Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTIONS TO DISMISS BENNETT, District Judge. TABLE OF CONTENTS I. INTRODUCTION.1035 A. Synopsis.1035 B. The Claims.1036 C. Procedural Background.1038 II. LEGAL ANALYSIS.1038 A. Procedural Bars.1038 1. Lack of diversity jurisdiction.1038 a. Rules of diversity jurisdiction.1039 b. Diversity here.1039 2. Timeliness of Doe’s claims.1040 a. Iowa’s “savings” statute.1041 b. Applicability of the statute .1041 i. Negligence.1041 ii. Other prerequisites.1043 iii. The same cause of action.1044 3. Failure to sue in plaintiff’s proper name.1044 a. Pertinent factors.1045 b. Application of the factors.1047 B. Substantive Challenges.1049 1. Standards for a Rule 12(b)(6) dismissal.1049 2. Sexual abuse.1050 a. “Sexual abuse” within the meaning of § 709.1.1050 b. “Sexual exploitation” within the meaning of § 709.15 .1051 c. Assault and battery.1052 3. Fraud .1054 a. Elements and pleading.1055 b. Doe’s allegations.1056 4. Breach of fiduciary duty .1058 a. When does the duty arise?.1058 b. Breach of fíduciary duty of clergy .1059 c. Duty and breach here .1062 i. The Diocese and Soens.1062 ii. Defendant Hartz.1062 5. Assault.1066 6. Tortious infliction of severe emotional distress.1067 a. Elements of the claim.:... 1068 b. “Outrageousness” of Hartz’s conduct .1069 7. Negligence claims against defendant Hartz.1070 a. Count VII.1071 b. Count VIII.1072 8. Negligence claims against the Church Defendants.1072 9. Premises liability .1074 10. Respondeat superior liability.1074 a. The Godar decision.1075 b. Does Godar foreclose respondeat superior liability here?.1076 11. A constitutional bar?.1078 III. CONCLUSION.1079 What are the consequences of an unsolicited kiss and a rub on the back? When the person who allegedly imposed such a kiss and a rub is a parish priest, the plaintiff contends it is liability of the priest, bishop, church, and diocese for the priest’s misconduct. Not content with asserting a claim for simple assault or battery as a basis for defendants’ liability, the plaintiff has advanced a startling dozen theories of liability. The defendants contend that the plaintiffs outrage has gotten the better of her judgment, because they argue that none of the plaintiffs many causes of action states a claim upon which relief can be granted. As is too often true, in their zeal, both sides of the controversy have overstated their case. Lacking a Herculean solution to plaintiffs Hydra-headed complaint and the defendants’ multi-pronged attack attempting to dismiss it, the court must address each of the contentions raised by the parties. /. INTRODUCTION A. Synopsis Anonymous plaintiff Jane Doe filed her complaint in this action on September 16, 1998, 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. Where circumstances warrant, the latter three defendants will be referred to as the “Church Defendants.” The gravamen of Doe’s complaint is that, on December 8, 1994, when she arrived at St. Lawrence Church to sing during evening mass, defendant 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, ¶ 12. Later that same evening, after mass, “Defendant Hartz rubbed Plaintiffs back up and down with his hand.” Id. at ¶ 15. Doe asserts twelve state-law claims based on these incidents or related events. The present lawsuit is a reincarnation of a lawsuit filed on August 29, 1996, see Doe v. Hartz, 970 F.Supp. 1375 (N.D.Iowa 1997), but dismissed at the behest of the Eighth Circuit Court of Appeals for lack of subject matter jurisdiction on July 8, 1998. See Doe v. Hartz, 134 F.3d 1339 (8th Cir.1998). Indeed, all of Doe’s factual allegations in the renewed complaint are verbatim repleadings — with only incidental corrections of typographical errors — of the facts alleged in support of Doe’s original complaint. Compare Complaint of August 29, 1996 (hereinafter “Original Complaint”), ¶¶ 9-28; vnth Complaint of September 16, 1998 (hereinafter “Present Complaint”), ¶¶ 10-29. In her Original Complaint, Doe alleged thirteen claims, based on state and federal law, including a claim under the Violence Against Women Act (VAWA), 42 U.S.C. § 13981, which was the basis for her assertion of federal question jurisdiction. The Eighth Circuit Court of Appeals found the VAWA claim wanting — thus eliminating a federal question as the basis for subject matter jurisdiction — and directed that the Original Complaint be dismissed without prejudice to refiling in state court. Doe, 134 F.3d at 1344. However, Doe has instead refiled the Present Complaint — omitting only her VAWA claim — in this federal court asserting diversity jurisdiction, because she is now a citizen of Illinois. Doe specifically alleges that the present action is “saved” from the bar of the applicable statute of limitations pursuant to Iowa Code § 614.10, because her Original Complaint was dismissed without prejudice through no fault of her own, then refiled within six months, and.thus must be eon-sidered to.be a continuation of the first action for statute of limitations purposes. B. The Claims With the exception of the VAWA claim, which has been eliminated from the present lawsuit, the claims of the Present Complaint “track,” but are not necessarily identical to,, the claims of the Original Complaint. Thus, Doe once again asserts claims of sexual abuse by defendant Hartz; fraud by all defendants; breach of fiduciary duty by defendants Diocese and Soens; breach of fiduciary duty by defendant Hartz; assault by defendant Hartz; tor-tious infliction of emotional distress by defendants Hartz, Soens, and Diocese; two separate claims of negligence by defendant Hartz; negligent supervision by the Church Defendants; another claim of negligence by defendants Church and diocese; premises liability of defendant St. Lawrence Church; and respondeat superior liability of defendant St. Lawrence Church. In the table that follows, the claims of the Original and the Present Complaints are correlated, with a recitation of the gravamen of each claim and the manner, if any, in which the claim has been revised in the Present Complaint. C. Procedural Background As mentioned above, the Present Complaint was filed on September 16, 1998, with a demand for a jury trial. The Church Defendants moved to dismiss the complaint on December 7, 1998, and defendant Hartz followed suit by moving to dismiss on December 28, 1998. The defendants were granted extensions of time to file briefs in support of their motions to dismiss and consequently Doe was also granted extensions of time to resist those motions. The Church Defendants filed their brief in support of their motion to dismiss on January 11, 1999, and defendant Hartz filed his brief on January 22, 1999. Doe ultimately filed her resistance briefs on February 23, 1999. Discovery has been stayed pending disposition of the motions to dismiss. The court heard oral arguments on the defendants’ motions on April 9, 1999. Plaintiff Jane Doe was represented by Tiffany B. Klosener of Roxanne Conlin & Associates, P.C., in Des Moines, Iowa. Defendant Father Gerald Hartz was represented by Scot L. Bauermeister of the Fitzgibbons Law Firm in