In
Re Banks
Supreme Court of
295 N.C. 236, 244 S.E.2d 386.
Facts: Banks was indicted under
the “Peeping Tom” statute. Banks argued
that the statute was unconstitutionally vague.
Issue: Is the “Peeping Tom” statute
void for vagueness?
Rule: In order to be constitutional,
a statute must clearly and “with a reasonable degree of certainty” tell persons who are subject to it what conduct is forbidden.
Analysis: The court identifies and
rejects two arguments made by the defendant:
1. The defendant
argues that the word “secretly” fails to clarify the intention of the statute. The court says that this word conveys a
definite idea that any reasonable intelligent person can understand.
2. The defendant
argues that the statute is unconstitutionally broad and could prohibit “innocent
conduct”. The court counters that the statute
is “sufficiently narrowed by judicial interpretation” that someone could not be
conviction of merely accidentally looking in someone else’s window.
Conclusion: The court upheld the statute
as constitutional.
Notes
and Questions
1. It doesn’t
seem as though the statute takes into account the defendant’s intent. Therefore, even if the defendant believed
that the victim wanted to be spied upon, he would still be guilty. The court seemed to add, out of the blue, the
concept that the spying is “wrongful” and that it is for the “purpose of
invading the privacy of the female occupant of the room”. Under this interpretation, the defendant
might not be found guilty if he can prove he didn’t have bad intent.
2. Maybe the
court was creating a new use for the same phrase. Despite its technical meaning, I think it can
be reasonably understood in this context and is relatively uncontroversial.
3. The
void-for-vagueness doctrine goes hand in hand with the presumption of
innocence. It seems that as a society we
find it desirable that regular law-abiding citizens not be forced to “steer
clear” of broadly defined criminal behavior, even if that means some clever
crooks will get away with bad behavior because of strict construction of the
criminal statutes.
4. It seems
ridiculous that people should read the criminal statutes. In practice, we usually say that “ignorance
of the law is no excuse”. I don’t think
we’re on safe ground if we predicate that principle on the fact that we publish
a list of all the crimes in a big book.
I think when people use this phrase, they mean
that you should have known that what you were doing was wrong whether or not
you ever looked at statutes. If there
wasn’t prior case law on the “abominable crime” statute, it would be hard to
argue that reasonable people would know what the heck they were talking about. “Gigli” might just as
well be the “abominable and detestable crime against nature”.
5. This seems to
take things further into the realm of the ridiculous. It also makes you wonder if you could
challenge a law on the books simply because it’s so old and obscure that nobody
remembers it. Maybe it would be
desirable for the sake of notice to have all criminal statutes expire after,
say, twenty years, at which point they must be considered again. Hopefully, the public would then take more
interest in the statutes and become more aware of their contents.
6. I think the statute
is rather clear in the most important sense: it defines conduct to be forbidden
that is clearly bad: it causes substantial emotional distress and
is intentional and malicious.
I cannot imagine legitimate conduct that would be accurately described
by the statute.
7. The court
seems to have three sides of its mouth.
In addition to the two mentioned, the court also says that between finding
a law constitutional and finding it unconstitutional, it must lean towards
finding it constitutional. It looks like
the doctrine of lenity has been severely limited, and legislative intent plays
a much bigger role.
8. Will strict
construal of criminal laws really prevent selective enforcement? Won’t bad cops still be bad?