CRIMES AGAINST PUBLIC ORDER & MORALS

Crimes against public order and morals are intended to uphold minimum standards of decency and civility. Most of them have ancient roots, but in modern times have come to be associated with efforts to improve the quality of life, as in watchman-style community policing. The range of behaviors that quality of life laws govern is vast -- from public nuisances, to public indecencies, to public immoralities, to controlled substance use. They are usually general intent crimes where the inference of intent (purposely, knowingly, recklessly) is typically made by a judgment of offensiveness to some reasonable person's sensibilities. In other cases, like those involving substance abuse, they are usually strict liability crimes.

PUBLIC NUISANCES

The crime of "making a public nuisance" is typically defined as an offense against, or interfering with, the comfortable enjoyment of life or property by a neighborhood or considerable number of people. The law in this regard is often aimed at controlling unlawful congregations and assemblies. The First Amendment right to assembly is not absolute.

Under common law, an unlawful assembly is a gathering of three (3) or more persons for any unlawful purpose or under such circumstances as to endanger the public peace or cause alarm and apprehension. The full set of related crimes increase in seriousness as the number of people go up:

• Affray -- 2 or more people spontaneously quarreling or fighting

• Dueling or fighting -- 2 or more people gathering for a fight; with dueling reserved for persons of high social status

• Unlawful assembly -- 3 or more people, for any unlawful purpose

• Rout -- When unlawful assemblers move toward a place where they could carry out any unlawful purpose or plan

• Riot -- 10 or more people, and any tumultuous disturbance (tumultuous is a word with many meanings - noisy, disorderly, excited, rowdy, unruly, wild, hysterical, frantic, uproarious, chaotic)

Another common nuisance crime is breach of peace, commonly called "disturbing the peace" or disorderly conduct. Disturbing the peace usually involves minor offenses involving noise at decibels greater than 85; such as playing a stereo too loudly. Disorderly conduct, on the other hand, can involve a wide range of behaviors, such as:

• fighting, threatening, or engaging in tumultuous behavior

• loud, unreasonable noises that would disturb a sensible person

• vulgar words or gestures likely to provoke a violent reaction

• obstructing a public access route or conveyance

• interfering with a lawful meeting, procession, or gathering

• creating a chemically noxious and unreasonable odor

• lascivious looking into the window or opening of a dwelling

• exposing one's anus or genitals to the view of others

• urinating or defecating in any place open to public view

Often a city or state government will use public nuisance laws to control gang behavior. Other states rely upon organized crime statutes. Harsh penalties exist for encouraging minors to join a gang and aggravating factors exist for gang-related felonies. The following is a sample of public nuisance laws aimed at the crime of engaging in gang activities:

• confronting, intimidating, annoying, harassing, threatening, challenging, provoking, or assaulting any residents or patrons in groups of 3 or more

• standing, sitting, walking, driving, or gathering with any known gang member

• using words, phrases, gestures, clothing, or symbols commonly known as gang signs

• using or possessing pagers or beepers in a manner tending to indicate participation in the possession and/or sale of narcotics

• using or possessing marker pens, spray paint, or other objects capable of defacing property

• approaching any vehicles, engaging in conversation with the occupants of any vehicles and doing nothing to prevent the obstruction or delay of vehicular or pedestrian traffic

• possessing any weapons capable of inflicting serious bodily injury

• trespassing or encouraging others to trespass

• blocking free access or egress to sidewalks, streets, driveways, or doorways

• signaling to or acting as a lookout to warn others of police approach

To be sure, many jurisdictions prefer not to even recognize gang activity by making a legal offense about it. Gangs often thrive on a renegade status bestowed upon them by the adverse publicity of law enforcement crackdowns. Therefore, many jurisdictions prefer to incorporate the above gang activity indicators into civil abatement statutes.  This involves using court-ordered injunctions to command a group to stop doing something, or be held in contempt.

