Crimes Against Public Order and Public Decency Chapter 8

Crimes Against Public Order Early common law concerned with preserving peace and order Included in statutes in England and early statutes in United States Thought necessary to criminalize behaviors that might incite people to fight or retaliate in other ways Common law and modern statutes include offenses punishable primarily because they invade society’s peace and tranquility

Breach of the Peace Willfully committed act that disturbs public tranquility or order and for which there is no legal justification Under common law, crime covered numerous actions Statutes frequently held unconstitutional May infringe on right to assemble or right to free speech Tend to be vague or too broad

Fighting Words Similar to breach of peace Words that tend to incite violence by person to whom they are directed More like a slap on the face than communication of ideas Not protected by First Amendment right to free speech Key cases deciding doctrine are old Cohen v. California (1971) State v. Thompson (Ohio 2002) Cases suggest any conviction under this doctrine will be examined closely and may be reversed

Disorderly Conduct Minor offenses that disturb peace or behavior standards of community or shock morality of its population Some acts covered by common law breach of peace are typical acts covered by modern disorderly conduct statutes Statutes vary considerably from one jurisdiction to another

Vagrancy and Loitering Common law referred to act or condition of wandering about from place to place without any visible means of support, refusing to work even though able to do so, and living off charity of others Most vagrancy laws declared unconstitutional Tend to discriminate against racial and ethnic minorities and poor Too vague and overbroad Some modern statutes use term loitering May be upheld if they are clear

Vagrancy and Loitering Milwaukee v. Nelson (Wis. 1989) People v. Superior Court (Cal. 1988) Wyche v. State (Fla. 1993) and Holliday v. City of Tampa (Fla. 1993) In recent years, many cities and states have enacted ordinances or statutes preventing certain acts in public places Chicago v. Morales (1999) Supreme Court ruled Chicago ordinance vague and thus unconstitutional Chicago revised statute and in 2002 it was upheld against a constitutional challenge

Criminalization of Homelessness In 2015, surveys revealed homelessness in Los Angeles area had jumped 12% during previous two years Similar reports on other cities included violent attacks on homeless people and other issues Homeless people subject to criminal violence and restrictions by government Can be expected local ordinances and state and federal laws will continue to be challenged in courts

Alcohol- and Drug-Related Offenses: Public Intoxication and Drug Incapacitation Statutes are based on assumption abusers disturb public order or morality and may be threat to themselves or others Can be designated as separate crime Can also raise serious debate on constitutional issues Powell v. Texas (1968) U.S. Supreme Court upheld defendant’s conviction based on conclusion his being drunk in public was an act, not a condition Some jurisdictions have enacted statutes that emphasize treatment and rehabilitation

Alcohol- and Drug-Related Offenses: Driving Under the Influence (DUI) It is illegal to operate motor vehicle while under influence of alcohol or other drugs Jurisdictions vary on how they define offenses and what they are called Some jurisdictions now emphasize treatment and rehabilitation It is also illegal for licensees to sell to a person who is obviously intoxicated

Alcohol- and Drug-Related Offenses: Alcohol Offenses and Minors Some substance-related offenses are prohibited only for persons under specified age Sale of alcohol to minors All jurisdictions regulate sale, giving, or furnishing alcohol to persons under legal drinking age Minors in possession Refers to broad array of situations Does not require minor to ingest substance Active or constructive possession is enough May also apply to other acts Legal age of majority may be lower in these instances

Unlawful Assembly, Rout, and Riot Under common law, referred to meeting of three or more persons to disturb public peace with intention of participating in forcible and violent execution of unlawful enterprise or lawful enterprise in unauthorized manner To constitute unlawful assembly, group need not carry out its purpose Rout If group takes steps carry out purpose Riot If group actually carries out its plan

Unlawful Assembly, Rout, and Riot Riot and rout come from same root word: rout Used to communicate those who have assembled unlawfully are on their way English Riot Act of 1714 Made it a capital felony for 12 or more persons to continue together for hour after official order was given to disperse Official command of dispersal called reading the riot act

