OBSCENE, THREATENING, OR HARASSING ELECTRONIC
COMMUNICATIONS - ELEMENTS
No person may be convicted of making obscene, threatening, or harassing electronic communications unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
Second, by means of an electronic communicaton device;
Third, making a comment/request/suggestion/proposal which is obscene as opposed to merely ungenteel or vulgar.
A comment/request/suggestion/proposal is obscene if: 1) the average person applying contemporary community standards would find that the comment/request/suggestion/proposal, taken as a whole, appeals to the prurient interest, 2) it depicts or describes sexual conduct in a patently offensive way, and 3) taken as a whole, it lacks serious literary, artistic, political or scientific value. For a definition of Sexual Conduct see OUJI-CR 4-139.
Third, making an electronic communication with intent to terrify/intimidate/harass/threaten to inflict injury/(physical harm) to any person/(property of a person).
Third, making an electronic communication with the intent to put the party called in fear of (physical harm)/death.
Third, making an electronic communication without disclosing the identity of the caller/sender;
Fourth, with the intent to annoy/ abuse/ threaten/ harass any person at the location receiving the electronic communication.
An electronic communication includes any type of telephone, electronic, or radio communication, or transmission of signals or data by telephone, cellular telephone, wire, cable, or wireless means, including the Internet, electronic mail, instant message, network call, facsimile machine, or communication to a pager.
Statutory Authority: 21 O.S. Supp. 2005, § 1172.
Notes on Use
Section 1172 also prohibits knowlingly permitting an electronic communication under the control of a person to be used for a purpose prohibited by the section and making repeated electronic communications in a conspiracy with other persons solely to harass a person at the called number. This Instruction should be appropriately modified if the defendant is charged with these types of criminal conduct. For a definition of harass, see OUJI-CR 4-31
Section 1172(A)(1) prohibits the making of any statement which is obscene, lewd, lascivious, filthy, or indecent. The Oklahoma Court of Criminal Appeals decided in Lenz v. State, 1987 OK CR 111, 738 P.2d 184, (Parks, J., specially concurring), that the statue did not prohibit mere ungenteel or vulgar language. Similarly, the United States Court of Appeals for the Sixth Circuit held in United States v. Landham, 251 F. 3d 1072, 1085-87 (6th Cir. 2001), that 42 U.S.C. § 223 (2000), a federal statute containing identical language had to belimited to prohibiting only obscene communications on account of the First Amendment to the United States Constitution. Accordingly, the first alternative in the Instruction is limitied to obscene statements, as opposed to merely ungenteel or vulgar statements. The definition of obscenity in the first alternative in the Instruction is based on the United States Supreme Court’s test in Miller v. California, 413 U.S. 15, 24 (1973).