Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING MOTION TO DISMISS, ABSTAIN, OR CERTIFY QUESTIONS BENNETT, District Judge. 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 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. 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.” 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 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. Alexander the Great could only loosen the Gordian Knot by slicing through it with his sword, an approach that' is appealing, but unavailable here. 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 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. 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; an order that Father Hartz 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. Count 7 is a claim of tortious infliction of emotional distress based on the alleged outrageousness 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. 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 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. Father Hartz answered the complaint on January 21, 1997, also demanded a jury trial, and, on February 3, 1997, joined in the motion to dismiss, abstain, or certify questions filed by the other defendants. 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. 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. 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. 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). 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., 402 F.2d 968, 973 (8th Cir.1968), cert. denied, 395 U.S. 961, 89 S.Ct. 2096, 23 L.Ed.2d 748 (1969). The issue is not whether a plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to offer evidence in support of the plaintiffs claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 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, 101-02, 2 L.Ed.2d 80 (1957); Doe v. Norwest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8th Cir.1997) (“In considering a motion to dismiss, we assume all facts in the complaint are true, construe the complaint in the light most favorable to the plaintiff, and affirm the dismissal only if ‘it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle the plaintiff to relief,’ ” quoting Coleman v. Watt, 40 F.3d 255, 258 (8th Cir.1994)); WMX Techs., Inc. v. Gasconade County, Mo., 105 F.3d 1195, 1198 (8th Cir.1997) (“In considering a motion to dismiss, the court must construe the complaint liberally and assume all factual allegations to be true.”); First Commercial Trust v. Colt’s Mfg. Co., 77 F.3d 1081, 1083 (8th Cir.1996) (same). 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., 105 F.3d 394, 397 (8th Cir.1997) (citing In re Syntex Corp. Securities Lit., 95 F.3d 922, 926 (9th Cir.1996)); Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990) (the court “do[es] not, however, blindly accept the legal conclusions drawn by the pleader from the facts,” citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987), and 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357, at 595-97 (1969)); see also LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1103 (6th Cir.1995) (the court “need not accept as true legal conclusions or unwarranted factual inferences,” quoting Morgan, 829 F.2d at 12). Conclusory allegations need not and will not be taken as true; rather, the court will consider whether the facts alleged in the complaint, accepted as true, are sufficient to state a claim upon which relief can be granted. Silver, 105 F.3d at 397; Westcott, 901 F.2d at 1488. 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, 1347-48 (8th Cir.1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984)); accord Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-02 (“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.”); Doe, 107 F.3d at 1304 (dismissal is appropriate only if “ ‘it appears beyond doubt that the plaintiff can prove no set of facts which would entitle the plaintiff to relief,’ ” quoting Coleman, 40 F.3d at 258); WMX Techs., Inc., 105 F.3d at 1198 (“Dismissal should not be granted unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts that would entitle relief,” citing Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-02). 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, 1832-33, 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 face 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). 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. The federal district courts have always been courts of limited jurisdiction. See U.S. Const., Art. III, § 1. 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, 994 F.2d 427, 430 (8th Cir.1993) (quoting Osborn v. United States, 918 F.2d 724, 729 (8th Cir.1990), which in turn quotes 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)), cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 371 (1994). 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, 4 F.3d 590, 593 (8th Cir.1993). The court in Titus distinguished between the two kinds of challenges: 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 ford v. United States, 796 F.2d 924, 928 (7th Cir.1986)). Id. In Osborn v. United States, 918 F.2d 724 (8th Cir.1990), the Eighth Circuit Court of Appeals presented its most exhaustive discussion of the procedures and requirements for determination of a 12(b)(1) motion to dismiss. 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, 918 F.2d at 729. 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., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980), and Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)). The court stated that [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). 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, 549 F.2d at 891). The Osborn court stated that the proper course is for the defendant to request an evidentiary hearing on the issue, and, since no statute or rule prescribes the format of such a hearing, “any rational mode of inquiry will do.” Id. (quoting Crawford, 796 F.2d at 929). 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. 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, 4 F.3d at 593. 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, 918 F.2d at 729 n. 6; see also Titus, 4 F.3d at 593 (“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.”). To the extent that the defendants assert a factual challenge to subject matter jurisdiction, the court finds that their factual issue — whether or not Doe received mental health services from Father Hartz as required by one element of the predicate offense Doe has alleged in her VAWA claim— is inextricably “bound up with the .merits” of the VAWA claim, such that a full trial, or at least a complete summary judgment record, on the merits of the claim is necessary to resolve the issue. Osborn, 918 F.2d at 730. For now, therefore, in resolving defendants’ motion to dismiss for lack of subject matter jurisdiction, the court will assess the adequacy of Doe’s facial pleading or prima facie factual showing of elements necessary to sustain her federal claim, but will not “decide the jurisdictional issue.” Id. Instead, the court will rule only on whether there is or is not enough evidence for the question of subject matter jurisdiction to await resolution at a later stage in these proceedings. Id. 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. 