Filing Libel Charges

[cuti0021]

What is the name of your state (only U.S. law)? Virginia

Long story short, my husband was served with divorce papers last Monday. He told his family about it last Thursday. They all went nuts. His sister, who is 19 and a social network junkie, decided to publically post how much of a psycho b***h a** **** nugget I was and that her and her friend are going to find me and first pound my head into the pavement, murder me and then hit the beach. Plus for every moment I said her brother hit me and how he hit me she's going to f**k me twice as hard two times the amount he did. She then proceeds to tell me to leave her brother alone when I don't even talk to him. If I have something to say, I ALWAYS run it through my lawyer first and if she wants to handle it with opposing counsel, she does. I don't communicate with him because all he does is try to demand me of what HIS court order is..not the judges. She also posted a complete lie telling whoever reads her posts are that I lied to the court about her brother hitting me (1. she was there when it happend and 2. she was at court when they found him guilty). Then she says I won't get my way in court because I didn't the first time (which I found hilarious because 1. he was found guilty and 2. he was ordered visitation only..which is obviously not what he wanted) but she then threw my family in there because when I kicked my husband out of the house after the A&B, he shut off everything and stopped everything while me and the baby (1 years old) were there. No phone, no electricity, no water, no nothing. That was his way of getting us out of that house because he knew I didn't have a job because I got laid off and been trying to find one. So little sister puts in there that I ran back to "mommy and daddy" but, in all honesty, where was I to go with no money? My husband supported us AND his 19 year old sister. She then says that may family can go jump off the chesapeake bridge and get eaten by a shark because I will not win. Then her and her friend start the planning.

Nothing has happened yet. I got an EPO and a warrant for Code 18.2-427 Use of profane, threatening, or indecent language over public airways or by other methods. The magistrate called it slander, but it's definitely not! I'm not trying to sue for money. I don't want it. I just want to press charges against her and I called and a lady at the court called and they told her that it's slander and no one presses charges for slander.

What do I do? I retained my lawyer for divorce/custody/support and they're giving me great advice on this (that's how I found out about the two code violations) but I want to press that second charge and I haven't heard back from them yet.

Any information is appreciated. Thanks!

 

[swalsh411]

You seem to be under the mistaken impression that one can have criminal charges brought against them for defamation. Defamation (slander and liber) is a civil issue and you sue for damages.

 

[cuti0021]

You seem to be under the mistaken impression that one can have criminal charges brought against them for defamation. Defamation (slander and liber) is a civil issue and you sue for damages.

In VA, it's a Class 3 misdemeanor.

 

[Proserpina]

You seem to be under the mistaken impression that one can have criminal charges brought against them for defamation. Defamation (slander and liber) is a civil issue and you sue for damages.

It can actually become a criminal matter, swalsh.

 

[You Are Guilty]

§ 18.2-416. Punishment for using abusive language to another.

If any person shall, in the presence or hearing of another, curse or abuse such other person, or use any violent abusive language to such person concerning himself or any of his relations, or otherwise use such language, under circumstances reasonably calculated to provoke a breach of the peace, he shall be guilty of a Class 3 misdemeanor.

§ 18.2-417. Slander and libel.

Any person who shall falsely utter and speak, or falsely write and publish, of and concerning any female of chaste character, any words derogatory of such female's character for virtue and chastity, or imputing to such female acts not virtuous and chaste, or who shall falsely utter and speak, or falsely write and publish, of and concerning another person, any words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace or shall use grossly insulting language to any female of good character or reputation, shall be guilty of a Class 3 misdemeanor.

The defendant shall be entitled to prove upon trial in mitigation of the punishment, the provocation which induced the libelous or slanderous words, or any other fact or circumstance tending to disprove malice, or lessen the criminality of the offense.

How is either applicable?

 

[Zigner]

How is either applicable?

I find it amazing that the constitutionality of 18.2-417 hasn't been challenged, or has it?

 

[cuti0021]

How is either applicable?

She falsely said I lied to the court. No I did not. She falsely stated I kept the baby from him for 3 months (Apr, May, part of June). No I did not. My lawyer sent him two visitation agreements when he got back from sea duty in April to try to work something out before court and he denied them both because they weren't on his terms because "no one's gonna tell 'him' when he can and cannot see his son." And if she's referring to the 3 months he was out to sea (Jan, Feb, Mar), then that really doesn't count.

