Exploring the Chaste Reputation Statute

Believe it or not, someone actually asked me to do a for real analysis of the chaste reputation statute. I aim to please so here we go.

The Statute:

§ 18.2-417. Slander and libel.

Any person 

[1] who  [a] shall falsely  [i] utter and speak, or  [ii] falsely write and publish,  [b] of and concerning any person of chaste character,  [c] any words  [i] derogatory of such person's character for virtue and chastity, or  [ii] imputing to such person acts not virtuous and chaste, 

OR

[2] who  [a] shall  [i] falsely utter and speak, or  [ii] falsely write and publish,  [b] of and concerning another person,  [c] any words which from their usual construction and common acceptation  [i] are construed as insults and  [ii] tend to violence and breach of the peace

OR 

[3] who  [a] shall use grossly insulting language [b] to any person of  [i] good character or  [ii] reputation

is 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.

Really, what we've got here are three different crimes. The first is about impugning any person's chastity and virtue.  Here the original purpose of the statute comes to the fore when this was meant to apply to women. Any honest reading of the meaning of "chaste and virtuous" cannot fail to understand that this was about punishing someone who put out in the community that a woman sleeps around or, at the very least, has had sex with someone out of wedlock. When the General Assembly changed "woman" to "person" it may have broadened to whom this outdated concept applied, it did not change the concept attached to the "person." To be blunt, this section is about attacking someone's reputation for being a virgin or only having sex within the bounds of matrimony. 

The second crime is saying or publishing something that's an insult AND tends toward violence. At the time this statute was originally written it was probably something like: "You're a cad and a poltroon and I shall be at your doorstep at noon to do something about it." It is kin to assault only it doesn't require an actual threat, merely words which tend in that direction.

The third crime is using really, really insulting language TO someone of good character or reputation. So, you don't have to actually have a good character; you can skate by as long as you have the reputation. Anyway, this reads very much as if it meant "If you are a person of means or status none of the hoi polloi shall sully your ears with brutish insults." However, a fair reading is that anyone with a good reputation - no matter their class - can be the victim under this statute. The "to someone" section seems to indicate that this is probably going to occur in person most of the time. However, if someone were to write, and attempt to cause to be delivered, an obscenity laced letter it would most likely fall under this section as well.

To be honest, this entire statute should be scrapped. The third crime [3] is almost surely unconstitutional as it contains no requirement of possible incitation of violence. The first crime [1] maybe has one part that might be salvageable. [1][c][ii] would be falsely saying someone did an act which involved premarital sex or sex outside of an existing marriage. This smells awfully civil to me, but the General Assembly (and the common law) criminalizes lies in other areas of the law (primarily financial¹) and this part of the statute could be thought to be on the same wavelength. Crime two [2] is the most viable of the three. As a milder form of assault it could survive. In fact, I'd kinda like to see it used and challenged to see how it would fare.

Good luck with the statute folks. If anybody ever uses it or defends somebody who has been charged under it let me know. I'd like to see how it fares.

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¹ An example is larceny by trick wherein the thief lies to get the item by claiming he will return it.