a person may call another repeatedly and the ensuing conversations may be or become more or less unsatisfactory, unpleasant, heated, or vulgar. Up to a point these are the normal risks of human intercourse, and are and should be below the cognizance of the law. This Court does not read this section of law to extend to these situations, no matter how much sympathy it might have for one side or the other in such a conflict, unless some completely unjustifiable motive, such as revenge or cruelty, motivates such repeated contacts by interstate telephone calls between those known to each other. Only then can such calls be properly called "solely to harass".
If this section were drawn or interpreted any more broadly, countless people would be criminalized. The effect of such a law would be to encourage more vengeance than it prevented. And considering the potential burden on the available investigatory staff, the prosecution, and the courts, it is unlikely that more than a tiny and haphazardly random minority would ever be prosecuted. Congress has wisely limited the scope of § 223(1)(D) to the discouragement of certain clear and unjustifiable behavior, and in less clear cases left the world to struggle as before with the problems and aggravations of romantic and family disputes.
With this as background, this Court feels that the Government failed to prove that four of the six counts tried involved repeated phone calls, and that any of the counts involved repeated phone calls "solely to harass". Four of the counts (Count 3, Count 5, Count 7 of the original information and Count 1 of the second information) involved calls which were taken by the answering service of the complaining witness, Mrs. Rex. In each case, defendant would call, be unable to get through the answering service, and call back a few minutes later until he got Mrs. Rex personally. All of the calls taken by the answering service were routine in content, and many were handled by an operator as intermediary. This Court feels that this kind of situation cannot be treated as a situation of repeated telephone calls under § 223(1)(D). The relevant consideration is not how many times Mr. Darsey dialed, or how many times he spoke to an answering service, but how many times he imposed upon Mrs. Rex. In the context of this case, this Court does not consider the calls completed until defendant actually got through to Mrs. Rex.
As to whether any of the calls were solely to harass, the evidence established that Mrs. Rex was defendant's former mother-in-law, that defendant was divorced from Mrs. Rex's daughter, who had custody of their son, that Mrs. Rex maintained contact with and gave financial support to her daughter, that defendant had great difficulty in seeing his son or contacting him in any way, that defendant professed to be worried about his son's safety in his former wife's custody, and that generally defendant only called Mrs. Rex when he couldn't reach his son by telephone. The conversations almost inevitably contained inquiry as to the son's whereabouts and well being and were sometimes at least civil. This Court does not intend to recount all the evidence in greater detail, or to describe every claimed and counterclaimed abuse on both sides. Nor does the Court believe that Mr. Darsey's behavior was always prudent, reasonable or above reproach -- it was not. Nor is the Court convinced that there was not an element of harassment motivating some of the calls. However, the Court is not convinced that any of the phone calls in question were shown to be made "solely to harass", and has therefore found defendant not guilty on all charges.