IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS )
)
Plaintiff ) CASE NO ST 2020 CR 00289
)
vs ) CHARGE 14 V I C (3‘ 1022(a)(3)
)
ELMO D ROEBUCK JR )
)
Defendant )
———)
Cite as 2020 VI Super 5U
MEMORANDUM DECISION
CARR, H , Maglstrate Judge
11 THIS MATTER is bef01e the undersigned Magistiate on a Motion to Dismiss C1iminal
Complaint filed by Clive C Rivers, Esq , counsel for Defendant Elmo D Roebuck, J1, 0n
Decembe1 7, 2020 unde1 VI R C1im P 12(b)(3) That Ciiminal complaint charges Defendant
with one count of violating 14 V I C § 1022(a)(3) [Defendant] 1ec01ded an indecent Video of
M A [the Victim] without he1 knowledge, and knowingly distIibuted it on the social media app,
Whats App in Violation ofV I COD]: ANN tit 14 § 1022(a)(3) [OBSCENE AND INDECENT
CONDUCT] The People through Assistant Attomey General Natasha L Bakei, Esq , filed an
Opposition to Motion to Dismiss on December 10, 2020 Defendant filed a Reply to that
Opposition on December 22 2020
112 Defendant, along with his legal counsel, appealed remotely f01 an alignment via the online
Videoconferencing platfonn Zoom on October 23, 2020, at which time his legal counsel entered a
plea of not guilty on Defendant s behalf to the chaige At a 1emote pret1ia1 conference held on
Decembel l, 2020, Defendant appealed with his legal counsel who indicated that he would be
filing a motion to dismiss the Ciiminal complaint on grounds that the statute undei which
Defendant was chaiged was too vague in violation of the United States Constitution
13 In his motion to dismiss and reply, Defendant argues that § 1022(a)(3) is void for
vagueness in violation of the Due Process Clause of the United States Constitution In other
words, the statute fails to provide fair notice of the type of conduct or behavior that the legislature
intended to prohibit or criminalize In particular, Defendant argues that the alleged conduct in
which he engaged is neither obscene nor indecent under the statute 3 definition of obscene
Defendant further argues that the statute 5 definition of what is obscene is obsolete and conflicts
with United States Supreme Court s precedents in defining that same term
Memorandum Decision 2021 VI Supei 5U
People v Elmo D Roebuck, Jr
ST 2020 CR 00289
Page 2 of 9
1% The People 5 Opposition states that the facts surrounding this charge allege that the
Defendant recorded his ex girlfriend masturbating and distributed the recording to various
individuals p 1 The People maintain that there is a legally acceptable definition of obscenity
contained in subsection (a) of § 1021 of Title 14 of the Virgin Islands Code The People further
state the alleged facts constituting the prohibited conduct that the legislature sought to punish
The Defendant hid in a closet, recorded the victim masturbating on a bed, retained
the Video even after the victim asked him to delete it, and ultimately forwarded the
video to several persons all because things did not go his way in the relationship
The defendant could not get his way privately s0 sought to embarrass and intimidate
the Victim publicly The facts of this case is exactly the type the statute makes
illegal The Defendant here and any average person understand exactly what could
have been 01 was done to violate the statute
p 4
115 In the Opposition, the People fuithei contend that Defendant lacks any standing to
challenge the constitutionality of the statute 0n giounds of vagueness because vagueness
challenges cannot be raised by a defendant whose own conduct a1 guably falls within the statute’s
piohibition Theii contention is that the statute is cleai and unambiguous on its face legaiding the
type of conduct or behaviOI that the legislature intended to criminalize They fuither contend that
Defendant knew that the masturbation Video was obscene because he obtained it in stealth and
piomised the Victim that he would delete it but instead f01wa1ded the Video to certain peisons
whom they both knew using a social media platform immediately after he discoveied that the
victim had posted on hen Facebook page that she was in a 1e1ati0nship While Defendant in his
01iginal Motion to Dismiss never mentioned that the chaiged statute had a statutory definition of
obscenity undei subsection (a) 0f§ 1021 of Title 14 of the Viigin Islands Code, he aigues, in his
1eply, that the statutory definition contains an outdated and unconstitutional fonnulation of
obscene undei the United States Supieme Court s decisions
