MEMORANDUM OPINION AND ORDER REGARDING MOTION TO DISMISS, ABSTAIN, OR CERTIFY QUESTIONS
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND....................................1381
A. The Parties And The Central Incidents ..................................1381
B. The Complaint........................................................1381
C. The Response ........................................................1383
II. LEGAL ANALYSIS ......................................................1385
A. Standards For Defendants’ Motion To Dismiss............................1385
1. Failure to state a claim.............................................1385
2. Lack of subject matter jurisdiction..............................;.... 1386
B. The Challenges To The VAWA Claim....................................1390
1. Has Doe stated a claim under the VAWA?............................1391
a. Elements of Doe’s § 13981 claim.................................1392
i. Rules of statutory interpretation.............................1392
ii. The plain meaning of the VAWA civil remedies statute.........1393
b. Elements of the predicate offense................................1397
i. The statute defining the predicate offense.....................1397
ii. Predicate felonies..........................................1399
e. Predicate “crime of violence” under the VAWA....................1400
i. “Categorical” determination.................................1400
ii. “Crime of violence” test....................................1402
iii. Application of the test......................................1403
d. Adequate pleading of a predicate offense..........................1404
*1380 e. Remaining elements of the VAWA claim..........................1405
2. Is the VAWA constitutional?........................................1409
a. The split in authority...........................................1409
b. Commerce Clause analysis......................................1413
i. Substantial effect on interstate commerce.....................1415
ii. Deference to congressional findings..........................1419
iii. Congressional findings .....................................1421
iv. Reasonable adaptation of means to goal.......................1423
C. Supplemental Jurisdiction..............................................1423
1. Novelty and complexity.............................................1424
2. Predomination ....................................................1425
D. Challenges To State-Law Claims........................................1426
1. Negligent hiring, training, and supervision............................1426
a. Recognition of the tort as alleged................................1427
b. Constitutionality of the tort as against religious institutions..........1428
i. The “entanglement” test....................................1428
ii. Federal decisions..........................................1430
iii. State court decisions.......................................1431
2. Other state-law claims..............................................1432
E. Certification For Interlocutory Appeal...................................1433
III. CONCLUSION...........................................................1434
APPENDIX...................................................................1435
A. Amici Appearing Through NOW Legal Defense And Education Fund........1435
B. Amici “Law Professors”................................................1436
Violence against women prompted Congress to pass the civil remedies provision of the Violence Against Women Act (VAWA), 42 U.S.C. § 13981, on September 13, 1994, as a new, federal weapon -to combat gender-based violence. Yet, whatever the need for or merits of the VAWA, was its passage a constitutional exercise of congressional power? The only two courts to consider the question have split on the answer. 1 The defendants here, a parish priest accused by a parishioner of sexually exploiting her, as well as the church, bishop, and diocese also called to account for the priest’s allegedly wrongful conduct, assert that the VAWA cannot be sustained on the basis of either the Congress’ Commerce Clause or Fourteenth Amendment enforcement powers. The plaintiff, the United States as a plamtiffdntervenor, and various amici curiae have rallied to defend the constitutionality of the VAWA.
However much the parties and interested persons press their arguments concerning the constitutionality of the enactment of the VAWA, the court must heed the directive of the Supreme Court, and first consider non-constitutional challenges to the plaintiffs VAWA claim, and must only reach the constitutional issue if it is “unavoidable.” 2 A non-constitutional challenge is not lacking here, because the defendants also contend that the plaintiffs VAWA claim, the only federal claim in the complaint, is inadequately pleaded. Furthermore, if the VAWA claim is dismissed, on constitutional or nonconstitutional grounds, the court may be deprived of subject matter jurisdiction over any of the plaintiffs thirteen state-law claims, and the *1381 defendants contend that the court should decline to exercise supplemental jurisdiction over those claims in any event. Finally, the defendants also challenge the plaintiff’s many state-law claims, again on constitutional grounds — this time, pursuant to the religion clauses of the First Amendment — as well as a plethora of nonconstitutional grounds.
This tangle of constitutional and nonconstitutional issues, federal and state claims, a federal claim dependent upon a predicate offense defined by state law, and supplemental jurisdiction questions, creates a veritable Gordian Knot. 3 Alexander the Great could only loosen the Gordian Knot by slicing through it with his sword, an approach that' is appealing, but unavailable here. 4 This court’s resolution of defendants’ motion must be more patient and reasoned.
/. INTRODUCTION AND BACKGROUND
A. The Parties And The Central Incidents
Plaintiff Jane Doe 5 filed her complaint in this action on August 29, 1996, naming as defendants Father Gerald A. Hartz, who is a priest at St. Lawrence Church, in Carroll, Iowa, St. Lawrence Church itself, the Roman Catholic Diocese of Sioux City, Iowa, and Bishop Lawrence Soens, the bishop of the defendant Diocese. The gravamen of Doe’s complaint is that, on December 3, 1994, when she arrived at the Church to sing during evening mass, Father Hartz “came up behind her, grabbed her with both of his hands and pulled her back into his body, held her tightly and kissed her neck.” Complaint, ¶ 11. Later that same evening, after mass, “Defendant Hartz rubbed Plaintiffs báck up and down with his hand.” Id. at ¶ 14. Plaintiff alleges thirteen claims, based on state and federal law, as a result of these incidents or related events.
B. The Complaint
Count 1 of Doe’s complaint is the only one stating a federal claim, and thus is the count upon which federal jurisdiction depends. 6 In Count 1, Doe asserts a civil claim against Father Hartz for violation of the civil remedies provision of the VAWA, 42 U.S.C! § 13981. Doe alleges that Father Hartz’s conduct constituted sexual exploitation by a counselor or therapist within the meaning of Iowa Code § 709.15, establishing a predicate felony crime of violence under the federal statute. As relief, she seeks a declaration that Father Hartz’s conduct violated the VAWA; an injunction, apparently against all defendants, enjoining any conduct violating the rights of the plaintiff and others secured by the VAWA; 7 an order that Father Hartz *1382 receive psychological evaluation and treatment; an injunction against Father Hartz from performing his duties and responsibilities until such time as a neutral professional certifies that he can do so without sexually exploiting females; compensatory and punitive damages; attorneys fees; costs; and such other relief as the court deems just and proper.
The remaining counts assert state-law claims against the various defendants. Count 2 alleges sexual abuse by Father Hartz. As relief on this count, Doe seeks an order requiring Father Hartz to receive professional counseling within the meaning of Iowa Code § 611.23, and compensatory and punitive damages. Count 3 alleges fraud by Father Hartz arising from a special relationship of trust, and confidence between the plaintiff and Father Hartz and Father Hartz’s misrepresentation, based on his holding himself out as celibate and as a personal fiduciary, that he could be trusted not to fondle or kiss the plaintiff in a sexual manner. This fraud count is apparently also directed at the other defendants as well, because Doe asserts that the other defendants had knowledge of the falsity of Father Hartz’s representations and that they intended to deceive the plaintiff to “save themselves, the church, and the congregation the embarrassment of admitting there was a priest in St. Lawrence Church that had a problem with sexual abuse.” Complaint, ¶¶ 50-51. This count also asserts that the fraudulent acts of the defendants constituted part of the pattern, practice, or scheme of conduet by a counselor or therapist within the meaning of Iowa Code § 709.15(1)(f)(1), which appears to be intended to bolster the VAWA claim as well. As relief on the fraud count, Do.e seeks compensatory and punitive damages, interest, and costs.
Count 4 alleges breach of fiduciary duty by the defendant Diocese and Bishop Soens. Specifically, it alleges a fiduciary duty on the part of these defendants to Doe, and breach of that duty by failure to notify Doe that she was in danger of being a victim of sexual abuse at Father Hartz’s hands and by failure to provide Father Hartz with professional counseling services to protect Doe from be•ing sexually abused by Father Hartz. On this count, Doe seeks compensatory and punitive damages, as well as interest, and costs. Count 5 is a companion claim of breach of fiduciary duty against Father Hartz. It alleges Father Hartz had a fiduciary duty to Doe and breached it by fondling and kissing her for the purposes of arousing and/or satisfying his sexual desires. On this count, Doe seeks compensatory and punitive damages against Father Hartz, as well as interest and costs.
Counts 6, 7, 8, and 9 are against only Father Hartz. Count 6 alleges assault by Father Hartz by placing Doe in fear of offensive physical contact after the incident in which Father Hartz is alleged to have actually engaged in such conduct. The relief sought on this count is, again, compensatory and punitive damages, interest, and costs. 8 Count 7 is a claim of tortious infliction of emotional distress based on the alleged out *1383 rageousness of Father Hartz’s conduct on December 3, 1994. The relief sought on this count is also compensatory and punitive damages, interest, and costs. Counts 8 and 9 are negligence claims as alternatives to the intentional torts alleged in the prior counts. Count 8 alleges that Father Hartz suffers from a mental disease or defect that renders him unable to control his conduct in connection with sexual behavior toward females and that Father Hartz’s conduct as a result of his disease or defect, although not intentional, was negligent. Count 9 alleges that Father Hartz negligently breached his duty to restrain himself from sexually abusing the plaintiff as a result of his mental disease or defect and also breached his duty to obtain professional help to treat his mental disease or defect so that he could refrain from sexually abusing the plaintiff. Doe seeks compensatory and punitive damages, interest, and costs as relief on both of her negligence claims against Father Hartz.
Counts 10, 11, 12, and 13 seek to hold the other defendants liable for Father Hartz’s conduct on various theories. Count 10 is denominated a negligent hiring, training, and supervision claim and is directed against defendants Church, Diocese, and Bishop. 9 The specific failings alleged are failure to provide professional help to an agent or employee known or suspected to have tendencies toward sexual abuse and exploitation; failure to prevent Father Hartz from engaging in sexual abuse; failure to reprimand or take punitive action against Father Hartz; failure to supervise and/or control Father Hartz to ensure that sexual abuse did not occur; and failure to respond to previous allegations of inappropriate behavior by Father Hartz. On this claim, Doe seeks from the Church, Diocese, and Bishop compensatory and punitive damages, interest, and costs. Count 11 is a negligence claim directed at defendants Church and Diocese. It alleges breach of a duty on the part of these defendants to protect the plaintiff from abuse imposed on her by Father Hartz. As relief on this claim, Doe seeks only compensatory damages, interest, and costs. Count 12 alleges a claim of premises -liability against only the defendant Church, based on the Church’s knowledge that Father Hartz was present on the premises and posed an unreasonable risk of injury to a person in Doe’s position against which Doe would be unable to protect herself. Doe alleges that the Church failed to protect Doe from her abuser, with consequent injuries to Doe. Doe seeks against the Church compensatory damages, interest, and costs. Finally, in Count 13, Doe asserts a claim of respondeat superior liability of the defendant Church for Father Hartz’s conduct while acting within the scope of his employment. Furthermore, the count alleges that the Church 10 requires Father Hartz to dispose of all worldly goods, thereby rendering him judgment'proof and unable personally to respond in damages for his intentional and negligent conduct. Doe theréfore seeks compensatory damages, interest, and costs against the Church for Father Hartz’s conduct.
Doe has demanded a jury trial on all of the counts of her complaint.
C. The Response
Defendants Church, Diocese, and Bishop waived service of the complaint on September 13, 1996, and, on September 30, 1996, moved to dismiss the complaint in whole or in part, or, in the alternative, for an order of abstention and certification of issues to the Iowa Supreme Court. After various extensions, these defendants filed a brief in support of their motion to dismiss, abstain, or certify questions on October 22, 1996. Doe resisted the motion, also after various extensions, on February 21, 1997. 11 Father Hartz answered the complaint on January 21, 1997, also demanded a jury trial, and, on February *1384 3, 1997, joined in the motion to dismiss, abstain, or certify questions filed by the other defendants. 12 Defendants filed a reply to Doe’s resistance on March 14, 1997.
On February 24, 1997, the court certified the fact of the defendants’ challenge to the constitutionality of 42 U.S.C. § 13981 to the attorney general of the United States and granted the United States forty-five days from the date of the order to intervene pursuant to 28 U.S.C. § 2403 and Fed.R.Civ.P. 24(c). On February 28, 1997, the court also directed that amici curiae interested in participating in the proceedings seek leave to present briefs and arguments by April 11, 1997, and directed that any amicus curiae brief be filed by April 25, 1997. On April 10, 1997, the United States sought leave to intervene as a party plaintiff to defend the constitutionality of the VAWA, which leave was granted on April 14, 1997. On April 11, 1997, the NOW Legal Defense and Education Fund sought leave to file an amicus curiae brief and, on April 23, 1997, that organization also sought leave to participate in oral arguments. 13 Also on April 11, 1997, a group consisting of more than sixty eminent law professors in the fields of constitutional law and civil rights, known herein as the “Law Professors,” sought leave to file a brief as amici curiae. 14 On April 24, 1997, the court granted the requests of amici to file briefs and present arguments, extended their deadline to file briefs to April 30, 1997, and gave defendants permission to file a brief in reply to arguments of amici and the intervenor post-hearing. However, because the hearing was subsequently rescheduled, the court then set a deadline of May 14, 1997, for the briefs of intervenor and amici, and a deadline of May 28, 1997, for defendants to reply. Amici Law Professors filed their brief on April 28, 1997. The plamtifiyintervenor United States filed its brief on May 13, 1997, and amicus NOW filed its brief on May 14, 1997. Defendants filed a reply to amici curiae on May 29, 1997.
The court has found the briefing of all of the parties and amici to be of remarkable thoroughness and informativeness, and, consequently, to be of unusual assistance to the court in addressing the serious and complicated issues presented. The court believes that the advocacy demonstrated has served the interests of justice well and the court will strive to meet the .high standards of the interested parties with comparably cogent and conscientious consideration of all essential issues.
The court heard oral arguments on June 9, 1997. As the court expected from the briefing, the arguments were spirited and informative, but also conducted with the highest degree of professionalism. Plaintiff Jane Doe was represented at oral arguments by counsel Roxanne Barton Conlin of Roxanne Conlin and Associates, P.C., in Des Moines, Iowa. Defendant Father Hartz was represented by counsel Joseph L. Fitzgibbons of Fitzgibbons Brothers Attorneys at Law in Estherville, Iowa. Defendants Bishop Soens, St. Lawrence Church, and the Roman Catholic Diocese of Sioux City, Iowa, were represented by counsel James W. Radig of Shull, Cosgrove, Hellige & Lundberg in Sioux City, Iowa. Plaintiff'intervenor United States of America was represented by counsel Anjali A. Ashley of the Department of Justice, Civil Division, Federal Programs Branch in Washington, D.C., and Willis A. Buell, Assistant United States Attorney for the Northern District of Iowa. Amicus curiae NOW Legal Defense and Education Fund was represented by counsel Andrea Williams of the NOW Legal Defense and Education Fund in New York, New York. 15
*1385 After the oral arguments, the government was granted leave to supplement the record with the briefs from the appeal of the Brzonkala decision to the Fourth Circuit Court of Appeals. Those briefs were received by the court on June 13, 1997. Also, prior to and during oral arguments, the parties supplemented the citations of authority found in their briefs, particularly with reference to the First Amendment barriers to a negligent hiring or supervision claim against a religious institution.
The court will detail the pertinent arguments of the interested parties as it considers each of the essential issues the court finds must (or can) be resolved in disposition of defendants’ motion.
II. LEGAL ANALYSIS
The defendants assert that various portions of Doe’s complaint must be dismissed, because she fails to state claims upon which relief can be granted. They contend further that the complaint must be dismissed in its entirety, because the court lacks subject matter jurisdiction over Doe’s federal claim, and hence lacks supplemental jurisdiction over her state-law claims. The standards for dismissal on each of these grounds are similar, to some extent interrelated, but not identical.
A. Standards For Defendants’ Motion To Dismiss
1. Failure to state a claim
A motion to dismiss may be made,
inter alia,
for “failure to state a claim upon which relief can be granted.”
Fed.R.Civ.P.
12(b)(6). A motion to dismiss pursuant to
Fed.R.Civ.P.
12(b)(6) requires the court to review only the pleadings to determine whether the pleadings state a claim upon which relief can be granted.
Fed.R.Civ.P.
12(b).
16
Such motions “can serve a useful purpose in disposing of legal issues with the minimum of time and expense to the interested parties.”
Hiland Dairy, Inc. v. Kroger Co.,
In considering a motion to dismiss under Rule 12(b)(6), the court must assume that all
*1386
facts alleged in the plaintiffs complaint are true, and must liberally construe those allegations.
Conley v. Gibson,
The court is mindful that in treating the factual allegations of a complaint as true pursuant to Rule 12(b)(6), the court must “reject conclusory allegations of law and unwarranted inferences.”
