Indecent Correspondence Pdf

[Stephani Kapnick]

Onthe trial of a person indicted for a violation of theprovisions of Rev.Stat. 3893, touching the mailing of obscene,lewd or lascivious books, pamphlets, pictures, etc., it iscompetent for a detective officer of the Post Office Department, asa witness, to testify that correspondence was carried on with theaccused by him through the mails for the sole purpose of obtainingevidence from him upon which to base the prosecution.

As the inspector testified that the signature was fictitious,and that the letter had been written in an assumed name, theopening by him of the sealed answer bearing the fictitious addresswas not an offense against that provision of the statute whichforbids a person from opening any letter or sealed matter of thefirst class not addressed to himself.

This case is here upon a writ of error sued out of the DistrictCourt of the United States for the Southern District of California,wherein the plaintiff in error was indicted, tried, convicted, andsentenced for violation of 3893, Rev.Stat., as amended by Act ofCongress of September 26, 1888, c. 1039, 2, 25 Stat. 496. Theindictment contained two counts, each of which alleged that in theyear 1893 at the City of Los Angeles, County of Los Angeles, theplaintiff in error

"did knowingly, willfully, and unlawfully deposit, and cause tobe deposited, in the United States post office at the said City ofLos Angeles, county and district aforesaid, for delivery, a certainobscene, lewd, and lascivious letter addressed to 'Mrs. SusanBudlong, box 661, Los Angeles, Cal.,'"

differed merely in that they described two different letters,alleged to have been dated, respectively, November 1 and November3, 1893, and to have been respectively deposited in the said postoffice November 2 and November 3, 1893.

"SEC. 3893. Every obscene, lewd or lascivious book, pamphlet,picture, paper, letter, writing, print or other publication of anindecent character, and every article or thing designed or intendedfor the prevention of conception or procuring of abortion, andevery article or thing intended or adapted for any indecent orimmoral use, and every written or printed card, circular, pamphlet,book, advertisement or notice of any kind giving information,directly or indirectly, where or how or of whom, or by what meansany of the hereinbefore mentioned matters, articles, or things maybe obtained or made, whether sealed as first-class matter or not,are hereby declared to be nonmailable matter, and shall not beconveyed in the mails from any post office, nor by any lettercarrier, and any person who shall knowingly deposit, or cause to bedeposited, for mailing or delivery anything declared by thissection to be nonmailable matter, and any person who shallknowingly take the same or cause the same to be taken from themails for the purpose of circulating or disposing of, aiding in thecirculation or disposition of the same, shall, for each and everyoffense, be fined upon conviction thereof not more than fivethousand dollars, or imprisonment at hard labor not more than fiveyears, or both at the discretion of the court, and all offensescommitted under the section of which this is amendatory, prior tothe approval of this act, may be prosecuted and punished under thesame in the same manner and the same effect as if this act had notbeen passed, provided that nothing in this act shallauthorize any person to open any letter or sealed matter of thefirst class not addressed to himself."

The defendant demurred to the indictment on the ground that thefacts stated therein did not constitute an offense against the lawsof the United States. The demurrer was overruled, and the defendantthen pleaded not guilty.

The evidence adduced at the trial tended to prove that one M. H.Flint, a United States post office inspector, having seen in theLos Angeles Herald a certain advertisement bearing the address,"Spero, Box 60, this office," mailed to that address a letterreferring to the subject of the advertisement, signed "Susan H.Budlong, P.O. box 661, Los Angeles, Cal.," and received in answerthereto, through the post office at Los Angeles, a letter signed"Spero," being the letter described in the first count of theindictment; that Flint then sent another letter, signed as above,and, having received an answer thereto signed "Spero," wrote athird time, and afterwards received out of the said post office aletter signed "A.D.A. 313 N. Broadway," being the letter describedin the second count of the indictment. All the letters so receivedby Flint were enclosed in plain sealed envelopes, neither of whichbore any writing save the address. Evidence was also introducedtending to connect the defendant with the mailing of theletters.

