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La. R.S. 14:91.5 is unconstitutional on its face because it violates the Free Speech Clause of the Louisiana Constitution (Article I, Section III) and the Free Speech Clause of the United States Constitution (First Amendment). La. R.S. 14:91.5 is a Louisiana statute still in effect that criminalizes the use of a social networking website by sex offenders. Even the First Amendment of the United States Constitution and Article I, Section III of the Louisiana Constitution both protect registered sex offenders in having the right to engage in public discourse and speech.
The statute at issue, La. R.S. 14:91.5, reads as follows: “§91.5. Unlawful use of a social networking website A. The following shall constitute unlawful use of a social networking website: (1) The intentional use of a social networking website by a person who is required to register as a sex offender and who was convicted of R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.3 (computer-aided solicitation of a minor), or R.S. 14:283 (video voyeurism) or was convicted of a sex offense as defined in R.S. 15:541 in which the victim of the sex offense was a minor. (2) The provisions of this Section shall also apply to any person convicted for an offense under the laws of another state, or military, territorial, foreign, tribal, or federal law which is equivalent to the offenses provided for in Paragraph (1) of this Subsection, unless the tribal court or foreign conviction was not obtained with sufficient safeguards for fundamental fairness and due process for the accused as provided by the federal guidelines adopted pursuant to the Adam Walsh Child Protection and Safety Act of 2006. B. For purposes of this Section: (1) "Minor" means a person under the age of eighteen years. (2)(a) "Social networking website" means an Internet website, the primary purpose of which is facilitating social interaction with other users of the website and has all of the following capabilities: (i) Allows users to create web pages or profiles about themselves that are available to the general public or to any other users. (ii) Offers a mechanism for communication among users. (b) "Social networking website" shall not include any of the following: (i) An Internet website that provides only one of the following services: photo-sharing, electronic mail, or instant messaging. (ii) An Internet website the primary purpose of which is the facilitation of commercial transactions involving goods or services between its members or visitors. (iii) An Internet website the primary purpose of which is the dissemination of news. (iv) An Internet website of a governmental entity. (3) "Use" shall mean to create a profile on a social networking website or to contact or attempt to contact other users of the social networking website. C.(1) Whoever commits the crime of unlawful use of a social networking website shall, upon a first conviction, be fined not more than ten thousand dollars and shall be imprisoned with hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence. (2) Whoever commits the crime of unlawful use of a social networking website, upon a second or subsequent conviction, shall be fined not more than twenty thousand dollars and shall be imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence. Acts 2011, No. 26, §1; Acts 2012, No. 205, §1” In 2011, Louisiana enacted a statute making it a felony for a class of registered sex offenders to engage in “[t]he intentional use of a social networking website by a person who is required to register as a sex offender and who was convicted of R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.3 (computer-aided solicitation of a minor), or R.S. 14:283 (video voyeurism) or was convicted of a sex offense as defined in R.S. 15:541 in which the victim of the sex offense was a minor.” La. R.S. 14:91.5(A)(1). “Use” under the statute “[means] to create a profile on a social networking website or to contact or attempt to contact other users of the social networking website.” La. R.S. 14:91.5(B)(3). A “social networking website” is defined as “an Internet website, the primary purpose of which is facilitating social interactions with other users of the website” and meets two capabilities. First, the website must “[allow] users to create web pages or profiles about themselves that are available to the general public or to any other users.” La. R.S. 14:91.5(B)(2)(a)(i). Second, the website must “[offer] a mechanism for communication among users.” La. R.S. 14:91.5(B)(2)(a)(ii). The statute