Tuesday, June 23, 2009

Criminal Harassment . . . Or Just Bad Manners?

Ok. They charged my guy with harassment. For those interested souls, the Texas harassment statute is found in section 42.07 of the Texas Penal Code. If you don't care about the code, then just sit in and listen.

Harassment can be charged in multiple ways. In this case, the bad guys say my client initiated a written communication with a person and during the communication made an "obscene" comment. Specifically, they say my client sent the person a "hand-drawn" depiction of the female genitalia with the caption, "Can I lick you, Katie?"

With the hope of not getting charged with harassment myself, let me say this is family oriented blog. The quote above is from the public record and open to public scrutiny. Any 12 year old can go up to the county court house and pull this file.

Now, the harassment statute defines "obscene" in a most peculiar way. Obscene means a writing "containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function." (funny, my spellcheck doesn't understand half of these words) Nonetheless, patently offensive is not defined and the law provides no guidance as to its meaning.

Certainly, my grandmother might be shocked by such an image and suggestion. But my dad, and probably my wife, would care less. So who's sensibilities is this statute designed to protect? That's the problem. There are no guidelines for law enforcement. Furthermore, people of ordinary intelligence cannot discern what type of conduct is actually prohibited by the statute. Patently offensive is open to unlimited interpretations . . . what might be offensive to one person might not be offensive to another. This is called vague and over-broad for those interested legal eagles.

And what about our constitutional right to write (and draw, I suppose) what we want? That's called free speech in this country and is protected by the U.S. Constitution. Specifically, a case entitled Miller v. California set the standard for what is obscene in America. The Miller case incorporated a community standard of decency and consideration of a writing's literary, artistic, political, or scientific value . . . all qualifications the Texas harassment statute does not include. At least under Miller, a jury would have some needed guidance in determining the limits of one's writing and drawing prowess.

So, does the prosecutor have a point, or does my client simply have bad manners? I'd love to hear what you think? (Becky, this means you, too)

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