CRIMINAL LAW ESSAY EXAMINATION #5

Question #1

Michael Smith was canoeing down the Rifle River in Michigan with his wife and two children. About forty yards ahead of him, there was a group of people traveling down the river together. The group consisted of five canoes. Timothy Boomer was in one of the five canoes. Smith saw Boomer fall out of his canoe and into the river, at which point Boomer loudly uttered a stream of profanities, while slapping the river and throwing his hands into the air.
Kenneth Socia, a road patrol deputy for the Sheriff’s Department, who was on duty at the Rifle River that day, heard a loud commotion and vulgar language coming from approximately one-quarter mile up the river. Socia looked up and saw Boomer chasing a group of canoes, splashing water at them with his paddle, and repeatedly swearing at them.

The river around Smith and Boomer was crowded with families and children. Smith says that Boomer would have been able to see Smith’s two children, who were both under five years old. Socia issued Boomer a citation for violating the following Michigan statute:
Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.
This statute was enacted in 1897. In the one hundred year-plus history of the statute, there are no published cases addressing the statute.
At his arraignment on the misdemeanor charge, Boomer moves to dismiss the charge. What arguments can he make in support of his motion? What arguments might the prosecution make in response?

View Answer

I. State v. Boomer
1. Void for Vagueness
Timothy Boomer will argue that the Michigan statute violates the due process clause of the U.S. Constitution because it is void for vagueness. A statute can be void for vagueness in one of three ways: (1) the statute is so unclear that ordinary persons have to guess at its meaning; (2) the statute is overly broad in that it includes innocent conduct;
(3) the statute allows for unfettered police discretion.
Boomer will argue that the words “indecent,” “immoral,” “obscene,” “vulgar,” and “insulting” are so unclear that a law-abiding human being would not know what behavior was precluded. For example, words that are “insulting” to one person may be simply humorous to another. If a person told a joke involving a rabbi and a priest, for example, some might find that “indecent” or “immoral,” while others would find it normal humor. The meaning of the words turns too much on the sensibilities of the individual. They do not have common meanings to which all agree.
Mr. Smith will also argue, for many of the same reasons already stated, that the language of the statute is overly broad. Purely innocent commentary can be taken as “insulting” or “vulgar” depending upon the listener. Also for the same reasons, the statute allows for unfettered police discretion on whom to arrest, since the arrests will turn on the own individual officer’s definition of what is “insulting” or “indecent.” This is not unlike the unfettered discretion given to officers in Chicago v. Morales in defining when a person is loitering “with no apparent purpose.”
While in 1897, it might have been clear to the framers of the statute what would be “insulting” or “vulgar” to say in the presence of women and children, we do not have that statutory history available, and, in any case, as times have changed dramatically since then, it would be a violation of due process to hold persons liable for making statements that no longer carry that meaning.
The prosecution may respond to this argument that the average person understands what would be insulting to a woman or children, just as the dissent argued in Chicago
v. Morales that the average person knows when they are loitering with no apparent purpose. For example, in this case, when Timothy Boomer fell into the water and cussed, these words are universally unacceptable in mixed company. However, this argument will be problematic since Smith will be arguing that the statute is void on its face and not just in application to his case.
2. Mens rea as to attendant circumstance
Boomer can argue that he had no idea there were women and children around. To do this, however, he needs to argue that the statute contains some sort of mens rea that applies to “in the present or hearing of any woman or child.” This will be impossible, since, at the most, he may be able to argue that the common law dictates that a crime carry a mens rea of at least recklessness, but that mens rea would apply only to the nature of conduct element of the crime, which is “using” the indecent language. Clearly, he was not only reckless about using vulgar language, but purposeful. However, the common law presumes that mens rea does not apply to the attendant circumstance of “in the presence of . . .”. This presumption makes sense here since the law was meant to prohibit offending women and children and so a person would be at their own risk, if they used offensive language, to be sure there were no women or children present. If this statute were strict liability (which could be argued in
that it is a misdemeanor offense dealing with an issue of public welfare), the attendant circumstance would obviously still be strict liability.

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