1i6 F01 the reasons which follow heieaftei, while the Couit is reluctant to declaie that §
1022(a)(3) is unconstitutional on its face, it does find that it is unconstitutional as applied to
Defendant in violation of the Due Piocess Clause of the United States Constitution, made
applicable to the Virgin Islands Therefore the Court grants Defendant 3 Motion to dismiss the
criminal complaint against him
I Rule 12(b)(3) of the Virgin Islands Rules of Criminal Procedure
117 Defendant s counsel brings this constitutional challenge to the statute under Rule 12(b)(3)
of the Virgin Islands Rules of Criminal Procedure Although Defendant spent no time explaining
why the Court should hear his pretrial motion to dismiss the criminal complaint under Rule
12(b)(3) the particular subsection of Rule 12(b)(3) under which Defendant states the Court should
consider his motion is Rule 12(b)(3)(B)(iii) lack of specificity Perhaps this ties into
Defendant s vagueness challenges to § 1022(a)(3) However, the Court believes that another
subsection could apply under Rule 12(b)(3) (B)(V) failure to state an offense The Advisory
Memorandum Decision 2021 VI Super 5U
People v Elmo D Roebuck, Jr
ST 2020 CR 00289
Page 3 of 9
on Committee Rule comment on subpait (b) states ‘Subpart (b) identifies a range of pretrial
motions that may raise any defense, objection, or request that the court can determine without a
trial on the merits Rule 12(b) provides for a range of a dozen motions that must be raised before
trial so long as the ruling on these motions by the court does not infringe upon the province of the
trier of fact in deciding the matter on the merits The list of motions is not intended to be exhaustive
or exclusive 1A Fed Prac & Proc Crim § 192, Pleadings and Motions in General (5th Ed Wright
& Miller) The trier of fact in this case is the Magistrate Court, without a jury, since the
punishment is not more than a fine of $100 or imprisonment not more than 90 days 01 both The
punishment under the § 1022(a)(3) makes this a petty misdemeanor, for which Defendant is not
entitled to a trial by jury See Murrell v People ofrhe V11 gm Islands 54 V I 338 351 356 (2010)
II Defendant has standing to raise vagueness challenges to § 1022(a)(3)
118 Facial challenges to a statute, like this one presented by Defendant with iespect to
§ 1022(a)(3) are ripe for adjudication bef01e trial In Balbom v Ranger Am offhe VI Inc 70
V I 1048 1054 fn 2 (2019) the V 1 Supreme Court agieed with the Superi01 Couit s
determination that "Balboni's constitutional challenge was ripe for adjudication before t1ia1
because Balboni biought a facial challenge f01 which factual findings were not required, and
failing to address the constitutionality of [a statute] p1i01 to t1ial would potentially cause haidship
0n the paities’ ”
119 Defendant s challenge is based upon his Due Piocess Rights unde1 the Fifth and Fouxteenth
Amendments and his unaigued free speech piovision of the Fiist Amendment to the Unites States
Constitution, made applicable to the Viigin Islands by viitue 0f the last paragraph of the V11 gin
Islands Bill of Rights See 48 U S C § 1561 The following piovisions of and amendments to
the Constitution of the United States ale heieby extended to the Viigin Islands to the extent that
they have not been previously extended to that tenit01y and shall have the same fome and effect
them as in the United States or in any State of the United States article 1, section 9, clauses 2 and
3; article IV, section 1 and section 2, clause 1; article VI, clause 3 the first to ninth
amendments inclusive; the thirteenth amendment the second sentence of section 1 0f the
fouiteenth amendment; and the fifteenth and nineteenth amendments ” Balbom v Range} Am
0fthe VI Inc 70 V I 1048 1055 fn 3 (2019)
1110 Section 1022 of Title 14 of the Vilgin Islands Code, entitled Obscene and indecent
conduct , states in subsection (a)(3) unde1 which Defendant is charged
Whoever
(3) writes, composes stereotypes, prints publishes, sells, distributes, keeps for sale
or exhibits any obscene or indecent writing, paper or books; or designs, copies,
draws, engraves, paints, or otherwise prepares any obscene or indecent picture or
print or molds, cuts, casts, or likewise makes any obscene or indecent figure;
shall be fined not more than $100 or imprisoned not more than 90 days, or both
Memorandum Decision 2021 VI Super 5U
Peoplev ElmoD Roebuck Jr
ST 2020 CR 00289
Page 4 of 9
111 1 The Court 5 assessment of the parties positions is that the People of the V I and Defendant
