Is Assault by State Official A Civil Rights Violation?

A disturbing case of sexual assault by a Tennessee county judge could set an important new constitutional right for victims of abuse by state officials.

At a Supreme Court hearing yesterday, justices heard arguments concerning the release of Judge David Lanier by an appeals court after lower courts found him guilty of sexually assaulting five women in his chambers.

The nine high court justices debated how far civil rights can be construed to protect individuals when they are assaulted by persons acting in their capacity as state officials.

If the Supreme Court rules against Mr. Lanier, that would likely mean that sexual assault by a state official is a federal criminal offense - a first in US legal history.

The US government's position, articulated by Deputy Solicitor General Seth Waxman, is that a new standard should be carved out by the court based on "physical abuse of a serious and substantial manner."

Alfred Knight, attorney for Lanier said his client had not been empowered by any state authority to conduct the rapes, and thus could not have violated the women's due process as an official.

The circumstances of US v. Lanier read like something out of a Tennessee Williams play. Lanier comes from a powerful and wealthy family in the rural county of Dyer, Tenn. His father was a prominent Democrat and county chief executive. His brother was the local state prosecutor. Lanier himself, before being elected to county judge in 1982, was the mayor of Dyersburg, Tenn.

Yet in 1992, then-Judge Lanier was found guilty by a federal court jury of seven counts of sexual assault against five women. Most of the assaults, including two instances of oral rape, occurred in the judge's chambers between 1989 and 1991. An instance of fondling occurred while the judge was on the bench itself. All the women were either employees or prospective employees of the court; the judge controlled custody of the child of one prospective employee, and he reminded both her and another employee of that fact, according to trial testimony. Lanier denies most of the charges.

Last January, a Sixth US Court of Appeals ruling set Lanier free after 27 months of a 25-year sentence. The 9 to 6 decision hinged on the federal law under which Lanier was sentenced. Called Section 242, it is a civil rights statute created in the 19th century to curb Ku Klux Klan activity; a 1945 decision (Screws v. US) involving the killing of a black man by local officials in the South brought the law into modern jurisprudence.

The high court must decide by next June whether a law originally created to protect against racial assault also applies to sexual assault, or "bodily integrity." It must also determine whether Lanier can be imprisoned on the basis of a law that had not been spelled out prior to his sentence.

"Is protection against sexual assault a federally guaranteed right? That's the basic issue," says Mark Tushnet, a constitutional scholar at the Georgetown University law school in Washington.

During yesterday's argument, the high court justices argued over what kind of assault could be claimed as a violation of a federal right - and debated whether such a right could even be accorded in a practical way.

Was a punch in the nose by a clerk at a local department of motor vehicles office a federal crime? Justice Antonin Scalia asked.

Justice Ruth Bader Ginsburg countered with a hypothetical example of a judge who raped a woman prior to sentencing. Would that be enough to establish a constitutional violation? she asked.

Last January's overturning of Lanier's conviction created a sensation in the Tennessee media and was hotly contested by the Sixth Circuit judges. In the majority opinion, Judge Gilbert Merritt said, "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."

In the dissenting opinion, Judge Martha Craig Daughtrey said the lack of a Supreme Court ruling is due to the fact that no case has arisen involving a judge "who so dishonored his profession," and thus can't be made the rationale for that judge's freedom. Lower courts recognize the "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," Judge Daughtrey stated.

Leading feminist legal theoretician Catharine MacKinnon, in a friend-of-the-court brief, argues that Lanier's claim to ignorance about the scope of his crime overlooks the fact that before his 1992 conviction, more than 50 circuit court rulings dealt with the kinds of activity he engaged in.

In 1984, a Wisconsin district judge wrote that the court "entertains no doubt that an on-duty police officer who uses his position to exert pressure on an unwilling victim so as to force her into sexual intercourse has violated that person's constitutional rights under color of State law." Dr. MacKinnon adds, "Surely a judge is not permitted to commit in his chambers a kind of assault on a civil litigant that a police officer is prohibited from committing against a criminal suspect."

A ruling against the Sixth Circuit decision could set a new guideline for prosecuting the increasing number of reported sexual assaults against female prisoners by prison guards and officials around the country.