Silver v. H & R Block, Inc.,
The United States Supreme Court and the Eighth Circuit Court of Appeals have both observed that “a court should grant the motion and dismiss the action ‘only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ ”
Handeen v. Lemaire,
2. Lack of subject matter jurisdiction
Interwoven with defendants’ challenge to Doe’s complaint on the ground that it fails to state claims upon which relief can be granted pursuant to Rule 12(b)(6) is defendants’ challenge, on another Rule 12 ground, this time Rule 12(b)(1), to the subject matter jurisdiction of the court. Defendants contend that Doe cannot state a federal claim upon which to assert federal jurisdiction, first, because Doe’s federal claim under the VAWA is based on an unconstitutional statute, and, second, because Doe has not alleged a predicate offense upon .which a VAWA claim would depend on either the face of the complaint or as a matter of fact.
*1387
The federal district courts have always been courts of limited jurisdiction.
See
U.S. Const., Art. III, § 1.
17
Because jurisdiction is a threshold issue for the court, the district court has “broader power to decide its own right to hear the case than it has when the merits of the case are reached.”
Bellecourt v. United States,
For the court to dismiss for lack of subject matter jurisdiction under
Fed. R. Civ. P.
12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments.
Titus v. Sullivan,
In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Eaton v. Dorchester Dev., Inc.,692 F.2d 727 , 731-32 (11th Cir.1982)....
If the [defendant] wants to make b. factual attack on the jurisdictional allegations of the complaint, the court may receive competent evidence such as affidavits, deposition testimony, and the like in order to determine the factual dispute. Land v. Dollar,330 U.S. 731 , 735 n. 4,67 S.Ct. 1009 , 1011 n. 4,91 L.Ed. 1209 (1947) [footnote omitted]. The proper course is for the defendant to request an evidentiary hearing on the issue. Osborn [v. United States], 918 F.2d [724,] 730 (citing Craw *1388 ford v. United States,796 F.2d 924 , 928 (7th Cir.1986)).
Id. 18
In
Osborn v. United States,
The district court was correct in recognizing the critical differences between Rule 12(b)(1), which governs challenges to subject matter jurisdiction, and Rule 56, which governs summary judgment. Rule 12 requires that Rule 56 standards be applied to motions to dismiss for failure to state a claim under Rule 12(b)(6) when the court considers matters outside the pleadings. [Citations omitted.] Rule 12 does not prescribe, however, summary judgment treatment for challenges under 12(b)(1) to subject matter jurisdiction where a factual record is developed. Nonetheless, some courts have held that Rule 56 governs a 12(b)(1) motion when the court looks beyond the complaint. We agree, however, with the majority of circuits that have held to the contrary.... [Citations omitted.]
The reason for treating a 12(b)(1) motion differently than a 12(b)(6) motion, which is governed by Rule 56 when matters outside the pleadings are considered, “is rooted in the unique nature of the jurisdictional question.” Williamson [v. Tucker], 645 F.2d [404,] 413 [ (5th Cir.), cert. denied,454 U.S. 897 ,102 S.Ct. 396 ,70 L.Ed.2d 212 (1981) ]. It is “elementary,” the Fourth [sic] Circuit stated, that a district court has “broader power to decide its own right to hear the case than it has when the merits of the case are reached.” Id. Jurisdictional issues, whether they involve questions of law or of fact, are for the court to decide. Id. Moreover, because jurisdiction is a threshold question, judicial economy demands that the issue be decided at the outset rather than deferring it until trial, as would occur with denial of a summary judgment motion.
Osborn,
The
Osborn
court found the distinction between facial and factual attacks on the complaint under 12(b)(1) to be critical.
Id.
(citing
Menchaca v. Chrysler Credit Corp.,
[i]n the first instance, the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6). The general rule is that a complaint should not be dismissed “ ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” In a factual attack, the court considers matters outside the pleadings, and the nonmoving party does not have the benefit of 12(b)(6) safeguards.
Id. at 729 n. 6 (citations omitted). 19 A factual challenge to jurisdiction under 12(b)(1) is unique:
[H]ere the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual motion is the trial court’s jurisdiction — its very power to. hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.
Id.
at 730 (quoting
Mortensen,
Once the evidence is submitted, the district court must decide the jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial on the issue. [Crawford,796 F.2d at 929 .] The only exception is in instances when the jurisdictional issue is “so bound up with the merits that a full trial on the merits may be necessary to resolve the issue.” Id.
Id.
Defendants here originally asserted only a facial challenge to subject matter jurisdiction, contending that Doe had failed to allege essential elements of the predicate offense, an alleged violation of Iowa Code § 709.15. However, while their motion to dismiss was pending, the defendants apparently recognized that their challenge to subject matter jurisdiction was or could also be factual. They sought and initially obtained from plaintiff a factual stipulation concerning whether Doe received mental health services from Father Hartz, but plaintiff has now withdrawn her consent to that stipulation. The defendants then, belatedly, requested an evidentiary hearing on June 4, 1997, just days before the oral arguments, in support of a factual challenge to subject matter jurisdiction.
20
By order dated June 5, 1997, the court denied defendants’ request for an evidentiary hearing as both untimely and impractical under the circumstances.
See Titus,
Thus, the challenge to subject matter jurisdiction mounted here is construed to be only a
facial
one, subject to the same protections afforded the.non-moving party as that party would have in defending against a motion brought under Rule 12(b)(6).
Osborn,
With these standards in mind, the court turns to the defendants’ specific challenges to the adequacy of Doe’s claims as alleged.
B. The Challenges To The VAWA Claim
Defendants assert that there are two insuperable bars to Doe’s claim under the civil remedies provision of the VAWA, 42 U.S.C. § 13981. First, they contend that the civil remedies provision of the VAWA is unconstitutional, because it is not a proper exercise of congressional power under either the Commerce Clause or section five of the Fourteenth Amendment. Second, they contend that Doe has failed to state a claim that comes within the scope of the Act, because Doe has failed to allege satisfactorily each element of such a claim. Furthermore, defendants argue that the court lacks subject matter jurisdiction over the complaint, because this sole federal claim is based on an unconstitutional statute, and/or Doe has failed to allege an element necessary for subject matter jurisdiction. 21
The court will consider these questions in reverse order, however, only reaching the argument that the statute is unconstitutional if that part of defendants’ motion to dismiss based on failure to allege the necessary elements of the claim is defeated. Such a procedure is mandated by the United States Supreme Court:
“Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision.” Gulf Oil Co. v. Bernard,452 U.S. 89 , 99,101 S.Ct. 2193 , 2199,68 L.Ed.2d 693 (1981); Mobile v. Bolden,446 U.S. 55 , 60,100 S.Ct. 1490 , 1495-96,64 L.Ed.2d 47 (1980); Kolender v. Lawson,461 U.S. 352 , 361, n. 10,103 S.Ct. 1855 , 1860, n. 10,75 L.Ed.2d 903 (1983), citing Ashwander v. TVA,297 U.S. 288 , 347,56 S.Ct. 466 , 483,80 L.Ed. 688 (1936) (Brandeis, J., concurring). This is a “fundamental rule of judicial restraint.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering,467 U.S. 138 ,104 S.Ct. 2267 ,81 L.Ed.2d 113 (1984). Of course, the fact that courts should not decide constitutional issues unnecessarily does not permit a court to press statutory construction “to the point of disingenuous evasion” to avoid a constitutional question. United States v. Locke,471 U.S. 84 , 96,105 S.Ct. 1785 , 1793,85 L.Ed.2d 64 (1985). As the Court stressed in Spector Motor Service v. McLaughlin,323 U.S. 101 , 105,65 S.Ct. 152 , 154,89 L.Ed. 101 (1944), “[i]f there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” See also United States v. Gerlach Live Stock Co.,339 U.S. 725 , 737,70 S.Ct. 955 , 961-62,94 L.Ed. 1231 (1950); Larson v. Valente,456 U.S. 228 , 257,102 S.Ct. 1673 , 1690,72 L.Ed.2d 33 (1982) (Stevens, J., concurring).
Jean v. Nelson,
Here, the situation is somewhat different, but this “fundamental rule of judicial restraint” is nonetheless applicable: If Doe has not stated a claim under the VAWA, a non-constitutional ground for dismissal of the claim,
22
this court certainly need not consider whether the VAWA is constitutional.
Id.
at 854,
1. Has Doe stated a claim under the VAWA? 23
The defendants contend that Count 1 of Doe’s complaint simply does not allege, or does not allege adequately, each essential element of a § 13981 claim. After setting forth the language of § 13981 and the Iowa statute establishing the predicate offense Doe asserts Father Hartz committed, Iowa Code § 709.15, the defendants contend that the essential elements of Doe’s VAWA claim are the following:
(1)Father Hartz provided or purported to provide “mental health services”;
(2) at the time of the events in question, Doe had a relationship with Father Hartz in which she was receiving from him “mental health services,” or she had terminated such a relationship within the previous year;
(3) Father Hartz’s acts constituted
(a) a pattern or practice or scheme of conduct
(b) to engage in sexual conduct of the kind prohibited by § 709.15(1)(f)(2) or (3), and
(c) that conduct was for the purpose of arousing or satisfying his sexual desires;
(4) Father Hartz’s conduct constituted a “crime of violence” within the meaning of 18 U.S.C. § 16;
(5) the acts were committed because of Doe’s gender;
(6) Father Hartz committed the acts because of an animus on his part against women; and
(7) Doe suffered damage.
The defendants assert that Doe’s § 13981 claim is deficiently pleaded as to each of these elements. Although Doe does not appear to challenge the defendants’ statement of the elements of her VAWA claim, she resists this part of the defendants’ motion to dismiss on the ground that she has adequately alleged every essential element of that claim. In their reply brief, the defendants focus on the adequacy of the pleading that Doe received “mental health services” from Father Hartz.
The court’s task, therefore, is to determine, in the first instance, the elements of Doe’s VAWA claim, and then to assess whether she has pleaded, in more than conclusory fashion,
facts
that, accepted as true, are sufficient to state a claim under the VAWA upon which relief can be granted.
Silver,
a. Elements of Doe’s § 13981 claim
i. Rules of statutory interpretation.
Identifying or determining the elements of a statutory cause of action is essentially a matter of statutory interpretation. “The task of resolving the dispute over the meaning of [a statute] begins where all such inquiries must begin: with the language of the statute itself.”
United States v. Ron Pair Enters., Inc.,
When the language of the statute is plain, the inquiry also ends with the language of the statute, for in such instances “the sole function of the courts is to enforce [the statute] according to its terms.”
Ron Pair,
However,“[p]lain meaning, like beauty, is sometimes in the eye of the beholder,”
Florida Power & Light Co. v. Lorion,
by a strict construction of the words of the Act, nor by application of artificial canons of construction. On the contrary, we are to read the statutory language in its ordinary and natural sense, and if doubts remain, resolve them in the light, not only of the policy intended to be served by the enactment, but, as well, by all other available aids to construction. But it is not our function to engraft on a statute additions which we think the legislature logically might or should have made.
Bacon,
ii. The plain meaning of the VAWA civil remedies statute. The civil remedies provision of the VAWA is codified at 42 U.S.C. § 13981. Subsection (b) of § 13981 establishes the right upon which a civil claim can be founded:
All persons within the United States shall have the right to be free from crimes of violence motivated by gender (as defined in subsection (d) of this section).
42 U.S.C. § 13981(b). Subsection (e) authorizes a cause of action for violation of this right as follows:
A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate.
42 U.S.C. § 13981(c). The essential elements of a VAWA claim are readily apparent from the subsection authorizing the cause of action. Those elements are as follows: (1) the defendant committed a “crime of violence”; (2) that crime of violence was “motivated by gender”; and (3) commission of the crime deprived the victim of the right to be free from crimes of violence motivated by gender. Id. Although these elements may be readily apparent, determining the constituent prongs of these elements requires further analysis.
The court finds that it must consider first the meaning of the third element extracted from the language of subsection (c). At first reading, this element appears tautologous: If one commits a crime of violence, element one, that is motivated by gender, the second element, one has necessarily deprived another of the right to be free of crimes of violence motivated by gender, the third element. However, it is precisely this statement that rebuts defendants’ argument that an essential element of Doe’s case is that she prove she suffered damage. Instead, the statute plainly states that deprivation of the right is sufficient injury to sustain the cause of action; no further physical, emotional, economic, or non-eeonomic injury is required. 24
One practical effect of this interpretation is that the trier of fact is not required to make any additional finding to satisfy the third element drawn from the statute. Proof of the first two elements necessarily establishes the third element, and the plaintiffs entitlement to the relief stated in the statute, which is “compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate.” 42 U.S.C. § 13981(c). Another practical effect of this interpretation is that the court need not consider further here the third statutory element identified above in its efforts to determine what elements must be adequately alleged to establish Doe’s right to pursue a VAWA claim. 25
*1394 Subsection (d) of the statute, to which the court will return below, contains essential definitions, but for now, the court will focus on some limitations or clarifications of the elements of a civil claim under the VAWA found in subsection (e). Subdivisions (e)(1) and (e)(2) clarify the reach of the civil cause of action. Subdivision (e)(1) clarifies or narrows the second element of the offense by excluding from the definition of “crimes of violence motivated by gender” those crimes that are merely “random acts of violence unrelated to gender or ... acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender.” 42 U.S.C. § 13981(e)(1). The civil cause of action under the VAWA is therefore plainly aimed at conduct motivated by the victim’s gender, not merely crimes in which the victim is a woman. See S.Rep. No. 103-195, at 49-50 (1993) (“The committee is not asserting that all crimes against women are gender-motivated. As discussed below, title III requires subjective proof on a case-by-ease basis that the criminal conduct was motivated by a bias against the victim’s gender.”); S.Rep. No. 103-138, at 49-50 (1993) (same). Furthermore, although the Act was entitled the Violence Against Women Act, the statute is cast in gender-neutral terms, and thus would also be applicable to a crime against a man that was gender motivated.
While subdivision (e)(1) narrows the scope of the civil remedy, subdivision (e)(2) explains the breadth of the civil cause of action. It specifies that “[n]othing in this section requires a prior criminal complaint, prosecution, or conviction to establish the elements of a cause of action under subsection (c) of this section.” 42 U.S.C. § 13981(e)(2). Thus, although there must be a predicate “crime of violence,” the first element of the civil cause of action under the VAWA, the civil remedy stands alone, without the necessity of a prior criminal complaint,, prosecution, or conviction to address or establish the predicate offense.
Id.; see also Doe v. Doe,
But what kinds of crimes of violence motivated by gender can constitute the necessary predicate offenses? To answer this question, the court turns to the definitions found in subsection (d) of the statute. The meaning of this subsection, the court finds, is not immediately apparent. Subsection (d) provides as follows:
For purposes of this section—
(1) the term “crime of violence motivated by gender” means a crime of violence 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; and
(2) the term “crime of violence” means—
(A) an act or series of acts that would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in section 16 of Title 18, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction and whether or not those acts were committed in the special maritime, territorial, or prison jurisdiction of the United States; and
(B) includes an act or series of acts that would constitute a felony described in subparagraphs (A) but for the relationship between the person who takes such action and the individual against whom such action is taken.
42 U.S.C. § 13981(d). Subdivision (d)(1) explains that, to satisfy the second element of the claim, which requires that the predicate crime be one “motivated by gender,” a two-prong test must be satisfied: First, the predicate crime must be “because of’ or “on the basis of’ the victim’s gender, and, second, the predicate crime must be “due, at least in part, to an animus based on the victim’s gender.” 42 U.S.C. § 13981(d)(1) (emphasis added). The court will return to the meaning of “animus” in this context below.
*1395 Subdivision (d)(2) in turn explains the specific requirements of, or prongs of inquiry under, the first element of the civil claim, the requirement of a predicate “crime of violence.” 42 U.S.C. § 13981(d)(2). Subdivision (d)(2) states the intention of Congress, subsequently reiterated in subdivision (e)(2), that the predicate offense need not have resulted in criminal charges, prosecution, or conviction, and further eliminates certain territorial limitations. 42 U.S.C. § 13981(d)(2)(A). However, it is other portions of subdivision (d)(2) that the court finds establish the significant prongs of inquiry. Unfortunately, the court finds the drafting of those particular portions somewhat opaque.
Paragraph (A) of subdivision (d)(2) appears to establish requirements for a predicate “crime of violence,” although the relationship among those requirements is, at first blush,' rather obscure. 42 U.S.C. § 13981(d)(2)(A). What the court finds to be uncertain is the relationship among the phrases “an act or series of acts,” “that would constitute a felony against the person,” “that would constitute a felony against property,” “if the conduct presents a serious risk of physical injury to another,” and “that would come within the. meaning of State or Federal offenses described in section 16 of Title 18,” coupled with the placement of the conjunctions “and” and “or,” as well as the presence or absence of commas. 26
Nonetheless, to clarify the meaning of the statute, the court need only resort to ordinary meanings.