both agree on this basic proposition of law a statute is void for vagueness if it fails to give a
person of ordinary intelligence fair notice of the conduct or behavior that is proscribed and
encourages arbitrary arrests and prosecutions See Papachrzstou v C1132 ofJacksonvzlle, 405 U S
156 162 (1972) citing United States v HCIH‘ISS
347 US 612 617 (1954) and Thornhlll v
Alabama 310 U S 88 97 98 (1940) It has been a bedrock and long standing principle of
constitutional and due process law that one cannot be prosecuted and convicted undet a statute
whose piohibitions ale so unreasonably vague that the actor cannot know what conduct or behavi01
the state intended to prohibit While Defendant a1 gues that § 1022(a)(3) is vague because obscene
and indecent are not defined the People argue that Defendant need only refer to § 1021 the
definition section, under which obscene is defined as follows
(a) Obscene means that to the aveiage person, applying contemporary standaids,
the predominant appeal of the mattei, taken as a whole, is to prurient interest, i e ,
a shameful 01 mOIbid inteiest in nudity, sex, or exc16tion, which goes substantially
beyond customaiy limits of candor in deseliption 01 1ep1esentation of such matteis
and is matter which is utteily without iedeeming social importance
1112 Howevei, the People urge that Defendant lacks standing to challenge the statute s alleged
vagueness a c1iminal defendant s vagueness challenge can only be iaised by a defendant whose
own conduct a1 guably did not fall within the terms of the statute Meye; s v Gov r 0f the VI] gm
Islands 63 V I 865 871 (3d C11 2010) The People a1 gue that Defendant s conduct squarely falls
within the statute s prosmiptions People 5 Opposition, p 4
1H 3 Yet the People misconstiue Mayan as limiting a defendant s ability to challenge a statute
on giounds of vagueness only if his own conduct does not arguably fall with the ambit of the
statutoxy piohibitions A con ect interpietation of Meyel s is that a defendant cannot iaise the lights
of otheis that the statute might affect unless First Amendment rights ale involved Theref01e, a
defendant can also challenge a statute on grounds of overbreadth when the statute chills the
exexcise of flee speech lights or conduct piotected by the First Amendment Id at 871 The
Court has indicated that this case involves not only Due Piocess rights but also rights protected
unde1 the First Amendment
1H4 For example in the V I Supreme Court case of LeBlanc v People of the Vzrgm Islands
56 V I 536 (2012) the Court found the child abuse statute at 14 V I C § 505 unconstitutionally
vague as applied to Defendant s conduct and vacated his conviction under § 505 The alleged
child abuse or conduct was Defendant s touching of the minor 8 genitals through her clothing the
Court found that § 505 did not put a person of reasonable intelligence on notice that the statute
proscribed that type of conduct However, on the issue of standing to challenge a statute on
grounds of vagueness, the Court found that Defendant had standing to mount such a challenge ‘
It is well established that vagueness challenges to statutes which do not involve First Amendment
freedoms must be examined in the light of the facts of the case at hand ’ Id at 541 (citing Untied
States v Mazurle 419 U S 544 550 (1975)) If [LeBlanc] s conduct fell within the bounds of
MemOiandum Decision 2021 VI Supei 5U
People v ElmoD Roebuck Jr
ST 2020 CR 00289
Page 5 of9
what was clearly proscribed by the statute, [he] did not have standing to challenge the vagueness
of the statute, whether or not it may turn out to be vague as applied in other situations Id (citing
Government of the V1 1 John 159 F Supp 2d 201 205 (D V I App Div 1999)) See also
Gonsalves v People ofthe Vzrgm Islands 70 V I 812 843 fn 19 (2019) and Codrzngton v People
ofthe Vzrgm Islands 57 V I 176 188 (2012)
111 § 1022(a)(3) does not cover the alleged activity in which Defendant engaged
1115 Section 1022(a)(3), which the People have charged Defendant with violating, does not, by
its statutory language, cover the conduct alleged and therefore does not put a person of leasonable
intelligence on notice of what the statute pioscribes Words and phrases shall be read with thei1
context and shall be construed acc01ding to the common and approved usage of the English
language 1 V I C § 42 Theie are no technical words or phrases that should be construed and
understood accmding to their peculiai and appropriate meaning Id Defoe v Phillip, 56 V I 109
