CRIMINAL-LAW ISSUES – REVERSED “OBSCENE COMPUTER HARASSMENT” CONVICTION NOW REINSTATED – CONSTITUTIONAL AND OTHER PERMISSIBLE OBSCENITY DEFINITIONS. It seems there is hardly anything that delights no-longer-loving spouses quite so much as a new criminal law they can clobber each other with. In an opinion that bids fair to make criminals of large numbers of divorce litigants of both sexes (though it’s probably safe to say more of our male clients than female), the Court of Appeals reinstated en banc the conviction of an estranged husband who used rude and gross language to characterize his wife’s apparently undenied sexual misconduct in communications to her family and friends. This matter, you will remember, concerned Code §18.2-152.7:1, punishing “harassment by computer” as a Class I Misdemeanor, and in the panel opinion of November 2, 2010, the Court of Appeals had felt it was required by Allman v. Commonwealth, 43 Va. App. 104, ___ S.E.2d ___ (2004), to read the obscenity requirement of §18.2-372 into that computer statute. In other words, while the computer harassment statute itself is quite willing to punish communications intended to harass which include the “obscene, vulgar, profane, lewd, libidinous and indecent,” or the making of obscene propositions or “threatening any illegal or immoral act,” the panel had thought that conviction on the strength of the cuckolded husband’s clearly vulgar, offensive and sexually explicit language here would require finding obscenity as defined by the U.S. Supreme Court. But the full court ruled otherwise. How did they do that? Well, despite possible availability of other ways of making this ruling, it held that the defendant could not rely on the lack of prurient-interest arousal potential in his words because the Supreme Court-defined obscenity is only one kind of use of the word obscene in our 21st-Century English language. The Allman case tied other Code sections that speak of obscenity – §18.2-427 for instance – to the Supreme Court’s Miller v. California, 413 U.S. 15 (1973), circumscription of the punishable term, it was tailoring the statute too narrowly for its intended purpose. The statute under which the offender here was convicted does not on its face include a definition of obscenity, so that’s enough. The definition in the U.S. Supreme Court’s Miller case does not accurately encompass the kind of communication our computer statute is interested in, so it just doesn’t apply. What our state legislature wants to keep off the internet is everything vulgar, profane, lewd, libidinous or indecent. To the majority, this man’s remarks about his wife’s round-heeled conduct are full of explicitly obscene thoughts, and clearly support a conviction. Dissenting Judge Elder would continue to read into this statute the definition of obscenity from the Allman case as the appropriate obscenity definition for use in §18.2-152.7:1, for the reasons he gave in the panel opinion. The present case’s rude and tasteless language, he believes, does not rise (or descend) to the level of obscenity, and should not bring criminal punishment under our State statutes. (Panel Opinion at 30/4 FLN 15. The offensive e-mail messages, by which the husband hoped to embarrass his wife, were precipitated by her Craig’s List advertisement for sexual activity. The majority in the current case, Barson v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (7/5/11), says in a footnote that the constitutionality of the statute was not at issue in Allman, only the sufficiency of the evidence. Judge Humphries concurred in part and dissented in part.
The majority points out that, after all, the obscenity definition contained in §18.2-372 specifically states that “the word ‘obscene’ where it appears in this article shall mean...etc.” It also points out the statutory definition that §18.2-372 gives is the one which Miller v. California, 413 U.S. 15, 24 (1973), promulgated for pornography. Obscenity and pornography of course are not interchangeable terms. The Allman opinion, it says, had the effect of inaccurately defining all obscenity as only that which is constitutionally “pornographic.” And it also notes that when those statutory definitions apply, courts are supposed to normally give a term its “ordinary and usually accepted meaning.” It gives a definition from Webster’s Third New International Dictionary, 3rd Edition, 1993, instead. The defendant husband also raised an interesting issue of retroactivity as a due process matter, invoking Bouie v. City of Columbia, 378 U.S. 347 (1964), to argue that if the Court of Appeals is going to overrule Allman, due process requires that it do so only prospectively, because otherwise the “unforeseeable judicial enlargement of a criminal statute, applied retroactively” would operate as an ex post facto law. But the Court of Appeals dismisses this objection with a reference to the holding in Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 143 (2002), that Bouie applies only to changes in interpretations of a criminal statute that are “indefensible by reference to the law that had been expressed prior to the conduct in this issue.” Because the Allman case dealt with a different criminal statute, and could still have been reviewed by the Court of Appeals en banc and by the Virginia Supreme Court on appeal, it wasn’t good law that would afford reliable guidance to an offender. Judge Elder in his dissent would nevertheless stick to his panel opinion. (The panel opinion was unpublished, but reported here and at 30/4 FLN 15.)