Georgia High Court Tosses 'Sexting' Case

Rhett Pardon

ATLANTA — Georgia's highest court has dismissed an obscenity case against a man who sent a woman an unsolicited photo of his tattooed penis in a text message.

The Georgia Supreme Court yesterday tossed the conviction of Charles Leo Warren III because the law he was charged with did not apply to "electronic text messaging," technology that didn't exist when the statute was written by state lawmakers in 1970.

Arrested by authorities in October 2012 after he sent an unwanted text message to Shari Watson, Warren was charged in a criminal complaint for violating OCGA § 16-12-81, which covers distribution of material depicting nudity or sexual conduct.

According to prosecutors, Warren's penis was tattooed with the phrase, "STRONG E nuf 4 A MAN BUT Made 4 A WOMAN."

But the court, reversing a Cherokee County court ruling, said that the statute was flawed because it inferred the "obscene" transmission of text must be in an "envelope or container."

Justices said that because "it is unclear whether the statute applies to appellant’s conduct, the rule of lenity would require us to give him the benefit of the doubt."

"[OCGA § 16-12-81] contains a specific prohibition against sending unsolicited through the mail material depicting nudity or sexual conduct without the required notice, followed by a more general prohibition against' otherwise unsolicited causing to be delivered material depicting nudity or sexual conduct to [a] person' without the statutory notice. The specific prohibition is clearly aimed at tangible material that is delivered in a tangible manner," such as mail, the court ruled.

Legislation proposed last year to amend the law to include pictures transmitted electronically did not pass and Georgia has no other law governing these types of cases.

Adult industry attorney Lawrence G. Walters, name partner of Walters Law Group in Longwood, Fla., called the court's ruling "refreshingly honest because it recognized that laws drafted prior to substantial advancements in technology should not be applied to modern circumstances, especially when such application creates absurd results."

"The drafters of the Georgia nudity disclosure statute never intended that the statute be used to require eight-point disclosure statements on personal text messages," Walters told XBIZ. "Given the length of the required disclosure, only certain men with ‘generous’ endowment would be able to fit the required language on the sexually explicit ‘item.’ "

"In all seriousness, the most important aspect of the decision is its potential precedential value. While the court did not reach the constitutional issues, the ruling could be effectively used whenever the government tries to apply outdated laws to new technology.

Application of child pornography laws to teen sexting comes to mind, Walters said.

"The ruling may even call into question the application of outdated obscenity laws to new media. Hopefully more courts will come to the same conclusion, and force the legislature to draft laws that take into consideration the nuances of new technology when seeking to regulate modern communication or media."

View Georgia Supreme Court ruling