal immigrant in patrol car and attempting to kill her to prevent her from testifying); United States v. Davila, 704 F.2d 749 (5th Cir.1983) (affirming conviction of border patrols under 18 U.S.C. Sec. 242 for depriving illegal aliens of their liberty 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. Sec. 242 for having inmates beat another prisoner); United States v. Dise, 763 F.2d 586 (3d Cir.) (affirming conviction of mental health worker under 18 U.S.C. Sec. 242 for beating psychiatric patients), cert. denied, 474 U.S. 982, 106 S.Ct. 388, 88 L.Ed.2d 341 (1985); United States v. Stokes, 506 F.2d 771 (5th Cir.1975) (police officer convicted under 18 U.S.C. Sec. 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 convicted under 18 U.S.C. Sec. 242 for violating suspect's rights to be free from unlawful search and seizure).3

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 was a first, and the substantial reservations that I share about expansion or intrusion of federal authority, 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 authority to determine custody of her child to coerce her into returning to his office. Finally, Fonda Bandy was assaulted while she was present in defendant'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 wanted to know how he could go about seeking custody of her child. 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.

...

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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.

DAVID 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 misdemeanor counts was enough to shock the conscience, therefore, I do not believe that such behavior was criminalized by 18 U.S.C. Sec. 242.1 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 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.2 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 restrained 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 penumbras of Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (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 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 Amendment, 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, 11 S.Ct. 1000, 35 L.Ed. 734 (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 examination, absent any statute authorizing 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." Id. at 251, 11 S.Ct. at 1001.

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, 11 S.Ct. at 1001--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 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 defendant 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.

KEITH, 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 conviction under 42 U.S.C. Sec. 242 on the grounds that Sec. 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 control over the custody arrangements of Archie's child. The shocking sexual assaults, forced sex acts and threats with which Judge Lanier victimized 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 interpretations for prosecution under Sec. 242.

However, incredibly, the majority ignores the facts and the law to hold that Sec. 242 does not criminalize such behavior. In order to reach its preposterous result, the majority not only dismisses clearly established 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]ustice is the end." See THE FEDERALIST No. 51 (James Madison) (Clinton Rossiter ed., 1961).1 In this case, law has not served the ends of justice.

Accordingly, I join in Judge Daughtrey's dissent.

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 neutral 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 outrageousness 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 categories 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 has been made specific. 325 U.S. 91, 104, 65 S.Ct. 1031, 1036-37, 89 L.Ed. 1495 (1945). Section 242 has proven to be a valuable tool in prosecuting willful violators of a number a constitutional rights. To list only a few, section 242 convictions have resulted from: violations of the Eighth Amendment right to be free from cruel and unusual punishment, 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 excessive 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 decisions have made specific the right to be free from invasions of bodily integrity that shock the conscience. 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 after being shot by a police officer who attempted to handcuff him while holding his cocked service revolver 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, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977), as the source of the liberty interest. I concur in Judge Daughtrey's discussion of the development and 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 accomplished 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 bases 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 established 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 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. Sec. 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.

United States v. Reese, 2 F.3d 870, 884 (9th Cir.1993), cert. denied --- U.S. ----, 114 S.Ct. 928, 127 L.Ed.2d 220 (1994). 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 providing 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, 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 construction 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, 65 S.Ct. at 1036-37. 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 understandably fear that a criminal statute cannot cross reference 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 overcome. Although appealing on one level, I have concluded that worries that 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 establishment of rights and by requiring willful violations. Without the establishment of a right by the courts, there is no danger that runaway or other opportunistic 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.1

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 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 legislature 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 particular 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.

DAUGHTREY, Circuit Judge, dissenting.

Apparently because the United States Supreme court has never held, specifically, that 18 U.S.C. Sec. 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 Sec. 242 and declares that the charges against him should not have been brought. This result rests on the majority's conclusion that the federal constitution offers no protection against such assaults. Because I conclude, to the contrary, that such constitutional 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 legislative history of Sec. 242. Missing, however, is even a brief sketch of the factual history of this case, so necessary to put the constitutional analysis in context. Those facts were fairly and dispassionately summarized by the three-judge panel that first heard this appeal, as follows:

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

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

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

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

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

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

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

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