Harassment and Cyberbullying as Crimes

Understand when certain behavior crosses the line from annoying to criminal harassment.

By , Contributing Author | Updated by Rebecca Pirius, Attorney

The crime of harassment—which can include stalking, hate crimes, and cyberbullying—occurs when one person acts in a way designed to annoy, provoke, threaten, or otherwise cause another person fear or emotional distress. State laws and some federal laws identify multiple ways in which harassment can be committed.

Certain harassment matters—often those based on someone's protected class—are heard in civil court (such as harassment in the workplace). In a civil matter, the victim typically seeks a remedy in the form of damages.

Harassing behavior that can lead to criminal charges generally refers to acts that cause the targeted victim to fear for their safety or suffer severe distress. A government prosecutor decides whether to file criminal charges in such a case. A victim can also seek a restraining order to stop the harassment.

This article will review criminal harassment and its many offshoots.

What Is Harassment?

Every state defines and penalizes harassment differently, but most share common elements. To prove harassment, the prosecutor cannot merely show that the person acted in an annoying manner. The defendant must have acted with specific intent.

Criminal harassment typically requires that the defendant's conduct:

  • be directed at a specific person
  • serve no legitimate purpose, and
  • be something that would cause a reasonable person to suffer substantial distress or fear for their safety.

In some states, the law criminalizes only repeated acts of annoying, alarming, or unwanted behavior. But often, if the conduct is a crime (such as assault), a single act will suffice.

Different Types of Criminal Harassment

Harassment can be committed through verbal or non-verbal means. A person may use physical gestures to threaten or annoy a victim, or a person may intimidate a victim through a pattern of behavior, such as showing up at the victim's home or workplace. Sending harassing messages or images online represents an increasingly common way to intimidate another.

Harassment can also take on many forms. For specific types of behavior, states may impose harsher penalties or create a separate crime.

Stalking as Harassment

In some states, harassment that involves monitoring or following the victim is known as stalking. A person might do this physically (like following someone home) or electronically (such as using GPS tracking). Sometimes, states define stalking as communicating threats of physical harm, extortion, or damage to property against the victim or their family.

Cyberbullying or Cyberstalking as Harassment

Using technology or the internet to bully, harass, or stalk someone may be referred to as cyberbullying, cyberstalking, or online harassment. Cyberbullying tends to fall in a grey area that's harmful but not yet criminal. However, it often doesn't take much to cross the line into a criminal act when the behavior makes the targeted victim fear for their safety or suffer emotional distress.

Cyberstalking or online harassment involves a wide range of conduct, such as:

  • sending threats, obscene images, or repeated unwanted communications via text, messaging, computer, or email
  • posting harmful or false information on social media sites or the internet
  • impersonating someone on their social media account, email, or website, or
  • encouraging others to post private, personal, false, or offensive information about another.

Hate Crimes and Intimidation as Harassment

A defendant who targets a victim for harassment based on their actual or perceived race, color, nationality, gender, sexual orientation, sexual preference, or religion commits a hate or bias crime. Similarly, targeting certain classes of victims for harassment can result in a criminal charge for intimidation. Common protected victims include judges, police officers, public officials, jurors, and witnesses.

Depending on the state's law, a defendant guilty of a hate crime or intimidation can face an enhanced penalty (such as a misdemeanor increasing to a felony), an increased sentence for the underlying harassment charge, or a separate charge for intimidation or a hate crime.

What Are the Penalties for Harassment?

States recognize both misdemeanor and felony forms of harassment. Misdemeanors typically carry the potential of jail time (often up to a year) and fines. A felony conviction can mean prison time. Depending on the conduct involved, a defendant convicted of felony harassment could face up to 5 or even 10 years' prison time.

Many states punish first-time harassment offenses as misdemeanors and subsequent harassment convictions as felonies. Some states also identify specific types of harassment as deserving harsher punishment. For instance, a state might make it a misdemeanor to communicate threats intended to make a victim fear for their safety but increase the penalty to a felony for threats to commit a crime that will result in death or severe physical harm. Lawmakers have also taken special note of the harm done by cyberbullies. If a defendant harasses or stalks a minor online, the penalties can be harsh.

In addition to jail time and fines, penalties for harassment can include court-ordered psychological counseling. Sentences also frequently forbid a defendant from having direct or indirect contact with the victim through a restraining or no-contact order. Violating a no-contact provision can result in new charges, in addition to revoking the probation or parole of a convicted harasser.

State legislatures have also passed laws that require schools to implement anti-bullying policies. A student who harasses another student, either in school or online, may face non-criminal penalties such as suspension or a ban from participating in school sports and activities.

What Is a Civil Harassment Restraining Order?

While it's up to the prosecutor to file criminal charges, a harassment victim can go to civil court on their own and seek a restraining order. The restraining order directs the defendant/respondent not to have any contact, direct or indirect, with the person seeking protection. The orders also typically require that the respondent keep a minimum physical distance from the respondent at all times.

While restraining orders are often handled in court as a civil matter, violations of a civil restraining order can trigger arrests and criminal charges, including felony charges.

Defenses to Harassment Charges

Defendants sometimes raise the following defenses when facing trial on harassment charges.

Free Speech

A defendant may raise a First Amendment defense based on free speech principles. Whether a particular communication constitutes free speech or crosses the line into criminal conduct, often turns on whether the communication is deemed to be for a legitimate purpose. Protesting can fall into this category. People have the right to protest and demonstrate but that right doesn't mean they can send harassing or threatening communications to a government official or throw rocks at their home.

Unintended Consequences

A defendant may also argue that the alleged harassment was an unintended consequence of the defendant's actions. For example, a person might play music containing offensive lyrics, unaware that his child left a window open; a passerby on a seldom-used path hears the offensive music. Although the passerby feels annoyed, the person playing the music did not commit the crime of harassment because the person did not play the music with the intent to harass the passerby.

Unreasonable Reaction by Victim

If a victim is overly sensitive, a defendant might argue that the victim's reaction was unreasonable. An element of criminal harassment requires that the defendant engage in conduct that would cause a reasonable person to suffer fear or harm. Say a person allegedly fears for their safety because their neighbor plays rap music. The neighbor could rightly argue a reasonable person would not have reacted this way.

Just Bluffing?

Defendants may think that they can defend themselves by arguing that their threats were hollow and that they did not intend to carry them out. It's generally not a defense that the defendant did not actually intend to follow through with a threat.

Consult With a Lawyer

Laws concerning harassment can be complex, and the meaning of key parts can depend significantly on how courts have interpreted them. If you're facing harassment charges, consult an experienced criminal defense lawyer who understands the charges and how the courts have interpreted the laws.

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