Bacon,
*1396 Resort to ordinary meanings also establishes that the requirement that the predicate felony come within the meaning of 18 U.S.C. § 16 is a mandatory requirement conjoined to either alternative, a felony against the person or a felony against property. This requirement is set off from the phrase pertaining to a felony against property by a comma, whereas no such comma would be required if this requirement were conjoined only to a felony against property, but not against the person. Furthermore, this requirement also shares with the first two alternatives the restrictive phrase “that would,” suggesting it,is a further, mandatory requirement for the predicate crime of violence consisting of an act or series of acts meeting certain requirements. Thus, the court concludes that the plain meaning of paragraph (A) of subdivision (d)(2) is that the predicate offense must meet the following requirements:
The term “crime of violence’.’ means an act or series of acts
(1)(a) that would constitute a felony against the person
or
(b) that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and
(2) that would come within the meaning of State or Federal Offenses described in section 16 of Title 18....
This reading conforms most nearly to the word order and punctuation of the paragraph, and hence to the ordinary and natural sense of the paragraph.
Bacon,
The plain meaning of paragraph (B) of subdivision (d)(2) is that it adds to the available predicate offenses those acts fitting the requirements of paragraph (A), but which are not defined as felonies under applicable state or federal law only because of the relationship between the actor and the victim. 42 U.S.C. § 13981(d)(2)(B). The effect of this section is that it prevents certain crimes from falling outside the scope of the VAWA simply because the crime is not defined as a felony under state or federal law, because, for example, the crime is committed by one domestic partner against another.
The court concluded above that the elements of a civil VAWA claim requiring proof to the satisfaction of a trier of fact are as follows: (1) the defendant committed a “crime of violence”; and (2) that crime of violence was “motivated by gender.” En-grafting the requirements from definitional portions of § 13981 into the elements of a civil VAWA cause of action stated in subsection (b) of the statute, the court finds that the elements of such a claim are as follows:
(1) The defendant committed a'“crime of violence” within the meaning of the VAWA.
An offense is a “crime of violence” within the meaning of the VAWA if it is, or would be but for the relationship between the defendant and the victim,
(a) either—
(i) a felony against the person of the victim, or
(ii) a felony against property that presents a serious risk of physical injury to another; and
(b) comes within the meaning of 18 U.S.C. § 16.
(2) The defendant’s offense was “motivated by gender.”
An offense is “motivated by gender” within the meaning of the VAWA if it is both
(a) committed “because of’ or “on the basis of’ the victim’s gender, and
*1397 (b) due, at least in part, to an animus based on the victim’s gender.
See 42 U.S.C. § 13981(c), (d), and (e).
Before moving on to the elements of the predicate offense, however, the court must also consider what is meant by a “felony” within the meaning of § 13981. The civil action portion of the VAWA does not identify the applicable definition of “felony” as a felony under state law, federal law, or either state or federal law. 42 U.S.C. § 13981(d). Instead, it merely defines a predicate offense, in pertinent part, as “an act or series of acts that would constitute a felony.”
Id.
Hence, the court concludes that the act or acts must constitute a felony under
either
state or federal law. Furthermore, a crime classified only as some degree of misdemean- or under state law is nonetheless a felony under federal law if it is punishable by a term of imprisonment exceeding one year.
See, e.g., United States v. Haggerty,
b. Elements of the predicate offense
Because a civil claim under the VAWA is dependent upon a predicate offense, the court’s task of determining the elements of Doe’s VAWA claim is not yet finished. The court must still determine the elements of the predicate offense Doe alleges Father Hartz has committed, a violation of Iowa Code § 709.15, then determine whether the predicate offense alleged is a qualifying predicate offense under the VAWA. Only then, and only if the offense alleged qualifies as a predicate offense under the VAWA, can the court turn to the question of whether Doe has adequately alleged the elements of that predicate offense, as well as the other essential elements of a VAWA claim.
i. The statute defining the predicate offense. The predicate felony offense that Doe alleges Father Hartz committed is defined by Iowa Code § 709.15. 28 That statute states, in pertinent part, as follows:
*1398 709.15. Sexual exploitation by a counselor or therapist
1.As used in this section:
•1»
f. “Sexual exploitation by a counselor or therapist” occurs when any of the following are found:
(1) A pattern or practice or scheme of conduct to engage in any of the conduct described in subparagraph (2) or (3).
(2) Any sexual conduct, with an emotionally dependent patient or client or emotionally dependent former patient or client for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the emotionally dependent patient or client or emotionally dependent former patient or client, which includes but is not limited to the following: kissing; touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or a sex act as defined in section 702.17.
(3) Any sexual conduct with a patient or client or former patient or client within one year of the termination of the provision of mental health services by the counselor or therapist for the purpose of arousing or satisfying the sexual desires of the counsel- or or therapist or the patient or client or former patient or client which includes but is not limited to the following: kissing; touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or a sex act as defined in section 702.17.
“Sexual exploitation by a counselor or therapist” does not include touching which is part of a necessary examination or treatment provided a patient or client by a counselor or therapist acting within the scope of the practice or employment in which the counselor or therapist is engaged.
2. A counselor or therapist who commits sexual exploitation in violation of subsection 1, paragraph “f”, subparagraph (1), commits a class “D” felony.
3. A counselor or therapist who commits sexual exploitation in violation of subsection 1, paragraph “f”, subparagraph (2) commits an aggravated misdemeanor.
Iowa Code § 709.15(1)(f). 29
The differences between the offenses described in subdivisions (1)(2) and (f)(3) of § 709.15(1) involve the status of the victim and the time within which sexual conduct between the defendant and the victim is defined as an offense. Subdivision (f)(2) defines an offense with an “emotionally dependent” patient or client or “emotionally dependent” former patient or client, Iowa Code § 709.15(1)(f)(2), while subdivision (f)(3) refers only to a “patient or client or former patient or client.” Iowa Code § 709.15(1)(f)(3). Under subdivision (f)(2), there is no time limit placed on when the offense occurs, except that, by implication, the victim must have been emotionally dependent at the time of the offense. Iowa Code § 709.15(1)(f)(2). Under subdivision (f)(3), however, when emotional dependency is not involved, the offense must occur either during or within one year after the conclusion of the provision of mental health services. Iowa Code § 709.15(1)(f)(3). “Emotionally dependent” is thus a critical term, because it distinguishes between kinds of offenses. That term is defined in § 709.15(1)(b) as follows:
b. “Emotionally dependent” means that the nature of the patient’s or client’s or former patient’s or client’s emotional condition or the nature of the treatment provided by the counselor or therapist is such that the counselor or therapist knows or has reason to know that the patient or chent or former patient or client is significantly impaired in the ability to withhold *1399 consent to sexual conduct, as described in paragraph “f”, by the counselor or therapist.
For the purposes of paragraph “f’, a former patient or client is presumed to be emotionally dependent for one year following the termination of the provision of mental health services.
Iowa Code § 709.15(1)(b). Although, under this definition, any patient or client who has received mental health services is presumed to be emotionally dependent for one year after the termination of services, the plain meaning of the statute is that, if the victim is proved to be emotionally dependent outside of the time period specified, the defendant could be charged under § 709.15(1)(f)(2), whereas if the victim is proved never to have been emotionally dependent, the defendant could still be charged under § 709.15(1)(f)(3) for sexual conduct that occurred up to one year after the termination of mental health services to the victim.
Other provisions of subsection (1) of § 709.15 provide definitions of other essential terms. Thus, subdivision (1)(a) defines “counselor or therapist” as “a physician, psychologist, nurse, professional counselor, social worker, marriage or family therapist, alcohol or drug counselor, member of the clergy, or any other person, whether or not licensed or registered by the state who provides or purports to provide mental health services.” Iowa Code § 709.15(1)(a). “Mental health services” are defined as “the treatment, assessment, or counseling of another person for a cognitive, behavioral, emotional, mental, or social dysfunction, including an intrapersonal or interpersonal dysfunction.” Iowa Code § 709.15(1)(d). “Patient or client” and “former patient or client” are defined as a person who receives or received mental health services from the counselor or therapist. Iowa Code § 709.15(1)(c) & (e).
ii. Predicate “felonies”.
Forms of the offense not involving the pattern, practice, or scheme identified in subdivision (f)(1) are classified as misdemeanors under Iowa law. Iowa Code § 709.15(3) & (4). The offense defined in § 709.15(1)(f)(2) is classified in § 709.15(4) as only a serious misdemeanor, punishable by imprisonment of less than one year, and hence cannot stand as predicate offense for a YAWA civil action. 42 U.S.C. § 13981(d)(2) (defining predicate offenses as including only felonies or offenses that would be felonies but for the relationship of the parties). However, the offense defined in § 709.15(1)(f)(2) is classified in § 709.15(3) as an aggravated misdemeanor, which is punishable by imprisonment of up to two years, and consequently is a “felony” under federal law. 18 U.S.C. § 3559;
Haggerty,
From the statutory definitions of offenses and key terms, the court finds that the statute describes two distinct offenses, with slightly different elements, that are classified as felonies by the statute itself. The offense described in § 709.15(1)(f)(1) and (2), an offense classified as a felony in § 709.15(2), has the following elements: (1) the defendant provides or purports to provide mental health services, § 709.15(1)(a), as “mental health service” is defined in § 709.15(1)(d); (2) the victim receives or received mental health services from the defendant, as “mental health service” is defined in § 709.15(1)(d); (3) the victim was emotionally dependent, as “emotionally dependent” is defined in § 709.15(1)(b); and (4) the defendant engaged in a pattern, practice, or scheme of conduct to engage in sexual conduct with the victim, as sexual conduct is defined in § 709.15(1)(f)(2), or a sex act as defined in Iowa Code § 702.17.
The offense described in subdivisions § 709.15(1)(f)(1) and (3), and offense classified as a felony in § 709.15(2), has the following elements: (1) the defendant provides or purports to provide mental health services, § 709.15(1)(a), as “mental health service” is defined in § 709.15(1)(d); (2) the victim receives or received mental health services from the defendant, as “mental health ser *1400 vice” is defined in § 709.15(1)(d); and (3) within one year of the termination of the provision of mental health services by the defendant, the defendant engaged in a pattern, practice, or scheme of conduct to engage in sexual conduct with the victim, as sexual conduct is defined in § 709.15(1)(f)(2), or a sex act as defined in Iowa Code § 702.17. This offense has no emotional dependence element, but does require that the offense have been committed within one year of the termination of the provision of mental health services.
The offense defined in § 709.15(1)(f)(2), which is classified in § 709.15(3) as an aggravated misdemeanor, but which is a felony under federal law, 18 U.S.C. § 3559, has the following elements: (1) the defendant provides or purports to provide mental health services, § 709.15(1)(a), as “mental health service” is defined in § 709.15(1)(d); (2) the victim receives or received mental health services from the defendant, as “mental health service” is defined in § 709.15(1)(d); (3) the victim was emotionally dependent, as “emotionally dependent” is defined in § 709.15(1)(b); and (4) the defendant engaged in sexual conduct with the victim, as sexual conduct is defined in § 709.15(1)(f)(2), or a sex act as defined in Iowa Code § 702.17. This predicate offense has no “pattern or practice or scheme” element,
c. Predicate “crime of violence” under the VAWA
The next question before the court is whether the predicate offense Doe has alleged is a qualifying “crime of violence” under the VAWA. Putting aside for a moment the question of which of the three forms of the offense defined by Iowa Code § 709.15 described above Doe has actually alleged as her predicate offense, the court notes that all three constitute “felonies” under federal law. However, whether 'an offense is a “felony,” the court finds, is only one part of one prong of the inquiry into what is a “crime of violence” under the VAWA.
i. “Categorical” determination. Although the court lacks the guidance of other interpretations of the VAWA, by analogy with other situations in which a predicate offense is required to establish a claim or offense, the court concludes that it must decide as a matter of law whether the asserted predicate offense is a crime of violence within the meaning of the VAWA. Furthermore, that determination, the court finds, must be made on the basis of how the offense is defined by applicable law and not on the basis of how the offense was allegedly committed, thus taking a so-called “categorical approach” to the definition of the crime. The jury, on the other hand, will decide as a matter of fact whether the offense has been committed, and whether it was motivated by gender as required by the VAWA.
For example, the Eighth Circuit Court of Appeals, applying a definition of “crime of violence” under 18 U.S.C. § 924(c) that is nearly identical to the definition in 18 U.S.C. § 16, observed that “the question is not whether the particular facts constitute a crime of violence, but whether the crime ... as defined by [state law] is a crime of violence.”
United States v. Moore,
“All crimes which by their nature involve a substantial risk of physical force share the risk of harm. It matters not one whit whether the risk ultimately causes actual harm. Our scrutiny ends upon a finding that the risk of violence is present.” [United States v.] Rodriguez, 979 F.2d [138,] 141 [ (8th Cir.1992) ]; accord United States v. Reyes-Castro,13 F.3d 377 , 379 (10th Cir.1993); see United States v. Bauer,990 F.2d 373 (8th Cir.1993) (per curiam) (holding that statutory rape is a crime of violence for sentence enhancement purposes).
Moore,
the elements of the underlying offense need not include use, attempted use, or threatened use of force to be considered a “crime of violence” for purposes of 18 U.S.C. § 16(b). Again, it is the nature of the crime upon which we must focus our attention---- [T]he statutory language “may” and “substantial risk” must not be ignored.
Rodriguez,
Similarly, in
United States v. Aragon,
Another analogy is the determination under deportation statutes of whether a predicate crime, as defined, is a crime involving “moral turpitude” or an “aggravated felony” under 8 U.S.C. § 1251(a)(2)(A)(i) or (iii), thus justifying deportation. In such a case, the Eighth Circuit Court of Appeals observed that “we look to state law to determine the elements of the crime ... [, but] we do not examine the factual circumstances surrounding [the defendant’s] crime.”
Franklin v. INS,
The VAWA definition of a “crime of violence,” as construed above, incorporates as one prong of the definition found in 18 U.S.C. § 16.
See
42 U.S.C. § 13981(c)(2)(A). Therefore, that element must certainly be determined as a matter of law.
Aragon,
ii. “Crime of violence” test. Thus, the questions for the court to decide as a matter of law in this case are whether the offenses defined by Iowa Code § 709.15(1)(f) are felonies against the person (or against property that present a serious risk of physical injury to another), as required by the first prong of the VAWA “crime of violence” element, 42 U.S.C. § 13981(d)(2)(A), and whether they are also “crimes of violence” within the meaning of 18 U.S.C. § 16, as required by the second prong of the VAWA “crime of violence” element. Id. The crimes defined by Iowa Code § 709.15(1)(f)(1) and (2), § 709.15(1)(f)(1) and (3), and § 709.15(1)(f)(2), respectively, are all indisputably “felon[ies] against the person” of the victim. Id. Therefore, the first prong of the VAWA “crimes of violence” element is satisfied. The more difficult question is whether these felonies are “crimes of violence” within the meaning of 18 U.S.C. § 16.
Section 16 of Title 18 provides as follows: The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, 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 an offense.
18 U.S.C. § 16.
As to the alternative stated in § 16(b), this court must respectfully point out that, while part of the
Rodriguez
decision speaks in terms of a “risk of harm,” finding that all crimes that “by their nature involve a sub
*1403
stantial risk of physical force share the
risk
of harm,”
Rodriguez,
For example, the Seventh Circuit Court of Appeals, in an
en banc
decision, recently considered extensively the risk of
harm
or
injury
to a victim of a statutory rape, even if no physical force was involved.
See United States v. Shannon,
An inference of violence from mere unconsented-to physical contact, the government’s first reason for arguing that every felonious sexual act with a minor is per se a crime of violence, would not wash in this circuit. It would transform any unconsented-to touching that the law made a felony into a crime of violence, including picking a person’s pocket, a crime that we have held is not a crime of violence.
Shannon,
The predicate offense alleged in this case may be another example. All of the risks of physical
injury,
described by the Seventh Circuit Court of Appeals in the context of statutory rape, such as injuries from sexually transmitted disease or pregnancy to a person presumed to be incapable of giving proper consent to sexual contact, apply with equal vigor to the offenses defined by Iowa Code § 709.15(1)(f). Yet, that does not suggest that use of physical force was necessarily part of the offense.
Cf. Shannon,
iii. Application of the test. Again, the crimes defined by Iowa Code § 709.15(1)(f)(1) and (2), § 709.15(1)(f)(1) and (3), and § 709.15(1)(f)(2), respectively, are all indisputably “felon[ies] against the person” of the victim. Id. They therefore satisfy the first prong of the “crime of violence” inquiry under the VAWA. 42 U.S.C. § 13981(d)(2).
