CRIMINAL REMEDIES – CUCKOLD’S CRUDE ACCUSATIONS – OBSCENITY CHARGE. In a police-worshiping society where most people think that the solution to any problem is to pass a new criminal law, and then to prosecute, and have a criminal trial, and where there are plenty of ambitious prosecutors eager to make legal history, be the first kid on his block, etc., what will happen to a man who crudely curses his flagrantly adulterous wife? Why, a criminal trial of course. (Of him, of course.) Having sent his estranged wife in Virginia, from Texas, a very large number of vulgar e-mails prompted by his discovery of her appalling ads on Craig’s List, this husband was convicted of computer crime under Code §18.2-1527:1, which describes computer harassment with indecent language. Barson v. Commonwealth, unpublished, (11/2/2010). This opinion concerns conduct frequently resorted to by married persons having the usual bitter disputes, and is one of many, many cases which could easily end up in criminal court as well as a divorce. From the opinion it is difficult to see any indication of whether the wife’s sexual activities, and desire for more, or her placement of the ads, was ever denied or disputed. It is also difficult to see how, if even a small fraction of what the husband alleged in his numerous e-mails was true, this wife could possibly be insulted, by anything said by anyone. However, the Court of Appeals focused, as it is supposed to, on the constitutional issue. There was no question the husband’s language was vulgar and sexually explicit, and intended to express anger and to shame the wife into curbing her extra-marital appetites. Nor, from the volume alone, could it be disputed that his e-mails were harassing. Nor is it easy to see how anyone can be convicted of “indecency,” given the dizzying pace at which the concept of decency is changing, or dissolving, in today’s society. So the only way the courts can convict under this indecency-punishing statute, the Court of Appeals majority explains, is to do what that they have been forced to do before, in Allman v. Commonwealth, 43 Va. App. 104, 108-09, 596 S.E.2d 531, 533-34 (2004), and restrict the statute to the punishment of obscenity “in order to avoid constitutional concerns.” And although the husband’s words were clearly vulgar and offensive and sexual, as the majority explained, “his use of these words ‘considered as a whole’ and in the context of the marital discord and the angry, offensive tone and purpose of the e-mails,” did not establish a purpose of appealing to a prurient interest in sex. They were not in any way intended to arouse or appeal to sexual desire, the majority said, “either Barson’s own or any other individuals’ to whom he had sent the e-mails.” A dissent by Judge Humphries, however, began with the assumption that a husband talking about his wife’s sexual activities must be doing it for purposes of his own prurient interest, and opined that the fact that the language was “replete with ‘sexual condonations’” was enough to convict him. The majority thought otherwise. This is a difficult case to write about, because we will never know from either of the opinions whether there was any evidence or admission that the wife really did all the acts that her husband described, or whether he merely thought or surmised that she had done them. His words seemed to indicate that there were plenty of gossips ready to tell him about her activities. That he thought her guilty of these things is virtually beyond doubt, but the ultimate facts are not apparent. In that context, this is really a very peculiar case, because the wife could be the most slatternly adulterer these shores have ever seen, a woman who went extremely far beyond merely violating her marriage vows and went to absurd lengths not only to enjoy herself but to degrade both her husband and herself. Or she could be a pure and innocent lady who simply disliked her husband and rejected him, as the modern law allows her to do. (Oh yes, and put salacious ads on Craig’s List to …, to … uh, well, … exercise her constitutional rights, maybe?) The most peculiar thing about the case is that the majority and dissenters so fully talked past one another. The majority follows the Allman precedent, and tries to apply the definition of obscenity, and patiently explains that since no one could possibly have his or her prurient interest aroused by the husband’s screed, except possibly, in some perverted way, himself, and goes on to state that in fact there is no evidence to support that hypothetical view. The dissenter goes off in a different direction. The dissent, obviously highly offended by this vulgar husband’s inconsiderate and insulting libels upon the character of a lady, accuses the majority of setting up self-gratification of a perversely-motivated cuckold as an indispensable element of an obscenity finding, and failing to find it, (as a jury issue), saves him from a deserved criminal conviction. If this were what the majority had done, the dissenter would of course have a point when he accuses the majority of trying to rewrite the obscenity test.