Unlawful Assembly, Rout, and Riot Some modern statutes retain crimes of unlawful assembly and riot Fewer retain rout Most statutes classify riots as misdemeanors Some provide for aggravated riots as felonies Some may provide for additional penalties if other crimes committed Some include related crimes Some classify based on seriousness

Weapons Offenses Under common law, misdemeanor to breach the peace by carrying dangerous or unusual weapons Most U.S. jurisdictions today have statutes regulating sale, possession, and carrying f weapons Statutes differ vastly Many have been tested in courts Jurisdictions have enacted numerous gun laws in attempt to deter crime United States v. Castleman (2014)

Obstructing a Highway or Public Passage Authorities have right to regulate flow of traffic and people on public streets, highways, and sidewalks Individuals do not have right to block access of those public areas Problems in enforcing arise when statutes are vague or overbroad Permit too much discretion in enforcement efforts Problems also arise when enforcement infringes on free speech without justifiable reasons

Animal Abuse Ignored in past but now treated as criminal Arises in context of using animals for research and ways in which people treat or neglect their pets or other animals Attracting more attention due to research showing it is often committed by those who engage in violence against humans Numerous states have enacted statutes Not all are in criminal codes

Animal Abuse Some statutes have been ruled as too broad or as violating constitutional rights United States v. Stevens (2010) Views of cruelty to animals differ by jurisdiction Congress passed Animal Crush Video Prohibition Act of 2010 Statute challenged in Texas case decided by Fifth Circuit Court of Appeals Court upheld statute

Harassment Some jurisdictions criminalize various techniques Some may be included under other statutes Statutes may be categorized by degrees Some may specify types, such as harassment against persons due to particular characteristics Statutes may also include language qualifying the characteristics Note it is based on perception of actor concerning those characteristics that is critical Acts may be defined as felonies or misdemeanors

Offenses Against Public Decency Disagreement over whether criminal law should cover private, consensual behavior between adults, and if so, to what extent Historically, many acts described in this category were considered within area of morality To be governed by church rather than state Early criminal statutes patterned after biblical laws Massachusetts Code of 1648 In past two decades many jurisdictions have decriminalized some of the behaviors Debate remains over who should control morality

Prostitution Indiscriminate sexual acts for hire Historically accepted as inevitable, even essential Some societies practice was not only accepted, but esteemed Critics claim t exploits women (in some cases children) and contribute to spread of disease Illegal in United States in all but some rural counties in Nevada Statutes regulating prostitution vary So do definitions of term

Prostitution Some statutes specify women as offenders, but others also include men Offense may include not only prostitute but also any persons who solicit or promote the business of prostitution or who live off the prostitute’s earnings Special terms used to criminalize those persons Pandering Procuring or securing a person, usually female, to satisfy lust of another, usually male or catering to lust of another person Also called pimping

Prostitution Despite attempts to legalize, most agree attempts to use children should be a crime Some have enacted statutes to cover Coincides with current focus of FBI National Center for Missing and Exploited Children Emphasize child prostitution is threat worldwide Argued prostitution should be criminalized due to link with other crimes

Human Trafficking Trafficking for sex purposes not the only manifestation of crime Other reasons for trafficking See Focus 8.3 FBI emphasizes eradication is priority Also occurs in criminal arena Generates billions of dollar annually One of fastest growing criminal activities

Obscenity, Lewdness, and Indecency Behavior defined by a number of terms Describes variety of behaviors some people find offensive To extent criminal law is trying to curb them Acts generally defined as misdemeanors Carry only slight penalties Some statutes rarely, if ever, enforced

Lewdness and Indecency Statutes prohibiting lewdness are brief and general Pennsylvania Other statutes mention specific acts Idaho Criminal Code Some difficult to interpret Particularly when intent is an element Statutes may encompass speech as well as conduct United States v. A Naked Person Issued Notice of Violation No. P419490 (M.D.Fla. 1993) May be unconstitutional

Obscenity Court has had difficulty defining obscenity Stanley v. Georgia (1969) Mere private possession of obscene matter in one’s own home is not a crime U.S. Supreme Court emphasized right of states to regulate Miller v. California (1973) U.S. Supreme Court articulated three criteria, all of which must be met, for information to be considered obscene

