Cyberbullying and Online Harassment in Kansas

Young people have always encountered bullying, but cyberbullying—bullying that occurs in an electronic format—has become more prevalent than ever before. This phenomenon is more common due to the use of social media sites and texting as integral parts of social interactions among teens. In some instances, cyberbullying can cross the line to criminal or delinquent behavior.

This article discusses Kansas' criminal laws that prohibit acts of cyberbullying and cyberstalking, as well as state-mandated anti-bullying policies for schools.

Kansas' Criminal Statutes That Prohibit Cyberbullying and Cyberstalking

A person who engages in cyberbullying or cyberstalking in Kansas can face criminal charges for electronic harassment or stalking. In some situations, these penalties carry the potential of incarceration time. Let's take a look at when bullying behavior crosses the line to criminal or delinquent behavior.

Electronic Harassment: Crime and Penalties

Cyberbullying can be charged as harassment with an electronic communication device when the bully uses a cell phone, electronic device, or computer to:

• call, text, email, or message with the intent to abuse, harass, or threaten another person, or
• send a comment, image, or text that is obscene, lewd, lascivious, or indecent to another person.

Harassment using an electronic communication device constitutes a class A nonperson misdemeanor. A guilty defendant faces up to one year in jail and a $2,500 fine.

Stalking Laws: Crimes and Penalties

Cyberbullying can also be charged as stalking if the defendant's actions include knowingly or recklessly engaging in a "course of conduct" targeted at a specific person that would—and, in some instances, does—put a reasonable person in fear for their own or their family's safety. Engaging in a course of conduct includes using an electronic device, computer, or any electronic transmission to send repeated threats or communications to another.

A first stalking offense is classified as a class A nonperson misdemeanor, with the same penalties described for harassment. However, for second and subsequent offenses, crimes that occur in violation of a restraining order, and in several other similar specified circumstances, prosecutors can charge the offense as a severity level 5, 7, or 9, person felony. These felonies carry possible sentences of 11 to 55 months in prison, plus fines up to $300,000. (See the Kansas state sentencing grid for a more detailed explanation of potential penalties for these offenses.)

Possible Defenses to Cyberbullying and Cyberstalking

As discussed above, cyberbullying may be criminally prosecuted under several state laws (depending on the circumstances of the offense). Depending on the charge, one or more defenses may apply to each case, including the following.

Free Speech

The First Amendment protects your right to free speech. However, this right is not absolute; the state may limit free speech when it is considered a serious and imminent threat. A classic example involves yelling "Fire!" in a crowded theatre. When it comes to stalking or harassment, speech containing a threat to the victim that is serious and imminent can be restricted. But nonviolent or non-threatening speech is generally protected, even if it's unpopular or offensive. The line between protected and unprotected speech can be a fine one. It is worth exploring this defense, especially if your words or actions were ambiguous enough not to put a reasonable person in fear of harm (see below).

Unreasonable Person: Not Really Threatening

To be convicted of stalking, a defendant's actions must be such that they place a reasonable person in fear of harm or death. This means that if the victim was hyper-sensitive to actions that would not alarm an average reasonable person, the defendant may be acquitted of stalking charges. Your attorney will help you to explore these and other potential defenses based on the unique facts of your case.

Will Teenagers Facing Criminal Charges Be Heard in Juvenile or Adult Court?

Both minors and adults can be charged with electronic harassment or stalking, but they will be prosecuted in different courts based on age. Teenagers age 18 and 19 will face charges in adult criminal court, whereas most juveniles 17 and younger fall under the jurisdiction of the state's juvenile justice system. Kansas does allow a minor who is 14 or older to be transferred to adult court under certain circumstances, where they will face adult penalties, such as prison time.

Juvenile court judges generally have more discretion than adult court judges in sentencing. Within the juvenile system, sentencing options may include counseling, community service or work program, educational program, or detention in a juvenile facility. In juvenile court, the minor receives an adjudication of delinquency rather than a criminal conviction.

State-Mandated School Anti-Bullying Policies

Each school district in Kansas has a requirement to adopt anti-bullying policies that prohibit bullying—including cyberbullying—by or against students on school property or at school-sponsored events. Bullying is defined as any intentional written, verbal, electronic, or physical act or threat by or toward a student that actually harms a victim (mentally or physically) or the victim's property or places the victim in reasonable fear of harm such harm. School-imposed sanctions do not preclude the victim from also seeking remedies in both civil and criminal court.

Civil Lawsuits for Cyberbullying

As explained above, cyberbullying may be handled under school policies and state criminal statutes. In addition, a victim can directly bring a civil lawsuit against a bully for the emotional, social, or financial harm caused by the offense. In a civil suit, the judge may award money damages to be paid by the bully to compensate the victim. For example, a bully may be ordered to pay for the cost of therapy for the emotional distress caused to the victim or to reimburse the victim for the cost of repairing property damage caused by the crime.

Talk to a Lawyer

Cyberbullying and cyberstalking can incur serious fines and substantial incarceration time for a guilty defendant. If you have been arrested for or charged with a related crime, contact a local criminal defense attorney right away. A qualified lawyer can give you sound legal advice and recommend the best course of action for the unique circumstances of your case.

Similarly, you may be able to recover money damages if you have been a victim of these types of offenses. A lawyer can advise you about the potential civil causes of action that might apply to your case.

(Kan. Stat. §§ 21-5427, -6206, -6602, -6611, -6804; 38-2302, -2347; 72-6147 (2021).)