Turning to the second prong of the inquiry, whether the predicate offenses are “crimes of violence” under either alternative defined by 18 U.S.C. § 16, however, the court concludes none of the § 709.15 offenses has as an element the use, attempted use, or threatened use of physical force against the person or property of another. 18 U.S.C. § 16(a). Thus, none is a “crime of violence” under the alternative stated in § 16(a).
*1404
In determining whether the offenses defined in Iowa Code § 709.15 necessarily involve
a substantial risk
of the use of physical force, as required to fit the alternative definition of “crime of violence” under § 16(b), the court finds that two decisions of the Eighth Circuit Court of Appeals guide, or perhaps even dictate, the court’s conclusion. The earlier of these decisions is the
Rodriguez
decision already mentioned. In
Rodriguez,
the defendant was convicted of lascivious acts with a child, which was defined as committing certain acts “with or without the child’s consent.”
Rodriguez,
d. Adequate pleading of a predicate offense
Next, the court turns to whether one of the predicate offenses under § 709.15 has been adequately pleaded. The court recalls thatj to defeat a motion to dismiss pursuant to Rule 12(b)(6), factual elements and legal conclusions must be pleaded in more than a conelusory manner,
Silver,
The first element of each of the possible predicate offenses defined by Iowa Code § 709.15, as identified by the court above, is that the defendant provides or purports to provide mental health services, § 709.15(1)(a), as “mental health service” is defined in § 709.15(1)(d), and the second element of each of these offenses is that the victim receives or received mental health services from the defendant. The complaint also alleges, at least in conelusory fashion, that Father Hartz “served as a counselor to Plaintiff [and] as a member of the clergy ... is a ‘counselor or therapist’ within the meaning of Iowa Code § 709.15(1)(a).” Complaint, Count 1, ¶ 30. Father Hartz is plainly a member of the class of possible “counselors or therapists” to which this element refers, because he is a “member of the clergy.” Iowa Code § 709.15(1)(a). However, more is required: Father Hartz must also be alleged to be a member of the clergy who “provides or purports to provide mental health services.”
Id.
Doe does allege that Father Hartz “served as a counselor to Plaintiff,” although she does not allege any specific meetings for such counseling or that the counseling involved the “treatment, assessment, or counseling ... for a cognitive, behavioral, emotional, mental, or social dysfunction, [either] intrapersonal or interpersonal.” Iowa Code § 709.15(1)(d) (defining “mental health service”). Although the pleading is sketchy at best on this element, the court cannot say that “no relief could be granted under any set of facts that could be proved consistent with the allegations.”
Handeen,
Another element of each of the possible predicate offenses is that Father Hartz engaged in or engaged in a pattern, practice, or scheme of incidents to engage in sexual conduct as defined in the statute. Iowa Code § 709.15(1)(f)(2) and (3). “Kissing” is specified as one of the prohibited kinds of sexual conduct, and “kissing” is the central incident in Doe’s complaint. However, the court is much less sanguine that Doe has alleged a “pattern, practice, or scheme” to engage in sexual conduct as required by either of the offenses classified as felonies under Iowa Code § 709.15. See Iowa Code § 709.15(2) (classifying as felonies only sexual exploitation as defined in paragraph (1)(f)(1), which involves “a pattern practice or scheme of conduct to engage in any of the conduct described in paragraph (2) or (3)”). Doe alleges that the back-rubbing incident after mass on December 3, 1994, and the alleged fraudulent misrepresentations that Father Hartz would not engage in sexually exploitative conduct establish the requisite “pattern or practice or scheme” for the offenses classified as felonies under the Iowa statute. She also argues that Father Hartz’s improper conduct towards other women is part of such a “pattern or practice or scheme.” The court believes that it is only conduct toward this victim that can constitute part of the predicate offense, but considering only the incidents allegedly directed at Doe herself, and mindful of the liberality with which the court is to construe the allegations, the court finds that this element has also been adequately alleged, if just barely. However, even failing adequate allegations of a “pattern or practice or scheme,” the court has found that a single incident of sexual conduct as defined in Iowa Code § 709.15(1)(f)(2), an aggravated misdemeanor under Iowa law, Iowa Code § 709.15(3), would still constitute a predicate felony under federal law. Thus the “conduct” element of at least one predicate offense has been adequately alleged.
This leaves only the question of whether Doe has adequately alleged that she was an “emotionally dependent patient or client” for either the predicate offense defined by Iowa Code § 709.15(1)(f)(2), standing alone, or the predicate offense defined by Iowa Code § 709.15(1)(f)(1) and (2). Doe has alleged, again in merely conclusory fashion, that she “was emotionally dependent upon Defendant Hartz as her counselor and priest.” Complaint, Count 1, ¶ 31. Although the allegation is again conclusory, the court cannot say that “no relief could be granted under any set of facts that could be proved consistent with the allegations.”
Hondeen,
e. Remaining elements of the VAWA claim
Finally, the court must consider whether Doe has adequately pleaded that Father Hartz’s conduct toward her was “motivated by gender” as required for a civil claim under the VAWA. 42 U.S.C. § 13981(c). Again, subdivision (e)(1) of § 13981 clarifies or narrows this element of the VAWA claim by excluding from the definition of “crimes of violence motivated by gender” those crimes that are merely “random acts of violence unrelated to gender or ... acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender.” 42 U.S.C. § 13981(e)(1). The civil cause of action under the VAWA is therefore plainly aimed at conduct motivated by the victim’s gender, not merely crimes in which the victim is a woman. See also S.Rep. No. 103-195, at 49-50 (1993) (“The committee is not asserting that all crimes against women are gender-motivated. As discussed below, title III requires subjective proof on a case-by-ease basis that the criminal conduct was motivated by a bias against the victim’s gender.”); S.Rep. No. 103-138, at 49-50 (1993) (same). As construed above, to allege that a crime was “motivated by gender” within the meaning of the VAWA, it must be alleged to be both (1) committed “because of’ or “on the *1406 basis of’ the victim’s gender, and (2) due, at least in part, to an animus based on the victim’s gender. See 42 U.S.C. § 13981(d)(1).
Although there might be some difficulty in determining whether other crimes, even crimes against the person, were “because of’ or “on the basis of’ the victim’s gender, the court has little doubt that allegations of sexual assault or sexual exploitation crimes are allegations of crimes committed “because of’ or “on the basis of’ the victim’s gender. Defendants concede as much. See Brief In Support Of Motion To Dismiss, Motion For Abstention, And Motion For Certification Of Issues By Defendants Soens, St. Lawrence Church, And Diocese Of Sioux City (“Defendants’ Brief In Support Of Motion To Dismiss”), p. 20. Furthermore, there are adequate factual allegations of sexual conduct to support a claim of sexual exploitation. Thus, the first prong of the “motivated by gender” element is adequately alleged here. However, a sexual assault alone is not enough to establish that the crime was gender-motivated within the meaning of the VAWA. See 42 U.S.C. § 13981(d). As legislative history clarifies,
Discriminatory motivation is clearly required by title III of the Violence Against Women Act, and the plaintiff bears the burden of proving that motivation. For a cause of action to arise under title III, a plaintiff must prove that the crime of violence — whether an assault, a kidnapping, or a rape — was motivated by gender.
S.Rep. No. 103-138, at 51 (1993).
Defendants contend that there are inadequate allegations pertaining to the second prong of the inquiry, that is, allegations that Father Hartz committed an offense due, at least in part, to his animus based on Doe’s gender. They contend that there are no allegations of “animus,” because the complaint reflects that Father Hartz and Doe were on friendly terms and that “[a] kiss is typically viewed as a signal of affection.” Defendants’ Brief In Support Of Motion To Dismiss, p. 20. 33 Defendants construe “animus” to mean “dislike.” Id. Plaintiff vehemently disagrees with the assertion that an unwanted kiss on the neck is a “signal of affection,” arguing strenuously that such conduct is instead illustrative of an on-going gender-motivated animus toward women, because forcing physical intimacy on a woman, whether it be a kiss or rape, is illustrative of a lack of respect for women.
As Justice Stevens has observed, “The term[ ] ‘animus’ ... [is] susceptible to different interpretations.”
Bray v. Alexandria Women’s Health Clinic,
A report to the Senate Judiciary Committee on the civil remedies provision of the VAWA states that “[t]he committee is not asserting that all crimes against women are gender-motivated.” S.Rep. No. 103-138, at 49 (1993). Rather, the civil remedies provision of the VAWA “requires subjective proof on a ease-by-case basis that the criminal was motivated by a bias against the victim’s gender,” which is a question of fact. Id. at 50. After identifying the elements of the statutory definition of crimes “motivated by gender,” the report explains that “[a] cause of action cannot be established by saying, T am a woman; I have an injury; ergo, I have a civil rights claim.’ ” Id.
To satisfy the burden of establishing a civil rights cause of action, the plaintiff must prove that" the defendant’s act was motivated by gender bias. This civil rights cause of action is no different than the cause of action an African-American *1407 might use. For example, an African-American man or woman who is the victim of an assault, cannot under our present laws say, “My civil rights were violated because I am an African-American and someone that wasn’t African-American did me harm.” He or she must prove racial animus.
Similarly, a woman who is attacked and seeks relief under title III must demonstrate that the defendant attacked her because she is a woman and that the attacker was motivated, at least in part, by her gender. For example, she might offer proof that a defendant entered a department store carrying a gun, picked out women in the store and shot her while screaming anti-women epithets, and leaving the many nearby men unharmed. The fact that the attacker in this example verbally expressed his bias against women is helpful, but not mandatory. The fact that the attacker segregated the men from the women and then shot only the women might be evidence enough of his gender-based motivation.
Id. at 50-51 (emphasis added). Turning to the mechanics of proof, the committee report states that “motivation” will be proved from “the totality of the circumstances” surrounding the event. Id. at 52. The report explains further:
Gender-motivated crimes should be viewed in precisely the same way [as race-motivated crimes]. Consider the case of a serial rapist who shouts misogynist slurs as he attacks his victims. A victim’s lawyer would prove exactly the same type of evidence that the lawyer in the “race” case proved: that the victim was of a particular sex; that the attacker had a long history of attacking persons of that sex, but not those of the opposite sex; and that the attacker shouted antiwoman (or man) epithets during the assault. Bias, in short, can be proven by circumstantial as well as indirect evidence. Again, the jury might not be convinced by any one of these circumstances individually — but could conclude that, taken together, they show gender bias.
Id. The committee pointed out that the definition of gender-motivated crimes under the VAWA is based on Title VII. Id.
Hence, title III defines crimes motivated by gender to be crimes committed “because * * * of gender.” The phraseology “motivated by,” “because of,” “on the basis of,” or “based on” sex or gender is used interchangeably in case law discussion of title VII. This body of case law will provide substantial guidance to the trier of fact in assessing whether the requisite discrimination was present.
Id. at 52-53. 34 Finally, in a section-by-section analysis, the committee explained that *1408 the amendment adding the language that the predicate offense must be “due, at least in part, to an animus based on the victim’s gender” was added to “elucidate[ ] the committee’s intent that a victim alleging a violation under this section must have been targeted on the basis of his or her gender. The defendant must have had a specific intent or purpose, based on the victim’s gender, to injure the victim.” Id. at 64.
Allegations of unwanted or unwelcome sexual advances, the court finds, are sufficient to meet the requirement to allege that the defendant “targeted [the victim] on the basis of his or her gender” and “had a specific intent or purpose, based on the victim’s gender, to injure the victim.”
Id.
Casting an unwanted kiss as merely a “signal of affection” is suggestive of the sort of “romantic paternalism” the Supreme Court has described as “put[ting] women, not on a pedestal, but in a cage,” something the Equal Protection clause did not condone,
Frontiero v. Richardson,
Individuals who engage in sexual harassment may have different motives. Sometimes, an employer or supervisor may use his power within the company’s hierarchy in order to gratify his sexual desires. When an employee becomes the victim of her boss’ unwanted sexual attention, she may be forced to tolerate his sexually harassing conduct for fear that her job or her advancement in the company are at risk. A woman in this circumstance may reasonably feel subordinated and belittled even though the harasser’s primary purpose is to seduce her rather than to demean her or cause her anguish and distress.... In other circumstances, however, sexual harassment may be symptomatic of gender-based hostility, the employer or supervisor using sexual harassment primarily to subordinate women, to remind them of their lower status in the workplace, and to demean them. In this latter circumstance, the “sexual” element of the harassment is only secondary.
EEOC v. Farmer Bros. Co.,
There are, therefore, reasonable inferences from the allegations that Father Hartz’s conduct was due, at least in part, to an animus based on Doe’s gender, as required by § 13981.
Blandeen,
2. Is the VAWA constitutional?
The court may now turn to what was really the focus of the briefing and oral arguments, the question of the constitutionality of the VAWA as an exercise of congressional power under either the Commerce Clause or section five of the Fourteenth Amendment. The civil remedies provision of the VAWA itself explicitly states that these are the sources of congressional power for enactment of the provision:
(a) Purpose
Pursuant to the affirmative power of Congress to enact this part under section 5 of the Fourteenth Amendment to the Constitution, as well as under section 8 of Article I of the Constitution [the Commerce Clause], it is the purpose of this part to protect the civil rights of victims of gender motivated violence and to promote public safety, health, and activities affecting interstate commerce by establishing a Federal civil rights cause of action for victims of crimes of violence motivated by gender.
42 U.S.C. § 13981(a). However, the two courts to consider the question have split on the constitutionality of the statute under either the Commerce Clause of the Fourteenth Amendment.
a. The split in authority
On one side of the split in authority is the decision of the United States District Court for the District of Connecticut in
Doe v. Doe,
The court in
Doe
was unpersuaded. The court found that the question of the validity of the VAWA must be determined under the third category of Commerce Clause powers identified in
United States v. Lopez,
Lopez does warn that the Commerce Clause has limits, and that “the scope of the interstate commerce power ‘must be considered in light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote....’” Lopez, [514] U.S. at [557],115 S.Ct. at 1628 (quoting N.L.R.B. v. Jones & Laughlin Steel Corp.,301 U.S. 1 , 37,57 S.Ct. 615 , 624,81 L.Ed. 893 (1937)). Along with this warning, however, Lopez reaffirmed the rationality test of Hodel:
Since that time, the Court has heeded that warning and undertaken to decide whether a rational basis existed for con- *1410 eluding that a regulated activity sufficiently affected interstate commerce.
Id. [514] U.S. at [557],115 S.Ct. at 1629 (citing Hodel,452 U.S. at 276-80 ,101 S.Ct. at 2360-2362 ); See Perez v. United States,402 U.S. 146 , 155-56,91 S.Ct. 1357 , 1362,28 L.Ed.2d 686 (1971); Katzenbach v. McClung,379 U.S. 294 , 299-301,85 S.Ct. 377 , 381-82,13 L.Ed.2d 290 (1964); Heart of Atlanta Motel, Inc.,379 U.S. at 252-253 ,85 S.Ct. at 354-55 .
Doe,
The court in
Doe
rejected as relying on
dicta
in
Lopez
arguments that “cost of crime” and “national productivity” arguments were insufficient to establish a nexus to interstate commerce.
Id.
Instead, the court noted that “[t]he Congressional findings and reports qualitatively and quantitatively demonstrate the substantial effect on interstate commerce of gender-based violence,” which the court found was “in marked distinction” to the Gun Free School Zone Act struck down in
Lopez. Id.
After reviewing some of the congressional findings based on four years of hearings, the court found that “because of the extensive compilation of data, testimony, and reports on which Congress based its findings, this Court is not left to speculate or ‘ “pile inference upon inference” to perceive an explicit connection between the regulated activity and interstate commerce.’ ”
Id.
at 614,
Applying standards established in
Wickard v. Filburn,
The court in Doe much more briefly disposed of the second prong of the analysis, the question of whether the civil remedies portions of the VAWA were reasonably adapted to the intended end of the Act. Id. The court wrote,
Given the important nature of the conduct sought to be prevented and the previously-approved private attorney general method of remedy, this court concludes that the statutory scheme which creates a federal civil rights remedy for gender-motivated violence is reasonably adapted to an end permitted by the Constitution. This conclusion is consistent with prior precedent related to other federal civil rights remedies enacted by Congress and upheld by courts as constitutional under the Commerce Clause.
Doe,
On the other side of the split in authority is the decision of the United States District Court for the Western District of Virginia in
Brzonkala v. Virginia Polytechnic & State Univ.,
[T]he Court considered important that “the scope of the interstate commerce power ‘must be considered in light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.’ ” [Lopez, 514 U.S.] at [557],115 S.Ct. at 1628-1629 (NLRB v. Jones & Laughlin Steel Corp.,301 U.S. 1 , 37,57 S.Ct. 615 , 626,81 L.Ed. 893 (1937)). The Court has “heeded that warning” and has “undertaken to decide whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce.” Id. at [557],115 S.Ct. at 1629 (citing among other cases Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,452 U.S. 264 , 276-280,101 S.Ct. 2352 , 2360-2362,69 L.Ed.2d 1 (1981)). The Supreme Court has not “ ‘declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities.’ ” Id. [at 558,115 S.Ct. at 1629 ] (quoting Maryland v. Wirtz,392 U.S. 183 , 197 n. 27,88 S.Ct. 2017 , 2024 n. 27,20 L.Ed.2d 1020 (1968)). “Rather, ‘[t]he Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” Id. (quoting Wirtz,392 U.S. at 197 n. 27,88 S.Ct. at 2024 n. 27).
