While bullying has always been a special problem among youth, cyberbullying—bullying that occurs in an electronic format—has become a serious problem among teens, which can cause equally harmful effects. This phenomenon has become increasingly more common with text messaging and social media sites becoming an integral part of the social interaction among teens and middle schoolers. Though many don't realize it, cyberbullying in South Carolina and throughout the country can lead to significant legal consequences, including criminal penalties.
A person who engages in cyberbullying or cyberstalking in South Carolina can face criminal charges for harassment, stalking, or unlawful communications. In some situations, these penalties carry the potential of prison time. Let's take a look at when bullying behavior crosses the line to criminal or delinquent behavior. You can find the penalties in the next section.
Conduct rises to the level of criminal harassment when:
The harassing behavior can include electronic communication (the focus of this article), as well as physical acts or verbal or oral communications.
If convicted, the penalties will fall under second-degree harassment unless the following conduct was involved, elevating the crime to harassment in the first degree—the defendant:
Stalking occurs when someone engages in any pattern of words or conduct that serves no legitimate purpose and places a reasonable person in fear, for him or herself or a family member, of death, assault, battery, sexual battery, kidnapping, or property damage.
Stalking behavior includes verbal, written, and electronic communications. A pattern means two or more acts occurring over a period of time, however short, that show a continuity of purpose.
A person commits the crime of unlawful communications by using a phone or other electronic means to:
South Carolina treats stalking as a felony. Although the state usually punishes harassment less severely, this crime can still result in a felony conviction for certain offenders. The crime of unlawful communications carries misdemeanor penalties.
Harassment carries several different penalty levels depending on the nature of the offense and the defendant's conviction record.
Second-degree harassment carries a maximum jail sentence of 30 days and a $200 fine. The maximum penalty increases to a one-year jail sentence and a $1,000 fine if the person has a prior harassment or stalking conviction or committed the offense in violation of a restraining order.
First-degree harassment constitutes a class A misdemeanor and subjects the offender to up to three years' imprisonment and a $1,000 fine. If the conduct violated a restraining order, the fine increases to $2,000. An offender who has a previous conviction for harassment or stalking within the past ten years faces a felony, which can land the defendant in prison for up to five years and result in a $5,000 fine.
Stalking also carries several different penalty levels based on the offense nature and the defendant's conviction record.
Class F felony. A defendant guilty of stalking faces a class F felony conviction and up to five years in prison and a $5,000 fine.
Class E felony. If the defendant's conduct violated an injunction or restraining order, the maximum penalty increases to ten years in prison and a $7,000 fine.
Class D felony. When a defendant has a prior conviction for harassment or stalking within the past ten years, the prosecutor can charge the offense as a class D felony. This felony-level subjects the offender to up to 15 years in prison and a $10,000 fine.
Unlawful communications constitutes a misdemeanor and carries penalties of up to 30 days in jail and a fine of $100 to $500.
Someone charged with a crime related to cyberbullying or cyberstalking might have a viable legal defense (or more than one). The availability of any particular defense will differ from case to case, but common ones include:
Freedom of speech. The First Amendment to the U.S. Constitution prohibits the state from restricting freedom of speech, though not in every situation. For example, freedom of speech doesn't cover certain kinds of threats. On the other hand, a student who uses social media to express opinions about another student's racist conduct might be protected under the First Amendment.
Reasonable reaction. For statements or actions to constitute harassment or stalking, they must be "reasonably" upsetting or threatening. It's not enough for the alleged victim to feel emotional or mental stress or fear. The conduct in question must be such that it would produce this kind of reaction in an average, reasonable person.
Teenagers who are 18 or 19 are tried in adult court and receive an adult conviction, which can mean incarceration time. Minors age 17 and younger fall under the jurisdiction of the juvenile court (with some exceptions) and face delinquency charges.
Juvenile court judges tend to have broader discretion than judges in adult criminal court when it comes to imposing punishments. A juvenile court judge may order detention, community service, treatment, monitoring, or curfews. In juvenile court, the minor receives an adjudication of delinquency (not a conviction).
All South Carolina state school districts must have an anti-bullying policy. Referred to as the Safe School Climate Act, it defines bullying and harassment as any electronic communication, gesture, or act that can reasonably be perceived as:
For example, if a child uses social media, a cellphone, or another form of electronic communication to send threatening or intimidating messages to the victim, these acts constitute bullying or harassment. Students who bully others can face school disciplinary consequences, including expulsion, while school employees who bully can face penalties that include termination.
Apart from the potential criminal penalties and school disciplinary options to punish those who cyberbully, it's possible a victim could file a civil lawsuit against them for the emotional, social, or financial harm caused by the offense. For example, a victim of bullying could file a defamation lawsuit against the harasser.
Cyberbullying and cyberstalking can involve significant consequences. If you'e been charged with one of these or a related offense, contact a local criminal defense attorney as soon as possible. A qualified lawyer can explain the relevant laws and discuss possible defenses unique to your situation.
Similarly, you may be able to recover money damages through a civil lawsuit if you've been the victim of cyberbullying or a similar offense. A lawyer can advise you about the potential civil causes of action applicable to your case.
(S.C. Code §§ 16-3-1700, -1720, -1730, -1750; 16-17-430; 59-63-120, -130, -140 (2021).)