 

[You Are Guilty]

You might want to look up the definition of "chaste".


And parenthetically, I have no clue how this statute is still on the books. I would certainly be interested in seeing the last time it was utilized in a conviction.

 

[davew128]

You might want to look up the definition of "chaste".

First page of Google hits I got had pictures of Lady Gaga.

 

[quincy]

Virginia Code 18.2-427 is the amended version of 18.1-238, which was found to be unconstitutionally overbroad. The language was changed so that 18.2-427 now focuses on the intent of the speaker of the words and not on the words that are spoken. It focuses on the conduct which is designed to intimidate and harass and breach the peace, and not (necessarily) on the words that accompany the intimidation and harassment and breach of the peace. It is the conduct or the intent behind the conduct that will lead to criminal prosecution and conviction under 18.2-427.

There is no jail time with a Class 3 misdemeanor and Class 3 misdemeanors generally result in minor fines (although someone could potentially be fined the maximum $500), but I believe that a violation of Virginia Code 18.2-427 is charged as a Class 1 misdemeanor not a Class 3, and is therefore subject to a $2500 fine and up to one year in jail. But that said, prosecutions under "criminal defamation" laws are not exactly common in Virginia (although they are not as rare as they are in the other states that still have such laws).

For Virginia Appeals Court decisions, you can read Brian Allman v Commonwealth of Virginia, No. 0664-03-2, May 25, 2004, and Alex Vaughan Airhart v Commonwealth of Virginia, No. 1219-052, Jan 16, 2007.

In Allman, Brian Allman was found guilty under Virginia Code 18.2-427 of using "obscene" language and he appealed his conviction. The Appeals Court agreed with Allman that evidence presented did not prove his language was obscene. The Court said that "t would be difficult, if not impossible...to formulate a statewide standard of obscenity, for our state comprises communities with a vast diversity of life styles. Materials which do not offend the community standards of our metropolitan areas might well be regarded as obscene by the standards of some of our rural communities." The Appeals Court dismissed Allman's conviction. The case decision can be accessed through the Virginia state court site at:
www.courts.state.va.us/opinions/opncavwp/0664032.pdf.

The Airhart case was based on Virginia Code 18.2-152.7:1, which is closely related to Virginia Code 18.2-427. Airhart, like Allman, had his conviction over the obscene nature of his communications dismissed by the Appeals Court. The Court decision can be found at:
www.courts.state.va.us/opinions/opncavwp/1219052.pdf.

See also Jon Eric Lofgren v Commonwealth of Virginia, No. 1349-08-2, for a November 2009 action similar to the two criminal actions noted above, accessible at:
www.courts.state.va.us/opinions/opncavwp/1349082.pdf.

Trail v General Dynamics Armament & Technical Products, Inc, Case No 1:10cv00001, was heard by the U.S. District Court for the Western District of Virginia over criminal defamation per se. The Court said that an "insulting words" criminal action, while not needing third party publication like a slander or libel civil action does (or even, for that matter, defamatory words), must include conduct that tends toward violence or a breach of the peace.

There have been at least two individuals charged in Virginia recently under Code 18.2-427, one charged earlier this month for encouraging through internet postings violence against Americans, and one charged in May for communicating threats of violence against two identified individuals.

Most states repealed their criminal defamation laws after the Supreme Court decision in Garrison v The State of Louisiana (379 US 64, 85 S Ct 209, 13 L.Ed 2d 125, 1964), or have since struck them down as unconstitutional. In those states where the laws still exist, they are generally unused, or very narrowly tailored (for example, to apply only to defamation of financial institutions), or they are combined with a breach of the peace/disorderly conduct/harassment law, so that it is the conduct that is prosecuted and not the speech. They have either been amended to meet the requirements of Garrison or they have been (in a few states) challenged as unconstitutional when charged.

As a note to cuti0021, it is up to the government to bring criminal charges, not you. You file a complaint and the prosecutor will decide whether to file charges against your harassers, and for what. The best you can do is to press the prosecutor to press charges, or you can, on your own, file a civil defamation action (which is all about money - starting with the monetary costs of pursuing a suit and, with luck, ending with a monetary award of damages to compensate for the reputational injury suffered as a result of the defamation).