Young people have always encountered bullying, but cyberbullying—bullying that occurs in electronic format—is a recent form of this age-old social ill that presents new challenges for teens and those around them. This phenomenon has become increasingly more common with text messaging and social media sites becoming an integral part of the social interaction among teens. What many don't realize is that cyberbullying can be a crime.
This article discusses several of Wisconsin's criminal laws, including harassment and stalking, that may apply to cyberbullying by and against teens.
Cyberbullying and cyberstalking in Wisconsin may be punished under state criminal law as unlawful use of a computerized communication system, harassment, or stalking. Although some of these offenses can be charged as civil forfeitures (meaning the penalties only involves fines), more often prosecutors charge them as criminal offenses.
Unlawful use of computerized communication systems involves an offender sending annoying, offensive, obscene, or threatening communications via a computer, such as those sent through email, Facebook, Snapchat, or other computerized communication systems. This unlawful act increases from a class B forfeiture to a class B misdemeanor when the bully intended to seriously frighten, intimidate, threaten, or abuse the victim. A guilty defendant faces up to 90 days in jail and a $1,000 fine.
Acts of cyberbullying can also constitute criminal harassment. It applies when there are two or more acts that seriously annoy or intimidate the victim. Penalties increase when aggravating factors exist, such as the bully purposely gaining access through electronic means to the victim's personal information or threatening the victim in a way that places them in fear of injury or death.
Misdemeanors. Harassment starts as a class B forfeiture but prosecutors can charge harassment as a class A misdemeanor if the offender violates a no-contact order or threatens the victim in a way that causes a reasonable fear of death or great bodily harm. A class A misdemeanor carries penalties of up to nine months in jail and a $10,000 fine.
Felonies. If the offender has a prior conviction for harassment involving the same victim and the present violation occurs within seven years of the prior conviction, the crime moves up to a class I felony. A class I felony subjects the offender to up to three and a half years in prison and a $10,000 fine. And, under even more serious circumstances, such as when the offender purposely gains access through electronic means to the victim's personal information in order to harass them, the crime is a class H felony. Penalties for this felony-level offense include up to six years in prison and a $10,000 fine.
Felony stalking charges may also be available for cyberbullying. Stalking occurs when someone:
Acts of stalking include contacting the victim by text, email, or messaging, posting content or sending materials on message boards, websites, or web applications, and monitoring or recording the victim.
Stalking usually constitutes a class I felony, which incurs penalties of up to three and a half years in prison and a $10,000 fine. However, penalties increase under certain specified circumstances. For example, stalking becomes a class H felony when the victim was younger than 18 at the time of the offense or the defendant has a previous conviction for stalking, harassment, or a violent crime. A class H felony carries up to six years in prison and a $10,000 fine. If the unlawful act results in bodily harm to the victim or a family member or the offender uses a dangerous weapon, the prosecutor can charge it as a class F felony, subjecting the defendant to up to 12 and a half years in prison and a $25,000 fine. A repeat stalking conviction against the same victim can also result in a class F felony.
Those who face criminal charges stemming from unlawful use of a computer, harassment, and stalking-related offenses may consider the following defenses, among others.
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.
Not all crimes require a victim's fear to have been reasonable, but some do. For example, as mentioned above, criminal stalking requires that the bully's behavior cause the victim to feel fear or serious emotional distress that is reasonable under the circumstances. So, if the victim was hypersensitive to behavior that wouldn't have seriously bothered a reasonable person, the behavior is unlikely to qualify as criminal stalking.
For the most part, juveniles age 10 to 16 years old fall under the jurisdiction of the juvenile court system. Instead of criminal charges and a conviction, a juvenile will face a delinquency charge and an adjudication. Juvenile court judges generally have more discretion than adult court judges in sentencing. Within the juvenile system, sentencing options may include counseling, community service or work program, educational program, or detention in a juvenile facility.
Wisconsin is one of only a few states that consider a 17-year-old to be an adult for purposes of criminal prosecution, meaning they can receive an adult conviction and face incarceration time just like adults 18 and older. In some cases, one side or the other may request a teenager ages 17 to 19 be transferred to juvenile court. The judge determines whether to approve such a request.
In addition to criminal or juvenile delinquency charges, bullies may also face a judgment imposed by a civil court jury or judge. Victims of harassment or stalking can bring a case in civil court to recover money from the offender to pay for the harm caused by their actions. For example, a judge or jury may award a victim money to pay for therapy costs incurred as a result of the offender's unlawful conduct. Similarly, the defendant may have to pay for damage to property that resulted from their actions.
Bullying, whether handled in juvenile or criminal court, can incur serious consequences. If you've been arrested for or charged with harassment, stalking, or a related offense, contact a qualified local criminal defense attorney. A lawyer can give you legal advice and help you chart your best course of legal action.
Similarly, you may be able to recover money damages if you have been a victim of these types of offenses. A lawyer can advise you about the potential civil causes of action that might apply to your case
(Wis. Stat. §§ 118.46, 939.50, -51, 940.32, 947.0125, -.013 (2021).)