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, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985). The Court in Jean found that the Eleventh Circuit Court of Appeals, en banc, had failed to follow this rule, because that court first examined the constitutionality of parole considerations employed by the INS that were established in former statutes and regulations instead of examining whether current statutes provided nondiscriminatory considerations. Id. Because current statutes and regulations provided the petitioners with nondiscriminatory parole considerations, which was all petitioners sought to obtain by-virtue of their constitutional arguments, “there was no need to address the constitutional issue” as to the former statutes and regulations. Id. at 854-55, 105 S.Ct. at 2997. 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, this court certainly need not consider whether the VAWA is constitutional. Id. at 854, 105 S.Ct. at 2997. If the court can render defendants all they seek, dismissal of the VAWA claim, because the allegations are simply insufficient, without addressing the constitutionality of the VAWA, it must consider that assertion first, before considering constitutionality of the statute. Id. at 854-55, 105 S.Ct. at 2996-97; see also Schanou v. Lancaster County Sch. Dist. No. 160, 62 F.3d 1040, 1046 n. 4 (8th Cir.1995) (noting that the court would express no opinion on the constitutionality of a policy of a school district, because the court had disposed of the case without reaching the merits of the constitutional challenge). To put it another way, only if Doe has adequately pleaded a claim within the scope of the VAWA will adjudication of the constitutionality of the Act be “unavoidable.” Id. at 854, 105 S.Ct. at 2997. 1. Has Doe stated a claim under the VAWA? 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, 105 F.3d at 397; Westcott, 901 F.2d at 1488. “[Ojnly if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations” will the court grant the defendants’ motion to dismiss the YAWA claim on this nonconstitutional ground. Handeen, 112 F.3d at 1347-48 (internal quotation marks omitted). 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., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989); Chevron U.S.A. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); United States v. Union Elec. Co., 64 F.3d 1152, 1165 (8th Cir.1995) (citing Ron Pair); United States ex rel. Harlan v. Bacon, 21 F.3d 209, 210 (8th Cir.1994) (“When construing a statute, we are obliged to look first to the plain meaning of the words employed by the legislature ...,” citing Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82); United States v. Manthei, 979 F.2d 124, 126 (8th Cir.1992) (“When interpreting statutory language, the court must first look to the plain meaning of the language,” citing North Dakota v. United States, 460 U.S. 300, 312-13, 103 S.Ct. 1095, 1102-03, 75 L.Ed.2d 77 (1983)). The Supreme Court describes this rule as the “one, cardinal canon before all others.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992). Thus, “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Id. (citing Ron Pair, 489 U.S. at 241-42, 109 S.Ct. at 1030-31; United States v. Goldenberg, 168 U.S. 95, 102-03, 18 S.Ct. 3, 4, 42 L.Ed. 394 (1897); Oneale v. Thornton, 6 Cranch 53, 68, 3 L.Ed. 150 (1810)). 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, 489 U.S. at 241, 109 S.Ct. at 1030 (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)); Union Elec., 64 F.3d at 1165 (quoting Ron Pair); Melahn v. Pennock Ins., Inc., 965 F.2d 1497, 1502 (8th Cir.1992) (plain meaning of a statute governs over ambiguous legislative history, citing Ron Pair Enterprises). The plain meaning of a statute is decisive, “except in the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” Ron Pair, 489 U.S. at 242, 109 S.Ct. at 1031 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)); INS v. Cardoza-Fonseca, 480 U.S. 421, 452, 107 S.Ct. 1207, 1223-24, 94 L.Ed.2d 434 (1987) (Sealia, J., concurring in judgment) (ordinary meaning governs unless implementing it would be “patent absurdity”); Waugh v. Internal Revenue Serv., 109 F.3d 489, 493 (8th Cir.1997) (quoting Ron Pair); Missouri v. L.J. O’Neill Shoe Co., 64 F.3d 1146, 1150 (8th Cir.1995); Union Elec., 64 F.3d at 1165. However,“[p]lain meaning, like beauty, is sometimes in the eye of the beholder,” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 737, 105 S.Ct. 1598, 1603-04, 84 L.Ed.2d 643 (1985). Thus, the court must not reach its decision about the meaning of a statute 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, 21 F.3d at 210-11 (quoting United States v. Cooper Corp., 312 U.S. 600, 605, 61 5.Ct. 742, 743-44, 85 L.Ed. 1071 (1941)). Thus, the court must assume that the words of a statute, construed in their ordinary meaning, accurately express the legislative purpose, and the court should decline to frustrate the plain meaning of the words chosen by the legislature. United States v. Talley, 16 F.3d 972, 976 (8th Cir.1994). 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. 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. 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, 929 F.Supp. 608, 611-12 (D.Conn.1996) (also observing that “[t]he statute does not require a prior criminal complaint, prosecution, or conviction to establish the elements of the cause of action,” citing § 13981(e)(2)). Thus far, the statute is clear enough. 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. 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. Nonetheless, to clarify the meaning of the statute, the court need only resort to ordinary meanings. Bacon, 21 F.3d at 210; Talley, 16 F.3d at 976. Attachment of the condition that “the conduct presents a serious risk of physical injury to another” to a felony against the person is largely superfluous, whereas attachment of that condition to crimes against property significantly narrows the range of property crimes that would come within the scope of the statute. Furthermore, the phrases pertaining to “felony against the person” and “felony against property” each begin with “that would constitute,” and they are separated by the word “or.” This construction of the paragraph plainly suggests that the phrase before the “or,” that is, “that would constitute a felony against the person,” is one alternative for a predicate crime of violence, while the phrase after the “or,” that is, “that would constitute a felony against property if the conduct presents a serious risk of physical injury to another,” is a second alternative for this prong of the inquiry. 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, 21 F.3d at 210; Talley, 16 F.3d at 976. 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 (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, 85 F.3d 403, 406 (8th Cir.1996) (“Under federal law, an offense is a felony if the maximum term authorized for the offense is ‘more than one year,’” citing 18 U.S.C. § 3559(a)). Under Iowa law, an aggravated misdemeanor is punishable by “imprisonment not to exceed two years.” Iowa Code § 903.1(2). Thus, aggravated misdemeanors under Iowa law would qualify as felonies under federal law. See 18 U.S.C. § 3559(a); Haggerty, 85 F.3d at 406. 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. That statute states, in pertinent part, as follows: 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 o