(2012)
1116 Interpieting § 1022(a)(3) s fnst clause, none of the verbs encompass the Defendant s
conduct, i e , posting the iecorded video of masturbation thiough a social media platfonn Instead,
the veibs ci10umsc11be obscene and indecent “w1iting, paper or books” The second clause’s veibs
ciicumscribe obscene and indecent “pictuie or print ” The thiid clause 3 veibs ciicumsc1ibe
obscene 01 indecent “figuie ” In sum, § 1022(a)(3) pioscribes the dissemination ofobscene books,
paintings 01 statues, but not as sent thiough WhatsApp When the Legislatuie intended to covei
the commission of celtain crimes thiough the use of computeis, it specifically enacted such statutes
with bioad and sweeping definitions to include cellular devices and the 1e001ding of Visual images
by electronic means See c g §§459 470 and 487 490 of Title 14 ofthe Virgin Islands Code
1117 WhatsApp is simply not one of the means thiough which the exercise of § 1022(a)(3) would
piohibit the dissemination of obscene 01 indecent mattei In fact, it is a communication platfonn
used in conjunction with a mobile phone device, not coveied by § 1022(a)(3) Wikipedia defines
WhatsApp as follows
WhatsApp Messenger, 01 simply WhatsApp, is an American fieewaie, Cioss
platf01 1n messaging and Voice over IP (VoIP) service owned by Facebook Inc It
allows users to send text messages and voice messages, make voice and Video calls,
and shale images documents, usei locations, and other media WhatsApp's client
application mm on mobile devices but is also accessible from desktop computers
as long as the user's mobile device remains connected to the Internet while they use
the desktop app The service requires users to provide a standard cellular mobile
number for registering with the service
Wikipedia WhatsApp https //en wikipedia org/wiki/WhatsApp (Jan 15 2021 14 00 GMT)
IV Defendant did not engage in any obscene behavior or conduct
1118 As stated above, obscene is defined in the definition section of 1021(a) as follows
Memorandum Decision 2021 VI Super 5U
People v Elmo D Roebuck, J1
ST 2020 CR 00289
Page 6 of 9
(a) Obscene means that to the average person, applying contemporary standards,
the predominant appeal of the matter, taken as a whole, is to prurient interest, i e ,
a shameful or morbid interest in nudity, sex, or excretion, which goes substantially
beyond customary limits of candor in description or representation of such matters
and is matter which is utterly without redeeming social importance
1119 In his Reply, Defendant contends that the above referenced definition of obscene under §
1021(a) is the one set forth in the United States Supreme Court case of Roth v Untied States, 354
U S 476 (1957) § 1021(a) was added August 1 1969 In Roth the Supieme Court upheld the
Defendants convictions for mailing obscene materials in Violation of fedei a1 statutes on grounds
that the trial court used the proper standard in instructing the jury on the definition of what is
consideied obscene That standard is whether to the aveiage peisons applying contemporary
community standards, the dominant theme of the material taken as a whole appeals to prurient
interest 1d at 489 Obscenity, of course, is not protected by the Fiist Amendment Id at 481
In Memons v Massachusetts, 383 U S 413 (1966), the Supreme Court, in a plurality decision,
leaffirmed that in Older f01 a matter to be obscene, in addition to Roth s explicit test, the
plosecution must prove that the mattei is “utterly without iedeeming social value ” Id at 419
1120 In lelu v Calgfo; mm, 413 U S 15, 24 (1973), the Supieme Couit announced another test
for judging whethe1 certain mateiial is obscene 01 not
The basic guidelines f01 the trie1 of fact must be (a) whethei ‘the average peison,
applying contemporaiy community standards would find that the work, taken as a
whole, appeals to the piuiient interest (b) whether the work depicts 01 deselibes,
in a patently offensive way, sexual conduct specifically defined by the applicable
state law and (c) whethe1 the work, taken as a whole lacks se1ious liteiaiy, artistic,
political, or scientific value
1121 Defendants contends that § 1021(a) does not define obscenity in accordance with the most
recent U S Supieme Court 3 standard and therefore the People s prosecution undei § 1022(a)(3)
must fail This Court agiees, although it could construe § 1021(a) s definition of obscene undei
the lele; standard to uphold the constitutionality of § 1022(a)(3) However § 1022(a)(3) would
