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August 26, 1997

JACOB S. LAKE, D.D.S., and JACOB S. LAKE, D.D.S., LTD, Defendants.

The opinion of the court was delivered by: MAROVICH

 Plaintiff Oxana Anisimov ("Anisimov") filed this action against Defendants Jacob S. Lake, D.D.S. and Jacob S. Lake, D.D.S., LTD. (collectively "Lake") seeking damages under the Violence Against Women Act of 1994 ("VAWA"), 42 U.S.C. § 13981, and various state common law tort claims for injuries allegedly sustained when Lake "engaged in crimes of violence motivated by gender" against Anisimov. This matter is before the Court on Lake's motion to dismiss Anisimov's Complaint pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6) and 12(h)(3). Specifically, Lake contends that the VAWA is unconstitutional and that Anisimov fails to state a claim under the VAWA in any event. For the reasons set forth below, this Court denies Lake's motion to dismiss.


 Anisimov alleges that on four occasions, between approximately September 26, 1996 and November 19, 1996, while she was employed by Lake's Chicago dental office, Lake "engaged in crimes of violence motivated by gender." Specifically, Anisimov alleges that Lake made inappropriate sexual advances toward her including fondling her, attempting to remove her clothing, grabbing her breasts, assaulting and attempting to rape her, and ultimately luring her to a deserted office site and raping her. Anisimov maintains that in addition to suffering significant compensatory damages, she was compelled to leave her job as a result of Lake's violent acts against her.

 Anisimov's lawsuit seeks damages and injunctive relief against Lake under the VAWA and Illinois common law torts of battery, false imprisonment, and intentional infliction of emotional distress. Anisimov also contends that she has filed criminal charges against Lake which are currently being prosecuted in Illinois state court.

 Lake denies the allegations of Anisimov's Complaint and challenges the constitutionality of the Civil Rights Remedy provision of the VAWA, arguing that Congress exceeded its authority under either the Commerce Clause or the Fourteenth Amendment of the United States Constitution. Lake also disputes Anisimov's ability to state a claim under the VAWA and urges the Court to dismiss her state law claims under the provisions of 28 U.S.C. § 1367. The Government has intervened pursuant to 28 U.S.C. § 2403(a), and argues in support of the constitutionality of the VAWA.


 I. The Violence Against Women Act of 1994

 In September 1994, Congress passed the VAWA, drafted in response to what its chief legislative sponsor, Senator Joseph R. Biden, called a "national tragedy." The "national tragedy" perceived by Senator Biden and Congress was "the escalating problem of violent crimes against women." S. Rep. 103-138, 103rd Cong., 1st Sess., The Violence Against Women Act of 1993, 38 (Sept. 10, 1993). After nearly four years of hearings, Congress concluded that a comprehensive federal approach was needed to curb the increase in gender-motivated violence and "the underlying attitude that this violence is somehow less serious than other crime." Id. The VAWA was the approach Congress ultimately chose.

 The VAWA authorized $ 1.6 billion in federal spending over six years to support state and local efforts to reduce violence against women, including expenditures for law enforcement efforts, 42 U.S.C. § 3796gg, education and prevention programs, id. § 300w-10, battered women's shelters, id. § 10409(a), and a national domestic violence hotline, id. § 10416. The VAWA also established a civil rights remedy which affords victims of gender-motivated violence a federal cause of action. Specifically, the civil rights provision in the VAWA provides:

[All persons] who commit[] a crime of violence motivated by gender and thus deprive[] another of the right [to be free from gender-motivated violence] shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive declaratory relief, and such other relief as a court may deem appropriate.

 42 U.S.C. § 13981(c).

 Congress expressly limited the civil rights provision to encompass only violent crimes "due, at least in part, to an animus based on the victim's gender." 42 U.S.C. § 13981(d)(1). The statute does not cover "random acts of violence unrelated to gender" or "acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender . . .." Id. § 13981(e)(1). Congress explained that "proof of 'gender motivation' under [VAWA's civil rights provision] should proceed in the same ways proof of race or sex discrimination proceeds under other civil rights laws." S. Rep. No. 103-138 at 52. The Act does not preempt any state criminal or civil law enforcement efforts and expressly precludes any attempt to construe its provisions to create supplemental jurisdiction over divorce cases or domestic relations disputes. See 42 U.S.C. § 13981(e)(4).

 Congress was not under any delusion that it could eradicate the problem of violence against women. S. Rep. No. 101-545, 101st Cong., 2d Sess., The Violence Against Women Act of 1990, 41 (Oct. 19, 1990). Instead, the underlying goal of the VAWA Civil Rights Remedy, expressed throughout an extensive legislative record, was to place gender-motivated violence in the context of what are currently perceived to be "traditional" civil rights violations. Thus, the VAWA's civil rights provision "makes a national commitment to condemn crimes motivated by gender in just the same way as we have made a national commitment to condemn crimes motivated by race and religion." Id.

