Law Against Power Misuse: No Place for Vagueness

The Supreme Court has been asked to decide whether a Reconstruction Era law enacted to enforce the 14th Amendment’s guarantees of due process and equal protection applies in the case of a judge convicted of sexual assault.

A federal court in Tennessee agreed that the law applied to a county judge who was sentenced in 1993 to 25 years in prison for rape and other sexual crimes against five women. But a divided federal appeals court last year overturned Judge David W. Lanier’s conviction, holding that there is no “general constitutional right to be free from sexual assault.”

In arguments before the high court this week Lanier’s appeals lawyer further contended that it was improper for his client to have been prosecuted under the 1874 statute because when he committed his crimes he wasn’t acting officially, “under color of any law.” If these contentions are accepted, Lanier could escape further punishment.

This is obviously a case that should not have been tried under federal law in the first place. The woman on whom Lanier twice forced oral sex in his chambers, under implicit threat that he might otherwise decide a child custody case against her, should have been able to see her complaint prosecuted at the local level. So should the four other women, two of them his secretaries, whom Lanier was convicted of fondling and groping. But justice at the local level was not to be had because the district attorney, who was Lanier’s brother, refused to prosecute.

That forced the victims to seek justice under federal law. Prosecutors based their case on a statute passed to protect freed slaves in the South from efforts by local officials to deprive them of “any rights” protected by the Constitution. The prosecutors’ reasoning was sound. The assaults by Lanier occurred in his chambers and nearby judicial offices; in at least some instances he was wearing his judicial robes. Given the context, a reasonable person could only conclude that the threat of judicial power was plainly implied. The rape victim testified she was left with a clear sense that if she did not do what Lanier demanded he might take her child away.

In his presentation this week Lanier’s attorney did not dispute the charges on which his client was convicted. Those charges describe acts that were premeditated and intolerable abuses of his authority. Lanier was a predator in black robes, and for that he deserves the stiff prison term he was sentenced to. The Supreme Court seems likely to decide that the protections against misuse of power intended in the 1874 law do in fact apply in this case. Should it find otherwise, Congress ought to act quickly to close an indefensible loophole in the law.