Estherville, Iowa. The Church Defendants — defendants St. Lawrence Church, Bishop Soens, and the Roman Catholic Diocese of Sioux City, Iowa — were represented by Maurice B. Nieland of Rawlings, Nieland, Probas-co, Killinger, Ellwanger, Jacobs & Moh-rhauser in Sioux City, Iowa. The oral arguments were spirited and informative, continuing the able representation demonstrated by the briefing of the parties. With these motions now fully submitted, the court turns to its legal analysis. II. LEGAL ANALYSIS Although the defendants assert that none of Doe’s many causes of action states a claim upon which relief can be granted, they initially assert various procedural bars to Doe’s claims. The defendants contend that this court lacks subject matter jurisdiction over the Present Complaint, because diversity of citizenship was lacking at the time the action was originally filed. They also assert that all of Doe’s claims are untimely, because they are not “saved” by Iowa Code § 614.10. As their last procedural bar, the defendants contest Doe’s prosecution of this lawsuit under a pseudonym. The court will consider these procedural bars first. A. Procedural Bars 1. Lack of diversity jurisdiction Defendants first contend that this matter must be dismissed for lack of subject matter jurisdiction, because diversity jurisdiction was not present at the time the Original Complaint was filed. They argue that Doe should not be allowed to “have it both ways” by contending that this lawsuit is a “continuation” of the prior lawsuit for statute of limitations purposes — and diversity of citizenship did not exist at the time the Original Complaint was filed — but a new lawsuit for diversity jurisdiction purposes. Doe’s short answer to this argument is that diversity of citizenship undeniably existed at the time the Present Complaint was filed, which is the only time relevant to a determination of federal diversity jurisdiction. She contends further that her action has been properly refiled pursuant to the Iowa “savings” statute, because nothing precludes application of that statute to refiling of state-law claims in federal court, if grounds for federal jurisdiction now exist. a. Rules of diversity jurisdiction The Eighth Circuit Court of Appeals recently summarized “the well-established rules of federal diversity jurisdiction” as follows: First, we determine diversity of citizenship at the time an action is filed. See Sheehan v. Gustafson, 967 F.2d 1214, 1215 (8th Cir.1992). Second, complete diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a) is tested by the citizenship of the real parties to the controversy, and the citizenship of an agent who merely sues on behalf of the real parties must be ignored. See Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980); Iowa Pub. Serv. Co. v. Medicine Bow Coal Co., 556 F.2d 400, 404 (8th Cir.1977); Airlines Reporting Corp. v. S & N Travel, Inc., 58 F.3d 857, 861-62 (2d Cir.1995). Third, the Federal Rules of Civil Procedure have no bearing on the requirements of federal diversity jurisdiction. See Navarro Sav. Ass’n, 446 U.S. at 462 n. 9, 100 S.Ct. 1779, 64 L.Ed.2d 425; Iowa Pub. Serv. Co., 556 F.2d at 404 n. 5; Airlines Reporting Corp., 58 F.3d at 861 n. 4; Fed.R.Civ.P. 82. Finally, the district court cannot retroactively create diversity jurisdiction if it did not exist when the complaint was filed. See Star-Rite Indus., Inc. v. Allstate Ins. Co., 96 F.3d 281, 285 (7th Cir.1996); Aetna Cas. & Sur. Co. v. Hillman, 796 F.2d 770, 775-76 (5th Cir.1986). Instead, the district court must dismiss the action. See Aetna Cas. & Sur. Co., 796 F.2d at 776. Associated Ins. Mgmt. Corp. v. Arkansas Gen. Agency, Inc., 149 F.3d 794, 797 (8th Cir.1998); see also Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 428, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991) (diversity of citizenship is determined at the time the complaint is filed). A corollary to the rule that diversity is determined at the time of filing is equally well-established: “[I]f diversity did not exist when the complaint was filed, it cannot be created by a change of domicile by one of the parties or some other event.” Saadeh v. Farouki, 107 F.3d 52, 57 (D.C.Cir.1997) (citing, inter alia, Anderson v. Watt, 138 U.S. 694, 702-03, 11 S.Ct. 449, 34 L.Ed. 1078 (1891)). The party attempting to establish federal jurisdiction bears the burden of proof if diversity of citizenship is challenged. See, e.g., Quality Refrig. Servs., Inc. v. City of Spencer, 908 F.Supp. 1471, 1483 (N.D.Iowa 1995) (citing cases so holding). ■ b. Diversity here In this case, diversity of citizenship plainly existed at the time this action was filed, because no one contests that at the time Doe filed the Present Complaint, she was a citizen of Illinois. See Freeport-McMoRan, Inc., 498 U.S. at 428, 111 S.Ct. 858; Associated Ins. Mgmt. Corp., 149 F.3d at 797. Doe did not “create” diversity during the pendency of the present lawsuit, compare Saadeh, 107 F.3d at 57, but instead established Illinois citizenship during (or prior to) the hiatus between separate- — albeit nearly identical — lawsuits, the first of which had been involuntarily dismissed. Although there is some appeal to the defendants’ “having it both ways” argument, the court concludes that the defendants have attempted to combine two entirely separate inquiries: whether this court has subject matter jurisdiction, and whether, if jurisdiction exists, Doe’s claims are timely. Both determinations undeniably require taking a “snapshot” at the time the case was filed. However, determination of diversity jurisdiction requires that the court look only at the circumstances at the time of the “snapshot,” Freeport-McMoRan, Inc., 498 U.S. at 428, 111 S.Ct. 858; Associated Ins. Mgmt. Corp., 149 F.3d at 797; but, as explained more fully below, determination of timeliness requires consideration of the “snapshot” as the starting point for a more extensive inquiry — the point from which the court must look back to the events giving rise to the claims, determine the applicable statute of limitations, determine whether the claim has been filed within the requisite limitations period, and finally determine whether anything “saves” an otherwise untimely claim. To put it another way, diversity of citizenship is a question of subject matter jurisdiction, challenged via Rule 12(b)(1) of the Federal Rules of Civil Procedure, while untimeliness is a question of whether the plaintiff has stated a claim upon which relief can be granted, a matter challenged via Rule 12(b)(6). The court could, of course, conclude that it has subject matter, jurisdiction, but that the claims must nonetheless be dismissed as untimely. If the court lacks subject matter jurisdiction, it would be inappropriate for the court even to reach the statute of limitations question. Therefore, the defendants’ motions to dismiss for lack of diversity subject matter jurisdiction must be denied. 