Obscenity FCC et al. v. Fox Television Stations, Inc. et al. (2012) U.S. Supreme Court considered issue of whether FCC’s indecency policy is unconstitutional Indecent speech is protected Obscenity is not protected Any infringement on speech must be analyzed by strict scrutiny Policy may not be vague

Sodomy Some jurisdictions define consensual sodomy as crime Idaho statute Prohibits infamous crimes against nature To avoid problems of vagueness, some statutes were revised to include specific acts California Other jurisdictions do not use term in statutes Use alternate terms Bowers v. Hardwick (1986) U.S. Supreme Court upheld Georgia anti-sodomy statute

Sodomy Christensen v. State (Ga. 1996) Powell v. State (Ga. 1996) Lawrence v. Texas (2003) U.S. Supreme Court declared Texas statute unconstitutional Overruled Bowers v. Hardwick (1986) Obergefell et al. v. Hodges et al. (2015) U.S. Supreme Court upheld right of gays and lesbians to marry

Seduction and Fornication Seduction not a crime under common law Established by statute in many jurisdictions Seduction Historically referred to act by man who used solicitation, persuasion, promises, bribes, or other methods to entice woman to have unlawful sexual intercourse with him Was a felony Some statutes provided for negation of crime if subsequent marriage occurred between parties

Seduction and Fornication Modern trend has been to repeal seduction statutes Those that remain generally categorize as misdemeanor Even when repealed, laws may criminalize act of inducing consent by use of fraud or fear Statutes may limit ages of victims Fornication Another sex act considered a crime in some jurisdictions Refers to unlawful sexual intercourse between two unmarried persons of opposite genders Some jurisdictions do not limit to opposite sex parties

Adultery Consensual sexual intercourse between married person and someone other than his or her spouse Not crime under common law Was an ecclesiastical offense Has various definitions Earlier laws provided only for female to commit crime Some statutes distinguish between single and double adultery Current rend is toward repealing statutes Those still in effect rarely enforced

Bigamy Knowingly and willingly contracting marriage when he or she is aware another marriage is undissolved Considered crime against the family Some jurisdictions consider crime one of strict liability Not crime under common law Historically been criminalized in United States Few prosecutions have occurred New York Bigamy is felony; adultery is misdemeanor

Pornography Not illegal for adults to possess unless it is child pornography Considered sexual exploitation of those children Congress and many states have enacted statutes to combat child pornography Protection of Children Against Sexual Exploitation Act of 1977 Lengthy statute Imposes liability on actors engaging in child pornography Provides for forfeiture for those engaging in acts Statute has long prison sentences

Pornography Ashcroft v. Free Speech Coalition (2002) U.S. Supreme Court upheld virtual child pornography Images created by computer simulations that make adults look like children In reaction to case, Congress passed legislation PROTECT Act of 2008 Contains provisions aimed at protecting children from sexual assaults, pornography, kidnapping, and other crimes

Pornography United States v. Williams (2008) U.S. Supreme Court upheld constitutionality of PROTECT Act Communications Decency Act (CDA) Criminalizes making indecent or patently offensive words or pictures available online where children can find them Ruled too broad in Reno v. American Civil Liberties Union (1997)

Pornography United States v. American Library Association (2003) U.S. Supreme Court upheld provision of Children’s Online Protection Act (COPA) Requires libraries to place filters on computers so children cannot have access to pornography when using library computers Adults may have filters removed Failure to comply with act results in loss of federal funds provided to libraries to enhance Internet access

Pornography: Sexting Teens also create and disseminate information considered to be pornographic Questions arise as to how to deal with issue Who is the victim? Are new statutes needed for this fact pattern?

Pornography: Revenge Porn Pornographic images published without permission of subjects One of the most recent categories of pornography Usually stem from couples breaking up and one or both parties publish pornographic pictures of other online for “revenge” Copyright law has proven a useful tool in dealing with issue in courts Criminal charges have also been successful