Unwanted Lecherous Comments Unprotected by the First Amendment

State v. Calaycay (HSC August 26, 2019)
Background. Burt Calaycay was charged with the offense of harassment in violation of HRS § 711-1106(1)(f). At trial the complainant testified as the sole witness for the prosecution. She testified that in 2013 she was a 17-year-old cadet at Youth Challenge, an organization supervised by the National Guard to assist at-risk youth in obtaining a GED. She testified that Calaycay, an employee at Youth Challenge, approached her during her free time and he propositioned her for sex. She testified that he “wanted to get me wet and hit me from the back and have him ride him and that . . . his team had his back and that I wouldn’t get in trouble.” She testified that seven days later, Calaycay called her in the middle of the night to tell her how beautiful she was and that “he wanted to hook up with me and . . . wanted to see me naked.” This made the complainant feel uncomfortable and unsafe.

Calaycay testified. After serving two tours in Iraq, Calaycay worked as a supervisor for Youth Challenge. He testified that he had to discipline the complainant on at least one prior occasion. He testified that the complainant at accused others of inappropriate touching in the past and that she was caught sniffing pills. He denied saying anything of a sexual nature to her. Judge Alvin Nishimura of the district court found Calaycay guilty and imposed a $100 fine. The ICA—C.J. Ginoza, J. Fujise, and J. Leonard—reversed the conviction. The prosecution petitioned to the HSC.

Harassment and its Elements. “A person commits the offense of harassment if, with the intent to harass, annoy, or alarm any other person, that person . . . [m]akes a communicating using offensively coarse language that would cause the recipient to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another.” HRS § 711-1106(1)(f). In other words, the prosecution had to show Calaycay’s statements constituted a “communication using offensively coarse language” and that the statements caused the complainant to believe Calaycay intended to cause her bodily injury all with the specific intent to “harass, annoy, or alarm.”

There was Enough Evidence to Support the Conviction. The HSC disagreed with the ICA and held that viewed in the light most favorable to the prosecution, there was sufficient evidence to support the conviction. First, the HSC held that Calaycay’s language was “offensively coarse” because it was graphic, sexual, and intensely personal. See, e.g., State v. Bush, 98 Hawaii 459, 460-46, 50 P.3d 428, 429-430 (2002). The second element—the result of the conduct—was also established. The HSC disagreed with the ICA and held that there was substantial evidence establishing that as a result of the statements, the complainant believed that Calaycay intended to cause bodily injury. According to the HSC, it was enough for the complainant to testify that she felt uncomfortable, unsafe, and scared. She was a cadet at Youth Challenge. He was a supervisor. This power dynamic arose to a reasonable belief that she was in apprehension of being subjected to non-consensual sex and bodily injury. Finally, the HSC held there was sufficient albeit circumstantial evidence to support the specific intent to harass, annoy, or alarm. The conduct was repeated and coercive enough to show that Calaycay did what he did with the requisite intent.

Graphic Sexual Words in this Context are not Protected Speech. The HSC next rejected Calaycay’s argument that his statements are protected speech. “The First Amendment and article I, § 4 of the Hawaii Constitution prohibit the enactment of any law that abridges freedom of speech.” State v. Alangcas, 134 Hawaii 515, 528, 345 P.3d 181, 194 (2015). But not all speech is protected.

Free speech protections are not violated “by criminal statutes that, properly drawn, are aimed at the injurious effects of a threatening communication rather than the communication itself.” In re Doe, 76 Hawaii 85, 93 n. 16, 869 P.2d 1304, 1312 n. 16 (1994). For speech to be punishable under the harassment statute, “there must be a casual relationship between he speech at issue and the disturbance sought to be prevented. . . . Establishing such a casual relationship obviously requires an examination of the totality of the circumstances, or, put differently, the context in which the speech is uttered.” Id. at 96, 869 P.2d at 1312. That is precisely, according to the HSC, what we have here. It was not Calaycay’s words that were injurious, but the effect of those words in this context. He caused the complainant to believe that he had the intent to cause her bodily injury. And so the constitutional right to the freedom of expression and speech was not violated here.

The Statute is not Unconstitutionally Overbroad. The HSC rejected Calaycay’s constitutional challenge that the statute is overbroad. The first step in this challenge is “to determine whether the enactment reaches a substantial amount of constitutionally protected conduct” by examining the “scope of the prohibited conduct.” State v. Alangcas, 134 Hawaii at 525, 345 P.3d at 191. Here, the HSC determined that the scope of prohibited conduct was communicating with offensively coarse language resulting in another person to believe that the actor intends to cause bodily injury or property damage. At first it would seem that that would be unconstitutional, but when “the scienter requirement of a statute sufficiently limits criminal culpability to reach only conduct outside the protection of the First Amendment, legitimate speech is not endangered.” Id. at 528, 345 P.3d at 194. Here, the specific intent for harassment is the intent to annoy, harass, or alarm. That was enough for the HSC to hold that the scienter adequately limited the scope of criminal conduct and the statute was not overbroad.

Harassment isn’t Vague Either. Nor was the statute unconstitutionally vague. “A penal statute is void for vagueness if it does not define a criminal offense with sufficient definiteness so that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” State v. Pacquing, 139 Hawaii 302, 314, 389 P.3d 897, 909 (2016). Put differently, a facial challenge to a statute requires the court to determine if it “(1) is internally inconsistent and incomprehensible to a person of ordinary intelligence or (2) invites delegation of basic policy matters to police for resolution on an ad hoc and subjective basis.” Alangcas, 134 Hawaii at 532, 345 P.3d at 198.

Calaycay argued that the statute is vague because the term “offensively coarse communication” is open to too many interpretations to be enforceable. The HSC rejected this argument because the statute requires the person who receives the communication to reasonably believe the actor intends to cause bodily injury or property damage. This reasonable person standard, according to the HSC, “ameliorates the concern that a statute is unconstitutionally vague.”


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