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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 of fenses
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
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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 of fenses 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 of f
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 Cour t (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 of fenses 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 of fenses 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 traf fic 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 dif fer 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 of fenders, but others also
include men
 Of fense may include not only prostitute but also any persons
who solicit or promote the business of prostitution or who live
of f 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
OBSCENIT Y, LEWDNESS, AND INDECENCY
 Behavior defined by a number of terms
 Describes variety of behaviors some people find of fensive
 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 dif ficult 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
OBSCENIT Y
 Court has had dif ficulty 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
OBSCENIT Y
 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
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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
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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