2. Timeliness of Doe’s claims The court now turns to the second inquiry mentioned above, the defendants’ challenge to the timeliness of Doe’s claims and their assertion that her claims are not “saved” by Iowa Code § 614.10. The defendants argue that Doe’s claims are for personal injuries suffered on or about December 3, 1994, to which a two-year statute of limitations applies, see Iowa Code § 614.1(2), but the Present Complaint was not filed until almost four years later, on September 16, 1998, well outside the limitations period. The defendants next assert that Doe’s claims are not “saved,” because dismissal of Doe’s Original Complaint was the result of counsel’s negligence in asserting an untenable federal claim — the VAWA claim — as the basis for federal jurisdiction. They argue that counsel’s negligence is apparent from the “short shrift” given Doe’s VAWA claim by the Eighth Circuit Court of Appeals. They therefore argue that this case is “almost identical” to Sautter v. Interstate Power Co., 563 N.W.2d 609 (Iowa 1997), in which the Iowa Supreme Court rejected application of the “savings” statute to reinstate an untimely lawsuit where the previous incarnation of the lawsuit had been dismissed from federal court owing to an obvious lack of diversity jurisdiction. At oral arguments, both sets of defendants asserted that the real basis for “negligence” of counsel was the failure to file parallel actions in both state and federal court when the Original Complaint was filed — a course Doe has adopted this time around. The defendants argue that this obvious course would have protected the viability of the causes of action in state court if jurisdiction over the federal action was found wanting, and failure to pursue this course was.therefore negligent. The Church Defendants contended further that Doe conceded there was no VAWA claim against them, so that federal jurisdiction over them hung from the tenuous thread of supplemental jurisdiction tied to a questionable federal claim against another defendant. Doe’s response is that she has plainly met the requirements of the “savings” statute and that it is a mischaracterization to describe Doe’s counsel’s conduct in asserting the VAWA claim as negligent when this court and the dissenting judge on the court of appeals both found that claim colorable. Doe also argues that Sautter is inapposite, because in this case there were no facts demonstrating the lack of subject matter jurisdiction that counsel should have discovered through reasonable diligence. She argues further that the claims against all of the defendants were so intertwined that pursuing separate suits against the Church Defendants in state court and against Hartz in federal court would have been inappropriate and inefficient, and she notes further that there was no motion by the Church Defendants in the original action to separate and remand the claims against them to state court. a. Iowa’s “savings” statute The “savings” statute in question, Iowa Code § 614.10, provides as follows: If, after the commencement of an action, the plaintiff, for any causes except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall, for the purposes herein contemplated, be held a continuation of the first. Iowa Code § 614.10. Iowa courts have consistently recognized that there are four prerequisites to relief under this section to preserve an action that would otherwise be untimely on refiling: (1) the failure of the former action must not have been caused by the plaintiffs negligence; (2) a new action must have been commenced within -six months after the failure of the former action; (3) the parties must be the same; and (4) the cause of action must be the same. See Sautter v. Interstate Power Co., 663 N.W.2d 609, 611 (Iowa 1997); Beilke v. Droz, 316 N.W.2d 912, 913 (Iowa 1982); Wetter v. Dubuque Aerie No. 568, Fraternal Order of Eagles, 588 N.W.2d 130, 132 (Iowa Ct.App.1998); Kane v. Iowa Dep’t of Human Servs., 955 F.Supp. 1117, 1140 n. 15 (N.D.Iowa 1997). As an initial matter, this court finds that nothing restricts application of the “savings” statute to refiling of an action in a federal court with proper jurisdiction after dismissal of a first action also brought in federal court. In Beilke v. Droz, 675 F.2d 194 (8th Cir.1982), the U.S. District Court for the Eastern District of Wisconsin had dismissed a lawsuit against an insurer on the ground that an insurer may not be sued directly under a Wisconsin statute. Beilke, 675 F.2d at 195. The suit was refiled in federal court in Iowa, and the court determined that Iowa Code § 614.10 would permit the action to go forward if the insured and the insurer were the “same party” within the meaning of the statute. Id. The Eighth Circuit Court of Appeals certified to the Iowa Supreme Court the question of whether an insured and its insurance company were “the same” within the meaning of the statute.' Id. The Iowa Supreme Court answered in the affirmative. Id. Thus, both the original and “saved” actions were filed in federal courts: one court without jurisdiction and one with. Although Doe has refiled the Present Complaint in the same federal court that entertained her Original Complaint, now asserting a different basis for federal jurisdiction—a basis for jurisdiction not available at the time her Original Complaint was filed—this court reads Beilke as supporting the conclusion that the “savings” statute would nonetheless be applicable to the refiled complaint if the requirements of the statute are met. In other words, the court in which the action is refiled is not a factor in determining the applicability of the “savings” statute. b. Applicability of the statute i. Negligence. Here, the defendants assert that Doe fails to meet the first prerequisite for application of the “savings” statute, because dismissal of her first federal action was purportedly the result of her “negligence” in pursuing an obviously insufficient federal claim. The plaintiff has the burden of pleading and proving his or her freedom from negligence in the prosecution of the first action. Sautter, 563 N.W.2d at 611; Wetter, 588 N.W.2d at 132 (citing Sautter). As the Iowa Supreme Court . has explained, “ ‘[n]egligenee in prosecution of an action is surely inherent when the plaintiff is lacking in diligence and so suffers a dismissal.’ ” Id. (quoting Central Constr. Co. v. Klingensmith, 256 Iowa 364, 369, 127 N.W.2d 654, 657 (1964)). In Sautter, the plaintiffs asserted diversity of citizenship on the ground that they were citizens of Wisconsin, while the defendant was a citizen of Iowa. Sautter, 563 N.W.2d at 610. However, this assertion was “contrary to fact,” because prior to filing the federal suit, the plaintiffs had moved from Wisconsin to Iowa, and after the suit was filed signed answers to interrogatories indicating that they were Iowa residents. Id. The plaintiffs’ federal suit was subsequently dismissed for lack of diversity subject matter jurisdiction, and the plaintiffs then refiled their action in Iowa district court within six months. Id. The Iowa Supreme Court explained its reasons for denying the plaintiffs relief under the “savings” statute: The finding of negligence here was grounded, not on how aggressively the Sautters pressed their federal suit, but rather on how unreasonable it was for them to bring or pursue it without a factual basis for its most elementary requirement [diversity jurisdiction]. We think the finding was appropriate. The Sautters cannot show they were reasonably unaware of the diversity problem. Sautter, 563 N.W.2d at 611. The court noted that “[a]ny attorney bringing a private tort suit in federal court necessarily starts with a careful consideration of diversity,” and, although “[d]omicile and thus citizenship of an individual at the time a lawsuit is filed is not always easy to determine, ... the Sautters failed to establish they were not negligent by prosecuting the case in federal court.” Id. Specifically, “[bjringing and pressing the federal suit in the face of facts that would deprive that court, of diversity jurisdiction denies the Sautters the relief accorded by Iowa Code section 614.10.” Id. Thus, the result in Sautter depended on the plaintiffs’ assertion of diversity jurisdiction in their first suit when that assertion was contrary to obvious facts. . In Wetter v. Dubuque Aerie No. 568, Fraternal Order of Eagles, 588 N.W.2d 130 (Iowa Ct.App.1998), although the plaintiff was also dismissed from federal court over a mistake of fact, the Iowa Court of Appeals' distinguished between the negligence in Sautter and failure of a federal cause of action through no fault of the plaintiff: Although this case, like Sautter, involves dismissal of a federal case for lack of subject matter jurisdiction, we do not believe the record supports a similar finding that Wetter’s federal case failed by reason of negligence in its prosecution. In Sautter, the plaintiff filed a claim in federal court despite implicit knowledge and express ac-knowledgement of the ultimate facts determinative of federal subject matter jurisdiction (e.g., no diversity of citizenship). Here, while Wetter may have approximated the number of Eagle employees, this ultimate and determinative jurisdictional fact was implicitly and peculiarly known only to the Eagles. There is no evidence Wetter was less than diligent in the investigation of her claim. Moreover, the Eagles’ motion to dismiss Wetter’s federal case and the resulting ruling were filed before Wetter could consider appropriate discovery to properly resolve this issue. The fact that Wetter’s approximation of the number of Eagles’ employees was later shown in the course of litigation to be incorrect does not, without more, amount to negligence in prosecution of her federal claim. Wetter, 588 N.W.2d at 132. Both Sautter and Wetter thus involved errors of fact, but only one of the two cases resulted in denial of relief under Iowa Code § 614.10, because in only one of those cases was the error owing to a lack of diligence on the part of plaintiffs counsel. See Wetter, 588 N.W.2d at 131 (finding counsel was diligent, although mistaken about the number of- defendant’s employees upon which federal jurisdiction turned). However disparaging defendants’ characterization of Doe’s VAWA claim may be, the fact remains that the adequacy of the claim — and hence the adequacy of Doe’s assertion of federal question jurisdiction in the first action — turned on close questions of statutory interpretation, or at a minimum, on a complex interaction of law and fact. See Doe, 134 F.3d at 1342-44. As Doe points out, the questions were sufficiently close that, not only did this court initially reach a conclusion contrary to that of the court of appeals, but the appellate panel itself split on the questions presented. See id. at 1344-45 (Fagg, J., dissenting). No obvious factual inadequacy plagued the assertion of federal jurisdiction in Doe’s Original Complaint. Compare Sautter, 563 N.W.2d at 611. The fact that Doe’s assertion of a VAWA claim was later shown in the course of litigation to be incorrect does not, without more, amount to negligence in prosecution of her federal claim. Cf. Wetter, 588 N.W.2d at 132. Certainly, this court cannot find that Doe was “so lacking in diligence” that her prosecution of the Original Complaint in federal court on the basis of federal question jurisdiction amounted to “negligence.” Sautter, 563 N.W.2d at 611. Nor is the court persuaded that there is “more” in the form of failure to file the Original Complaint in parallel actions in state and federal court. First, the state-law claims as pleaded against all defendants “are' so related to claims in the action within [the] original jurisdiction [of the federal court] that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367. Thus, it was more than reasonable for Doe’s counsel to rely on supplemental jurisdiction over her claims against the Church Defendants and her state-law claims against Hartz if she had a viable federal VAWA claim against Hartz. Furthermore, although it might have been prudent for Doe to file parallel actions originally, hindsight is 20/20. It is simply bad policy — that is, it is inefficient and potentially wasteful, of the limited resources of both the state and federal courts and of the parties- — -to require a plaintiff to file parallel lawsuits in both fora any .time federal jurisdiction depends upon a remotely novel federal claim, close questions of statutory, interpretation, or facts not fully within the knowledge of the plaintiff. Again, the failure to plead parallel suits in two jurisdictions in order to preserve jurisdiction in at least one forum does not, at least in the circumstances of this case, amount to conduct “so lacking in diligence” that Doe’s prosecution of the Original Complaint solely in federal court on the basis of federal question jurisdiction amounted to “negligence.” Sautter, 563 N.W.2d at 611. ii. Other prerequisites. The court finds ' that Doe has met the other prerequisites for application of the “savings” statute to the Present Complaint, at least in most respects. Specifically, the Present Complaint was brought within six months, indeed, within about two months, after the dismissal of her Original Complaint; the parties are the same; and, apart from the absence of the VAWA claim (Count 1 of the Original Complaint), and restriction of-the negligent supervision claim as compared to its original incarnation (Count 10 of the Original Complaint, as compared to Count IX of the Present Complaint), and one other change deserving of more discussion, the causes of action are the same. See Sautter, 563 N.W.2d at 611 (stating these prerequisites to application of the “savings” statute). iii. The same cause of action. That “one other change” is the change in the “tortious infliction of severe emotional distress” claim, which is Count VI of the Present Complaint. In the Original Complaint, the comparable claim — Count 7— was asserted only against defendant Hartz. See Original Complaint, Count 7; see also Doe, 970 F.Supp. at 1382. The allegations of outrageous conduct by defendant Hártz are the same in the Present Complaint as in the Original Complaint, compare Present Complaint, ¶ 60;' with Original Complaint, ¶ 70, but there are also in the Present Complaint allegations of outrageous 'conduct by defendants Soens and the Diocese, see Present