Cyberbullying is the electronic cousin of traditional in-person bullying, which seems to be an unfortunate long-standing fact of teenage social life. Given how much teens socialize online and through electronic devices, they are especially at risk of being cyberbullied. But while much cyberbullying occurs by and against teens, anyone can be a target.
In New York, certain acts of cyberbullying that cross the line to threatening or alarming or that cause another emotional distress can be punished in the criminal legal system as harassment or stalking. Read on to learn more.
A person can face criminal harassment charges by repeatedly committing acts that are intended to annoy or alarm a victim (and which have no legitimate legal purpose). Harassment is broken into several categories depending on the seriousness of the defendant's actions, with increasing penalties for more severe crimes.
Acts of cyberbullying can also be charged under one of several categories of stalking when the offense includes intentional and repeated acts that are directed at a specific person and meant to put the person in fear of mental or physical harm. Similar to harassment, stalking crimes apply only to conduct that serves no legitimate purpose. Stalking crimes are divided into degrees based on the seriousness of the offense.
Depending on the circumstances of the crime, a person charged with harassment or stalking for cyberbullying can face penalties that range from a violation to a felony conviction.
Harassment crimes start as violations, punishable by up to 15 days in jail and a $250 fine. These violations are acts meant to seriously annoy the victim, but they don't place the victim in fear of actual harm. If the acts, however, make the victim reasonably fear for their physical safety, the crime increases to harassment in the first degree, a class B misdemeanor. Class B misdemeanors can result in up to 90 days in jail and a $500 fine.
Both harassment crimes can bump up to aggravated harassment (in the first or second degree) when certain specified factors—such as prior convictions—exist at the time of the crime. For instance, it's aggravated harassment in the second degree to harass another by using any form of electronic communication to threaten physical harm to the victim or their family or to threaten to damage the victim or their family's property. Aggravated harassment also occurs if the offense is a "hate crime." A hate crime occurs when the defendant was motivated to commit abusive acts based on a belief or perception about the victim's race, gender, religion, age, sexual orientation, gender identity, gender expression, or other protected categories.
Aggravated harassment in the second degree is a class A misdemeanor, punishable by up to 364 days in jail and $1,000 in fines. First-degree aggravated offenses carry class E felony penalties, involving up to four years in prison and a $5,000 fine.
The least serious stalking violation is charged as fourth-degree stalking, and the offense moves up in seriousness through third-, second-, and first-degree stalking when certain factors existed as part of the offense.
Stalking in the fourth degree is a class B misdemeanor, punishable by up to 90 days in jail and fines. Stalking in the third degree involves a repeat offense or conduct that makes a victim fear for their physical safety. These crimes carry class A misdemeanor penalties of up to 364 days in jail and fines. Stalking in the second degree occurs in situations where a defendant 21 or older bullies a victim younger than 14 or a defendant threatens to use a weapon against the victim. This class E felony can mean up to four years in prison. Stalking in the first degree is a class D felony. This penalty applies when the defendant intentionally or recklessly injures the victim. A person convicted of a class D felony faces up to seven years in prison.
(N.Y. Penal Laws §§ 70.00, 70.15, 80.00, 80.05, 120.45 to 120.60, 240.25 to 240.31 (2022).)
Several defenses may apply to charges of harassment or stalking that end up in criminal court. If you have been charged with these or similar crimes, your lawyer may recommend several defenses, such as the following.
You may be aware that your right to free speech is protected under the First Amendment. Your lawyer might be able to argue that your words and actions fall under a form of protected speech. For instance, you are allowed to voice your political opinion even if it's unpopular. But free speech has its limits. The state may limit free speech when it is considered a serious and imminent threat.
Stalking and some degrees of harassment require a victim's fear to be "reasonable." This means that a typical reasonable person in the victim's position would have found the defendant's behavior threatening. If the victim was hypersensitive to actions that would not alarm an average reasonable person, the defendant may be acquitted of stalking or harassment charges.
As mentioned above, harassment and stalking crimes must involve some form of intent and serve no legitimate purpose. Some activities, such as legal protests or labor strikes, are therefore protected (so long as the participants do not break any laws during the activity) because, while they may disturb the targeted audience, they serve a legally protected purpose.
New York requires all public and charter schools to operate under an anti-bullying policy, which must include a prohibition on cyberbullying and harassment (including hate crimes) on school property and at school functions.
Each school district must develop its own policies that include provisions for identifying, reporting, investigating, and responding to alleged instances of bullying, harassment, and cyberbullying (including a statement of which school employees are responsible for handling each of these procedures). (N.Y. Educ. Law §§ 11, 12, 13 (2022).)
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 or jury 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.
Anyone facing criminal charges for acts related to cyberbullying should speak to a local criminal defense attorney. If you face a civil lawsuit seeking damages, talk to an attorney who defends civil cases.