February 6, 2008
Text Message is a "verbal" Communication in Criminal Statute
In State v. Ebersold, 2007 WI APP 232 (Wis. App. Oct. 25, 2007), the defendant high school teacher was accused of sending sexually explicit messages in an Internet chatroom to one his students. He was charged with violating Wis. Stat. 948.11(2)(am), which makes it a crime to "verbally communicate, by any means" certain accounts to someone under 18.
The court -- and I really am not making this up -- said that because "verbally" was not defined in the statute, it had to look to dictionaries. It then relied on Black's law dictionary, a 1999 Webster's dictionary, and some articles from bar journals that pointed out that, although "verbal" has "come to mean 'oral'" it really means "consisting of words."
And so, the court held that "verbal" was at best ambiguous, and so looked to the context, history and purpose of the statute and construed "verbal" to mean "oral or written". The court then rejected the argument that it was vague, saying that people of ordinary intelligence would have fair notice.
Hmmmm.... Now, maybe, just maybe, this is a closer question than it seems to me -- I bet if I surveyed 100 people 95 of them would say "verbal" means "oral" and excludes writing -- but even putting that tot he side, what about construing criminal statutes narrowly?
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