At the conclusion of the evidence for the government, thedefendant moved the court to instruct the jury to acquit him on theground that, if any offense had been committed, it had been done atthe request of Flint, a government officer, and on the ground thatthe evidence was insufficient to connect the defendant with thealleged offense. The motion was denied by the court, to whichruling the defendant excepted. The defendant then put in testimonytending to prove his good character and to countervail thegovernment's evidence to the effect that the said letters weremailed by him.

At the close of all the testimony, the defendant requested thecourt to give the jury certain instructions, which request wasrefused. Other instructions were given instead, which do not appearin the record. To the court's refusal to give the instructionsproposed by the defendant, and to the giving of other instructions,the defendant excepted.

Today, 11th November 2022, marks 100 years since the birth of Kurt Vonnegut. Most\u2014but not all\u2014of the following excerpts come from Kurt Vonnegut: Letters, a superb collection of Vonnegut\u2019s correspondence ably edited by his friend, Dan Wakefield. According to a sum I just did, that book was published a deca\u2026

This guidance is intended to assist prosecutors to deal with offences which are committed by communicating something by any means, whether electronically (e.g. social media, email, text) or otherwise.

Prosecutors should bear in mind that communications may also involve differing types of misconduct including (but not limited to): offences against the person, public justice, sexual or public order offences, contempt of court and harassment, stalking and controlling or coercive behaviour.

In addition to the specific communications offences above, a number of other offences may also be committed by communicating something. It is imperative where there is a choice of charges that prosecutors apply section 6 of the Code for Crown Prosecutors to charge selection decisions.

CCP or HoD approval is not required for a decision to take no further action or to stop a prosecution involving a grossly offensive communication or to amend a communications offence (e.g. from grossly offensive to menacing). CCP or HoD authority is also not required for a decision to charge/NFA/stop a prosecution for a communications offence involving an indecent, obscene, menacing, or threatening message.

Referral to the CCP or HoD should take place in advance of the first Court hearing for all bail cases. If that is not practicable for overnight remand cases, referral to an SDCP or DCP should take place before the first Court hearing and approval should be sought from a CCP within 7 days of charge.

When charging offences under section 1 MCA 1988 or section 127 CA 2003, it is good practice to particularise in the charge which specific limb of the offence applies: whether the communication is alleged to be grossly offensive, or indecent, or menacing, etc.

In Chambers v DPP [2012] EWHC 2157, the defendant posted a message on Twitter suggesting he would blow up Doncaster Airport. That was held to constitute a message sent under section 127(1)(a), even if that message may not have been accessed immediately but by a subsequent search. The Court noted that posting a message generally to Twitter, not for the attention of a specific individual or group, which was then stored electronically, was still an offence.

In R (on the application of Alison Chabloz) v Crown Prosecution Service [2020] 1 Cr App R 17, the defendant (who had an internet blog) posted hyperlinks to YouTube where she had uploaded videos of herself singing grossly offensive anti-Semitic songs. Her convictions for offences under section 127(1)(a) and (1)(b) were upheld by the Court of Appeal, which noted that the purpose of section 127(1) was to prohibit the use of a public electronic communications network to contravene basic standards of public decency. The offence did not depend on the message being received, but was complete when it was sent. The court followed DPP v Collins [2006] UKHL 40. The potential recipients of a message posted on the internet were members of the public. It was immaterial that an accused might have intended only that a message should be read by a limited class of people.

In the case of DPP v Bussetti [2021] EWHC 2140 (Admin), the Divisional Court held that, in order to cross the threshold for this offence, the message must have been "not simply offensive but grossly offensive. The fact that the message was in bad taste, even shockingly bad taste, was not enough".

Subject to the 3-year summary time limit in section 127(5) CA 2003, for communications offences committed prior to 31 January 2024 it is an offence to send, or cause to be sent, via a public communications network, a message which the defendant knows to be false.

Under section 127(2)(c) CA 2003, a person may be guilty of an offence by persistently making use of a public communications network for the purpose of causing annoyance, inconvenience or needless anxiety to another person.

In the case of Scottow v CPS [2020] EWHC 3421 (Admin), the defendant posted a total of 16 messages on Twitter and Mumsnet during 2018-2019 about the complainant, a transgender woman who had a public profile as an activist and advocate on transgender rights. The issue was whether the defendant had 'persistently' sent messages with the required purpose.

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