Brzonkala,
The court in Brzonkala drew from Lopez a four-part analysis of effects on interstate commerce:
The effects-analysis of the majority decision in Lopez can be broken down into four parts. First, the Court noted the relevance of the nature of the regulated activity; the Court distinguished that case, dealing with the regulation of intrastate possession of guns, from cases dealing with the regulation of an intrastate activity which is economic in nature. Second, the Court considered whether [18 U.S.C.] § 922(q) had any jurisdictional element to ensure in individual cases that the firearm possession would affect interstate commerce. Third, the Court considered the importance of legislative history. And finally, the Court considered the practical implications of accepting the Government’s argument that the economic impact of the regulated activity had sufficient effects on interstate commerce to sustain the regulation.
Brzonkala,
Notably, the Lopez Court stated, “ ‘[S]imply because Congress may conclude that a particular activity affects interstate commerce does not necessarily make it so.’ ” Lopez, [514] U.S. at [557] n. 2,115 S.Ct. at 1629 n. 2 (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,452 U.S. 264 , 311,101 S.Ct. 2389 , 2391,69 L.Ed.2d 1 (1981) (Rehnquist, J., concurring)). ‘“Whether particular operations *1412 affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’ ” Id. (quoting Heart of Atlanta Motel v. United States,379 U.S. 241 , 273,85 S.Ct. 348 , 366,13 L.Ed.2d 258 (1964) [ (Black, J., concurring) ]).
Brzonkala,
The differences between Lopez and the case at hand are insignificant, and the similarities are significant. Arguably the following three differences between the case at hand and Lopez render Lopez’s, logic inapplicable to the case at hand: (1) that VAWA is civil, and the Lopez statute was criminal, (2) that there are legislative findings here but not in Lopez, and (3) that fewer steps of causation exist between the VAWA regulated activity and commerce than § 922(q)’s regulated activity and commerce. The similarities include (1) the criminal nature of both statutes, (2) the non-commercial nature of both statutes, (3) the lack of a jurisdictional requirement that some effect on interstate commerce is involved in each case, (4) the remoteness of any effect on commerce, and (5) the excessive congressional power that would logically follow from permitting both statutes based on the Commerce Clause.
Brzonkala,
Looking at differences, the court in Brzonkala discounted the importance of congressional findings regarding the VAWA versus the lack of such findings in support of the Gun Free School Zone Act before the Court in Lopez. Id. at 789-90. The court found that the presence or lack of such findings concerning effects on interstate commerce was of little significance, because the Court “had a reasonable appreciation of the effects via reasonable inferences.” Id. at 790. In short, the court concluded that, “[wjhile findings will often be helpful, findings are not necessary for a determination of whether a rational relation to interstate commerce exists.” Id. Next, the court acknowledged that is was “technically correct” that the VAWA was civil in nature, while the Gun Free School Zone Act was criminal. Id. However, the court rejected the significance of this distinction, asserting that “[ojther than the economic nature of the activity to be regulated, the focus is not on the nature of the activity but on the related issue of the effects of the regulated activity on interstate commerce.” Id. Finally, the court rejected as of any real significance the fact that the “chain of inferences” from the targeted activity under the VAWA to the effect on interstate commerce was one step shorter than in the Lopez case, because “[i]t is far from clear that the distance from the first to the last step is greater in the Lopez chain of causation than in the case at hand’s chain.” Id. at 790-91. “The bottom line,” the court wrote, “is that both Lopez and the case at hand involve regulated activity that is too remote from interstate commerce.” Id. at 791.
Unlike the differences between the VAWA and the act at issue in Lopez, the court found that the similarities were “real and significant.” Id. First, the court found that both acts regulated activity that was “not commercial or even economic in nature.” Id. Second, the court wrote,
[Sjimilar to § 922(q), VAWA does not have a jurisdictional requirement limiting each individual case under VAWA to situations involving interstate commerce. Although it is unclear whether such a jurisdictional requirement is needed, indications exist that such a requirement may be necessary.
Id. at 792.
Third, the court found that, like the statute at issue in Lopez, the VAWA would have the practical result of excessively extending Congress’s power and inappropriately tipping the balance away from the states. Id. Although the court acknowledged that a reasonable inference from the findings of Congress was that violence against women has a major effect on the national economy, the court concluded that it was wrong to use “effects on the national economy” interchangeably with “effects on interstate commerce.” Id. The court concluded that accepting the chain of causation between an effect on the national economy and an effect on interstate commerce as sufficient would *1413 extend the Commerce Clause power to an “unbounded extreme.” Id. at 793. The court pointed out that the yearly costs of insomnia are much higher than the yearly costs of domestic abuse, but to allow the Commerce Clause to reach insomnia, even though insomniacs engage in interstate travel, would unreasonably tip the balance away from the states. Id. Continuing this line of reasoning, the court concluded that the limitations in the VAWA on federal jurisdiction over state law matters such as divorce, alimony, division of marital property, and child custody, “is utterly insignificant to the practical implications of accepting the regulated activity as having a substantial effect on interstate commerce.” Id. The court continued,
If the justification for VAWA under the Commerce Clause is constitutionally acceptable, then certainly Congress would have power to regulate much activity which should be left to state control. Similar to the situation in Lopez, if I accepted plaintiffs argument, I would be “hard pressed to posit any activity by an individual that Congress is without power to regulate.” Lopez, [514] U.S. at [564],115 S. Ct. at 1632 . In essence, if VAWA is a permissible use of the commerce power because of the regulated activity’s effect on the national economy, which in turn affects interstate commerce, then it would be inconsistent to deny the commerce power’s extension into family law, most criminal laws, and even insomnia.
Brzonkala,
Defendants, as the challengers to the constitutionality of the VAWA here, generally echo the analysis used in the Brzonkala decision, asserting that when non-economic activity is the target of legislation ostensibly based on the Commerce Clause, and when there is no jurisdictional element required for each regulated incident, a higher standard than mere rationality is required under Lopez. The supporters of the constitutionality of the VAWA here — plaintiff, plaintiff/intervenor, and amici — on the other hand, criticize the Brzonkala decision as improperly disregarding Congress’s findings of an interstate nexus with the targeted activity, distinguishing, without authority, between effects on the national economy and effects on interstate commerce, and failing to recognize that the VAWA is a civil rights statute, not a criminal statute, and thus falls well within a sphere traditionally subject to federal regulation.
b. Commerce Clause analysis
The provision of the United States Constitution that is generally known as the Commerce Clause grants to Congress the power “[t]o regulate Commerce ... among the several states____” U.S. Const., Art. I, § 8, cl. 3;
United States v. Crawford,
*1415
As to the third category, the category into which this court agrees the YAWA must fall, “[t]he Commerce Clause ... gives Congress the authority to regulate ‘those activities that substantially affect interstate commerce.’ ”
Dinwiddie,
i. Substantial effect on interstate commerce. The Eighth Circuit Court of Appeals recently discussed the analysis in Lopez of the Gun Free School Zone Act as an exercise of the third kind of Commerce Clause power:
The Lopez Court concluded that the statute could not “be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” {Lopez, 514 U.S.] at [561],115 S.Ct. at 1631 . The Court noted that the statute contained “no jurisdictional element which would ensure, through case-by-case inquiry, that the [activity] in question affects interstate commerce,” id. at [561],115 S.Ct. at 1631 , and that Congress had made no legislative findings that the activity so affected interstate commerce. See id. at [562-63],115 S.Ct. at 1631-32 . Without a more definite connection to interstate commerce, upholding the statute would allow Congress to “regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce,” id. at [564],115 S.Ct. at 1632 , which exceeded the proper limits of the federal government’s power.
McMasters,
To answer one concern raised by the
Brzonkala
court,
Brzonkala,
This court finds that the
Lopez
decision itself supports such a reading of “jurisdictional elements” and “congressional findings” of effect on interstate commerce as alternative ways in which a statute ostensibly founded on Commerce Clause power can meet the
requirement
of a substantial effect on interstate commerce. In
Lopez,
the Court began its analysis of whether there was a substantial effect upon interstate commerce from the activity targeted by the Gun Free School Zone Act by looking at whether the statute contained any “jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.”
Lopez,
Because the Court made alternative inquiries into whether the statute contained “jurisdictional elements” and whether it was supported by congressional findings establishing the substantial effect of the activity addressed on interstate commerce, it is incorrect to assert that the presence of “jurisdictional elements” in the statute is necessary to an exercise of Commerce Clause power.
Contra Brzonkala,
We do not view Lopez as holding that federal criminal statutes must contain jurisdictional elements. If a jurisdictional element were critical to a statute’s constitutionality, the Court in Lopez would not have gone on to examine the Government’s proffered rationales for the constitutionality of the gun possession statute. See Lopez, [514] U.S. [at 563-64],115 S.Ct. at 1632-34____ Congress may [ensure that there is a substantial effect on interstate commerce] either through its own legislative findings or by including a jurisdictional element in the statute; it need not do both. Where, as here, detailed congressional findings support the conclusion that the activities prohibited by the Access Act substantially affect interstate commerce, the absence of a jurisdictional element is not fatal to the statute’s constitutionality. See [United States v.] Wilson, 73 F.3d [675,] 685 [ (7th Cir.1995) ] (“In discussing the lack of a jurisdictional element in Lopez, the Court simply did not state or imply that all criminal statutes must have such an element, or that all statutes with such an element would be constitutional, or that any statute without such an element is per se unconstitutional.’’^, cert. denied, — U.S. --,117 S.Ct. 47 ,136 L.Ed.2d 12 (1996)].
Terry v. Reno,
The decision of the Eighth Circuit Court of Appeals in
Dinwiddie
is instructive on other aspects of the third category of Commerce Clause power. In
Dinwiddie,
the court concluded that, to be a valid exercise of Commerce Clause power, a statute does not have to regulate commercial entities.
Dinwiddie,
Although
Dinwiddie
explains that statutes enacted pursuant to the Commerce Clause power do not have to regulate commercial entities, there seems to be a mounting uncertainty as to whether
Lopez
rejects Commerce Clause regulation of non-commercial or non-economic activity. Half of an equally-divided
en banc
court of the Fifth Circuit Court of Appeals observed,
“Lopez
sends a clear cautionary signal that federal criminalization of intrastate noneconomic activity, when such regulation is not essential to a broader regulation of commercial activity, will have difficulty satisfying the substantial effects basis for Commerce Clause regulation.”
United States v. Kirk,
As I understand it, then, Congress can regulate noncommercial” or non-“economic” activity under the third category of its interstate commerce authority. But it can only do so where the non-“commercial” or non-“eeonomic” regulation is, as Lopez explained, “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Lopez, [514] U.S. at [561],115 S.Ct. at 1631 .
United States v. Chesney,
Similarly, this court reads
Lopez
to have invalidated the Gun Free School Zone Act, not because it regulated non-commercial or non-economic activity, but because the Court could not find that the non-commercial, non-economic activity regulated had the requisite substantial effect upon interstate commerce, since the regulation lacked either jurisdictional elements or supporting legislative findings demonstrating that the activity had the necessary substantial effect.
Lopez,
Lopez’s fundamental proposition is that Congress must ensure that its Commerce Clause power to regulate noncommercial activities extends to only those activities that substantially affect interstate commerce.
Terry,
The decision in
Brzonkala
raises one further issue regarding proof of a substantial effect on interstate commerce. That issue is whether “effects on the national economy” can be used interchangeably with “effects on interstate commerce.”
Brzonkala,
Undoubtedly effects on the national economy in turn affect interstate commerce. Such a chain of causation alone, however, is insufficient to bring an act within the purview of the commerce power. If such a chain of causation sufficed, Congress’s power would extend to an unbounded extreme.
Brzonkala,
Although this portion of the analysis in the
Brzonkala
decision is at best slight, it is not wholly without support in the Supreme Court’s decision in
Lopez.
In
Lopez,
the Court rejected the government’s arguments that
an inference
of an effect on the national economy establishing
an inference
of a substantial effect upon interstate commerce sufficed to draw regulation of guns in school zones within Commerce Clause authority.
Lopez,
However, the Supreme Court has long recognized that a substantial effect on the national economy validates the exercise of Commerce Clause power, even when the activity regulated pursuant to the Commerce Clause is purely intrastate. Reviewing the history of the Commerce Clause, the Supreme Court observed, “As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress’ commerce power.”
New York v. United States,
ii. Deference to congressional findings. The ground on which the champions of the constitutionality of the VAWA here take the Brzonkala decision most severely to task, however, is that the Brzonkala decision fails to demonstrate, indeed eschews, any deference to Congress’s findings of an interstate nexus to gender-motivated violence. This court agrees that the analysis of the constitutionality of the VAWA in Brzonkala is fatally flawed in this respect.
The court is mindful that in
Lopez,
the Supreme Court wrote, “Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce.”
Lopez,
Decisions of several federal circuit courts of appeals
post-Lopez
confirm that deference to a congressional finding that a regulated activity has a substantial effect on interstate commerce is alive and well. The District of Columbia Circuit Court of Appeals reads
Lopez
to clarify that an activity must not only “affect” interstate commerce, but must “substantially affect” it.
Terry,
“[t]he task of a court that is asked to determine whether a particular exercise of congressional power is valid under the Commerce Clause is relatively narrow.” Hodel v. Virginia Surface Mining & Reclamation Assn.,452 U.S. at 276 ,101 S.Ct. at 2360 . “The court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding.” Id.
Pic-A-State Pa., Inc.,
We do not substitute our judgment for that of Congress. ‘Where the legislative judgment is drawn in question,” our inquiry “must be restricted to the issue of whether any state of facts either known or which could reasonably be assumed affords support for it.” United States v. Carotene Prod. Co.,304 U.S. 144 , 154,58 S.Ct. 778 , 784,82 L.Ed. 1234 (1938). The Supreme Court’s recent decision in United States v. Lopez, [514] U.S. [549],115 S.Ct. 1624 ,131 L.Ed.2d 626 (1995), does not change the nature of this inquiry. Lopez asks whether the activity at issue could rationally -be understood to affect commerce. The Court did not reach the question of whether the legislation itself was rationally related to its announced goal.
Id.
at 1301-02. Similarly, when considering the constitutionality of the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248, in light of
Lopez,
the Seventh Circuit Court of Appeals found that what
Lopez
added, or reiterated, was that congressional findings must not only show an effect on interstate commerce from the regulated activity, but a substantial effect.
United States v. Wilson,
Thus courts must ask the additional question whether the relation to interstate commerce is substantial. The district court erred further by giving no deference to Congress’s findings. Courts need only look for a rational basis. Hodel,452 U.S. at 276 ,101 S.Ct. at 2360 . The district court essentially converted the rational basis test into a less deferential standard. Here it is plainly rational that reproductive health facilities are engaged in interstate commerce and that obstruction of such facilities brings the commerce to a halt.
Wilson,
*1421 iii. Congressional ñndings. A brief review of Congress’s findings in support of the substantial effect of gender-motivated violence upon interstate commerce, garnered in four years of hearings prior to enactment of the VAWA, clearly establishes Congress’s rational basis for finding that the regulated activity had the necessary interstate nexus. 37 The congressional findings on the scope of the problem of gender-based violence are staggering:
• “Violence is the leading cause of injury to women ages 15-44.” S.Rep. No. 103— 138, at 38 (1993).
• “Every week, during 1991, more than 2,000 women were raped and more than 90 women were murdered — 9 out of 10 by men.” Id.
• “[WJomen in the United States are at least three times more likely to become rape victims than their European counterparts.” Violence Against Women: Hearing before the House Committee on the Judiciary, Subcommittee on Crime and Criminal Justice, Serial No. 42, 102d Cong., 2d Sess., 62 (Feb. 6, 1992).
• “[F]or the past 4 years [prior to 1993], the U.S. Surgeons General have warned that family violence — not heart attacks or cancer or strokes — poses the single largest threat of injury to adult women in this country.” S.Rep. No. 103-138, at 41-42 (1993).
• “An estimated 4 million American women are battered each year by their husbands or partners. Approximately 95% of all domestic violence victims are women.” H.R.Rep. No. 103-395, at 26 (1993).
• “Three out of four women will be victims of violent crimes sometime during their life.” Id. at 25.
See also Doe,
• “Gender-based violence bars its most likely targets — women—from full [participation] in the national economy.” S.Rep. No. 103-138, at 54 (1993).