nevertheless remain vague for the masons given above, i e , § 1022(a)(3) does not cover
Defendant s conduct that the statute might otherwise proscribe
1122 Moreover, a video recording of a woman s masturbating is arguably not even obscene
undei the Miller guidelines except if we were to completely ignore normal human fianctions
Therefore, this Court completely disagrees with People 5 counsel 5 assertion that if we use
everyone involved in this case as a subset of an ‘average person it is evident that all persons
involved, maybe with the exception of defense counsel, viewed the material as obscene as defined
by the statute Opposition, p 3 People s counsel, however, hits the core of the matter with this
other further assertion, the Defendant would not have thought that sending the video to other
individuals could be used as a means of embarrassment or intimidation if in fact the Video was
anything less than obscene and indecent Id The Court believes that it is Defendant s intent in
Memorandum Decision 2021 VI Supe1 5U
People v Elmo D Roebuck, Jr
ST 2020 CR 00289
Page 7 of 9
sending the video to embarrass 0r harass the victim not the obscenity of the matter that was sent
that should form the basis of this offense that § 1022(a)(3) does not criminalize 0r prescribe
V The Virgin Islands has no Revenge Porn Statute
1123 Ignoring the allegation of the criminal complaint that Defendant recorded an indecent
Video of M A, without her knowledge ’, which is the Victim s masturbating herself, which this
Court does not believe is either obscene or indecent under Miller, the gravamen of the criminal
complaint is one, he did so without her knowledge, and two he knowingly distributed it on the
social media app, Whats App See paragraphs 4(e) and (f) of Detective Angela Herbert s
Affidavit in support of her application for an arrest warrant for Defendant § 1022(a)(3) does not
make Defendant s conduct of recording, secretly, a private matter involving the victim, without
he1 consent 01 knowledge, criminal N01 does any othe1 V I statute of which the Court is aware
1124 The nucleus of the criminal complaint, howevei, viewed togethei with Detective Herbert s
arrest wan ant s affidavit, is that Defendant texted the Video of this piivate matter involving the
victim and he1 own body, without her consent, to othe1 WhatsApp s group members known to
both Defendant and the Victim, the day after the victim had updated hei Facebook page as being
in a relationship Paiagraph 4(p) 0f Detective Herbeit s affidavit states that [the victim]
obsewed an angry emoji under seve1a1 of hen photographs [The victim] further stated that she
clicked on the photographs and obsewed that an angry emoji came fiom [Defendant] The an est
wan ant’s affidavit states that Defendant and the Victim were in a p1i01 intimate Ielationship and
that Defendant and his son iesided with the victim at he1 residence aftei the 2017 hurricanes
destioyed Defendant s iesidence In sum, the Court believes that the c1ux of this mattex concems
Defendant’s publishing to then friends a recmding of a private mattei involving the Victim and he1
body, after he leained that she was involved in a 1elationship, without hex consent, and with the
intent to embanass, humiliate 01 punish her f01 being in anothe1 ielationship Obscenity has little
01 nothing to do with this mattei, except insofar as the video shows the victim pleasuring heiself
sexually
1125 This is what is chaiacteiized as revenge pom, now subject to Ciiminal statutes in 46 states,
the Distiict Of Columbia and one teiTitory Guam Cybei Civil Rights Initiative, 46 States + DC
+ One Teultory Now Have Revenge Pom Laws, https //www cybercivilrights 0rg/1evenge pom
laws/ (Jan 15, 2021, 14 30 GMT) The Court is not aware of any such criminal statute in this
jurisdiction that covers the gravamen of this criminal complaint against Defendant and the victim s
rightful desire to seek prosecution and punishment for the wrong done to her by Defendant, i e ,
the nonconsensual publication of a private matter concerning herself
1126 The Cyber Civil Rights Initiative, created to combat online abuses that threaten civil rights
and civil liberties , defines revenge porn as follows
The term ‘revenge porn, though frequently used, is somewhat misleading Many
perpetrators are not motivated by revenge or by any personal feelings toward the
victim A more accurate term is nonconsensual pornography (NCP) defined as the