includes four exceptions. First, the statute does not reach websites that “[provide] only one of the following services: photo-sharing, electronic mail, or instant messaging.” La. R.S. 14:91.5(B)(2)(b)(i). Second, the statute does not reach websites for which “the primary purpose of which is the facilitation of commercial transactions involving goods or services between its members or visitors.” La. R.S. 14:91.5(B)(2)(b)(ii). Third, the statute does not reach websites for which “the primary purpose of which is the dissemination of news.” La. R.S. 14:91.5(B)(2)(b)(iii). Fourth, the statute does not reach websites “of a governmental entity.” La. R.S. 14:91.5(B)(2)(b)(iv). La. R.S. 14:95.1 punishes the “use” of a social networking website and arguably can be construed as punishing only conduct; however, the “use” of a social networking website like Facebook is almost always as a means of expression, as every Facebook user knows and as is common knowledge. Facebook users invariably comment and post on what other active users do as well as read content posted by others. In fact, the whole premise of Facebook is built around interaction with other “friends” and members of the public in an online forum. The same argument can be made about similar social media sites Instagram, Twitter, etc. Undoubtedly, La. R.S. 14:91.5 proscribes a substantial amount of constitutionally protected expression and conduct. “[T]he sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002). A legislature “may pass valid laws to protect children” and other victims of sexual assault “from abuse.” See id., at 245; accord, New York v. Ferber, U.S. 747, 757 (1982). However, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” Stanley v. Georgia, 394 U.S. 557, 563 (1969). It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition, U.S., at 255. While enacted with good intentions, La. R.S. 14:95.1 invariably suppresses a substantial amount of lawful speech and conduct in an effort to suppress unlawful speech and conduct. In fact, La. R.S. 14:95.1 criminalizes in a blanket fashion all use of social networking websites by a certain class of sex offenders with no regard to the type of use. In doing so, La. R.S. 14:91.5 does not even purport to have a pretense of “narrow tailoring” of the statute’s prescribed conduct to the government’s legitimate interest in protecting children. The statute arbitrarily burdens all registered sex offenders within a class by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal. With one overbroad stroke, Louisiana prevents access and use to what for many people is a principal source for knowing current events, checking ads for employment, conducting business, speaking and listening, and otherwise exploring the vast realms of human thought and knowledge. Fortunately, although Louisiana Revised Statute 14:91.5 is still in effect, the United States Supreme Court has already addressed the crux of the issue presented in this blog post in a similar case. In Packingham v. North Carolina, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017), the United States Supreme Court unanimously reversed, in an 8-0 decision on First Amendment grounds, a conviction of a registered sex offender under a North Carolina law that made it a felony for a registered sex offender to access a commercial social networking web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal web pages. In Packingham, the petitioner was convicted for having used Facebook with no allegation that he used the website to facilitate the sexual abuse of any children or anyone for that matter. Id. La. R.S. 14:91.5 and the North Carolina statute at issue in Packingham are similar in so many ways that the same rationale employed in Packingham to strike down the North Carolina statute can easily be employed to strike down La. R.S. 14:95.1. If you or someone you know has been unlawfully arrested under La. R.S. 14:91.5, contact a competent attorney who understands the constitutional dimensions of La. R.S. 14:91.5 and can help you fight back against government overreach. Do not let your constitutional rights be violated. La. R.S. 14:81.4, Prohibited Sexual Conduct between an Educator and a Student, is arguably unconstitutional. Notably, this statute only criminalizes sexual conduct between an educator and a student of the age of consent. To the extent that La. R.S. 14:81.4 criminalizes the performance of private, consensual, non-commercial acts of sexual intimacy between individuals otherwise legally capable of consent, La. R.S. 14:81.4 is arguably unconstitutional.
