Subject: SVNEWS: child sex abuse as civil rights violation

This is an alert service of the Center for Law and Social Responsibility, the Domestic and Sexual Violence Project, at New England School of Law. Summaries are archived at http://www.nesl.edu/csr/svnews/, where you can also subscribe or unsubscribe from this service.
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United States v. Philip A. Giordano, 2006 WL 509427 (March 03, 2006)
No. 03-1394 United States court of Appeals, Second Circuit
child sex abuse as civil rights violation

NATURE OF THE CASE AND ISSUE ON APPEAL:
The defendant, and former mayor of Waterbury, Connecticut, Philip Giordano appealed his conviction for depriving minor children of their right to be free from sexual abuse, etc., on the ground that the evidence was insufficient to prove that he acted under color of law. If he did not act "under color of law", Giordano's conviction on the civil rights count would be overturned and his sentence reduced from 37 years to 5 years incarceration.


SUMMARY:
The Court disagreed and ruled that Giordano acted "under color of law" because he used his "special authority" to repeatedly gain access to and abuse his minor victims. He led his victims to fear him, making them believe that he had the power to harm them if they reported the abuse. Using his power as Mayor enabled Giordano to intimidate them into submitting to his ongoing sexual abuse.

Giordano consistently warned the victims not to say anything. He told them repeatedly that they would get in trouble. Since these acts sometimes took place in Giordano's office, the victims were aware that he was a powerful person. One of the victims testified that she thought he had power and knew he had money and was afraid he would hurt her family and "afraid he owned everybody." The other victim testified that she knew he was the mayor and believed his job was to "protect the city and watch over us like God." She also believed that if she told anyone what Giordano did she would go to jail because he had power.

Giordano argued that many of the encounters were outside of his office and that he acted in the interest of his own personal gratification and his actions in no way pertained to his mayoral duties.

The Court held that an official may act under the color of law, even though the actions take place outside of and not in connection with official business, if he or she uses the authority of the state in the commission of a crime. Moreover, misuse of this authority to commit a constitutional wrong, as the one charged here, was not excused from being under color of law merely because the perpetrator was acting for personal reasons.

In support of its holding, the Court cited a prior decision in which the Court held that "a state official acted under color of state law even when acting outside the ambit of official duty because the official used his or her power to make the crime possible by causing the victim to submit." Citing, United States v. Walsh, 194 F.3d 37, (2d Cir. 1999).

EDITORIAL COMMENT:
This is an important decision because some courts have held that intentional criminal conduct falls outside the "scope of employment", thus cannot fit within the definition of "color of law". But characterizing the nature of power as the means by which criminal behavior occurs under "color of law" is an important development in law that could also be used to establish more liability and accountability in "scope of employment" cases where civil rights and "color of law" issues are not applicable.


Summarized by:
Carolyn DePasquale -- Law Student


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