In Re Banks

Supreme Court of North Carolina, 1978.

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?


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