• Domestic violence costs employers an estimated $3 to $5 billion annually due to absenteeism from the workplace. Women And Violence: Hearing before the Senate Committee on the Judiciary, S. Hrg. 101-939, Pt. 1, 101st Cong., 2d Sess., 58 (June 20, 1990).
• “[W]e spend $5 to $10 billion a year on health care, criminal justice and other social costs of domestic violence.” S.Rep. No. 103-138, at 41 (1993) (footnote omitted).
• “[A]s many as 50 percent of homeless women and children are fleeing domestic *1422 violence.” S.Rep. No. 101-545, at 37 (1990).
• Fear of gender-based violence affects the economy and interstate travel by women, because “it deters women from taking jobs in certain areas or at certain hours that pose a significant risk of such violence.” S.Rep. No. 103-138, at 54 (1993).
• Women often refuse higher paying night jobs in service and retail industries because they fear attack. Id at 54 n. 70; see also Violence Against Women: Victims of the System: Hearing before the Senate Committee on the Judiciary, S. Hrg. 102-369, 102d Cong., 1st Sess., 86 (April 9, 1991) (testimony of Burt Neuborne).
• “[Ajlmost 50 percent of rape victims lose their jobs or are forced to quit in the aftermath of the crime.” S.Rep. No. 103-138, at 54 (1993).
• Fear of gender-motivated crime deters use of public transportation, and thus “acts as a barrier to mobility, particularly for those women who have no alternative to public transportation because of economic constraints.” S. Hrg. 101-939, Pt. 1, at 69 (testimony of Helen Neuborne); see also S. Hrg. 102-369 at 2 (statement of Sen. Biden).
• Fear of gender-based violence deters women’s free movement interstate, and limits every economic choice, including education, employment, and travel. Crimes of Violence Motivated by Gender: Hearing before House Subcomm. on Civil and Constitutional Rights, House Committee on the Judiciary, 103d Cong., 1st Sess., at 5 (Nov. 16, 1993).
See also Doe,
[Gender-motivated violence has] a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce.
H.R.Rep. No. 103-711 at 385 (1994), U.S. Code Cong. & Admin. News at 1801; 1853. In light of its findings, Congress concluded that enactment of the civil remedies of the VAWA was “firmly based on the Commerce Clause.” S.Rep. No. 103-138 at 54 (1993).
Also in light of these findings, giving them the deference they are properly due in a Commerce Clause analysis, this court finds that there was undeniably a rational basis for Congress’s conclusions that gender-motivated violence has a substantial effect on interstate commerce.
See Lopez,
iv. Reasonable adaptation of means to goal.
Having concluded that Congress did indeed have a rational basis for concluding that gender-motivated violence has a substantial effect on interstate commerce, the court next turns to the second part of the Commerce Clause analysis, which asks whether the means chosen by Congress are “reasonably adapted” to the asserted goals of the legislation.
Hodel,
Given the important nature of the conduct sought to be prevented and the previously-approved private attorney general method of remedy, this court concludes that the statutory scheme which creates a federal civil rights remedy for gender-motivated violence is reasonably adapted to an end permitted by the Constitution. This conclusion is consistent with prior precedent related to other federal civil rights remedies enacted by Congress and upheld by courts as constitutional under the Commerce Clause.
Doe,
The court would add only these points, often reiterated by the plaintiff, the plaintiff/intervenor, and
amici.
First, 42 U.S.C. § 13981 has been cast as a civil rights statute, not a criminal statute, and thus falls within the traditional purview of federal regulation. Just as importantly, the statute defers to state definitions of crimes and clearly supplements rather than supplants state regulation of criminal and family law matters. As such, the statute is not only reasonably adapted to serve the goals Congress had in mind, but reasonably adapted to avoid the parlaying of Commerce Clause power into a general police power, leading to a completely centralized government that obliterates our dual system of government.
See Lopez,
In short, defendants’ challenge to the civil remedies provision of the VAWA, 42 U.S.C. § 13981, on the ground that it exceeds Congress’s power under the Commerce Clause is overruled, and their challenge to the court’s subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1) is denied. 38
C. Supplemental Jurisdiction
Defendants contend that, even if the court has subject matter jurisdiction over a federal VAWA claim and that claim is adequately pleaded, the court should decline to exercise supplemental jurisdiction over the plaintiffs many and varied state-law claims. Defendants contend that the state-law claims predominate over the single federal claim, both on the basis of mere numerosity and on the basis that the state-law claims are quantitatively different. They also contend that the court should decline to exercise supplemental jurisdiction over the state-law claims, because they involve novel and complex issues of state law. Plaintiff counters that her claims all arise from a common nucleus of operative fact, and thus can and should reasonably be tried together, and that her state-law claims are neither so complex, novel, or quantitatively different that this court should refrain from hearing them.
The statute defining the supplemental jurisdiction of the federal courts provides as follows:
[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of *1424 the same ease or controversy under Article III of the United States Constitution.
28 U.S.C. § 1367(a). The Eighth Circuit Court of Appeals has observed that the word “shall” in the phrase “shall have supplemental jurisdiction” “is a mandatory command.”
McLaurin v. Prater,
Congress has directed that federal district courts ‘shall’ have jurisdiction in both 28 U.S.C. § 1331 (1988) (federal question jurisdiction) and 28 U.S.C. § 1332 (1988) (diversity jurisdiction), and the accepted import of the terms is that federal courts must accept and cannot reject jurisdiction in such eases.
McLaurin,
There are exceptions to this mandate, however, and some of those exceptions are cast in discretionary terms. Id. at 985 (citing 28 U.S.C. § 1367(b) and (c)). 39 A court “may decline to exercise supplemental jurisdiction” if
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). This subsection gives a court the discretion to reject jurisdiction over supplemental claims, “but only to a point.”
McLaurin,
1. Novelty and complexity
The defendants here seek discretionary dismissal of the state-law claims on the
*1425
grounds identified in 28 U.S.C. § 1367(c)(1) and (2). As to novelty, § 1367(e)(1), the District of Columbia Circuit Court of Appeals considered whether the claim asserted merely extended the common-law torts pleaded to new defendants, and looked at whether local courts had granted the relief sought by the plaintiffs on their tort claims — injunctive relief — and found that such relief was far from “unexceptional” for claims of the sort presented.
Women Prisoners of D.C. Dep’t of Corrections v. District of Columbia,
By way of contrast, the Ninth Circuit Court of Appeals found that state-law indemnification claims “involve[d] novel issues of California law,” but the court nonetheless found that “the values of economy, convenience, and fairness [would be] advanced by the district court’s retention of jurisdiction over the [plaintiff’s] state law claims.”
Allen,
In this case, the court acknowledges that there may be novel and complex issues presented by some of the plaintiffs claims, including whether some of the claims and the relief sought on those claims can be asserted against particular defendants.
See Women Prisoners of D.C. Dept. of Corrections,
2. Predomination
As to whether state-law claims “predominate” over federal claims such that denial of supplemental jurisdiction over the state-law claims is appropriate, 28 U.S.C. § 1367(c)(2), the Ninth Circuit Court of Appeals upheld the district court’s dismissal of a state-law inverse condemnation claim even though it retained jurisdiction over several federal substantive and procedural due process claims and equal protection claims.
Patel v. Penman,
*1426
In this case, the federal claim is no such “slender reed,”
id.,
nor, as has been suggested by the defendants, a case of the tail wagging the dog. Rather, the federal claim is clearly substantial, and clearly is really the plaintiffs main mission, not merely an incident or adjunct of the state claim.
Moore v. DeBiase,
D. Challenges To State-Law Claims
The defendants have also moved to dismiss various of the state-law claims for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). The counts in question are Count 3, which asserts fraud against Hartz and against defendants Church, Diocese, and Bishop; Count 4, which asserts breach of fiduciary duty against the Diocese and Bishop; Count 10, which asserts negligent hiring, training, and supervision against defendants Church, Diocese, and Bishop; Count 11, which asserts negligent breach of duty to protect against the Church and Diocese; Count 12, which asserts premises liability against the Church; and Count 13, which asserts respondeat superior liability of the Church. Of the challenges to these state-law claims, the court concludes that it need discuss in detail only the challenge to the negligent hiring, training, and supervision claim, as it involves both nonconstitutional and constitutional grounds for dismissal.
1. Negligent hiring, training, and supervision
Count 10 of Doe’s complaint is a negligent hiring, training, and supervision claim directed against defendants Church, Diocese, and Bishop. In this count, Doe alleges that the named defendants failed to provide professional help to Father Hartz, an agent or employee, known or suspected to have tendencies toward sexual abuse and exploitation, and also failed to prevent, reprimand or punish, supervise or control Father Hartz’s sexually abusive behavior or to respond to previous allegations of inappropriate behavior by Father Hartz. Defendants challenge the count on two grounds. First, they allege that Iowa has only recognized
the tort of
negligent supervision, hiring, or retention in limited circumstances not presented here. Second, they allege that recognition of such a claim against a religious institution concerning the conduct of a member of the clergy would violate the First Amendment to the United States Constitution. The plaintiff concedes that dismissal is appropriate as to her claim of negligent hiring of Father Hartz, because she agrees that such a claim trespasses on the Church’s First Amendment protection from interference by secular courts on a “canonical act.” However, she asserts the viability, the First Amendment notwithstanding, for her negligent retention and supervision claims, as these matters can be decided applying neutral principles of law that do not intrude upon religious matters.
*1427
As with a challenge to a statutory cause of action, the court will begin its consideration of the defendants’ challenge to this common-law cause of action by examining nonconstitutional arguments, and only if it is “unavoidable,” will the court turn to constitutional challenges.
Jean,
a.Recognition of the tort as alleged
Defendants first challenge Doe’s negligent retention and supervision claim on the ground that it does not fit within the narrow definition of the tort recognized by the Iowa Court of Appeals in
D.R.R. v. English Enters., CATV, Div. of Gator Transp., Inc.,
In
D.R.R.,
the Iowa Court of Appeals considered the arguments that a plaintiff who had been raped by a cable company employee could not hold the cable company liable for the employee’s conduct under a tort defined by Restatement (Second) of Agency § 213.
D.R.R.,
A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
a. In giving improper or ambiguous orders or in failing to make proper regulation; or
b. In the employment of improper persons or instrumentalities in work involving risk of harm to others; or
c. In the supervision of the activity; or
d. In permitting, or failing to permit, negligent or other tortious conduct by per-, sons, whether or not his agents or servants, upon premises or with instrumentalities under his control.
Restatement (Second) of Agency § 213;
D.R.R.,
An employer who knew or should have known of his employee’s propensities and criminal record before a commission of an intentional tort by an employee upon a customer who came to employer’s place of business would be liable for damages to such customer.
D.R.R.,
Notwithstanding defendants’ objections, numerous courts have recognized the tort as defined by Restatement (Second) of Agency § 213 to be applicable to a church where a victim of sexual abuse by a member of the clergy asserted a cause of action against the church. Such courts have not found a “special duty” between the church and the victim to be the impediment, but whether the church had adequate notice of the clergy member’s propensity to sexual abuse. For example, in
Kenneth R. v. Roman Catholic Diocese of Brooklyn,
Most recently in
L.L.N. v. Clauder,
Although a church is neither a common carrier nor an innkeeper, the question under the formulation of the negligent supervision tort, as recognized in
D.R.R.,
is not whether the employer fits .in either category, nor even whether the employer has access to the victim’s place of residence, but whether the party sought to be held liable “owes a special duty to the injured party.”
D.R.R.,
Therefore, the court concludes that Iowa courts have not only recognized a tort action for negligent supervision sufficiently broad to encompass the circumstances alleged, but that the elements of such a claim are adequately alleged. Defendants’ motion to dismiss the negligent supervision claim on these grounds will be denied.
b. Constitutionality of the tort as against religious institutions
i. The “entanglement” test.
Defendants also contend that a tort claim of negli
*1429
gent retention and supervision against a religious institution arising from the conduct of a member of the clergy is barred by the First Amendment to the United States Constitution. The test the Eighth Circuit Court of Appeals has used to determine whether prosecution of a civil tort claim against a religious institution is barred by the Religion Clauses
42
of the First Amendment is whether consideration of the claim would risk “excessive entanglement” of the court in a religious matter.
See Roxas v. Presentation College,
It is a fundamental tenet of First Amendment jurisprudence that:
the First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these mat *1430 ters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them.
Serbian Eastern Orthodox Diocese v. Milivojevich,
The First Amendment proscribes intervention by secular courts into many employment decisions made by religious organizations based on religious doctrine or beliefs. Personnel decisions are protected from civil court interference where review by civil courts would require the courts to interpret and apply religious doctrine or ecclesiastical law. [Citing cases omitted here.] The First Amendment does not shield employment decisions made by religious organizations from civil court review, however, where the employment decisions do not implicate religious beliefs, procedures, or law. [Citation omitted.]
Drevlow,
In Drevlow, the court concluded that it was unable, at the motion to dismiss stage of the proceedings, “to predict that the evidence offered at trial will definitely involve the district court in an impermissible inquiry into the Synod’s bylaws or religious beliefs” to decide the plaintiff’s claims of libel, negligence, and intentional interference with his legitimate expectancy of employment arising from placement of false information in his personal file. Id. at 471. The court therefore reversed the district court’s dismissal of the complaint and remanded for further proceedings. Id. at 472. However, the court cautioned that, “if further proceedings reveal that this matter cannot be resolved without interpreting religious procedures or beliefs, the district court should reconsider the Synod’s motion to dismiss.” Id.
ii. Federal decisions.
Surprisingly few federal courts have considered the question of a First Amendment bar to a negligent hiring and retention claim brought against a church institution arising from wronglul conduct of a member of the clergy. One such decision is that of the United States District Court for the Eastern District of Michigan in
Isely v. Capuchin Province,
880 P.Supp. 1138, 1151 (E.D.Mich.1995). Applying the “excessive entanglement” test, the court found that claims based on a “negligent hiring” theory could not be sustained, as such claims would involve an inquiry into who should be permitted to become or remain a priest and such an inquiry would in turn necessarily involve the court in interpretation of church canons and internal church policies and practices.
Isely,
However, the court in Isely found that, unlike hiring decisions, supervisory decisions could be examined in light of neutral principles of law without determining questions of church law and policies. Id. at 1151. The court concluded that “no First Amendment issues are implicated which would mandate dismissal of the negligent supervision claims.” Id. (but finding that the Wisconsin Supreme Court had not recognized the tort of negligent supervision, and therefore dismissing such claims). 44
The United States District Court for the Southern District of New York reached the opposite conclusion in
Schmidt v. Bishop,
inappropriate and unconstitutional for this Court to determine after the fact that the ecclesiastical authorities negligently supervised or retained the defendant Bishop Any award of damages would have a chilling effect leading indirectly to state control over the future conduct of affairs of a religious denomination, a result violative of the text and history of the establishment clause. U.S. Const. amend. I.
Schmidt,
Thus, on the one hand, the federal district court in
Isely
upheld the negligent supervision claim over First Amendment objections, because only application of “neutral” principles of law, rather than examination of church doctrine or policies, was required, and hence “no First Amendment issues are implicated which would mandate dismissal of the negligent supervision claims.”
Isely,
In addition, however, this court has the further guidance of the decision of the Eighth Circuit Court of Appeals in
Drevlow.
That decision would suggest that dismissal is inappropriate, on the record at the Rule 12(b) stage of the proceedings, because the court is unable “to predict that the evidence offered at trial will
definitely
involve the district court in an impermissible inquiry into the [church’s] religious beliefs.”
Drevlow,
iii. State court decisions.
Numerous state court decisions also reflect a split in authority on whether negligent supervision claims against churches, arising from tortious conduct of members of the clergy, can be sustained on First Amendment grounds.
Compare, e.g., L.L.N. v. Clauder,
This split in authority, which may in part depend upon the stage of proceedings at which the court assessed the entanglement issue, suggests the propriety of this court’s conclusion that, at least at the motion to dismiss stage, the First Amendment does not necessarily bar a claim of negligent supervision against a religious institution for the tortious conduct of a member of the clergy. The
Drevlow
decision of the Eighth Circuit Court of Appeals further supports this court’s denial of the defendants’ motion to dismiss the negligent supervision claim on First Amendment grounds at this stage of the proceedings when the extent of any entanglement that may be required by adjudication of that claim cannot yet be determined.