 The VAWA Civil Rights Remedy is premised upon two independent constitutional sources of legislative authority: the Commerce Clause, section 8 of Article I of the U.S. Constitution and the Fourteenth Amendment, section 5. Lake insists that Congress exceeded its powers in enacting the VAWA Civil Rights Remedy under both the Commerce Clause and the Fourteenth Amendment, arguing that "neither of these vehicles of authority confer upon Congress the power to enact such a broad and encroaching law as the civil rights provisions of [the VAWA]."

 II. The Commerce Clause After Lopez

 Under the Commerce Clause, the Constitution grants Congress the authority to regulate three broad categories of activity: (1) the use of channels of interstate commerce; (2) the instrumentalities of interstate commerce; and (3) activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995). The standard of Commerce Clause review by the courts has been narrow and deferential. "Judicial review in this area is influenced above all by the fact that the Commerce Clause is a grant of plenary authority to Congress. This power is 'complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than those prescribed in the constitution.'" Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981) (citations omitted) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196, 6 L. Ed. 23 (1824)). "The motive and purpose of a regulation of interstate commerce are matters which the Constitution places no restriction and over which the courts are given no control." United States v. Darby, 312 U.S. 100, 115, 85 L. Ed. 609, 61 S. Ct. 451 (1941). Nevertheless, consistent with principles of judicial review set out in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), the courts must ultimately decide whether Congress has exceeded its constitutionally enumerated powers and "whether a rational basis exist[s] for concluding that a regulated activity substantially affect[s] interstate commerce." Lopez, 514 U.S. at 557 (citations omitted); United States v. Wilson, 73 F.3d 675, 680 (7th Cir. 1995).

 A review of modern Commerce Clause jurisprudence reveals that the Supreme Court has taken a highly deferential approach to congressional determinations that a regulated activity substantially affects interstate commerce. See Lopez, 514 U.S. at 552-559 (discussion of Commerce Clause history). Courts have generally applied a "rational basis test" to determine the constitutionality of legislation under the Commerce Clause. In Hodel v. Indiana, the Court described the "rational basis test" in this way: "A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends." *fn1" 452 U.S. 314 at 323-24. Consequently, Congress has been afforded substantial freedom by the courts to regulate any interstate activity that remotely affects interstate commerce. See Wickard v. Filburn, 317 U.S. 111, 128-29, 87 L. Ed. 122, 63 S. Ct. 82 (1942) (local activity "whatever its nature" may be reached by Congress if it exerts a "substantial economic effect on interstate commerce"); Maryland v. Wirtz, 392 U.S. 183, 197 n.27, 20 L. Ed. 2d 1020, 88 S. Ct. 2017 (1968) ("where a general regulatory statute bears a substantial relationship to commerce, the de minimis character of individual instances arising under that statute is of no consequence").

 Congress's freedom under the Commerce Clause was restricted for the first time in almost sixty years by the Supreme Court in United States v. Lopez, 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995). In Lopez, the Court divided 5-4 to strike down the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), which prohibited "any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." The Court determined that in enacting the Gun-Free School Zones Act, Congress had exceeded the "outer limits" of its power under the Commerce Clause. See id. at 557.

 Nevertheless, the Court considered the Government's contention that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. Id. at 563-64. The Court rejected the Government's "cost of crime" and "national productivity" reasoning, stating that if it were to accept these arguments, it would be "hard-pressed to posit any activity by an individual that Congress is without power to regulate." Id. at 564. The Court acknowledged that by giving great deference to congressional action, some of its prior cases have "taken long steps" down the road to converting congressional authority under the Commerce Clause to a "general police power of the sort retained by the States." Id. at 567. The Court concluded that it would not sanction "additional expansion" of congressional authority under the Commerce Clause and would "decline to proceed any further." Id.

 In light of the fact that the Supreme Court has issued no further opinions on how to interpret Congress's authority under the Commerce Clause, there are several questions that appear to be left unanswered. Most importantly, although the Gun-Free School Zones Act exceeded the "outer limits" of congressional authority, where do those "outer limits" begin? And while the Lopez decision indicated that the Court would not sanction "additional expansion" of congressional authority, did it also signal a shift in how the Court would approach what had previously been considered appropriate -- or at least constitutional -- congressional regulation? Finally, do congressional findings matter or should a court treat them as it would any other argument made in favor of a statute's constitutionality? A quick survey of the judicial and scholarly views on the significance of Lopez indicates that this Court is not alone in ...

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