Allow me to illustrate some of the ramifications of this law. Suppose Jane Doe is a student at School A, and Teacher Jack is a teacher at that same school. Teacher Jack is not a teacher of Jane and does not have any classes with Jane because she is only taught by other teachers at the same school. Jane is 20-years-old. Teacher Jack is also an adult who is 25-years-old and just graduated from college with a Bachelor’s degree and is teaching his first semester. Teacher Jack and Jane Doe somehow meet, develop a relationship, and eventually have sexual intercourse. Teacher Jack is never alleged to have used his position of trust or authority as a teacher to somehow coerce or exploit Jane into having intercourse with him. They are not even in the same classroom, and he does not teach her in any capacity at the school. Basically, the two individuals willingly and voluntarily engage in sex as consenting adults and have no other connection to each other aside from being at the same school. Eventually, someone finds out about the relationship and reports Teacher Jack for violating La. R.S. 14:81.4. Under the letter of the law, Jack has indeed violated La. R.S. 14:81.4. Jack is, therefore, arrested. He is distraught because he didn’t realize he was violating the law by engaging in a relationship with Jane, a 20-year-old of the age of consent who he does not even teach. To see why the law is violated in this context, one needs to only read the law. Keep in mind when reading the law that in Louisiana the age of seventeen is the “age of consent” for a person to legally be able to consent to sexual intercourse. La. R.S. 14:81.4, Prohibited Sexual Conduct between Educator and Student, reads as follows: “§81.4. Prohibited sexual conduct between educator and student A. Prohibited sexual conduct between an educator and a student is committed when any of the following occur: (1) An educator has sexual intercourse with a person who is seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, when the victim is not the spouse of the offender and is a student at the school where the educator is assigned, employed, or working at the time of the offense. (2) An educator commits any lewd or lascivious act upon a student or in the presence of a student who is seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, with the intention of gratifying the sexual desires of either person, when the victim is a student at the school in which the educator is assigned, employed, or working at the time of the offense. (3) An educator intentionally engages in the touching of the anus or genitals of a student seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, using any instrumentality or any part of the body of the educator, or the touching of the anus or genitals of the educator by a person seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, when the victim is a student at the school in which the educator is assigned, employed, or working at the time of the offense using any instrumentality or any part of the body of the student. B. As used in this Section: (1) ‘Educator’ means any administrator, coach, instructor, paraprofessional, student aide, teacher, or teacher aide at any public or private school, assigned, employed, or working at the school or school system where the victim is enrolled as a student on a full-time, part-time, or temporary basis. (2) ‘School’ means a public or nonpublic elementary or secondary school or learning institution which shall not include universities and colleges. (3) ‘Sexual intercourse’ means anal, oral, or vaginal sexual intercourse. Emission is not necessary, and penetration, however slight, is sufficient to complete the crime. (4) ‘Student’ includes students enrolled in a school who are seventeen years of age or older, but less than twenty-one years of age. C. The consent of a student, whether or not that student is seventeen years of age or older, shall not be a defense to any violation of this Section. D. Lack of knowledge of the student's age shall not be a defense. E.(1) Whoever violates the provisions of this Section shall be fined not more than one thousand dollars, or imprisoned for not more than six months, or both. (2) For a second or subsequent offense, an offender may be fined not more than five thousand dollars and shall be imprisoned, with or without hard labor, for not less than one year nor more than five years. F. Notwithstanding any claim of privileged communication, any educator having cause to believe that prohibited sexual conduct between an educator and student shall immediately report such conduct to a local or state law enforcement agency. G. No cause of action shall exist against any person who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings arising out of such report, and such persons shall have immunity from civil or criminal liability that otherwise might be incurred or imposed. This immunity shall not be extended to any person who makes a report known to be false or with reckless disregard for the truth of the report. H. In any action to establish damages against a defendant who has made a false report of prohibited sexual conduct between an educator and student, the plaintiff shall bear the burden of proving that the defendant who filed the false report knew the report was false or that the report was filed with reckless disregard for the truth of the report. A plaintiff who fails to meet the burden of proof set forth in this Subsection shall pay all court costs and attorney fees of the defendant. Acts 2007, No. 363, §1; Acts 2009, No. 210, §1, eff. Sept. 1, 2009.” Under the facts of Jack’s case, La. R.S. 14:81.4 is arguably unconstitutional on its face and unconstitutional as applied in that it (i) violates the vital interest in liberty protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution, (ii) violates the Fourteenth Amendment guarantee of equal protection of the laws embodied in the United States Constitution, and (iii) constitutes an infringement of the right to privacy embedded in the United States Constitution. While a detailed analysis of the unconstitutionality of La. R.S. 14:81.4 is beyond the scope of this blog due to the sheer length required to adequately explore this topic, if you or someone you know is charged with La. R.S. 14:81.4, don’t let your constitutional rights potentially be violated. Contact a competent, knowledgeable attorney for help. Author: Attorney Philip B. Adams The constitutionality of La. R.S 14:103A(2) is a nuanced issue that calls for considerable analysis. On its face, Louisiana Revised Statutes 14:103A(2) Disturbing the Peace (through use of profane words), as of 2022, reads as follows: “A. Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: … (2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty; or … Amended by Acts 1960, No. 70, §1; Acts 1963, No. 93, §1; Acts 1968, No. 647, §1; Acts 1979, No. 222, §1; Acts 2006, No. 805, §1; Acts 2013, No. 30, §1, eff. May 29, 2013.” A statute (i.e., “law”) can be unconstitutional on its face (i.e., in its entirety) and/or unconstitutional as applied to the context of a particular person’s case. Louisiana Revised Statutes 14:103A(2) is arguably unconstitutional on its face and as applied. For the purpose of an “as applied” illustration, consider the following hypothetical fact pattern. Suppose a law enforcement officer is told by a person “You’re an asshole.” because that person is upset by something the officer did. That person doesn’t scream and yell these words in public. He simply mutters these words in a normal tone of voice in the presence of the officer. Enraged by what he perceives as an affront to his authority, the officer handcuffs the person for having violated Louisiana Revised Statutes 14:103A(2)(Disturbing the Peace Through Profane Words), thereby arresting him. That person is then transported to jail. Can that person be validly prosecuted under La. R.S. 14:103A(2)? In other words, is it constitutional to arrest an individual under such a fact pattern? Although each case is fact-specific, I do not believe it is constitutional to arrest someone under this fact pattern under this “as applied” analysis. A legal analysis as to why Louisiana Revised Statutes 14:103A(2) may be unconstitutional is detailed and considerable and beyond the scope of this blog article. The constitutional guarantee of freedom of speech forbids the States from punishing the use of words or language not within “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Even as to such a class, however, because “the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,” Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), “(i)n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,” Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP ‘ Button, supra, 371 U.S., at 433, 83 S.Ct., at 338. Great care must be taken in the regulation of spoken words to punish only classes of speech not protected by the First and Fourteenth Amendments to the United States Constitution, viz., “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words—those which by their very utterance inflict injury and tend to incite an immediate breach of the peace.” Chaplinski v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Only “fighting words-those which by their very utterance inflict injury and tend to incite an immediate breach of the peace,” are punishable. White v. Morris, 345 So.2d 461 (La.1977), citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Words not considered “fighting words” are constitutionally protected expressions. In addition, when such words are addressed to a police officer, the State must produce a stronger showing that the words are such as to incite the addressee to an immediate breach of the peace. City of New Orleans v. Lyons, 342 So.2d 196 (La.1977); Norrell v. City of Monroe, 375 So.2d 159 (La.App. 2d Cir.1979); White v. Morris, supra; State in Interest of W.B., 461 So.2d 366 (La.App. 2d Cir.1984). As found by the court in Lyons, supra, police officers are expected to exercise more restraint than others and insulting language is less likely to cause a breach of the peace and fall within the “fighting words” exception to protected speech. See also Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974). The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. “Speech is often provocative and challenging.... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949). As you can see from the above brief analysis, determining whether a law is unconstitutional in a criminal context is complex. This blog article would be significantly longer if a full analysis of Louisiana Revised Statutes 14:103A(2) were provided. Each case is fact-specific. If you or someone you know has been arrested for having violated Louisiana Revised Statutes 14:103A(2), that person needs to immediately hire a competent attorney to protect his or her First Amendment freedoms. You can visit our “Contact Us” link and contact attorney Philip B. Adams with the Law Offices of Philip B. Adams, LLC to schedule an initial consultation. DNA evidence routinely arises in Louisiana sexual assault cases, particularly in rape allegations. When consent is raised as a defense, the presence of DNA on the body of the accuser is expected and is consistent with consent. DNA test results do not prove that a rape or sexual assault occurred. Without additional facts, the presence of DNA on an accuser simply proves that the accused’s DNA somehow got on the accuser. Since DNA is easily transferred, it is important to attempt to find out why that DNA is found in a particular location. A DNA examiner cannot testify as to whether consent existed during a sexual encounter nor how that DNA got on a particular location. It’s possible DNA could be located on an accuser’s body without any direct contact between the accuser and accused because of a phenomenon known as secondary transfer of DNA. Only the accuser, the accused, and any other witnesses can possibly testify and provide additional details to help a jury determine whether consent existed and how the accused’s DNA got to a particular location.
