The school yard bully may have always been a teenage fact of life, but only recently has the Internet created cyberbullying—a new and potentially even more harmful form of this unfortunately too common part of teen social life.
This article discusses Kentucky's laws concerning cyberbullying—bullying that occurs in an electronic format— by and against teens. These include state criminal statues regarding harassment and other related crimes. To learn more about criminal harassment and stalking generally, see Harassment and Cyberbullying as Crimes.
Cyberbullying Laws in Kentucky
Cyberbullying is handled in schools and sometimes even in criminal court. This section describes state criminal laws that may apply to these cases, and the administrative regulations relating to school safety in all Kentucky state school districts.
General criminal statutes that apply to cyberbullying
Cyberbullying can be charged under Kentucky's harassment law when a bully (the defendant) engages in two or more acts that alarm or seriously annoy the victim and serve no legitimate legal purpose. Other behaviors (such as physically threatening a victim) are also included as harassment, but are less likely to be at issue when the bullying takes place in an electronic form. (Ky. Rev. Stat. Ann. § 525.070.)
Similar circumstances may also be prosecuted as harassing communications. This crime includes communication by electronic means (such as over the telephone or in an online post) that annoys or alarms the victim and has no legitimate purpose. It also includes instances of students communicating about a third student in a way that a reasonable person should know would put that student in fear of physical harm, humiliation, or embarrassment (and serves no purpose of legitimate communication). (Ky. Rev. Stat. Ann. § 525.080.)
More serious instances of cyberbullying can be charged as stalking in the second degree if the defendant engaged in two or more acts directed against the victim that alarm or annoy the victim; and at least one of these acts included a threat (explicit or implied from behavior) of unwanted sexual contact, physical injury, or death to the victim. (Ky. Rev. Stat. Ann. § 508.150.)
Legally-mandated school policies
Unlike other states, Kentucky law does not require specific anti bullying policies in state schools. But it does require all schools and districts have "policies and procedures for assisting students who are at risk of academic failure or of engaging in disruptive and disorderly behavior," as well as procedures for identifying, documenting, reporting, and responding to complaints of violence or other disruptive behavior. (Ky. Rev. Stat. Ann. § 158.440 & 158.148.) These requirements should address instances of bullying as forms of disruptive, violent, or disorderly behavior, and should also assist victims (at least as far as being victimized puts them at risk for academic failure).
Kentucky's Board of Education has also created administrative regulations relating to school safety and discipline issues, including bullying and cyberbullying as it fits into the broader category of violence and suspensions. These regulations require school districts to report such disruptive or violent instances to the state Center for School Safety in collaboration with the Board of Education. (Ky. Rev. Stat. Ann. § 158.444.)
The Far Reaches of Cyberbullying
Cyberbullying can be more disruptive than face-to-face threats and harassment because abuse that occurs electronically has certain unique characteristics.
The Internet provides a wider audience for abusive or humiliating posts, especially on social media websites, where often anyone with Internet access can see messages and other information.
Similarly, data posted online never really goes away (even if it is "deleted"), an attribute of electronic media that can come back to haunt victims and bullies for years to come. It may even affect potential future employment opportunities, as more employers are now using Internet searches to screen job applicants.
And the schoolyard bully is usually relatively easy to identify, which differs from cyber bullies who may hide behind anonymous or fake user accounts and profiles. Indeed, behind a shield of anonymity, a bully might be bolder—and crueler—than he or she would dare be if faced with the victim in person.
Defenses to a Criminal Charge
If you have been charged with a bullying-related crime, there are several defenses your lawyer may explore with you, including the following. However, the defenses that apply to your case depend on the unique circumstances of the offense.
Free speech
The 1st Amendment to the United States Constitution 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.
So, like someone yelling "Fire!" in a crowded theatre (which, in context, poses a serious and imminent threat of causing pandemonium and a dangerous stampede out of the theatre), bullies may not engage in speech that causes an immediate threat to another person or their property. Bullying speech (words or actions) may be legally limited for example, if a bully makes a threat to harm a victim and, given the circumstances, the victim reasonably believes that the bully could make good on the threat. Such speech may form the basis for a criminal charge.
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).
Not really threatening
As discussed above, the crime of harassing communications requires the defendant's actions to be ones that would put a reasonable person in fear of certain negative actions occuring. 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.
Legal activities
As described above, actions that annoy or alarm another person are sometimes be prosecuted under Kentucky's criminal harassment law. However, a defendant may have a defense to prosecution if the actions have a legitimate legal purpose. This might be true of a defendant who was acting within the scope of employment (although acting as an employee alone is not a defense to taking part in illegal behaviors).
How is Bullying/Cyberbullying Punished?
A bully convicted of a criminal offense may face fines, imprisonment, or both, as described below.
Harassment and harassing communications
Harassment and harassing communications are both Class B misdemeanors and may incur a fine of up to $250, up to 90 days in jail, or both.
Stalking in the second degree
Stalking in the second degree is a Class A misdemeanor, which incurs a fine of up to $500, at least 90 days (and up to one year) in jail, or both.
Civil Lawsuits
As you can see, the consequences of cyberbullying depend heavily on the circumstances of the offense. Sometimes a disruptive cyberbullying incident may be settled under school policy, but more serious cases often land in criminal court. Similarly, a victim may sometimes bring a civil action against a bully for the emotional, social, or financial harm caused by cyberbullying. In civil court, a judge may award money damages to be paid to the victim, for example to offset the cost of therapy for the emotional trauma that the bully caused the victim, or to pay for 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.
Talk to a Lawyer
Bullying in any form is damaging to all parties involved, and bullies often face fines and even time in prison. Therefore, if you have been charged with a bullying-related crime, you should speak to a qualified local criminal defense lawyer. Only an attorney can give you legal advice and help you chart the best course of legal action for your case.