Complaint, ¶¶ 61-62, for which there are no comparable allegations in the Original Complaint. Similarly, whereas the comparable count of the Original Complaint alleged only the intent, willfulness; and recklessness of defendant Hartz, alleged ■ his causation of Doe’s damages, and prayed for relief only against him, see Original Complaint, ¶¶ 72-75 & prayer to Count 7, the Present Complaint alleges the intent, willfulness, and recklessness of “Defendants,” alleges their causation of Doe’s damages for tortious infliction of emotional distress, and prays for relief against all three of them. See Present Complaint, ¶¶ 64-67 & prayer to Count VI. Thus, to the extent the “tortious infliction of severe emotional distress claim” is now leveled at defendants Soens and the Diocese, it is an entirely new cause of action not asserted in the original action, rather than “the same cause of action” as required for application of the “savings” statute, Iowa Code § 614.10. See Sautter, 563 N.W.2d at 611 (the fourth prerequisite to application of § 614.10 is that in the refiled action, “[t]he cause of action must be the same”). Consequently, this “new” cause of action is not timely filed within the applicable two-year statute of limitations, see Iowa Code § 614.1(2), and is not “saved.” Iowa Code § 614.10.. Therefore, although defendants’ motions to dismiss for untimeliness will otherwise be denied, that part of the Church Defendants’ motion seeking to dismiss as untimely Count VI as to defendants Soens and the Diocese will be granted. 3. Failure to sue in plaintiff’s proper name As their final assertion of a procedural bar to the Present Complaint, the defendants contend that this case does not present one of the very rare exceptions to the rule that suing under a pseudonym is not allowed. This is not, they contend, a case involving a plaintiffs challenge to governmental activity, or a case, in which the plaintiff might be compelled to admit an intention to engage in illegal conduct, thereby risking criminal prosecution. Although sexual assault is alleged, the defendants assert that there is certainly nothing constituting information of the “utmost intimacy” involved. They also point out that this case has a long history, including published decisions by both this court and the court of appeals detailing the factual allegations, that the plaintiff is not a minor, and that there can be little concern about possible harassment of the plaintiff as a result of the lawsuit, because the plaintiff is now living in Illinois, far from the locus of the events at issue. Finally, they argue that it is improper for Doe to pursue this lawsuit anonymously while subjecting the defendants to the embarrassment her allegations necessarily entail. They contend that if Doe will not amend her petition to assert her claims in her proper name, the action should be dismissed, citing Doe v. Frank, 951 F.2d 320, 322 (11th Cir.1992). Doe’s rejoinder is that it is for the court to determine, in its discretion, whether it is appropriate to allow the plaintiff to pursue a lawsuit under a fictitious name, and that the circumstances for permitting such prosecution are not as limited as defendants suggest. She contends that the proper test is whether she has a substantial privacy right that outweighs the customary and constitutionally-embedded presumption that judicial proceedings should be open. She asserts that the need for privacy here is apparent, because of the private nature of a person’s religious convictions, and because of a serious possibility that she will be ostracized (or worse) for attacking conduct of religious figures. However, she also contends that if the court deems it inappropriate for her to pursue this litigation under a pseudonym, she should be given a period of time to amend her complaint, rather than the court dismissing the complaint outright. a. Pertinent factors Rule 10(a) of the Federal Rules of Civil Procedure requires that the complaint in a lawsuit state the title of the action, which “shall include the names of all the parties.” Several courts have opined that “[t]he intention of Rule 10 is to ‘apprise the parties of the opponents and to protect the public’s legitimate interest in knowing all the facts and events surrounding court proceedings.’” Doe v. Hallock, 119 F.R.D. 640, 643 n. 1 (S.D.Miss.1987) (quoting Free Market Compensation v. Commodity Exchange, Inc., 98 F.R.D. 311, 312 (S.D.N.Y. 1983)); accord Free Speech v. Reno, 1999 WL 47310, *1 (S.D.N.Y Feb. 1,1999); Doe v. Shakur, 164 F.R.D. 359, 360 (S.D.N.Y 1996). As this court explained in Heather K. v. City of Mallard, Iowa, 887 F.Supp. 1249 (N.D.Iowa 1995), “Although the Federal Rules of Civil Procedure do not expressly prohibit use of pseudonyms for purposes of litigation, courts have recognized that ‘lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties.’ ” Heather K, 887 F.Supp. at 1255 (quoting Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974)); accord Doe v. Indiana Black Expo, Inc., 923 F.Supp. 137, 139 (S.D.Ind.1996). However, courts “have increasingly recognized an exception to this requirement in limited ‘matters of a sensitive and highly personal nature.’ ” Id. (quoting Deschamps, 64 F.R.D. at 653); accord Luckett v. Beaudet, 21 F.Supp.2d 1029, 1029 (D.Minn.1998) (“Rule 10(a) notwithstanding, plaintiff claims her case fits within a limited realm of cases in which other interests—i.e., privacy and concern about embarrassment—outweigh the public’s interest in open trials.”). This exception does not swallow the rule, because “the fact that [the litigant] may suffer some personal embarrassment, standing alone, does not require the granting of his request to proceed under a pseudonym.” Frank, 951 F.2d at 324. The decision whether or not to allow the use of pseudonyms based on a need for anonymity in a particular lawsuit is left to the discretion of the court. Heather K, 887 F.Supp. at 1255 (citing, inter alia, James v. Jacobson, 6 F.3d 233, 235 (4th Cir.1993), and Frank, 951 F.2d at 323). Unfortunately, there is still no express standard to guide courts in exercising such discretion, because neither the Eighth Circuit Court of Appeals nor the United States Supreme Court has yet provided instruction on this issue, although both have permitted prosecution of suits under pseudonyms. Compare id. (noting the lack of such guidance and citing Supreme Court and Eighth Circuit cases permitting use of pseudonyms). In Heather K, this' court looked for guidance to a decision of the Eleventh Circuit Court of Appeals: In Doe v. Frank, 951 F.2d 320 ([11th Cir.] 1992), the plaintiff sought to proceed under a fictitious name to avoid social stigma that he argued would attach upon revelation of his alcoholism. The Eleventh Circuit concluded that a plaintiff may proceed anonymously in “exceptional cases,” where he “has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” Id. at 323 (quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981)). The court identified three circumstances common to those cases where a plaintiff was permitted to proceed under a fictitious name. Those circumstances were: (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose information of the utmost intimacy; and (3) plaintiffs compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Frank, 951 F.2d at 323 (citing Stegall, 653 F.2d at 185). The factors enumerated in Frank and Stegall were not intended as a “ ‘rigid, three-step test for the propriety of party anonymity.’ ” Id. (quoting Stegall, 653 F.2d at 185). The mere presence of one factor was not meant to be dispositive, but rather, these factors were “highlighted merely as factors deserving consideration.” Id. Instead, a court must “carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiffs identity should yield to the plaintiffs privacy concerns.” Id.; see' also [Methodist Univ. Ass’n of Women Law Students v.] Wynne & Jaffe, 599 F.2d [707,] 713 [(5th Cir.1979)]. Heather K., 887 F.Supp. at 1255-56; accord Luckett, 21 F.Supp.2d at 1029 (“Although the listed factors [from Frank and Stegall ] are not exhaustive, they provide valuable guidance.”). Some recent decisions have added to the three pertinent considerations suggested in Frank and Stegall.. These decisions suggest consideration of (4) whether the plaintiff would risk injury if identified; (5) whether the party defending against a suit brought under a pseudonym would thereby be prejudiced, see Free Speech, 1999 WL 47310 at *2 (citing Shakur, 164 F.R.D. at 360, as considering these factors in-addition to the three cited in Frank)-, (6) the extent to which the identity of the litigant has been kept confidential; (7) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities, see id. (citing Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467 (E.D.Pa.1997), for these last two factors); and (8) whether the interests of children are at stake. Indiana Black Expo, Inc., 923 F.Supp. at 139. The ultimate test, however, remains “whether the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” See Frank, 951 F.2d at 323; accord Heather K., 887 F.Supp. at 1256 (quoting Frank); Free Speech, 1999 WL 47310 at *2 (also quoting Frank); Indiana Black Expo, Inc., 923 F.Supp. at 139 (also quoting Frank). b. Application of the factors Of the three Frank factors, Doe’s claims would seem to fall, if anywhere, within the “utmost intimacy” category. See Frank, 951 F.2d at 323. The defendants are correct, however, that the “sexual” nature of the alleged wrongdoing here is not necessarily sufficient to warrant Doe’s prosecution of this lawsuit under a pseudonym. For example, in Luckett, the court concluded that, “[tjhough discussing alleged sexual coercion and discrimination is undoubtedly uncomfortable, it is not such an invasion of privacy as to justify reducing the normal publicity of judicial proceedings.” Luckett, 21 F.Supp.2d at 1030. A more thorough analysis was presented in Shakur, in which the court wrote, “The present case is a difficult one. If the allegations of the complaint are true, plaintiff was the victim of a brutal sexual assault. Quite understandably, she does not want to be publicly identified and she has very legitimate privacy concerns.” Shakur, 164 F.R.D. at 361. The court nonetheless concluded that, “[o]n balance,” these concerns were “outweighed” by several considerations: (1) “the plaintiff has chosen to bring this lawsuit [and][f]airness requires that she be prepared to stand behind her charges publicly”; (2) “this is a civil suit for damages, where plaintiff is seeking to vindicate primarily her own interests”; (3) the defendant “has been publicly accused”; and (4) “the public has a right of access to the courts.” Id. In this case, the alleged sexual assault, although doubtless very offensive to Doe, could not be considered “brutal.” Cf. id. However, that is not the end of the inquiry, because other factors must also be considered. The court acknowledges that the plaintiffs concern that she risks injury if identified is not wholly unrealistic. See Free Speech, 1999 WL 47310 at *2 (also considering this factor); Shakur, 164 F.R.D. at 360 (same). This is so, because Doe alleges sexual misconduct by a Catholic priest and further misconduct by that priest’s superiors that purportedly allowed the priest’s misconduct to happen. Although Doe elsewhere contends that her claims can and should be resolved according to neutral principles of law that have nothing to do with religious doctrine or practice, it is nonetheless apparent that any attack or perceived attack upon figures of any religious denomination may be greeted with hostility by certain adherents of that religion. Although those persons potentially offended by Doe’s lawsuit are certainly not restricted to Iowa, the court’s immediate concerns about protecting Doe’s anonymity are considerably lessened by the fact that Doe has now left the St. Lawrence Church, and indeed is no longer a resident of Iowa. The potential harm to Doe here is too speculative to justify maintaining her anonymity. Thus, this factor ultimately does not weigh in favor of anonymity. Other factors here are simply equivocal. The defendants have not articulated how defending against a suit brought under a pseudonym would prejudice their defense of the suit. See Free Speech, 1999 WL 47310 at *2 (considering prejudice to the defending party); Shakur, 164 F.R.D. at 360 (same). Doe’s use of a pseudonym in this litigation seems unlikely to provide any bar, for example, to the defendants’ access to information necessary to defend the suit: The defendants are already intimately familiar not only with the incidents alleged but with the actual identity of the plaintiff. On a related matter, although the defendants point out that there are already two published decisions in this case, one from this court and one from the Eighth Circuit Court of Appeals, both of which recounted the alleged incidents, their timing, and location, there is no- suggestion that the identity of the litigant has not in fact been kept confidential. See id. (citing Provident Life and Acc. Ins. Co., 176 F.R.D. at 467, for this factor). However, there is considerable appeal to the defendants’ argument that they should not be held up to public ridicule while their accuser remains anonymous, when it is their accuser who has focused public attention on the circumstances she finds embarrassing. See Shakur, 164 F.R.D. at 361 (concluding that, “[o]n balance,” plaintiffs concerns were “outweighed” by several considerations, including the fact that “the plaintiff has chosen to bring this lawsuit [and][f]airness requires that she be prepared to stand behind her charges publicly,” as well as the fact that the defendant “ha[d] been publicly accused”). The court considers it .appropriate here to weigh the speculative nature of the potential harm to Doe from revealing her identity against the very real embarrassment her accusations have already caused the defendants. Furthermore, the accuser here is an adult, so that the interests of a child victim are not at stake. Indiana Black Expo, Inc., 923 F.Supp. at 139; Heather K., 887 F.Supp. at 1255-56. Finally, this is certainly not a case in which, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities. See