Wednesday, June 13, 2012

Vulgar Emails Not "Obscene"

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Vulgar Emails Not ‘Obscene’
By Deborah Elkins
Published: June 13, 2012

Tags: Criminal Defense

A husband’s emails to his estranged wife accusing her of soliciting sex on Craigslist and calling her a “coke whore baby killing prostitute” were not “obscene” under the definition of obscenity approved by the General Assembly, and the Supreme Court of Virginia vacates the husband’s conviction for harassment by computer in violation of Va. Code § 18.2-152.7:1.

The statute at issue, Va. Code § 18.2-152.7:1, does not merely proscribe harassment by computer; rather it enumerates specific elements of the offense that must be proved. In the context of this case, the commonwealth must prove: 1) the accused used a computer or computer network; 2) to communicate obscene language; 3) with the intent to coerce, intimidate or harass.

Significantly, defendant does not argue on appeal that the evidence was insufficient to establish that he intended to coerce, intimidate or harass his wife. There is no dispute about satisfaction of the requirement elements for the use of a computer or the intent to harass. This case is about the statutory elements of the offense as specified by the General Assembly that require the speech at issue be “obscene.” The dispositive question is what definition of “obscene” should apply – the statutory definition of “obscene” found in Code § 18.2-372 or the dictionary definition used by the Court of Appeals.

The General Assembly provided a definition of “obscene” in Code § 18.2-372 to comport with the constitutional requirements articulated in Miller v. California, 413 U.S. 15 (1973). There is no suggestion this definition is constitutionally infirm. The Court of Appeals has for the last eight years used this definition outside of Article 5, Chapter 8 of Title 18.2. The legislature is presumed to be aware of this usage. Its acquiescence is deemed to be approval.

The definition of “obscene” provided in Code § 18.2-372 and previously adopted by the Court of Appeals controls this case. The Court of Appeals erred in substituting a dictionary definition for that provided by the General Assembly.

Also, upon review of the record we hold that defendant’s emails to his wife, as offensive, vulgar and disgusting as their language may have been, did not meet the standard of obscenity provided by Code § 18.2-372. We reverse the Court of Appeals’ judgment and enter final judgment vacating defendant’s conviction.

Reversed and final judgment.

Concurrence

Russell, S.J., joined by Goodwyn & Millette, JJ.: We join in the majority opinion and concur in the result but write separately to emphasize two matters. We do not consider the Miller test to be constitutionally mandated when applied to statutes regulating harassing conduct, rather than speech protected by the First Amendment. We agree, however, with the majority’s reasoning that the General Assembly has tacitly approved the holding in Allman v. Commonwealth, 43 Va. App. 104 (2004), by leaving the relevant statutes unamended for the eight years that have passed since Allman was decided.

The commonwealth contends the decision in Allman was not binding precedent, citing our observation in Armstrong v. Commonwealth, 263 Va. 573 (2002), that while published panel decisions of the Court of Appeals are precedent binding on other panels of that court, the precedent remains subject to review by the Court of Appeals sitting en banc and by the Supreme Court. We do not agree with the commonwealth. Nothing we said in Armstrong supports a conclusion that panel decisions, after the times for review en banc and for appeal have expired without any modification by either appellate court, are anything less than binding legal precedent.

Barson v. Commonwealth (Lemons) No. 111406, June 7, 2012; Va.Ct.App.; Samuel R. Brown II for appellant; John W. Blanton, AAG; Kenneth T. Cuccinelli II, AG, for appellee. VLW 012-6-101, 17 pp.

Interesting article.  Please contact us if you need legal advice.

Tucker Griffin Barnes
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