Drevlow,
Defendants’ motion to dismiss the negligent retention and supervision portions of her claim in Count 10 will therefore be denied. 45
2. Other state-law claims
The court has considered the defendants’ challenges to the adequacy of the pleading of the other state-law claims presently at issue, Counts 3, 4, 11, 12, and 13, as well as the defendants’ assertions of other “insuperable bars” to these claims, and finds that the relief of dismissal is not required. Assuming that all of the facts alleged in the plaintiffs complaint are true, and liberally construing those allegations,
Conley,
The portion of defendants’ motion seeking dismissal of various state law claims will therefore be denied. Similarly, the court concludes that the portions of the motion asking that the court abstain or certify questions to the Iowa Supreme Court are premature, as attempting to answer certified ques *1433 tions in the absence of a more complete record may be difficult, impossible, or merely unproductive.
E. Certification For Interlocutory Appeal
The court finds that this matter should be certified for interlocutory appeal pursuant to 28.UJ3.C. § 1292(b). That statute provides, in pertinent part, as follows:
(b) When a district judge, in making in a civil action an order not otherwise appeal-able under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b). As the Eighth Circuit Court of Appeals has observed, the statute provides for certification of controlling questions of law by the district court for interlocutory appeal in circumstances where an appeal is otherwise unavailable.
City of Fort Madison, Iowa v. Emerald Lady,
In a recent decision, the Eighth Circuit Court of Appeals considered the standards applicable to an interlocutory appeal pursuant to § 1292(b).
See White v. Nix,
The court is of the opinion that this decision presents an “exceptional case” in which immediate interlocutory appeal should be permitted. Id. The court finds that this order involves a controlling question of law, specifically, the constitutionality of the civil *1434 remedies provision of the VAWA and the elements of a VAWA claim in this case. Id. If the VAWA is unconstitutional as an exercise of Commerce Clause power, then this court will lack jurisdiction over the federal claim, and consequently will lack supplemental jurisdiction over the various state-law claims. It is also clear to the court that “there is substantial ground for difference of opinion,” id., since the only two courts to consider the constitutionality of this portion of the VAWA have split upon the appropriate outcome of a Commerce Clause analysis. Furthermore, there is an absence of precedent on the precise elements of a civil VAWA claim or the requirements of a predicate offense. Also, the court has identified the split in authority as to whether the First Amendment bars a negligent supervision claim against a religious institution based on the tortious conduct of a member of the clergy. Finally, certification will “materially advance the ultimate termination of the litigation,” id., because, if this court is incorrect in its conclusion that the VAWA is constitutional, or in its identification of the elements of such a claim, the defendants are entitled to dismissal of the complaint for lack of a federal question. This matter will therefore be certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) on the questions of the constitutionality of the civil remedies provision of the VAWA, the elements of such a claim in this case, and whether the First Amendment bars Doe’s negligent supervision claim. However, this court will not enter any stay of the proceedings in this case while such an interlocutory appeal is pending. 28 U.S.C. § 1292(b).
III. CONCLUSION
Deprived of the use of a sword to loosen the complex knot of legal issues presented here, the court has instead painstakingly attempted to untangle the various strands in its analysis. Taking the defendants’ nonconstitutional challenge to the plaintiffs VAWA claim first, the court has extracted from the federal statute and the state statute identified as defining a predicate offense the elements of Doe’s VAWA claim. The court concludes that Doe has adequately pleaded, although just barely, each of the essential elements of such a claim. Thus, the defendants are not entitled to dismissal of the VAWA claim on Rule 12(b)(6) grounds for failure to state a claim, nor are they entitled to dismissal of that claim or the entire action pursuant to Rule 12(b)(1) on the ground that Doe has failed to allege an essential element of the federal claim upon which the court’s subject matter jurisdiction depends.
Turning to the question at the focus of the attention of the parties and amici, the court next considered whether it lacked subject matter jurisdiction over the complaint, because the civil remedies provision of the VAWA is unconstitutional as beyond Congress’s Commerce Clause power. Applying the standards for such an analysis stated by the United States Supreme Court in Lopez, as clarified by various circuit courts of appeals post-Lopez, the court concludes that the lack of jurisdictional elements is not fatal to the constitutionality of the statute, nor is the fact that the statute regulates non-commercial or non-economic activity. Giving congressional findings the deference they continue to be due post-Lopez, the court concludes instead that Congress had a rational basis for finding that gender-motivated violence has a substantial effect on interstate commerce. Furthermore, the means Congress adopted in the civil remedies provision of the VAWA to combat gender-motivated violence were reasonably adapted to that goal. The civil remedies provision of the VAWA mirrors other statutory mechanisms for private enforcement of civil rights. Furthermore, the civil remedies provision of the VAWA avoids the concern of the Supreme Court in Lopez that the Commerce Clause would become a vehicle for establishment of a centralized government exercising plenary police powers, because the statute is plainly constructed to supplement rather than supplant state criminal laws pertaining to gender-motivated violence. The court concludes that the VAWA is a valid exercise of Congress’s authority under the Commerce Clause to address conduct with a substantial effect on interstate commerce. 47
*1435 The court’s analysis was not finished there, however, as the court was still required to consider the defendants’ challenges to the plaintiffs state-law claims. The court rejects the defendants’ arguments that the exercise of supplemental jurisdiction over the plaintiffs state-law claims is inappropriate, because the court finds that it need not dismiss the state claims on the grounds of novelty or complexity, or on the ground that those claims predominate over the federal claim. The novelty and complexity arguments may be better addressed on a more complete record, and, as to predomination, the court finds that the federal claim is the central claim of plaintiffs complaint, not merely an add-on to establish federal jurisdiction.
Of the defendants’ other challenges to the plaintiffs state-law claims, the court has considered in detail only the defendants’ challenge to the negligent supervision and retention claim. The court finds that the other state-law claims have been adequately pleaded. As to the negligent supervision and retention claim, 48 the court finds that the claim is, first, permitted under the existing formulation of the tort in Iowa, and not barred at this stage of the proceedings by the First Amendment. The court finds that it is not definitely apparent that consideration of a claim of negligent retention and supervision against a religious institution arising from allegedly tortious conduct of a member of the clergy will involve an unwarranted entanglement with religion. However, if a more complete record establishes that such entanglement in this case is inevitable, the defendants may still be entitled to summary judgment on or dismissal of the negligent retention and supervision claim.
The court finds that there is no need, at this point in the proceedings, either to abstain or to certify questions to the Iowa Supreme Court, because only a fuller record would make such a course productive. Finally, the court certifies this matter for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), because the court is of the opinion that this order involves controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.
The defendants’ motion to dismiss, abstain, or certify questions is therefore denied except to the extent that the plaintiff has conceded certain claims cannot properly be asserted. This order is certified for interlocutory appeal, but this matter is not stayed while any such interlocutory appeal is pending. 28 U.S.C. § 1292(b). The stay on discovery imposed by a magistrate judge of this court on November 20, 1996, is hereby lifted. The parties shall file a proposed scheduling order and discovery plan in compliance with N.D. Ia. LR 16(a)(1) within thirty (30) days of the date of this order.
IT IS SO ORDERED.
APPENDIX
A. Amici Appearing Through NOW Legal Defense And Education Fund
NOW Legal Defense And Education Fund (NOW LDEF)
Anti-Defamation League (ADL)
Ayuda, Inc.
Center For Women Policy Studies
Equal Rights Advocates (ERA)
Iowa Coalition Against Sexual Assault (Iowa CASA)
*1436 Jewish Women International
National Alliance of Sexual Assault Coalitions (NASAC)
National Coalition Against Domestic Violence
National Network To End Domestic Violence (NNEDV)
National Women’s Law Center (NWLC)
Northwest Women’s Law Center
Women’s Láw Project (WLP)
Women’s Legal Defense Fund (WLDF)
B. Amici “Law Professors” 49
Professor Kathryn Abrams
Northwestern University School of Law
Professor Bruce Ackerman
Sterling Professor of Law and Political Science
Yale Law School
Professor Anthony G. Amsterdam
Judge Edward Weinfeld Professor of Law
New York University School of Law
Professor Jack M. Balkin
Lafayette S. Foster Professor
Yale Law School
Professor Katharine T. Bartlett
Professor of Law
Duke University School of Law
Professor Mary Becker
Arnold I. Schure Professor of Law
University of Chicago School of Law
Professor Derrick A. Bell, Jr.
Visiting Professor of Law
New York University School of Law
Professor Cynthia Grant Bowman
Professor of Law
Northwestern University School of Law
Professor Sarah E. Burns
New York University School of Law
Professor Patricia A. Cain
Professor of Law
University of Iowa College of Law
Professor Enrique Carrasco
Professor of Law
*1437 Professor Erwin Chemerinsky
Legion Lex Professor of Law
University of Southern California Law School
Professor Drucilla Cornell
Professor of Law
State University of New Jersey, Rutgers School of Law — Newark
Professor Jan C. Costello
Professor of Law
Loyola Law School, Los Angeles
Professor Clare Dalton
Professor of Law
Northeastern University School of Law
Professor Harlon L. Dalton
Professor of Law
Yale Law School
Professor Marcella David
Associate Professor of Law
University of Iowa College of Law
Professor Norman Dorsen
Frederick I. & Grace A. Stokes Professor of Law
New York University School of Law
Professor Mary L. Dudziak
Professor of Law
University of Iowa College of Law
Professor Martha Albertson Fineman
Maurice T. Moore Professor of Law
Columbia University School of Law
Professor Catherine L. Fisk
Professor of Law
Loyola Law School, Los Angeles
Professor Katherine Franke
Associate Professor of Law
University of Arizona College of Law
Professor Linda S. Greene
Professor of Law
University of Wisconsin Law School
Professor Phoebe A. Hadden
Charles Klein Professor of Law and Government
Temple University School of Law
Professor Angela P. Harris
Professor of Law
University of California at Berkeley School of Law
Boalt Hall
Professor Randy A. Hertz
Professor of Clinical Law
New York University School of Law
*1438 Professor Joan W. Howarth
Professor of Law
Golden State University School of Law
Professor Lisa C. Ikemoto
Professor of Law
Loyola Law School, Los Angeles
Professor Jane E. Larson
Professor
University of Wisconsin Law School
Professor Sylvia A. Law
Elizabeth K. Dollard Professor of Law, Medicine & Psychiatry
New York University School of Law
Professor Jean C. Love
Martha Ellen Tye Distinguished Professor of Law
University of Iowa College of Law
Professor Holly Maguigan
Professor of Clinical Law
New York University School of Law
Professor Karl Manheim
Professor of Law
Loyola Law School, Los Angeles
Professor Burke Marshall
Professor of Law, Yale Law School
Professor Mari Matsuda
Professor of Law
Georgetown University Law Center
Professor Linda A. McGuire
Assistant Dean for Student Affairs and Instructor of Law
University of Iowa College of Law
Professor Frank I. Michelman
Robert Walmsley University Professor
Harvard Law School
Professor Martha L. Minow
Professor of Law
Harvard Law School
Professor Nancy Morawetz
Professor of Clinical Law
New York University School of Law
Professor Burt Neuborne
John Norton Pomeroy Professor of Law
New York University School of Law
Professor Reta Noblett-Feld
Clinical Law Professor
University of Iowa College of Law
Professor Victoria Nourse
*1439 Assistant Professor of Law
University of Wisconsin
Professor Sande Buhao Pond
Clinical Professor of Law
Loyola Law School, Los Angeles
Professor Margaret Raymond
Associate Professor of Law
University of Iowa College of Law
Professor Judith Resnik
Orrin B. Evans, Professor of Law
University of Southern California Law School
Visiting Professor of Law
New York University School of Law
Professor A. J. Richards
Edwin D. Webb Professor of Law
New York University School of Law
Professor Laura Sager
Professor of Clinical Law
New York University School of Law
Professor Elizabeth M. Schneider
Professor of Law
Brooklyn Law School
Professor Vicki Schultz
Professor of Law
Yale Law School
Professor Barbara Schwartz
Clinical Law Professor
University of Iowa College of Law
Professor Marjorie A. Silver
Professor of Law
Touro College of Law
Professor Jonathan Simon
Professor of Law
University of Miami School of Law
Professor Aviam Soifer
Dean and Professor of Law
Boston College Law School
Professor Carol Steiker
Assistant Professor of Law
Harvard Law School
Professor Susan Sturm
Professor of Law
University of Pennsylvania Law School
Professor Anthony Thompson
Assistant Professor of Clinical Law
New York University School of Law
*1440 Professor Gerald Torres
H.O. Head Professor of Real Property Law
University of Texas School of Law
Professor Lea VanderVelde
Professor of Law
University of Iowa College of Law
Professor Merle H. Weiner
Associate Professor of Law
University of Iowa College of Law
Professor Robin West
Professor of Law
Georgetown University Law Center
Professor Lucie White
Professor of Law
Harvard Law School
Professor Stephanie M. Wildman
Professor of Law
University of San Francisco School of Law
Professor Diane Leenheer Zimmerman
Professor of Law
New York University School of Law
. Plaintifl/mtervenor the United States and amici necessarily took no part in the arguments concerning this part of defendants’ motion to dismiss, being concerned solely with the constitutionality of the VAWA.
Notes
. The court finds that only two decisions have considered the constitutionality of the civil remedies provision of the VAWA. They are
Brzonkala v. Virginia Polytechnic & State Univ.,
.
See Jean v. Nelson,
. Gordius, King of Phrygia, tied his chariot to a hitching post before the temple of an oracle with an intricate knot, which, it was prophesied, none but the future ruler of all Asia could untie. See, e.g., Funk and Wagnalls Standard Dictionary of Folklore, Mythology, and Legend 460 (Maria Leach, ed., Funk & Wagnalls, 1972); Bulfinch's Mythology 44 (Richard P. Martin, ed. 1991).
. In the course of his conquests, Alexander the Great came to Phrygia, and, frustrated with his inability to untangle the "Gordian Knot,” simply sliced through it with his sword. His subsequent success in his Asian campaign has been taken to mean that his solution to the "Gordian knot” fulfilled the prophesy. See, e.g., Funk and Wagnalls Standard Dictionary of Folklore, Mythology, and Legend 460 (Maria Leach, ed., Funk & Wagnalls, 1972); Bulfinch's Mythology 44 (Richard P. Martin, ed. 1991).
. This court considered extensively the standards for prosecution of a claim under a pseudonym in
Heather K. v. City of Mallard, IA,
. Doe asserts jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343(a)(3) (civil rights), on the basis of a claim arising under the civil remedies provision of the federal Violence Against Women Act, 42 U.S.C. § 13981. Doe invokes the court's supplemental jurisdiction over her state-law claims pursuant to 28 U.S.C. § 1367(a). ‘
. Indeed, in almost the entirety of Count 1, the allegations stated and relief sought are against only Father Hartz. See, e.g., Complaint, ¶ 37 (detailing claimed injuries as the result of Father Hartz's conduct); Complaint ¶ 38 (asserting that *1382 Father Hartz "acted willfully and recklessly and with intentional and willful disregard for the rights of Plaintiff,” thus entitling Doe to punitive damages). However, in subsection (b) of the prayer for relief on this claim, Doe asks that the court "permanently enjoin Defendants from any conduct violating Plaintiffs rights or the rights of other women and girls as secured by the [VAWA].” Complaint, Prayer of Count 1, subsection (b) (emphasis added). Although this claim is not a model of "short and plain” pleading, Fed. R.Civ.P. 8(a), it appears to the court that the claim, or at least the relief sought, is against all defendants, not just Father Hartz. The uncertainty about the proper defendant or defendants on this claim has serious repercussions: It raises questions about whether a civil claim under the VAWA can be asserted against anyone but the individual actor, whether respondeat superior Iiability attaches to an employer for an employee’s violation of the VAWA, and whether the defendants other than Father Hartz have standing to challenge the constitutionality of the VAWA if no claim under that Act is or can be asserted against them. The court assumes that the VAWA claim has been asserted against all of the defendants. However, because Father Hartz has joined in the motion to dismiss this claim, at least one of the movants has standing to challenge the constitutionality of the VAWA.
. Although the relief sought on this count was against "Defendants, and all of them,” Complaint, prayer to Count 6, in her response to the defendants’ motion to dismiss, Doe agrees to dismiss Count 6 as to Bishop Soens, the Church, and the Diocese. Therefore, this count is now asserted against only defendant Hartz.
. Incidentally, this count alleges that defendants caused the alleged injuries to "the Decedent" by failing properly to hire, retain, and supervise Father Hartz. Complaint, ¶ 84. Nowhere else in the complaint is it suggested that plaintiff Doe has died.
. The complaint actually makes this specific allegation against "Defendants," but the relief sought on this count is "against Defendant St. Lawrence Church.” Complaint, ¶ 100. Therefore, the court construes this claim to have been brought only against the Church.
.In the interim between the filing of the motion to dismiss, abstain, or certify questions, a magistrate judge of this district suspended discovery in this action.
. Because Father Hartz has only joined in the motion to dismiss filed by the other defendants, but has not filed his own motion to dismiss nor an independent brief, there is no motion before the court to dismiss the counts pleaded only against Father Hartz.
