McCann v. Bryon L. Rosquist, D.C., P.C.

• Decision Date: 19 March 1998
• Docket Number: No. 2:97-CV-0535-S.,2:97-CV-0535-S.
• Citation: 998 F.Supp. 1246
• Parties: Melanie McCANN, Noele Nelson, and Lisa Nielson, Plaintiffs, v. BRYON L. ROSQUIST, D.C., P.C., a Utah corporation, and Bryon L. Rosquist, individually, Defendants.
• Court: U.S. District Court — District of Utah

Page 1246

998 F.Supp. 1246

Melanie McCANN, Noele Nelson, and Lisa Nielson, Plaintiffs, v. BRYON L. ROSQUIST, D.C., P.C., a Utah corporation, and Bryon L. Rosquist, individually, Defendants.

No. 2:97-CV-0535-S.

United States District Court, D. Utah, Central Division.

March 19, 1998.

Anthony B. Quinn, Susan J. Mueller, Larry S. Jenkins, Wood Crapo, Salt Lake City, UT, for Plaintiffs.

Brent O. Hatch, Heather A. McDougald, Johnson & Hatch, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION

SAM, Chief Judge.

INTRODUCTION

This matter is before the Court on Defendants' Motion to Dismiss. Counsel were present in court on January 7, 1998 for oral argument. Mary Anne Wood, Larry S. Jenkins and Susan J. Mueller appeared on behalf of Plaintiffs. Defendants were represented by Brent O. Hatch and Heather A. McDougald. The Court took the matter under advisement at the conclusion of oral argument and now issues this memorandum decision.

FACTUAL BACKGROUND

Plaintiffs were Defendants' employees. Defendant Dr. Rosquist is a chiropractor. Plaintiffs have accused defendant Rosquist of inappropriate sexual remarks and touchings. They have alleged state law causes of action and have included one federal claim under the Violence Against Women Act ("VAWA") upon which this Court's jurisdiction depends. Defendants have moved to dismiss the VAWA claim, and if the Court does so, the pendant state law claims for lack of jurisdiction. Essentially, the Defendants claim that the alleged acts do not constitute a "crime of violence" and that, as alleged, they were not "motivated by gender." Plaintiffs assert that the felony alleged, U.C.A. § 76-5-404, titled "Forcible sexual abuse", is a "crime of violence" by categorical definition and therefore any allegation sufficient to state a cause of action under section 76-5-404 is a crime of violence for VAWA purposes. Plaintiffs suggest that the Court must make this determination on the basis of how the alleged crime is defined by law without regard to the specific conduct of the defendants.

STANDARD OF REVIEW

For purposes of a motion to dismiss, the allegations of the complaint are presumed to be true and are construed in the light most favorable to the plaintiffs. Yoder v. Honeywell, Inc., 104 F.3d 1215, 1224 (10th Cir.1997) (well-pleaded allegations are accepted as true and construed in a light most favorable to plaintiff) (quoting Fuller v. Norton, 86 F.3d 1016, 1020 (10th Cir.1996)); Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991) (citing Curtis Ambulance of Fla., Inc. v. Board of County Comm'rs, 811 F.2d 1371, 1374 (10th Cir.1987)) (allegations of complaint are presumed to be true). The complaint will only be dismissed if it appears that the plaintiffs cannot prove facts entitling them to relief. Miller, 948 F.2d at 1565.

INTRODUCTION TO VAWA/GMVA

In 1994, Congress passed the Civil Rights for Gender Motivated Violence Act (GMVA) as a subtitle to the Violence Against Women Act (VAWA). The GMVA subtitle was intended as the civil rights arm of VAWA.¹ It provides a civil cause of action for relief from crimes of violence motivated by gender. 42 U.S.C.A. § 13981 (1995) (the act also allows attorneys fees pursuant to § 1988, and recovery of compensatory and punitive damages, and injunctive and declaratory relief). The Act was intended as a supplement to, rather than a replacement for, existing state and federal remedies. S.Rep. No. 103-138, at 51 (1993) (not intended to supplant state tort law); S.Rep. No. 103-138, at 53 (not intended to undermine existing civil rights protections under title VII); see also Brzonkala v. Virginia Polytechnic Institute and State University, 132 F.3d 949, 971 (4th Cir.1997) ("VAWA acts to supplement, rather than supplant, state criminal, civil, and family law controlling gender violence."); Palazzolo v. Ruggiano, 993 F.Supp. 45, 46-47 (D.R.I. 1998) ("The cause of action created by VAWA supplements and does not supplant any claims that a plaintiff may have under applicable state law.").

