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Appeals Court fine-tunes definition of ‘obscene’

Holding that “obscene” means more than just “pornographic,” the en banc Court of Appeals of Virginia has affirmed the conviction of a Texas doctor who persistently harassed his estranged wife with vulgar emails.

While completing medical training in Texas in 2009, Dennis Barson sent scores of graphic email messages to his wife in Virginia Beach, accusing her of drug use and sexual promiscuity. Barson acknowledged his language was “offensive and coarse,” but he testified he was angry, hurt and embarrassed to find his wife had placed an ad for sex on Craigslist.

The wife charged Barson with computer harassment under Virginia law. He was convicted both in district court and circuit court. Imposing a $250 fine, Virginia Beach Circuit Judge Edward W. Hanson Jr. said, “He did it over and over and over again. It’s disgusting.”

On appeal, Barson argued his language did not meet the legal definition of “obscene,” pointing to a 2004 Court of Appeals decision. In that case, the court decided a client’s vulgar voice mail message to his lawyer was not obscene because it was not primarily an appeal to a prurient interest in sex.

That test was too narrow, an eight-member majority decided last week. While “obscenity” and “pornography” may occasionally be used interchangeably, “they are not actually interchangeable,” the court said. A better definition of obscenity, the court said, would include the words “disgusting,” “offensive” and “revolting.”
Under the broader standard, Barson’s barrage of abuse qualified him for conviction, the court ruled.

“The messages Barson sent are replete with explicitly obscene accusations. The sheer number of messages sent, coupled with their content, adequately supports the trial court’s finding that the evidence was sufficient to a support a conviction for computer harassment,” wrote Judge Robert J. Humphreys.

The opinion is Barson v. Commonwealth, VLW 011-7-223.

Humphreys had been the dissenter in the court’s November 2-1 panel opinion overturning Baron’s conviction.

Judge Larry G. Elder dissented from last week’s en banc opinion, finding Barson’s language “utterly tasteless and rude” but not “obscene” under the terms of the prior Court of Appeals opinion.

Barson is a general practitioner in Austin, Texas, according to medical licensing records in Texas and Virginia.

By Peter Vieth

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