Free Speech, 1999 WL 47310 at *2 (citing Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. at 467). To the contrary, this is a case in which public interest in the accuracy of the factual allegations and the potential for liability of the various defendants may be of particular interest, both because of the potential that the plaintiffs claims may be vindicated, and because spurious allegations against religious figures may be exposed. Therefore, upon consideration of pertinent factors, and acknowledging that the circumstances may be close to the line, the court concludes that prosecution of this litigation under a pseudonym is not appropriate, because Doe does not have “a substantial privacy right that outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” See Frank, 951 F.2d at 323; accord Heather K., 887 F.Supp. at 1256. Rather, this is a case in which pleading in the plaintiffs proper name should be required to vindicate the purpose of Rule 10(a) “to ‘apprise the parties of their opponents and to protect the public’s legitimate interest in knowing all the facts and events surrounding court proceedings.’ ” Hallock, 119 F.R.D. at 643 n. 1; accord Free Speech, 1999 WL 47310 at *1; Shakur, 164 F.R.D. at 360; Indiana Black Expo, Inc., 923 F.Supp. at 139; Heather K., 887 F.Supp. at 1255. Having so concluded, however, the court does not find that this matter should be dismissed. Rather, the defendants’ motions to dismiss for failure to sue in the plaintiffs proper name will be granted to the extent that Doe must amend her complaint to sue in her proper name. Only if she refuses to do so will dismissal be appropriate. B. Substantive Challenges In addition to the various procedural bars addressed above, defendants challenge each and every one of Doe’s twelve claims as failing to state a claim upon which relief can be granted. Doe has resisted these challenges, asserting the viability of her claims as pleaded. The court will consider the claims seriatim. However, first the court must articulate the standards against which Doe’s attempts to state her various claims must be measured. 1. Standards for a Rule 12(b)(6) dismissal The issue on a motion to dismiss for failure to state a claim pursuant to Fed. R.Civ.P. 12(b)(6) is not whether a plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to offer evidence in support of his or her claims. Scheuer v. Rhodes, 416 U.S. 282, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir.1989). In considering a motion to dismiss under Rule 12(b)(6), the court must assume that all facts alleged in the plaintiffs complaint are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); St. Croix Waterway Ass’n v. Meyer, 178 F.3d 515, 518 (8th Cir.1999) (“We take the well-pleaded allegations in the complaint as. true and view the complaint, and all ■ reasonable inferences arising therefrom, in the light most favorable to the plaintiff.”); Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir.1999) (same); Midwestern Machinery, Inc. v. Northwest Airlines, 167 F.3d 439, 441 (8th Cir.1999) (same); Wisdom v. First Midwest Bank, 167 F.3d 402, 405 (8th Cir.1999) (same); Duffy v. Landberg, 133 F.3d 1120, 1122 (8th Cir.) (same), cert. denied, - U.S. -, 119 S.Ct. 62, 142 L.Ed.2d 49 (1998); Doe v. Nonvest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8th Cir.1997) (same); WMX Techs., Inc. v. Gasconade County, Mo., 105 F.3d 1195, 1198 (8th Cir.1997) (same); First Commercial Trust v. Colt’s Mfg. Co., 77 F.3d 1081, 1083 (8th Cir.1996) (same). 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, 112 F.3d 1339, 1347 (8th Cir.1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); accord Conley, 355 U.S. at 45-46,' 78 S.Ct. 99 (“A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief.”); Meyer, 178 F.3d at 518 (“The question before the district court, and' this court on appeal, is whether the plaintiff can prove any set of facts which would entitle the plaintiff to relief’ and “[t]he complaint should be dismissed ‘only if it is clear that no relief can be granted under any set of facts that could be proved consistent with the allegations,’ ” quoting Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995)); Gordon, 168 F.3d at 1113 (“We will not dismiss a complaint for failure to state a claim unless it appears beyond doubt that the plaintiff cán prove no set of facts that would demonstrate an entitlement to relief.”); Midwestern Machinery, Inc., 167 F.3d at 441 (same); Springdale Educ. Ass’n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir.1998) (same); Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir.1997) (same); Doe, 107 F.3d at 1304 (same); WMX Techs., Inc., 105 F.3d at 1198 (same). The Rule does not countenance dismissals based on a judge’s disbelief of a complaint’s factual allegations. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Thus, “[a] motion to dismiss should be granted- as a practical- matter only in the unusual case in which a plaintiff includes allegations that show on the fa£e of the complaint that there is some insuperable bar to relief.” Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th.Cir.1995) (internal quotation marks and ellipses omitted); accord Parnes, 122 F.3d at 546 (also considering whether there is an “insuperable bar to relief’ on the claim): The court now turns to the question of whether some “insuperable bar” is raised against Doe’s claims. 2. Sexual abuse Count I of the Present Complaint alleges “sexual abuse” by defendant Hartz. Once again, the' allegations of this count are verbatim repetitions of the allegations of the comparable count in the Original Complaint. Compare Present Complaint, Count I; tvith Original Complaint, Count 2. Doe alleges in this count that defendant Hartz “fondled and kissed the Plaintiff for the purpose of arousing and/or satisfying his sexual desires. Defendant Hartz again fondled Plaintiff following fhe mass.” Present Complaint, ¶ 30. More specifically, the “fondling and kissing” alleged consisted of the following: defendant Hartz “came up behind [Doe], grabbed her with both of his hands and pulled her back into his body, held her tightly and kissed her neck” and later that same evening, after mass, “Defendant Hartz rubbed Plaintiffs back up and down with his hand.” Id. at ¶¶ 12 & 15. As in the Original Complaint, the relief Doe seeks on this claim in the Present Complaint includes compensatory and punitive damages, as well as a judgment “requiring Defendant Hartz to receive professional counseling within the meaning of Iowa Code § 611.23.” See Present Complaint, prayer to Count I; and compare Original Complaint, prayer to Count 2. Hartz has moved to dismiss this claim pursuant to ’ Fed.R.CivP. , 12(b)(6) on the ground that the alleged circumstances do' not constitute “sexual abuse” as defined by Iowa Code § 709.1(1), because there is no allegation of a “sex act” as defined by Iowa Code § 702.17-. Doe responds that she has adequately alleged “sexual exploitation” by a “counselor or therapist” within the meaning, of IpwA Code § 709.15, asserting that the acts alleged fit within the