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Civil contempt, criminal contempt or substantive crime? Part II

You will recall from Part I the facts of our hypothetical: 

Pat and Chris are divorced from one another. Their Marital Dissolution Agreement (MDA) includes provisions that prohibit each from harassing, disparaging or abusing the other. Chris, however, purchases billboard space along the arterial highway in Pat’s neighborhood, bearing the message, “Pat is a no good, stinking weasel.”

After reading the billboard message, Pat telephones Chris repeatedly during the early morning hours and leaves threatening messages on Chris’s voice mail.

Part I considered Pat’s potential remedies against Chris. We now turn to Chris’s potential remedies against Pat for the offending telephone calls.

The statute defining actionable contempts is Tennessee Code Annotated § 29-9-1021. Pat’s conduct may constitute a contempt under § 29-9-102(3) as a “willful disobedience or resistance of any officer of the such courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts.” It may also constitute a substantive criminal offense in violation of Tenn. Code Ann. § 39-17-308, which in relevant part states:

39-17-308. Harassment. -- (a) A person commits an offense who intentionally:
* * *
(2) Communicates with another person without lawful purpose, anonymously or otherwise, with the intent that the frequency or means of the communication annoys, offends, alarms, or frightens the recipient and, by this action, annoys, offends, alarms, or frightens the recipient[.]
* * *
(c)(1) Except as [not relevant here,] a violation of subsection (a) is a Class A misdemeanor.

The penalty for a Class A misdemeanor is confinement for not greater than eleven (11) months, twenty-nine (29) days or a fine not to exceed two thousand five hundred dollars ($2,500), or both, unless otherwise provided by statute. Tenn. Code Ann. § 40-35-111(e)(1).

This Part II will focus on criminal contempt and the relationship thereof to substantive crimes. Contempt proceedings are sui generis2 and are incidental to the case out of which they arise3. Although contempt proceedings are traditionally classified as “civil” or “criminal,” in point of fact, contempt proceedings are neither wholly civil nor criminal in nature and may partake of the characteristics of both4.

Criminal contempt proceedings are designed “to preserve the power and vindicate the dignity and authority of the law and the court as an organ of society.5” Sanctions for criminal contempt are generally both punitive and unconditional in nature, designed to punish past behavior, not to coerce directly compliance with a court order or influence future behavior. Therefore, when a court imposes a definite term of confinement for conduct constituting criminal contempt, the contemnor cannot shorten the term by agreeing not to continue in the behavior that resulted in his confinement6. “Such imprisonment operates not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience.7” 

Criminal contempt is often regarded as a “crime” because certain substantial rights and constitutional privileges afforded criminal defendants are also afforded criminal contemnors. For example, indirect criminal contempt may only be punished after the accused contemnor has been given notice and an opportunity to respond to the allegations at a hearing. An alleged criminal contemnor, like a person charged with a criminal offense, is presumed to be innocent, must be proven guilty beyond a reasonable doubt, and cannot be compelled to testify against himself. An alleged contemnor is also entitled to an attorney and may have an attorney appointed to represent him at no cost if he is not able to afford one8

As noted in Part I, whether an accused contemnor is entitled to trial by jury depends on the potential punishment available. If the punishment is that of a “serious contempt,” generally meaning more than six months incarceration, jury trial is available. In Tennessee courts “[t]he general rule is that a constitutional guaranty of jury trial does not apply to proceedings to punish for contempt of court whether in a court of law, a court of equity, a court having criminal jurisdiction, or other court.”9 For violation of general criminal statutes,however, where a fine of more than $50.00 or any confinement of the accused may be imposed, the right to jury trial under the Tennessee constitution is well-established10.


1. 29-9-102. Scope of power. -- The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases:
(1) The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice;
(2) The willful misbehavior of any of the officers of such courts, in their official transactions;
(3) The willful disobedience or resistance of any officer of the such courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts;
(4) Abuse of, or unlawful interference with, the process or proceedings of the court;
(5) Willfully conversing with jurors in relation to the merits of the cause in the trial of which they are engaged, or otherwise tampering with them; or
(6) Any other act or omission declared a contempt by law.

2. Sui generis means constituting a class alone. Synonyms include unique and peculiar.

3. Doe v. Board of Professional Responsibility, 104 S.W.3d 465, 474 (Tenn.2003); Baker v. State, 417 S.W.3d 428, 435 (Tenn. 2013).

4. Baker, supra, at 435.

5. Black v. Blount, 938 S.W. 2d 394, 398 (Tenn. 1996).

6. Baker, supra, at 435.

7. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 442-43, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Baker, supra, at 435.

8. Baker v. State, supra, 417 S.W.3d at 436.

9. Baker v. State, supra, 417 S.W.3d at 437, quoting Pass v. State, 181 S.W.613, 184 S.W.2d 1,3 (1944).

10. State v. Dusina, 764 S.W.2d 766, 767 (Tenn. 1989) (No jury trial right when maximum fine for speeding violation was $50.00 with no possibility of jail time.)

Paternity Fraud In Tennessee
Civil contempt, criminal contempt or substantive c...