Use of civil abatement has advantages for other types of public nuisances related to public health concerns, such as:

• Closing down bars, bathhouses, and theaters where high-risk sexual activities have been observed (AIDS-virus breeding ground laws)

• Quarantine of places and persons associated with unsafe sex practices, such as "per hour" hotels and prostitutes (mandatory testing laws)

• Regulation and rezoning of adult bookstores (urban blight laws)

• Bulldozing crack houses (condemned property laws)

PUBLIC INDECENCIES

For centuries, vagrancy and loitering laws have been used to protect society against the moral pestilence of vagabonds, paupers, and beggars just as if society was guarding itself against physical pestilence. The crime of vagrancy is committed by wandering about from place to place without any visible means of support, refusing to work even though able to do so, and living off the charity of others. Vagrancy laws are much broader than disorderly conduct laws. Some states use the term loitering rather than vagrancy, which is often defined as being in a place, at a time, and in a manner not usual for law-abiding individuals, and under circumstances that warrant alarm for the safety of persons or property in the vicinity. 

Most vagrancy and loitering laws (with the exception of curfew and truancy laws) have been held void for vagueness. They also tend to make the status of being poor a crime. According to the equal protection clause of the Constitution, things with the protection of status are not acts that can be criminalized. Indecency laws that remain on the books are always at risk of infringing upon a status group, but some that have not yet been declared unconstitutional are:

• Abuse of animals -- Many states, like North Carolina, have a large number of crimes against nature statutes. Most of these are for abuses against animals and/or protecting the pets of one's neighbors.

• Abuse of corpse -- This is the crime of treating a corpse in any way that would outrage family sensibilities. Most cemetery crime is also covered by "desecration of venerated objects" laws which allow the element of outrage against the sensibilities of anyone likely to observe or discover the actions.

• Appearing nude in public -- This is the prototypical public indecency. Some states require it be "lewd" or "suggestive" which means obscene display of genitalia.

• Panhandling or begging -- Blanket prohibitions against these acts are not constitutional; prohibitions against aggressive panhandling are. A belligerent, angry panhandler who follows a person who has refused to give money would be an example of aggressive panhandling. Courts have also upheld "unfriendly" panhandling as aggressive.

• Public intoxication -- The Courts have ruled that chronic alcohol and drug addiction are acts, not statuses. Some states, however, have ruled that jailing drunks violates the state constitution. Other states maintain the criminal statute but emphasize treatment or rehabilitation.

• Sleeping in public -- This has been challenged on the grounds that homelessness is a status deserving of strict scrutiny under equal protection analysis as a fundamental right to travel as one sees fit. The issue holds a precarious position in the courts, so most jurisdictions use disorderly conduct or civil abatement with their homeless problems.

• Urinating in public -- This is a crime that is enforced with discretion, being tolerated in some run-down parts of town and not in others.

PUBLIC IMMORALITIES

Most jurisdictions hope to regulate public immoralities to some extent, but they commonly fall back on simply prohibiting something and then failing to enforce their prohibitions. This means that there are tolerated "vice" zones in most American cities, and also problems inherent with "unenforceable" laws that erode legality and legitimacy. Most of the crimes in this area are private and consensual. They are criminal not because there's a "victim" in the usual sense, but because the volitional behavior of both parties to the crime offends societal notions of morality.

Crimes in this area tend to fall into two main categories: (1) regulation of marital status and sexual behavior; and (2) regulation of sex-related vice.

REGULATION OF MARITAL STATUS & SEXUAL BEHAVIOR

Adultery and Fornication involved the same act of sexual intercourse when being out of wedlock, the former offense when at least one of the partners is married. Prosecution of these crimes is so rare as to make the laws nonexistent.

Bigamy law prohibits a person from having more than one spouse at the same time.  Most states allow a good faith exception if it was believed a previous spouse was dead or a previous marriage dissolved. No mens rea is required for this offense. Muslims and Mormons have historically practiced polygamy, but the former usually do not do so in the U.S. and authorities are sometimes reluctant to prosecute the latter.

Buggery or Bestiality is any type of sexual intercourse with an animal, or, in some states, anal intercourse with a man or women.