In contrast with a consent case, if an accused denies having ever had a sexual encounter with an accuser, DNA can become a powerful tool for testing the truthfulness of such an assertion. If the accused’s DNA is found, for example, within an internal vaginal swab of the accuser, the accused’s defense may be refuted depending on the specific facts. Even still, a consent defense may not be refuted. For example, if the accused’s genitalia was touched by the accuser, and she engaged in vaginal stimulation, one might expect to find the accused’s DNA inside her even if the accused never physically engaged in penile penetration. If the accuser claimed penile penetration, the presence of DNA in her vagina would not potentially refute the accused’s defense unless the DNA present is coupled with identified semen and sperm indicating ejaculation or, perhaps, the presence of Prostate Specific Antigen (PSA), indicating ejaculation. But what if the accused told investigators that he ejaculated while being manually stimulated by the accuser’s hand; his semen got on her hand; and then she vaginally stimulated herself without wiping her hand? Assume also that the accuser claimed penile penetration. Then, one might still expect to find the accused’s DNA and semen inside the accuser’s vagina even if there was no penile penetration. The presence of DNA and semen would be consistent with both the account of the accuser and the accused in this scenario. As you can see, every case is highly fact-dependent. Under these scenarios, the presence of DNA alone would not prove that a rape or sexual assault occurred. DNA can only potentially be helpful in evaluating the credibility of witnesses in a sexual assault case. Often, far more than DNA is needed to determine who may be telling the truth in such a case. Consider also a case in which the accused’s DNA is only found on the clothing of the accuser even though she claims she was vaginally raped. Assume internal and external vaginal swabs were taken. A lack of DNA in this hypothetical from these vaginal swabs could potentially support an accused’s defense that he did not vaginally rape the accuser but rather was engaged in foreplay by rubbing the outside of her clothing with his hands and stopped when the accuser indicated she was uncomfortable with moving forward during a sexual encounter. In this case, one would expect to find DNA on the clothing if the accused is telling the truth or expect to find the presence of DNA on and/or within the accuser’s vagina if she is telling the truth. If only DNA is found on the clothing, it is likely that the accused is telling the truth. Even still, a lack of DNA on the accuser’s vagina would not necessarily refute her account. If the accused wore a condom, for instance, and non-consensually penetrated the accuser, it’s possible no DNA would be found inside her even though she is telling the truth about being penetrated. DNA’s discriminatory power is potentially enhanced when an accuser and an accused’s stories contradict one another, such as when one person claims consent and the other does not. On the other hand, when the defense claims consent, and the accuser claims rape or sexual assault, one expects to find the presence of DNA even though both claims are inconsistent. Additional factors, such as the consumption of alcohol or drugs, contradictory accounts, inconsistent behavior, the presence of injuries, etc., must also often be used with DNA forensics when assessing witness credibility in sexual assault cases. These cases often highly depend on witness credibility and are, thus, fact-intensive. To complicate matters, alcohol consumption by both parties is often involved in sexual assault allegations. To ensure you are not wrongfully convicted, it’s important to consult with a knowledgeable and informed Louisiana criminal defense lawyer if you face a Louisiana rape or sexual assault allegation in which DNA forensics are involved. |
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