Virginia Criminal Law: The Rise and Fall of Obscene Under the Harassment Statutes

What can you do if your ex is harassing you either on the phone or through e-mail?  Not too much anymore according to the Virginia Supreme Court.  Here’s the story . . .

The Virginia Code has two nearly identical provisions that criminalize harassment over essentially the telephone, radio and internet.  They say:

Any person who uses obscene, vulgar, profane, lewd, lascivious, or indecent language, or makes any suggestion or proposal of an obscene nature, or threatens any illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, is guilty of a Class 1 misdemeanor.  Va. Code § 18.2-427 (hereinafter “telephone harassment statute”).

If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.  Va. Code § 18.2-152.7:1 (hereinafter “computer harassment statute”).

The meaning of “obscene” under these statutes has bedeviled the appellate courts for a few years because, while these statutes are silent on the meaning of “obscene,” an altogether separate statute defines it as follows:

The word “obscene” where it appears in this article shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value. Va. Code § 18.2-372

This definition of “obscene” is essentially the definition of “pornographic” that the United States Supreme Court came up with years before in Miller v. California, 413 U.S. 15 (1973). This definition was likely adopted by the Virginia General Assembly to ensure that it was sufficiently narrowly tailored to be upheld as constitutional under Miller and its progeny.

So what’s an appellate court to do when defining “obscene” under the harassment statutes?  Does it just go with the ordinary or dictionary definition of it?  Does it import the definition of “obscene” under Va. Code § 18.2-372 even though that definition really means “pornographic”?  Can it even import the definition from Va. Code § 18.2-372 given that it is expressly limited in its application to only crimes under Article 5 of Chapter 8 of the code (i.e., it is limited to crimes other than those addressed in the harassment statutes)?  Does it reach some new middle ground between the questionably constitutional ordinary definition of “obscene” and the absolutely constitutional definition of “pornographic?”

The Virginia Court of Appeals got its first crack at these questions in Allman v. Commonwealth, 43 Va. App. 104 (2004).  The court in that case took the relatively easy way out and imported the definition of “obscene” under Va. Code § 18.2-372 into the telephone harassment statute under Va. Code § 18.2-427.  The court would repeat this practice twice more: once again under the telephone harassment statute in Lofgren v. Commonwealth, 55 Va. App. 116 (2009) and another time under the computer harassment statute in the unpublished case of Airhart v. Commonwealth, Record No. 1219-05-2 (Jan. 16, 2007).

The Virginia Court of Appeals, nevertheless, pulled an about face a few years later in Barson v. Commonwealth, 2011 Va. App. LEXIS 228 (2011).  The court in that case, rehearing its earlier decision en banc, held, in so many words, that it messed up in Allman.   Specifically, it overruled Allman and held that “obscene” should be defined using its common usage, which the court implies is its standard dictionary definition of “disgusting to the senses” or “offensive or revolting as countering or violating some ideal or principle.” Barson, 2011 Va. App. LEXIS 228, *17 (2011).   Consequently, the trial court in that case got it right when it convicted the Defendant Barson under the computer harassment statutes for this woeful behavior:

“A.B. testified that she received eighty-seven e-mails between May 1, 2009 and May 14, 2009 [from her husband/appellant, Barson], and she received hundreds more over the span of the next six months.

The subject lines of the e-mails included phrases such as, “[A.B .] has sex with anonymous strangers on Craigs [sic] List Ads while husband lives in hotel working 3 jobs,” “I wanted [D] and your cousins to know about your new hobby of soliciting sex on CL,” and “Coke Whore Baby Killer Mom’s Club Needs to Know.” In the e-mails themselves, appellant wrote such things as “[You have] BORDERLINE PERSONALITY DISORDER look it up when you get off your knees from CL,” and “I work my ass off and you suck off and fuck strangers on Craigs [sic] List,” and “I told [M] ․ how you sucked off [D’s] roommate 3 days in AZ ․ wanted to jump [D’s] bones after 10 years killing your baby because it was a bother to you both and then picked [C] the coke dealer up at Rio fucked his brains out and vacuumed his baby to death for an eight ball.” The messages contained phrases such as, “my dad said you had a job ․ or blowjob? Which one do you get paid for and which is free? Not like you didn’t suck off [J.L.] or looney [R] for an eightball!!!! If you didn’t have crooked teeth and huge thighs you might be able to make money spreading your legs and sucking off Joe Pintos (strangers) [sic].” Appellant also sent a couple of messages from his cell phone along those same lines, alleging “STD[‘s] from risky gutter sex,” and stating its “time to put your big girl pants on and get a job not take them off and give a blowjob.”  Barson, 2011 Va. App. LEXIS 228, *2 (2011).

The Defendant Barson, obviously upset about the conviction, appealed the appellate court’s decision to the Virginia Supreme Court, which had not yet had a chance to define “obscene” under the harassments statutes.  The Virginia Supreme Court took its time explaining the problem and highlighted all of the prior appellate court decisions defining “obscene” under the harassment statutes.  Then, in a fit of analysis so astonishingly brief that you would miss it if you blinked, the court reversed the appellate court’s decision with little more than:

It is a common canon of statutory construction that when the legislature uses the same term in separate statutes, that term has the same meaning in each unless the General Assembly indicates to the contrary . . . The General Assembly provided a definition of “obscene” in Code § 18.2-372 . . . The Court of Appeals has for the last eight years utilized this definition outside of Article 5, Chapter 8 of Title 18.2 [(i.e., it has used it in the very telephone and computer harassment statutes we are dealing with in this case)].  The legislature is presumed to be aware of this usage.  Its acquiescence is deemed to be approval.

Thus, “obscene” under the harassment statutes means “pornographic” once again.  First Amendment lovers rejoice!  Those not too keen on being called a crack whore in hundreds of separate e-mails recoil!  Those looking for serious statutory interpretation look elsewhere or to my footnote below! [1]


[1] For what it’s worth, this decision might very well be correct.  But, for what’s also worth, the court’s rationale is quite troubling.  For example, the court assumes that the legislature has given no indication that “obscene” has different meanings under the code.  That is untrue.  The legislature most certainly knew about its old definition of “obscene” when it enacted the computer harassment statute in 2000, and it most certainly knew that this definition  was statutorily limited in scope to other crimes.  So is it not at least plausible that the legislature specifically chose to not define “obscene” under the newer computer harassment statute so that it would be given a meaning different from “pornographic” under the old statute?   And if the legislature really did want “obscene” to mean “pornographic” under the new statute, why wouldn’t it have just used the word “pornographic” or at least expressly imported that definition from the older definition under Va. Code § 18.2-372?  It just seems tremendously odd to think that the legislature sought to import this altogether tortured definition of “obscene” from another statute sub silencio.

Perhaps more troubling, is the court’s imparting meaning behind legislative activity over the past 8 years.  I must ask: what on earth does legislative inactivity over the past 8 years have to do with what the legislature actually wrote, meant or intended 12 years ago when it enacted the legislation?  Even if we assume that this is a valid means of statutory interpretation, does it make any sense to believe that the legislature approved of the court’s interpretation of “obscene” over the past 8 years by being absolutely silent on the issue?  Do we really think that the legislature even thought once about this interpretation over the past 8 years?  Where’s the evidence that it did?  And why shouldn’t the court make at least some effort to provide supporting evidence?  And what number of years of inactivity must be reached before legislative silence goes from being merely silence to being an affirmative state of approval?  5 years?  6?  7?