Cyberbullying and Cyberstalking Laws in Washington

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 Snapchat, and messaging as integral parts of the social interaction among teens. What many don't realize is that cyberbullying can lead to criminal charges.

This article discusses Washington's criminal laws that prohibit acts of cyberbullying and cyberstalking, as well as state-mandated anti-bullying policies for schools.

Cyberbullying and Cyberstalking Laws in Washington

A person who bullies or stalks another using electronic communications can face charges for harassment by electronic communication, cyberstalking, or stalking. Electronic communications include email, texting, and instant messaging, among others. In certain situations, the penalties for conviction carry the potential of a substantial amount of incarceration time.

Harassment by Electronic Communication: Crimes and Penalties

An offender commits harassment by electronic communications when threatening another with words or conduct that places another in reasonable fear of bodily harm (immediate or future), property damage, physical restraint, or any other malicious act involving substantial harm. For example, continuously sending unwanted, lewd text messages can constitute harassment by electronic communication.

Generally, harassment by electronic communication constitutes a gross misdemeanor. Such an offense carries penalties of up to 364 days in jail and a $5,000 fine. Enhanced felony penalties can apply for repeat offenders, offenders subject to no-contact orders, and offenders who threaten to kill someone.

Cyberstalking: Crimes and Penalties

A person commits cyberstalking when they use electronic communications (other than a telephone) to harass, intimidate, torment, or embarrass another person. Defendants do this in one of three ways by using lewd, indecent, or obscene words or images; performing these actions anonymously or repeatedly; or threatening to harm the victim, their family or household member, or their property.

Washington law classifies cyberstalking as a gross misdemeanor, which subjects a guilty defendant to up to 364 days in jail and a $5,000 fine. However, prosecutors can charge cyberstalking as a class C felony when the behavior:

• violates a no-contact or no-harassment order and the bully has been convicted of previously harassing the victim or someone in the victim's family, or
• involves a threat to kill the victim or someone else.

Penalties for a class C felony include up to five years in prison and a $10,000 fine.

(Note: A federal court held part of the cyberstalking statute to be unconstitutional, and therefore, certain types of speech that fall within the categories listed above may be protected speech. Consult with an attorney on the validity of this law.)

Stalking: Crime and Penalties

Prosecutors can also charge cyberbullying under Washington's stalking law when the bully:

• repeatedly (two or more times) and intentionally harasses or follows another, including through electronic communications
• causes the victim to reasonably be scared, intimidated, or bothered, and
• intended to cause this reaction or knows or should have known this reaction was the likely outcome of the behavior.

Stalking usually constitutes a gross misdemeanor but increases to a class B felony under a number of specified circumstances. These include, for example, the bully having a previous stalking conviction or being armed with a deadly weapon. Penalties for a class B felony stalking conviction include up to 10 years in prison and a $20,000 fine.

Hate Crime Offense

If a cyberbully makes a threat based on a victim's actual or perceived race, color, religion, ancestry, national origin, gender, sexual orientation, or handicap, the prosecutor can file an additional felony charge for a hate crime offense. A conviction requires that the bully have the apparent ability to carry out the threat. An offender who commits a hate crime offense faces a class C felony conviction. In such a case, they face penalties of up to five years in prison and a $10,000 fine.

Defenses to Criminal Charges

Depending on the circumstances, those who face criminal charges stemming from bullying accusations may be able to claim the following defenses or similar ones.

Free Speech

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.

Unreasonable Reaction by Victim

Depending on the circumstances, someone charged with a crime related to cyberbullying might have a defense in that the victim's reaction was unreasonable. For instance, stalking requires that the defendant's conduct reasonably scare, intimidate, or bother the victim. So, if the victim was hypersensitive to behavior that wouldn't have created the necessary reaction in a reasonable person in similar circumstances, the behavior doesn't qualify as criminal stalking.

Will Teenagers Facing Criminal Charges Be Heard in Juvenile or Adult Court?

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. Washington law allows a minor who is 15 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.

Anti-Bullying School Policies

Washington law requires every school district to establish a policy and procedure prohibiting harassment, intimidation, and bullying of any student. These policies are designed to combat the effects of bullying and cyberbullying on the learning environment and to protect students on an individual basis. For offenses involving criminal behavior, the law authorizes expulsion and suspension of the student.

Civil Lawsuits for Cyberbullying

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.

Talk to a Lawyer

Cyberbullying and cyberstalking can incur serious fines and substantial incarceration time for a guilty defendant. If you've been arrested for or charged with a related crime, contact a local criminal defense attorney right away. A lawyer can give you sound legal advice and recommend the best course of action for the unique circumstances of your case.

If you've been a victim of cyberbullying, you may be able to recover money damages. A lawyer can advise you about the potential civil causes of action that might apply to your case.

(Wash. Rev. Code. §§ 9.61.230, -.260; 9.92.020; 9A.20.021; 9A.36.080; 9A.46.020, -.110; 13.40.070, -.110, -.160; 28A.600.460, -.477 (2021); Rynearson v. Ferguson, 355 F.Supp.3d 964 (2019).)