definition of “sexual exploitation” found in Iowa Code § 709.15(l)(f)(3), while Father Hartz, as á priest, falls within the statutory definition of a “counselor or therapist” by virtue of his role in the church. a. “Sexual abuse” within the meaning of § 709.1 Defendant Hartz is correct that Doe’s allegations fall short of alleging “sexual abuse” within the meaning of Iowa Code § 709.1. That code provision provides, in pertinent part, that “[a]ny sex act between persons is sexual abuse by either of the participants when the act is performed with the other participant ... by force or against the will. of the other.” Iowa Code § 709.1. A “sex act” is in turn defined in Iowa Code § 702.17 as follows: The term “sex act” or “sexual activity” means any 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 chapter 148, 148C, 150, 150A, 151, or 152; or by use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus. ■ Iowa Code § 702.17. Doe alleges only “fondling,” none of which involved contact with genitalia, and “kissing” on the back of her neck. See Present Complaint, ¶¶ 12, 15, and 30. These allegations do not allege a “sex act” within the meaning of Iowa Code § 702.17. The absence of allegations of a “sex act” within the meaning of Iowa Code § 702.17 is an “insuperable bar” to Doe’s claim for “sexual abuse” premised on a violation of Iowa Code § 709.1. See Frey, 44 F.3d at 671 (“A motion to dismiss should be granted as a practical matter only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.”) (internal quotation marks and ellipses omitted); accord Pames, 122 F.3d at 546 (also considering whether there is an “insuperable bar to relief’ on the claim). At a minimum, this conclusion forecloses part of the relief Doe sought, see id., a judgment “requiring Defendant Hartz to receive professional counseling within the meaning of Iowa Code § 611.23.” See Present Complaint, prayer to Count I. Such relief is only available under Iowa Code § 611.23 “[i]n a civil action in which a plaintiff is seeking relief or damages for alleged sexual abuse as defined in section 709.1,” Iowa Code § 623.11, and Doe cannot pursue such an action. b. “Sxual exploitation” within the meaning of § 709.15 In her resistance to defendant Hartz’s motion to dismiss this count, Doe relied on “sexual exploitation by a counsel- or or therapist” within the meaning of Iowa Code § 709.15, instead of upon “sexual abuse” within the meaning of Iowa Code § 709.1. Doe’s allegations of “kissing” and “fondling” by Hartz are sufficient to come within the meaning of “sexual exploitation” in this code section, because § 709.15 defines “sexual exploitation” as “[a]ny sexual conduct ... 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.” Iowa Code § 709.15(f)(3); and compare Present Complaint, ¶¶ 12, 15, and 30 (alleging “fondling” and “kissing”). However, the court concludes that Doe’s claim of “sexual exploitation” is nonetheless untenable. The Eighth Circuit Court of Appeals concluded that, in her Original Complaint, Doe had failed to allege an offense of sexual exploitation by a counselor or therapist within, the meaning of Iowa Code § 709.15 — as a predicate offense to her VAWA claim — even though Doe had alleged that Hartz “served as a counselor.to [her].” See Doe, 134 F.3d at 1342. The Eighth Circuit Court of Appeals found that Doe had failed to .allege- that Hartz was Doe’s “counselor or therapist” within the meaning of the Iowa -statute, because “[n]othing in- the complaint alleges that Doe received ‘mental health services’ from Father Hartz, yet this is a requisite element of the Iowa Code’s definition of ‘counselor or therapist.’” Id. (citing Iowa Code § 709.15(l)(a)). This was so, the court reasoned, because “[t]o adequately plead that she' received mental health services, Doe was required to assert factual allegations that she received ‘treatment, assessment, or counseling’ for a ‘dysfunction,’ ” but no services for any sort of dysfunction had been alleged. Id. (quoting Iowa Code § 709.15(l)(d)). In the Present Complaint, Doe does not even allege that Hartz “served as a counselor to [her]”— that allegation was found in the Original Complaint in the VAWA count, which is now absent from the Present Complaint— let alone that Hartz was providing “services” to her for any “dysfunction.” Cf. id. Thus, in the Present Complaint, Doe has failed to allege sexual exploitation by a counselor or therapist within the meaning of Iowa Code § 709.15 as the pertinent statute has been interpreted by the Eighth Circuit Court of Appeals. This failure is an “insuperable bar” to relief on a claim premised on “sexual exploitation.” See Parnes, 122 F.3d at 546; Frey, 44 F.3d at 671. c. Assault and battery Although the claim in Count I has not been denominated as such — indeed, it was not denominated as a claim for “sexual exploitation,” either — Doe’s factual allegations and the specific allegations in Count I of the Present Complaint do state a civil claim for simple assault or battery. “It is ... elementary that one upon whom an unjustified assault is made has a civil cause of action for damages against the person making the assault.” In re Cuykendall’s Estate, 223 Iowa 526, -, 273 N.W. 117, 119 (1937); As this statement' suggests,' Iowa courts have sometimes looked to the criminal code’s definition of assault-'as defining the elements of assault in civil actions for damages or other relief. See id.; see also Bacon v. Bacon, 567 N.W.2d 414, 417 (Iowa 1997) (in an action for relief from domestic abuse under Iowa Code Ch. 232, domestic abuse under Iowa Code § 236.2 is defined as assault within the meaning of Iowa Code § 708.1). Although “[a]ssault can be committed in several ways,” Bacon, 567 N.W.2d at 417, the pertinent definitions here, as in Bacon, are as follows: A person commits an assault when, without justification, the person does any of the following: (1) Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act. (2) Any act which is intended to place another in fear of immediaté physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act. Iowa Code § 708.1(1) & (2); accord Bacon, 567 N.W.2d at 417. These elements are comparable to the elements of the tort of assault as defined by the Restatemeot (Second) of Torts: § 21. Assault (1) An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension. Restatement (Second) of Torts § 21; see Greenland v. Fairtron Corp., 500 N.W.2d 36, 38 & n. 4 (Iowa 1993) (looking to the’ Iowa Civil Jury Instructions and the Restatement (Second) of Torts for the elements of assault to determine whether a civil assault claim is preempted by the Iowa Civil Rights Act); Iowa Civil Jury Instructions Nos.1900.1 & 1900.2 (defining assault based on Restatement (Seoond) of Torts § 21, 31, 32). Thus, assault consists of “ ‘acts threatening violence [or offense] to the person of another; coupled with the means, ability, and intent, to commit the violence [or offense] threatened.’ ” Schneider v. Middleswart, 457 N.W.2d 33, 35 (Iowa Ct.App.1990) (quoting Holdorf v. Holdorf, 185 Iowa 838, 841, 169 N.W. 737, 738 (1918)); accord Bacon, 567 N.W.2d at 417-18 (as