1. Crimes Against Public Order and Public Decency
Chapter 8

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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)

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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. P (M.D.Fla. 1993)
May be unconstitutional

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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)

38. 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

39. 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?

40. 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