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 universal use of social media sites and texting as integral parts of social interaction among teens. But, what many don't realize is that cyberbullying can cross the line to criminal conduct, such as harassment and stalking.
This article discusses California's criminal laws that prohibit acts of cyberbullying and cyberstalking, as well as state-mandated anti-bullying policies for schools.
While California's laws don't specifically refer to cyberbullying or cyberstalking, a person who uses an electronic communication device to harass, intimidate, annoy, or stalk another can face the criminal charges described below. Electronic communication devices include telephones, cellphones, computers, and Internet web pages or sites, among others. Let's take a look at when bullying behavior crosses the line to criminal behavior.
A person who uses an electronic communication device to post or distribute personal identifying information or harassing messages about another commits a misdemeanor, if the person did so intending to place another in reasonable fear for their or their family's safety, and either:
Such an offense carries penalties of up to one year in jail and a $1,000 fine.
It's also a crime to use an electronic communications device to communicate obscene language or threaten harm to another, their property, or their family. An offender also violates this statute by making repeated electronic contact with someone intending to annoy or harass them, whether or not any type of conversation ensues from that contact.
Electronic harassment constitutes a misdemeanor, which subjects the defendant to up to one year in jail and a $1,000 fine.
A person commits criminal stalking by willfully, maliciously, and repeatedly following or harassing another person and making a credible threat with the intent to place that person in reasonable fear for their or an immediate family member's safety. This law includes any threats made by electronic communications devices.
Prosecutors can charge stalking as a misdemeanor or a felony, depending on the circumstances of the offense and the offender. The misdemeanor carries penalties of up to one year in jail and a $1,000 fine. Felony stalking can land a defendant in prison for up to two, three, or five years.
An offender, who has a prior stalking conviction, can also face contempt charges for violating a no-contact order by willfully contacting the victim using an electronic communication device. Criminal contempt of court subjects the defendant to up to one year in jail and a $5,000 fine.
As discussed above, cyberbullying and cyberstalking may be criminally prosecuted under several state laws. Depending on the charge and circumstances of the offense, a defendant might be able to raise one or more defenses, including the following.
Free speech is a fundamental yet limited right protected by the U.S. Constitution. The government can punish speech (words and related actions) when it is likely to be immediately dangerous to others. Examples are falsely yelling "fire!" in a crowded theatre and issuing what are sometimes referred to as terrorist threats. The line between protected and illegal speech isn't always clear, meaning that it may be appropriate under certain circumstances to explore a free-speech defense.
As explained above, certain offenses require that the bully's behavior caused the victim to feel fear and that the victim's fear be reasonable under the circumstances. In other words, if the victim was hypersensitive to behavior that would not have bothered an average, reasonable person, the behavior in question is unlikely to legally qualify as a criminal offense. Because of this reasonableness requirement, a defendant may be acquitted of criminal charges if their actions were not serious enough to bother a reasonable person in the victim's position.
Both minors and adults can be charged with cyberbullying or cyberstalking, 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 ages 17 and younger fall under the jurisdiction of the state's juvenile justice system. (California law allows a minor who is 16 or older to be transferred to adult court under certain circumstances.)
Juvenile court judges generally have more discretion than adult court judges in sentencing, as the juvenile justice system focuses more on rehabilitation rather than punishment. Within the juvenile system, sentencing options may include counseling, community service, treatment, curfews, educational programs, or detention in a juvenile facility. In juvenile court, the minor receives an adjudication of delinquency rather than a criminal conviction.
Under the California Safe Place to Learn Act, all schools in the state must adopt policies and procedures to prevent and address bullying, cyberbullying, and cybersexual bullying. The rules must also outline criteria for when a student may be removed from class, suspended, or expelled from school for engaging in such behavior.
Cyberbullying and cyberstalking can incur serious fines and substantial incarceration time for a guilty defendant in California. If you have been arrested for or charged with a related crime, contact a local criminal defense attorney right away. Only a qualified lawyer can give you sound legal advice and recommend the best course of action for the unique circumstances of your case.
(Cal. Edu. Code §§ 234.1, -.2, -.4; Cal. Penal Code §§ 166, 646.9, 653m, 653.2; Cal. Welf. & Inst. Code §§ 602, 707 (2021).)