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, such as Facebook and Twitter, and texting as integral parts of social interaction among teens. But, what many don't realize is that cyberbullying can lead to criminal charges.
This article discusses Virginia's criminal laws that prohibit acts of cyberbullying and cyberstalking, as well as state-mandated anti-bullying policies for schools.
A person who engages in online bullying can face charges for criminal harassment, threats, or stalking. In certain situations, the penalties for conviction carry the potential of incarceration time.
Cyberbullying can be charged as harassment by computer or unlawful use of an electronic communication device to send profane, threatening, or indecent language. A person commits these offenses when, with the intent to coerce, intimidate, or harass someone, they use a computer, cellphone, or wireless communications device to do any of the following:
Criminal threats occur when an offender knowingly communicates, including electronically, a threat to kill or injure a person or their family, and the threat places the victim in reasonable apprehension of death or bodily injury to themselves or their family member. Such an offense is a Class 6 felony. Class 6 felonies are wobblers, which means they can be punished as a felony (one to five years of incarceration) or as a misdemeanor (up to 12 months in jail and a $2,500 fine), depending on the severity of the crime.
A person commits criminal stalking when, on more than one occasion, they engage in conduct directed at another person with the intent to place that person in reasonable fear of death, criminal sexual assault, or bodily injury to that person or their family or household member.
Stalking constitutes a Class 1 misdemeanor and carries penalties of up to 12 months in jail and a $2,500 fine. The penalties for criminal stalking increase to a Class 6 felony for second and subsequent offenses occurring within five years of the original conviction. Class 6 felonies subject a guilty party to one to five years of incarceration.
As discussed above, cyberbullying and cyberstalking 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.
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, stalking requires that the bully's behavior cause a victim to reasonably fear for their or their family's safety. 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 stalking. Because of this reasonable fear requirement, a defendant may be acquitted of stalking 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 stalking, 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. Virginia law allows a minor who is 14 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 or work program, educational program, or detention in a juvenile facility. In juvenile court, the minor receives an adjudication of delinquency rather than a criminal conviction.
Virginia law requires each local school board to have a policy that includes (among other things) a prohibition against bullying—including cyberbullying—and criteria for when a student may be removed from class, suspended, or expelled from school. School-imposed sanctions do not preclude the victim from also seeking remedies in both civil and criminal court.
As you have read, cyberbullies may face penalties at school and sometimes in criminal court. In addition, a victim of cyberbullying may bring a civil lawsuit for the emotional, social, or financial harm caused by the offense. The size of the money damages will depend on the harm caused to the victim. For example, a civil court judge may order a cyberbully to pay the cost of therapy for the emotional distress caused to the victim.
Cyberbullying and cyberstalking can incur serious fines and substantial incarceration time for a guilty defendant. 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.
If you are a victim of cyberbullying, you might be able to recover money damages. You'll want to speak to a lawyer who can advise you about the potential civil causes of action that might apply to your case.
(Va. Code §§ 16.1-269.1; 18.2-10, -11, -60, -60.3, -152.7:1, -427; 22.1-279.6 (2021).)