distribution of sexually graphic images of individuals without their consent
Memmandum Decision 2021 VI Super 5U
People V Elmo D Roebuck, Jr
ST 2020 CR 00289
Page 8 of 9
Cyber Civil Rights Initiative, Mzsszon and stzon, https //www cybercivilrights org/welcome/about/
(Jan 15 2021 14 35 GMT)
1127 Recent law review articles focus on the non consensual nature of the disclosure of private
sexual matters that the revenge porn statutes were enacted to stop by criminalizing such
disclosures, as the greatest damage of such actions lies in the emotional harm such disclosures can
inflict upon the victims See Mary Anne Franks, Revenge Porn Reform a Vzew from the Frant
Lines 69 Fla L 1251 1258 (September 2017) ( [The perpetrators ] only constant is that they act
without the consent of the persons depicted )
1128 The Supreme Court of Vermont has already ruled that its revenge porn statute is
constitutional and that the subject mattei of the non consensual disclosure does not need to satisfy
Miller s three prong standard of obscenity bef01e that disclosure can violate the statute State v
V(mBu/en 214 A 3d 791 800 801 (Vt 2018) The Vermont Supreme Court deselibed its state
statute as follows
Vermont's law, enacted in 2015, makes it a Clime punishable by not 111016 than two
yeais' imprisonment and a fine of $2,000 01 both to “knowingly disclose[ 1 a visual
image of an identifiable person who is nude 01 who is engaged in sexual conduct,
without his or he1 consent, with the intent to harm, ha1 ass, intimidate, th1eaten, 01
coeice the peison depicted, and the disclosule would cause a 1easonable peison to
suffei harm 13 V S A §2606(b)(1)
1d at 214 A 3d 791 795 796
VI Conclusion
129 The g1 avamen of this eliminal complaint is not the Defendant s video reCOIding of a piivate
matte1 between the victim and heiself that was disseminated to otheis, but instead the non
consensual disclosuie of this private mattei to otheis with the intent to emban ass, humiliate 01 to
punisher he1 f01 being involved in a 1elationship not involving himself Such a Violation of
another 5 piivacy, exercised with such intent, may well shock the conscience, but it is not covered
by § 1022(a)(3) under which the People of the Virgin Islands ale attempting to punish Defendant s
alleged actions A plain language construction of § 1022(a)(3) does not cover the disclosuie of a
Video of the Victim s pleasuiing heiself to others through WhatsApp Therefore a reasonably
intelligent person would not have fair notice of the type of behavior or conduct that the legislature
intended to criminalize Additionally the video of the victim s masturbation is not obscene, should
the Court construe the definition of obscene under the three prong Miller standard and should the
People maintain its prosecution of Defendant for publishing the video as obscene matter covered
by § 1022(a)(3)
1130 Finally, the crux of the criminal complaint is that Defendant published the Video of
masturbation by the Victim without the Victim s consent, after he learned from her updated
Facebook page that she was in a relationship The element that would criminalize the matter is the
Mem01andum Decision 2021 VI Super 5U
People v Elmo D Roebuck,J1
ST 2020 CR 00289
Page 9 of 9
non consensual disclosure of the Video recording, which disclosure, under these circumstances,
the Court can only construe was done by Defendant with the intent to embarrass, humiliate or
punish her for being in a relationship, not involving himself, since their prior intimate relationship
had terminated This jurisdiction has no rule, law or statute criminalizing such conduct or behavior
as enacted by 46 states, plus the District of Columbia and Guam, called revenge porn statutes to
protect innocent victims, like this one, from the emotional and psychological upheaval such
disclosure can cause Nonetheless, it must be said that Defendant s disclosure meets no minimum
standards of good moral and ethics or common decency; yet until the V I Legislature decides to
enact such laws or statutes to proscribe the non disclosure of private matters involving some
degree of sexuality or nudity, this Court cannot by judicial fiat allow this prosecution to proceed
undei a statute that is totally rudderless under the facts and circumstances of this case The Court
shall therefore grant Defendant 5 Motion to Dismiss and will dismiss this matter with prejudice as
directed in the accompanying Order, entered on January 15, 2021
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