Cohabitation requires no proof of sexual intercourse. It's just "living together" outside of wedlock. It's the least prosecuted public order crime.

Incest law prohibits sexual intercourse between a male and a female who are too closely related. Typically, any relationship (or consanguinity) of being first cousins or closer is included as incest. The law tends to base relationship on family ties, not genetic ties. Therefore, adopted and "step" relatives are included.

Miscegenation is the intermarriage (and in some states living together) of persons of different races, generally white and black. All such statutes have been struck down by the Supreme Court.

Sodomy has traditionally been a catchall term for any "unnatural" sexual intercourse, and similarly, for any type of homosexual activity. Some states have abolished their sodomy statutes, and in those states where they are still on the books, questions about discrimination against homosexuals remain.

REGULATION OF SEX-RELATED VICE BEHAVIOR

Prostitution is legal in parts of Nevada, but illegal (although tolerated) throughout the rest of the U.S., especially in certain "vice zones" where some communities have approached the problem by charging prostitutes with trespass if found outside the tolerated areas. Prostitution laws vary, as do definitions of the term "prostitute".

The typical elements of prostitution are:

1. Offering to engage or soliciting in --  This is any offer of agreement, or in the case of soliciting, getting another to make the offer of agreement.

2. Any sexual contact -- This generally includes any kind of contact with the genitals; it's questionable from a constitutional standpoint if self-masturbation (as in peep show) constitutes prostitution.

3. For a fee -- This is generally accomplished by exchange of money.

Obscenity laws are enforced with variable success, and are unofficially tolerated if kept within certain "vice zones" where some communities have approached the problem by manipulating zoning ordinances and business permits. The Supreme Court in recent years has been accepting numerous obscenity cases, and the Communications Decency Act of 1996 doubles the penalties if computers are used to transmit child pornography, among other things.

The typical elements of obscenity are:

1. Average person -- This is the reasonable man standard.

2. Applying contemporary community standards -- This refers to local norms about what is patently offensive. The material or performance must, as a whole, lack serious literary, artistic, political, and scientific value.

3. Appeal to prurient interest in sex -- This means that there's a one-sided, almost obsessive, fascination with sex. Generally, this involves masturbation, excretory functions, sadism, masochism, lewd depictions of genitalia, genitalia in a state of arousal or turgid state, or depiction of a device designed primarily for genital stimulation.

CONTROLLED SUBSTANCES

The federal government and all 50 states have controlled substance acts that are quite uniform in nature. Under such laws, it's a crime to do any of the following:

• manufacture or deliver a controlled substance

• possess a controlled substance

• possess with intent to manufacture or deliver

• create, deliver, or possess with intent to deliver a counterfeit

• offer or agree to deliver and then deliver something not a substance

• keep a dwelling or property resorted to by persons using substances

• acquire possession of a substance by misrepresentation or deception

Some states follow a "trace amount" rule which doesn't require the amount to be usable; other states follow a "usable amount" rule. Possession can be either actual or constructive (if within an accessible area of control). Intent to deliver is determined by the quantity of drugs (and, among other things, if baggies are present and any lists of customers). Delivery is generally the transfer of drugs from a supplier to a dealer or distributor, and from a dealer or distributor to a user. Possession is usually a misdemeanor while delivery is usually a felony.

INTERNET RESOURCES:
A Guided Tour of the War on Drugs
Ain't Nobody's Business if You Do
Panhandling and Aggressive Panhandling
San Francisco Task Force on Prostitution
Summary of Key Obscenity Cases

PRINTED RESOURCES:
Gardner, T. & T. Anderson (1996) Criminal Law. Minneapolis: West.
Reid, S. (1998) Criminal Law. Boston: McGraw-Hill.
Samaha, J. (1999) Criminal Law. Belmont, CA: West/Wadsworth.
Skelton, D. (1998) Contemporary Criminal Law. Boston: Butterworth-Heinemann.

Last updated: 06/19/03
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