While young people have probably always faced bullying, a new form of this abusive behavior called cyberbullying (bullying that occurs online or through electronic media) has arisen with the widespread use of the Internet, social media, and other electronic forms of communication. Cyberbullying is potentially the most harmful form of bullying seen to date, as discussed more below.
Kansas legislators have addressed bullying (and its electronic cousin, cyberbullying) in their general criminal statutes, and also through a state-mandated school antibullying policy.
Cyberbullying can be charged as harassment with a telecommunication device when the bully uses such a device (such as a cell phone or computer) to take one of several specified actions with the intent to abuse or threaten another person. One of these actions (and the one most likely to come up in a bullying situation) involves a defendant who communicates electronically in a way that is likely to cause annoyance or harm to the victim. (Ks. Stat. Ann. § 21-6206.)
This crime is a class A nonperson misdemeanor, which incurs a fine of up to $2,500, up to one year in jail, or both.
Cyberbullying can also be charged as stalking if the defendant’s actions include taking two or more actions (including electronic communications) that would put a reasonable person in fear for the victim’s (or victim’s family’s) safety. The defendant must have had knowledge that the repeated threats would put a reasonable person in fear, and the threats must have actually put the victim in this kind of fear. (Ks. Stat. Ann. § 21-5427.)
Stalking is usually 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, the offense is classified at various felony levels. Fines and jail or prison time are determined by Kansas’ state sentencing grid.
Comparing stalking with harassment, we can see that stalking is the more serious crime: rather than an action that causes annoyance or harm (harassment), the actions involved in stalking must be repeated and cause fear for safety. Because of this, stalking involves harsher penalties, described below.
The board of education for each school district in Kansas is required to adopt an anti-bullying policy prohibiting bullying (including cyberbullying) by or against students on school property or at school-sponsored events. Each school’s policy must cover both electronic and nonelectronic bullying. The policy should apply to any physical act or conduct by or toward a student that actually harms a victim (mentally or physically) or the victim’s property, or that places the victim in reasonable fear of harm such harm.
Each school policy must include, at minimum, this definition of bullying and a plan to address bullying (including provisions for training school staff and students).
School-imposed sanctions do not preclude the victim from also seeking civil and criminal damages in court, described more under Penalties, below. (Ks. Stat. Ann. § 72-8256.)
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.
The 1st Amendment protects your right to free speech (especially where opinion is expressed). 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. In context, this speech poses a serious and imminent threat of causing pandemonium and a dangerous stampede out of the theatre, and can be prosecuted as an assault. When it comes to stalking or harassment, speech containing a threat to the victim that is serious and imminent is also limited, so threats about using a weapon are also limited when the victim knows the bully actually has such a weapon and, for example, is nearby enough to make good on the threat.
But the line between a legitimate expression of opinion and seriously threatening speech is not always easy to draw. For this reason, 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).
As explained above, stalking requires the defendant’s actions to be ones that would put 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.
As explained above, cyberbullying may be handled under school policies and state criminal statutes. In addition, a victim may 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.
If you have been a victim of cyberbullying, your attorney will discuss specific causes of action that may apply to your case.
If you have been charged with a cyberbullying-related offense it is important to talk to a qualified local criminal defense attorney. Only an attorney can give you legal advice and help you decide the best course of legal action for the unique facts of your situation.