Facebook Twitter

`Gender crime’ lawsuit is tossed out

SHARE `Gender crime’ lawsuit is tossed out

A federal judge has thrown out a lawsuit that attempted to apply a new civil rights law to a Utah chiropractor accused of taking indecent liberties with three female employees.

Melanie McCann, Noele Nelson and Lisa Nielson filed a lawsuit last year against Bryon L. Rosquist, asserting a claim under the Gender Motivated Violence Act. Congress passed the act in 1994 to provide a civil remedy for crimes of violence motivated by gender.The three women said in their suit that Rosquist touched their bodies, clothed and unclothed, without their consent, rubbed his genital area against them and made inappropriate sexual comments.

However, in a 21-page ruling released on Thursday, U.S. District Chief Judge David Sam dismissed the women's federal claim - the first ever in Utah - saying their allegations didn't fit the new law.

"While the conduct alleged is offensive and repulsive, and according to (Utah law), a felony, it is not of the violent nature required to state a cause of action under the Gender Motivated Violence Act," Sam said.

To qualify as a "crime of violence motivated by gender" under the new law, the conduct must:

- Constitute a felony against the person.

- Have as an element the use, attempted use or threatened use of physical force against the person or property of another.

- By its nature involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

- Be 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.

Sam said he is aware of only 11 federal cases that have applied the Gender Motivated Violence Act provisions. Of those, eight have been allowed to proceed and three have been dismissed.

The eight suits that succeeded involved allegations of rape, varying forms of criminal assault and battery, and violent physical and mental abuse, the judge said. The three that failed involved non-consensual touching and kissing.

In the Utah case, the three women argued that Rosquist's behavior violated the state's "forcible sexual abuse" statute and that any violation of that law was a crime a violence.

However, Sam said, "Although the state of Utah may define any intrusive or offensive touching as a `forcible sexual abuse' and thereby a seemingly violent crime, the federal standard of `crime of violence' pursuant to (the 1994 act) is not so broad."

Unwelcome contact is "deplorable and should be punished," the judge said, but that doesn't make it a crime of violence.

"Furthermore, having reviewed over 100 cases that discuss the term `crime of violence' in a variety of contexts, the court has not been able to identify a single case that involved conduct similar in nature to the conduct alleged in this case," Sam said.

His ruling aside, the judge turned his attention to what he said was an attempt by Rosquist to characterize the alleged conduct as "amorous."

"The notion that non-consensual sexually oriented conduct is actually amorous and therefore not invidiously discriminatory toward the victimized class is clearly wrong," Sam wrote.

"Regardless of the amorous intentions of the perpetrator, non-consensual expressions of affection that rise to the nature of those alleged in this action are laden with disrespect for women."

Sam said if he were faced with the question, he would be disposed to rule that Rosquist's conduct "was motivated by gender within the meaning of (the Gender Motivated Violence Act)."