The Leadership Conference on Civil and Human Rights

Volume 9 Number 1

In U.S. v. Lanier, No. 95-1717, the Court faces the question of the scope of the post-Civil War-enacted federal criminal statute known as Sec. 242 that penalizes actions by state officials (actions "under color of law") that willfully deprive any person o f any rights, privileges or immunities protected by the Constitution or laws of the United States. In the case now awaiting decision, a federal trial court had found Tennessee Judge Lanier guilty of willful sexual assaults in his chambers (and in some ca ses while he was wearing his judicial robes) upon several women. One was a woman who was a job applicant and whose child custody case he had decided and which he could alter. Others were women who were his employees, and women, also public employees, wh ose jobs required that they work with him and meet with him in his chambers.

The federal jury found this state court judge -- member of a politically powerful family in a small community, whose brother was the local state prosecutor -- guilty of two felony and five misdemeanor counts under Sec. 242. The federal judge sentenced hi m to 25 years in prison, as well as fining him. A unanimous panel of the federal Court of Appeals for the sixth Circuit affirmed the conviction and sentence. But the court of appeals reheard the case en banc and, by a sharply divided vote, reversed and held that Sec. 242 could not be applied in these circumstances, no matter how egregious the state official's conduct, because the Supreme Court itself had never applied the statute previously in cases of sexual harassment or assault. Lacking a clear defi nition of the right he was violating the court held that defendant's actions were not "willful." The United States appealed the decision.

The Briefs:

The brief for the United States first considered the appeals court's assertion that a prior Supreme Court decision squarely in point was required, absent specification in the statute itself of particular conduct as prohibited. The brief noted that the Co urt had not so held in its lead case on Sec. 242, Screws v. United States, which had rejected a vagueness attack upon the statute. Rather, the Court there held that 242's element of willfulness requires a specific intent by the defendant to depri ve a person of a 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) In Screws there was no limitation to a prior Supreme Cou rt decision on essentially the same facts. What is required, said the U.S. brief, is that the right clearly exists and "the decisional law" from the courts shows the application of the right to the case at hand. The brief then turned to a detailed elab oration of how over time it has been established that for purposes of Sec. 242 there is a right, protected by the Due Process Clause of the 14th Amendment to the Constitution, to freedom from wholly unjustified interference with bodily integrity by a sexu al assault by a state official acting under color of law.

The brief of Appellee Lanier did not address the Court of Appeals majority's ruling that only a Supreme Court decision factually on all fours with the criminal action charged in a Sec. 242 case could warrant application of that statute to particular cond uct by a state actor under color of law. Rather, Appellee's brief argued at length for the very different proposition that sexual assault by a state judge cannot violate Sec. 242 because such a person is not in any circumstance authorized to use force an d therefore forcible rape or his/her lesser sexual battery in coercive circumstances cannot ever be "under color of law."

As the United States pointed out in reply, this issue was not decided by the court of appeals and was not presented by the petition for certiorari and in any event, as the United States went on to show, was "without merit:" there was substantial evidence to support the jury's conclusion that the judge used his state-given power to assault his victims and then to intimidate them into silence, a conclusion that the jury reached after being given the unexceptionable instruction that "under color of law" mea ns "'[m]isuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law....'" And even if the judge's motivation were relevant, which it was not, his actions were abuses of his autho rity over his victims as employer, interviewer and court supervisor.

The judge's brief further argued that his actions here could not constitute deprivations of due process of law because his victims were not in custody as are persons arrested, imprisoned or otherwise restrained in a state institution. Thus, argued the j udge, abusive actions by a state actor by force, no matter how egregious, cannot violate Sec. 242. This is not an accurate statement of existent case law and, in the United States' words "is almost the reverse of the correct view."

The United States' position was supported by several amicus curiae briefs, and oral argument was heard by the Supreme Court in early January. Decision is expected before the end of the Court's term in late June or early July, 1997.