. NOW Legal Defense and Education Fund is actually appearing on behalf of several organizations, but, for the sake of simplicity, this group of interested persons or organizations will be treated as singular and identified as “amicus NOW.” The organizations on whose behalf NOW Legal Defense and Education Fund is appearing are listed in the appendix to this opinion.
. The members of the "Law Professors” group are listed in the appendix to this opinion.
. Amici curiae Law Professors, who did not participate in oral arguments, were represented by counsel Victoria L. Herring of Des Moines, *1385 Iowa. The firm of Cleary, Gottlieb, Steen & Hamilton in New York, New York, is "of counsel” for the amici Law Professors, as are Professor Judith Resnik, Orrin B. Evans Professor of Law, University of Southern California Law School, Visiting Professor of Law, New York University School of Law, and Professor Frank Michelman, Robert Walmsley University Professor of Law, Harvard University Law School. Assistance in the preparation of the brief of amici Law Professors was also provided by Professor Reva Siegel, Yale Law School, and New York University School of Law students Alys Behio (1998), Chris Gottlieb (1997), Valerie Leipheimer (1998), and Jennifer Rakstad (1998).
. However, where on a Rule 12(b)(6) motion to dismiss “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56."
Fed.R.Civ.P.
12(b)(6);
see also Buck v. FDIC,
. The Eighth Circuit Court of Appeals has explained further: "Federal courts are not courts of general jurisdiction and have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.”
Marine Equip. Management Co. v. United States,
“The parties ... may not confer subject matter jurisdiction upon the federal courts by stipulation, and lack of subject matter jurisdiction cannot be waived by the parties or ignored by the court.”
Pacific Nat’l Ins. Co. v. Transport Ins. Co.,
. The district court has the authority to consider matters outside the pleadings on a motion challenging subject matter jurisdiction under
Fed.R.Civ.P.
12(b)(1).
Drevlow v. Lutheran Church, Missouri Synod,
In
Layton,
the court noted that á Rule 12(b)(1) motion is distinguishable from a 12(b)(6) motion on the ground that the Rules expressly provide that the latter is subject to conversion into a summary judgment motion, while no such provision exists for a Rule 12(b)(1) motion.
Layton,
. The standards for dismissal under Rule 12(b)(6) are, of course, described in some detail in the preceding section.
. The oral arguments had been scheduled for months and for this specific date for several weeks.
. Again, the court will not reach the question pertinent to a factual challenge to subject matter jurisdiction, which is whether all essential elemerits necessary for subject matter jurisdiction can be proved.
. Such a conclusion might also require dismissal of the entire complaint, which depends upon a viable federal question for this court to exercise jurisdiction, because the challenge to the only federal claim comes so early in the proceedings. See 28 U.S.C. § 1367(c)(3).
. Consequently, as in actions pursuant to 42 U.S.C. § 1983 for violations of constitutional rights, if the plaintiff shows a violation of the right established by the statute, but has no damages of any monetary value, it would follow that the plaintiff is entitled to nominal damages, which can support a punitive damages award.
See Muhammad v. Lockhart,
. Doe has specifically alleged that she has the right established by § 13981(b), and that Father Hartz’s conduct deprived her of that right and caused various specific kinds of emotional and other injuries. Complaint, Count 1, ¶¶ 35, 37.
. Perhaps the simplest way to explain the court's quandary in deciphering the meaning of this subdivision is to list some alternative readings. For example, the paragraph can be read to create, first, two alternative requirements, then another, mandatory requirement, as follows:
The term "crime of violence” means an act or series of acts (1)(a) that would constitute a felony against the person or (b) that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and (2) that would come within the meaning of State or Federal Offenses described in section 16 of Title 18....
However, it might seem just as reasonable to read the statute as follows:
[T]he term "crime of violence” means an act or series of acts (l)(a) that would constitute a felony against the person if the conduct presents a serious risk of physical injury to another or (b) that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and (2) that would come within the meaning of State or Federal Offenses described in section 16 of Title 18....
This reading relates the condition that the conduct present a serious risk of physical injury to another to both the felony against the person and the felony against property. A third alternative, dramatically changing the relationship among the phrases, and hence the requirements of the statute, without doing violence to the original word order would be the following:
[T]he term "crime of violence” means an act or series of acts (1) that would constitute a felony against the person or (2) that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal Offenses described in section 16 of Title 18....
This reading creates two alternative requirements, rather than two alternatives for a first requirement coupled with a second, mandatory requirement. Furthermore, it couples the requirement that the crime come within the meaning of 18 U.S.C. § 16 only to the alternative of a felony against property. In short, under this reading, any felony against the person (that also satisfies the gender motivation tests of subdivision (d)(1)) would constitute a predicate offense for a VAWA civil action, but only a felony against property (again, that satisfies the gender motivation tests of subdivision (d)(1)) that both presents a serious risk of physical injury to another and that comes within the meaning of 18 U.S.C. § 16 would constitute the necessary predicate offense.
. The court notes that the second alternative for the first prong requires a felony against property to "present[] a
serious
risk of physical
injury,"
while 18 U.S.C. § 16 defines a crime of violence as either involving the "use, attempted use, or threatened use of physical force against the person or property of another” or "a
substantial
risk that physical
force"
may be used.
See, e.g., United States v. Shannon,
. Although neither the parties nor the court has found any decision of Iowa state courts interpreting Iowa Code § 709.15, the rules of statutory interpretation employed by the Iowa Supreme Court are not significantly different from those employed by the federal courts in interpreting federal statutes. In
Olympus Aluminum Prods., Inc. v. Kehm Enters., Ltd.,
[o]ne ... rule [of construction] provides that we are bound by what the legislature said, rather than what it should or might have said. State v. Jones,464 N.W.2d 241 , 242 (Iowa 1990); Iowa R.App. P. 14(0(13). We may not, under the guise of statutory construction, enlarge or otherwise change the terms of a statute. Jones,464 N.W.2d at 242 . Finally, “[w]e may consider the language used in the statute, the objects sought to be accomplished, the evils and mischiefs sought to be remedied and place a reasonable construction on the statute which will best effect its purpose rather than one which will defeat it.” Peffers,299 N.W.2d at 678 .
Miller,
. The reference lo Iowa Code § 702.17 incorporates into the definition of prohibited sexual conduct by a counselor or therapist with a patient or client the following acts: "sexual contact between two or more persons by: penetration of the penis into the vagina or anus; contact between the mouth and genitalia or by contact between the genitalia of one person and the genitalia or anus of another person; contact between the finger or hand of one person and the genitalia or anus of another person, except in the course of examination or treatment by a person licensed pursuant to [specified chapters of the Iowa Code]; or by use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus." Iowa Code § 702.17.
. The court has perused other provisions of the Iowa Code defining sexual offenses, Iowa Code Ch. 709, and does not find that the conduct defined as a misdemeanor, when between a counselor or therapist and a patient, client, former patient, or former client, would be a felony (or aggravated misdemeanor under Iowa law) but for the relationship between the parties. See 42 U.S.C. § 13981(d)(2)(B).
. The court may safely disregard the alternative of a felony against property that presents a serious risk of physical injury to another, first, because no such felony is alleged here as the predicate offense, and second, because the incorporation of the language
“risk
of physical injury” suggests, as does 18 U.S.C. § 16, that the question is whether the crime intrinsically, and not as actually alleged to have been committed, involves physical injury.
Cf. Rodriguez,
. By way of contrast, the Eighth Circuit Court of Appeals has held that, in determining whether a prior conviction is either a violent felony or serious drug offense for purposes of sentence enhancement under 18 U.S.C. § 924(e), "the sentencing court is not restricted to looking solely at .the fact of conviction and the statutory definition of the offense but may also consider the charging paper and jury instructions."
United States v. Maddix,
. This argument is consistent with Father Hartz’s defense that his actions were simply misunderstood by Doe.
. This portion of legislative history is in accord with an explanation of "actions motivated by a gender-based animus” in a case, pursuant to 42 U.S.C. § 1985(3), concerning actions of abortion protesters.
See Lucero v. Operation Rescue of Birmingham,
[W]e find that the record in the present case does not support a finding that defendants’ actions were motivated by a gender-based animus. Instead, the record amply supports a finding that defendants’ actions were motivated by a disapproval of a certain activity, namely the abortion of a fetus, and therefore were designed to prevent individuals, women and men alike, from engaging in that activity. Nothing in the record suggests that defendants’ efforts to "depriv[e], directly or indirectly, a class of women who seek abortions of the constitutional right that they have to secure abortions,” [Lucero v. Operation Rescue of Bir mingham,] 772 F.Supp. [1193,] 1198 [(N.D.Ala.1991) ] (footnote omitted), sprang from an animus directed at women qua members of the female gender.
Even assuming arguendo that Congress intended section 1985(3) to cover activities motivated by a gender-based animus, the record in this case does not support a finding of this kind of animus. As the district court found, defendants’ animus targeted the "practice of abortion,”772 F.Supp. at 1205 n. 37, and therefore motivated actions designed to prevent others from engaging in that practice. While the participation of women in the practice of abortion hardly is incidental, the record in this case supports the finding that defendants' actions nevertheless were motivated by an animus not primarily directed at members of the female gender, but at a practice. On the record of this case, it further would not have been clearly erroneous to find that the make-up of, and particularly the participation of women in, the group of persons engaging in that practice did not arouse the animus motivating defendants to stage their so-called rescues.
Lucero,
. The decision in Lopez thus synthesizes over two centuries of Commerce Clause theory and practice. As Justice Stevens explained in a very recent decision, the need to repose authority over commerce in the central government was a major impetus to the drafting of the Constitution:
During the first years of our history as an independent confederation, the National Government lacked the power to regulate commerce among the States. Because each State was free to adopt measures fostering its own local interests without regard to possible prejudice to nonresidents, what Justice Johnson characterized as a "conflict of commercial regulations, destructive to the harmony of the States” ensued. See Gibbons v. Ogden,9 Wheat. 1 , 224,6 L.Ed. 23 (1824) (opinion concurring in judgment). In his view, this “was the immediate cause that led to the forming of a [constitutional] convention.” Ibid.
Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine,
-U.S. -, ---,
In
New York v. United States,
Interstate commerce was an established feature of life in the late 18th century. See, e.g., The Federalist No. 42, p. 267 (C. Rossiter ed. 1961) ("The defect of power in the existing Confederacy to regulate the commerce between its several members [has] been clearly pointed out by experience"). The volume of interstate commerce and the range of commonly accepted objects of government regulation have, however, expanded considerably in the last 200 years, and the regulatory authority of Congress has expanded along with them. As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress’ commerce power. See, e.g., Katzenbach v. McClung,379 U.S. 294 ,85 S.Ct. 377 ,13 L.Ed.2d 290 (1964); Wickard v. Filbum,317 U.S. 111 ,63 S.Ct. 82 ,87 L.Ed. 122 (1942).
New York,
The second century of the nation’s existence saw expansion of Congress’s Commerce Clause power to include "production,” "manufacturing,” and "mining,” matters originally considered as entirely within the province of the states, where such activities were so mingled together with interstate matters that full regulation of interstate commerce required incidental regulation of intrastate commerce.
Id.
at 554,
Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause. In part, this was a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope. But the doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate matters.
Lopez,
In
Lopez,
however, the Supreme Court made a renewed search for the "outer limits” of Commerce Clause power.
Id.
at 557,
. Writing for four judges of an equally-divided Fifth Circuit Court of Appeals en banc, Judge *1421 Lopez, then, adhered to a rational basis standard of review. This deferential standard does not insist that Congress actually make factual findings. To the contrary, its tolerance of hypothetical, judicially supposed purposes and means gives the rational basis standard its deferential character. Courts can assume a more activist role in judicial review by refusing to look to a basis for legislation not identified by Congress. This elevates the standard of review, according significantly less deference to Congress. Giving weight to the absence of congressional findings lies in the middle ground between an intrusive absolute insistence upon legislative findings and traditional rational basis inquiry. Congressional findings are not merely playthings of formalism. They help define the respective roles of the courts and the Congress and the federal and the state governments. So the role of findings demands our attention. But their absence does not end our inquiry.
Kirk,
. The court finds that counsel for plaintiff/intervenor United States and amici thoroughly and effectively marshaled the pertinent portions of the legislative findings, providing the most effective form of advocacy, solid factual basis coupled with legally correct argument.
. Because the court finds that the civil remedies portion of the VAWA is constitutional under the Commerce Clause, the court does not reach defendants' challenge to the constitutionality of the statute under section five of the Fourteenth Amendment.
. In
McLaurin,
the court observed that the exceptions are found in both subsection (b) and (c).
McLaurin,
. In
Acri,
the
en banc
court overruled "suggestions” in
Allen
that either the district or appellate courts have an obligation,
sua sponte,
to ensure that the discretionary retention of supplemental jurisdiction under 28 U.S.C. § 1367(c) is prudent where no one has objected and supplemental jurisdiction was proper under § 1367(a).
Acri,
. A judge on the Eleventh Circuit Court of Appeals, dissenting from the majority opinion, nonetheless provided useful insights on how the court is to determine whether stale-law claims predominate over federal claims within the meaning of 28 U.S.C. § 1367(c)(2). The dissenting judge found that, "[b]ecause Congress did not explain explicitly how to determine when state law predominates over federal question jurisdiction where the pleadings invoke both state and federal law, 'a value judgment by the federal court’ is required.”
In re City of Mobile,
State law predominates " '[i]f the federal court finds that the federal claim, while plausible, is not really the plaintiff’s main mission; that it is only an incident or adjunct of the state claim and that the state claim is the crux of the action....’” Moore,766 F.Supp. at 1319 (quoting 28 U.S.C.A. § 1441 Commentary (West Supp.1991)); see Burnett [v. Birmingham Bd. of Educ.J, 861 F.Supp. [1036,] 1038 [ (N.D.Ala.1994) ].... A district court decides whether state law predominates by examining the “nature of the claims as set forth in the pleading and by determining whether the state law claims are more complex or require more judicial resources to adjudicate or are more salient in the case as a whole than the federal law claims.” Moore,766 F.Supp. at 1319 (footnote omitted). Thus, Congress accorded district courts "broad discretion” in determining whether to retain a removed case or to remand it entirely to state court. Id. (emphasis added).
In re City of Mobile,
. The Eighth Circuit Court of Appeals has not made clear whether such claims are tested against the "establishment” clause or “free exercise” clause of the First Amendment.
See, e.g., Roxas v. Presentation College,
. A considerable portion of the defendants’ brief devoted to a discussion of First Amendment impediments to a negligent supervision claim addressed cases in which courts had held that discrimination claims by members of the clergy against their churches could not be sustained, and offering these cases as analogous to the present case, even though the plaintiff here is a third party. Not only does the court find cases brought by members of the clergy to be largely inapposite to cases brought by third parties against churches for injuries inflicted by members of the clergy, but the court concludes that the holdings of the cases cited by defendants are contrary to the binding precedent of the Eighth Circuit Court of Appeals approving such causes of action as not barred by the First Amendment.
Roxas,
. However sound the reasoning of the court in
Isely
on the First Amendment issue, this court believes that the issues of recognition and constitutionality of the claims should be addressed in that order, and that the court should only reach the constitutionality of such a claim if it is recognized under stale law and adequately pleaded.
Cf. Jean,
. Again, the plaintiff has conceded that dismissal of the negligent hiring portion of this claim is appropriate on "entanglement” grounds.
. Because § 1292(b) provides for appeal of orders otherwise unappealable, and thus provides an avenue for resolving disputed and controlling questions of law, the resolution of which will materially further the litigation, the appellate court reviews
de novo
the questions of law certified by the district court.
Simon v. G.D. Searle & Co.,
remain[s] free to consider " ' "such questions as are basic to and underlie” ’ ” the questions certified by the district court. [In re Oil Spill by the Amoco Cadiz,659 F.2d at 793 n. 5] (quoting Helene Curtis Indus., Inc. v. Church & Dwight Co.,560 F.2d 1325 , 1335 (7th Cir.1977) (quoting 9 J. Moore, Moore’s Federal Practice ¶ 110.25[1], at 270)); Menean, Inc. v. Caterpillar Tractor Co.,713 F.2d 958 , 962 n. 7 (3d Cir.1983), ce rt. denied,465 U.S. 1024 ,104 S.Ct. 1278 ,79 L.Ed.2d 682 (1984); United States v. Connolly,716 F.2d 882 , 885 (Fed.Cir.1983), ce rt. denied,465 U.S. 1065 ,104 S.Ct. 1414 ,79 L.Ed.2d 740 (1984).
Simon,
. The court therefore did not reach the defendants’ challenge to the VAWA as an exercise of *1435 congressional authority under section five of the Fourteenth Amendment.
. The plaintiff conceded that the negligent hiring portion of this claim could not be sustained over a First Amendment bar.
. Affiliations are listed for identification purposes only.