Charles Warren was “indicted for violating Georgia Code § 16–12–81, with the
indictment alleging that he sent an unsolicited text message containing
an image of his genitalia to an adult female without notifying her that the
message contained nudity.” Warren v. State, 755 S.E.2d 171, 294 Ga.
589 (Supreme Court of Georgia 2014).
Warren responded by filing “a general demurrer, arguing
that Georgia Code § 16–12–81 does not criminalize his conduct”. Warren
v. State, supra. After the trial judge denied his demurrer, Warren appealed
to the state Supreme Court. Warren v. State, supra.
According to the news story you can find here, Warren
texted the picture of his tattooed
penis in October 2012 to a woman who then complained to police. According to
prosecutors, Warren's genitals were tattooed with the phrase, `STRONG E nuf 4 A
MAN BUT Made 4 A WOMAN.’
On appeal, Warren argued that
the trial court erred in denying his
general demurrer to the indictment, because the act alleged in the indictment
-- the sending of a nude image of his genitals from his cell phone to the
victim's cell phone -- is not prohibited by Georgia Code § 16–12–81.
Warren v. State,
supra.
The Supreme Court began its analysis of the issues in the
case by noting that “`[w]hen analyzing a general demurrer, the question is
whether a defendant can admit to the conduct and still be innocent of the crime.’”
Warren v. State, supra (quoting Dorsey
v. State, 279 Ga. 534, 538, 615 S.E.2d 512 (2005)). It then explained that Georgia Code § 16-12-81,
which was enacted in 1970, see Ga. L.1970, p. 173, provides:
`(a) A person commits the offense of
distributing material depicting nudity or sexual conduct when he sends
unsolicited through the mail or otherwise unsolicited causes to be delivered
material depicting nudity or sexual conduct to any person or residence or
office unless there is imprinted upon the envelope or container of such
material in not less than eight-point boldface type the following notice:
`“Notice—The material contained herein
depicts nudity or sexual conduct. If the viewing of such material could be
offensive to the addressee, this container should not be opened but returned to
the sender.”’
Warren v. State,
supra.
The Supreme Court then began its analysis of Warren’s
argument by noting that Georgia Code § 16-12-81
is not inapplicable to electronic text
messaging merely because that form of communication did not exist when Georgia
Code § 16–12–81 was enacted in 1970. See Collins v. Mills, 198
Ga. 18, 22, 30 S.E.2d 866 (Georgia Supreme Court 1944) (holding that a `provision
of the constitution is to be construed in the sense in which it was understood
by the framers and the people at the time of its adoption,’ but that if new
products or circumstances that did not exist at the time the constitutional
provision was enacted fall within the meaning of the provision, the
constitutional provision applies to them).
Warren v. State,
supra.
The court then went on to explain that because the words of
Georgia Code § 16-12-81
at issue here are not `words of art or
words connected with a particular trade or subject matter,’ we look to the
ordinary meaning of those words at the time the General Assembly enacted the
statute in deciding whether the sending of an intangible text message comes
within the scope of the statute. See Georgia
Code § 1–3–1(b) (`In all interpretations of statutes, the ordinary
signification shall be applied to all words, except words of art or words
connected with a particular trade or subject matter, which shall have the
signification attached to them by experts in such trade or with reference to
such subject matter'); Collins v. Mills, supra. See also
Sandifer v. U.S. Steel Corp.,134 S.Ct. 870 (2014) (holding that, `unless otherwise defined, words will
be interpreted as taking their ordinary, contemporary, common meaning’ at the
time Congress enacted a statute and reviewing dictionaries from the era of the
statute's enactment to assist in determining its meaning (citation omitted)).
Moreover, under the canon of noscitura sociis, the words in Georgia Code § 16–12–81(a) should be
understood in relation to each other, since ‘[w]ords, like people, are
judged by the company they keep.’ Hill v. Owens, 292 Ga. 380,
738 S.E.2d 56 (Georgia Supreme Court 2013).
Warren v. State,
supra.
The Supreme Court then returned to the specific issue before
it, noting that the statute at issue
contains a specific prohibition against
sending unsolicited through the mail material depicting nudity or sexual
conduct without the required notice, followed by a more general prohibition
against `otherwise unsolicited caus[ing] to be delivered material depicting
nudity or sexual conduct to [a] person’ without the statutory notice.
The specific prohibition is clearly
aimed at tangible material that is delivered in a tangible manner, see
Webster's Third New International Dictionary 1361 (1966) (defining `mail’ as `the
bags of letters and the other postal matter conveyed under public authority from
one post office to another’), and because [Warren] did not send anything through
the mail, he did not violate this prohibition. The question is whether, as the
State argues, [Warren] violated the general prohibition.
Warren v. State,
supra.
The Supreme Court then took up this question, explaining
that when
[c]onsidering the general prohibition
in relation to the other words of the statute, we conclude that the general
prohibition is limited in the same manner as the specific. The notice provision
of the statute says that the notice `must be imprinted on the envelope or
container of such material.’ `Such material’ clearly refers to the `material
depicting nudity or sexual conduct’ described in the specific and general
prohibitions of the statute.
Thus, the statute contemplates that the
`material’ that is the subject of both prohibitions has an envelope or
container that can have the notice imprinted on it. At the time Georgia
Code § 16–12–81 was enacted, an `envelope’ was defined as `something that
envelopes: wrapper, container, receptacle’ and as `a flat flexible usu[ally]
paper container in many sizes and constructions made by die cutting and gluing
with an overlapped back seam and with bottom and closure flaps both adhering to
the back portion,’ Webster's Third New International Dictionary 759 (1966), and
a `container’ was defined as `one that contains: as . . . a receptacle (as a
box or jar) or a formed or flexible covering for the packing or shipment of
articles, goods, or commodities.’ Webster's Third New International Dictionary at
491.
In addition, `imprint’ meant `to mark
by pressure (as a figure on an object or as the object itself with the
figure).’ Webster's Third New International Dictionary at 1137. Given their
ordinary meaning, these words indicate that the general prohibition of Georgia
Code § 16–12–81, like the specific prohibition, addresses tangible material
that has a tangible envelope or container on which the required notice can be
imprinted.
This conclusion is reinforced by the
fact that the imprinted notice on the envelope or container must be in
`eight-point boldface type’ and must say that the `container’ should be
`returned’ to the sender if the addressee does not want to `open’ it.
We thus conclude that the general
prohibition of the statute does not apply to the text message that [Warren]
sent in this case. The trial court therefore erred in denying [Warren’s]
general demurrer to the indictment.
Warren v. State,
supra.
The court ended its opinion by noting that
to the extent that it can be argued
that after applying the traditional canons of statutory construction, it is
unclear whether the statute applies to [Warren’s] conduct, the rule of lenity
would require us to give him the benefit of the doubt. See Harris v.
State, 286 Ga. 245, 686 S.E.2d 777 (Georgia Supreme Court 2009).
Warren v. State,
supra.
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