A number of courts have discussed the constitutionality of the civil rights provisions of VAWA. The majority of courts that have dealt with the issue have concluded that VAWA is a constitutional exercise of the powers vested in Congress through the Commerce Clause—Article I, Section 8 of the U.S. Constitution. Brzonkala v. Virginia Polytechnic Institute and State University, 132 F.3d 949 (4th Cir.1997) (but see dissent by Justice Luttig); Mattison v. Click Corp. of America, Inc., 1998 WL 32597 (E.D.Pa., 1998) (No. Civ.A.97-CV-2736); Crisonino v. New York City Housing Authority, 985 F.Supp. 385 (S.D.N.Y.1997); Anisimov v. Lake, 982 F.Supp. 531 (N.D.Ill.1997); Seaton v. Seaton, 971 F.Supp. 1188 (E.D.Tenn.1997); Doe v. Doe, 929 F.Supp. 608 (D.Conn.1996). The parties in the present case have not raised this issue. Furthermore, as a matter of judicial restraint the Court must first analyze the nonconstitutional challenges to the statute's applicability in the instant case. Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985).

In order to state a cause of action under section 13981 (hereinafter "GMVA"), a party must allege the commission of a "crime of violence motivated by gender." A defendant has committed a "crime of violence" within the meaning of GMVA if he/she satisfies the following requirements:

(1) The "act or series of acts [must] constitute a felony against the person"; and

(2) The "act or series of acts" must be a State or Federal offense within the meaning of title 18, section 16 of the United States Code which requires that the offense either:

(a) have "as an element the use, attempted use, or threatened use of physical force against the person or property of another," or

(b) "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

42 U.S.C. § 13981(d)(2)(A); 18 U.S.C. § 16. Furthermore, the "act or series of acts" are "motivated by gender" when they are "committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender ...." 42 U.S.C.A. § 13981(d)(1).

Dr. Rosquist is accused of having committed acts which constitute forcible sexual abuse—a crime that is a felony under Utah law. U.C.A. § 76-5-404 (1995). Therefore, Plaintiffs have established the first prong of the GMVA requirements. Plaintiffs have conceded that the alleged offense does not include as an element the use, attempted use, or threatened use of physical force and, therefore, does not satisfy subsection (a) of section 16. (Pls.' Mem. Opp. Mot. to Dis., at 3.) Accordingly, the issue before the Court is whether the Plaintiffs have stated a claim based on part (b) of the second prong of the GMVA requirements—that the "act or series of acts" constitute an offense that, by its nature involves a substantial risk that force may be used within the meaning of section 16(b).

Currently there are only a handful of cases that have applied VAWA. Many of those cases have not contained any relevant discussion of GMVA. Of those that have involved GMVA few have involved any helpful analysis of GMVA's definition of "crime of violence" in a context involving either the type of conduct or the type of predicate crime alleged in this case. In fact, this Court is aware of only eleven federal cases citing the Violence Against Women Act in the context of GMVA. Included in those eleven cases are opinions by the Fourth and Eighth Circuits—Doe v. Hartz, 134 F.3d 1339 (8th Cir.1998) and Brzonkala v. Virginia Polytechnic Institute and State University, 132 F.3d 949 (4th Cir. 1997). The remainder are district court opinions. Eight opinions have allowed a GMVA action to proceed.² The allegations in those cases have been rape, varying forms of criminal assault and battery, and violent physical and mental abuse. Three opinions dismissed the GMVA claims for failure to adequately allege a predicate crime or because the predicate crime was not a crime of violence. Hartz, 134 F.3d 1339 (8th Cir.1998) (Sexual exploitation by a counselor or therapist —failure to allege predicate crime and predicate crime, as alleged, not a crime of violence); Palazzolo, 993 F.Supp. 45 (Second degree sexual assault—of two part statute, plaintiff failed to allege elements of one part and the second part did not constitute a crime of violence); Wilson v. Diocese of New York of Episcopal Church, 1998 WL 82921 (S.D.N.Y., Feb.26, 1998) (Third degree sexual assault—facts as alleged were insufficient to state a claim under any state statute that could be considered a crime of violence). The allegations in the three cases dismissing the GMVA claim involved nonconsensual touching and kissing—actions which sharply contrast with the allegations in the previously mentioned eight cases where the VAWA claims were allowed to proceed.

With this backdrop of precedent the Court will proceed to determine the intended scope of GMVA.

SCOPE OF GMVA

Whether Plaintiffs allege a "crime of violence" is not readily determinable by looking only at the statutory language of GMVA or the definition of "crime of violence" in section 16. Hence, an appeal to the legislative history of GMVA and VAWA is warranted in order to enlighten our application of section 16 subsection (b) in the context of GMVA. See, Barnhill v. Johnson, 503 U.S. 393, 401, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992) (appropriate to appeal to legislative history in cases of statutory ambiguity).

VAWA was first introduced in 1990 "in response to the escalating problem of violence against women." S. Rep. 103-138 at 37. To demonstrate the need for the legislation, the Senate reported the following:

Women in America suffer all the crimes that plague the Nation-muggings, car thefts, and burglaries to name a few. But there are also some crimes, including rape and family violence, that disproportionately burden women..... Both our...