Crank or Obscene Telephone Calls
Crank or Obscene Telephone Calls
If you have been charged with the offense of making Crank or Obscene Telephone Calls please call or email me as soon as possible. Like nearly every other type of criminal charge, it is critical to be proactive and take some action to defend yourself before your next court date.
Rhode Island law, by statute, punishes two (2) distinct types of offenses under a single statute titled Crank or Obscene Telephone Calls. These offenses are considered misdemeanors. The Crank or Obscene Telephone Calls statute reads in part, as follows:
Whoever originates a transmission by a telecommunication device or telephones any person repeatedly for the sole purpose of harassment, or whoever originates a transmission by a telecommunication device or telephones a person for the purpose of using any threatening, vulgar, indecent, obscene or immoral language over the telephone is guilty of a misdemeanor.
The Crank or Obscene Telephone Calls statute criminalizes certain types of protected speech, or speech that would be otherwise not criminal, because the speech is transmitted electronically. The constitutionality of this Crank or Obscene Telephone Calls statute and others like it across the country have been challenged on the basis that protected speech has been criminalized. Courts have traditionally upheld these types of Crank or Obscene Telephone Calls statutes, not to criminalize certain types of protected speech, but to criminalize the manner in which the otherwise perfectly legal speech is transmitted. If that sounds intellectually dishonest to you, well, I agree with you.
In my estimation, under the Rhode Island Crank or Obscene Telephone Calls statute, if a Defendant makes one (1) or possibly two (2) telecommunication transmissions for the sole purpose of harassment, said Defendant should be found not guilty if charged. However, once a Defendant makes three (3) or more telecommunication transmissions for the sole purpose of harassment, then said Defendant runs the very real risk of being convicted if charged.
It also means that it only takes a one (1) telecommunication transmission for the purpose of using threatening, vulgar, indecent, obscene or immoral language to be convicted if charged.
The Rhode Island Supreme Court has on several occasions addressed what this Crank or Obscene Telephone Calls statute means. In each instance the Court has stated that the Crank or Obscene Telephone Calls statute is disjunctive and criminalizes telephoning another person for the purpose of either:
(1) For the sole purpose of harassing, or
(2) For the purpose of using threatening, vulgar, indecent, obscene or immoral language.
According to the Court it is up to the prosecution to prove beyond a reasonable doubt that at the time a Defendant initiates a transmission, he has to have the intent to violate the Crank or Obscene Telephone Calls statute. For example, if a telecommunications transmission begins normally but later becomes threatening or obscene, a jury or a judge sitting without a jury could infer, from the totality of the evidence that the Defendant, when he originated the transmission, intended to engage in misconduct.
In my judgment this Crank or Obscene Telephone Calls statute and the Rhode Island Supreme Court cases that address this statute are a little out of date. Technology has passed it by. The General Assembly has attempted to catch up by passing the Cyberstalking statute, but that statute is aimed at different conduct than the type of conduct proscribed by this Crank or Obscene Telephone Calls statute.
That said, what is really troubling about this Crank or Obscene Telephone Calls statute is the proliferation of text messaging, especially in cases involving Domestic Violence and Domestic No Contact Orders.
A text message is, in the strictest sense, a telecommunication transmission. Consequently, in my estimation, a text message is the same thing as an actual telephone conversation for the purposes of this Crank or Obscene Telephone Calls statute.
It is easy to imagine a case where Defendant has been charged with Domestic Disorderly Conduct. At the Defendant’s arraignment he may be released from custody, but a Domestic No Contact Order will be issued and the Defendant will be ordered to have no contact with the alleged victim. This means that the Court, by operation of law, issues a Domestic No Contact Order.
A Domestic No Contact Order prohibits the Defendant from having any contact at all with the alleged victim. Any violation of the Domestic No Contact Order results not only in a new criminal charge, but also in having the Defendant’s bail revoked. This means that the Defendant will be held without bail at the state prison pending the outcome of a Bail Violation hearing.
It is also easy to imagine a scenario where the alleged victim is furiously angry with the Defendant who has been charged with Domestic Disorderly Conduct. If the alleged victim has the Defendant’s cell phone in his possession, he could send himself a threatening text message from the Defendant’s cell phone. Or worse yet, there are applications that can be downloaded where a person can send himself a text message but make it appear as if the text message is coming from another person’s cell phone.
That is pretty scary, especially for people who are on bail and are the subject of a Domestic No Contact Order.