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 article discusses several of Wisconsin’s criminal laws, including harassment and stalking, that may apply to cyberbullying by and against teens. Fore more general information, see Teen Cyberbullying and Harassment.
Cyberbullies cause unique damage to their victims. For example, a cyberbully can post messages or images that not only reach a wider audience online, but also never really go away. (Data on the Internet has a long life, even if it is deleted in some sense). So, a victim may suffer every time someone enters his or her name into a search engine.
The Internet also provides cyberbullies with relative anonymity. They might, for instance, use fake email accounts or social media profiles, making them bolder and meaner than if faced with their victims in person. This anonymity can also make them harder to catch—and stop.
However, the victim may not be the only one to suffer from cyberbullying. While a schoolyard incident might eventually fade from mind, a bully’s cruelties may surface long into the future—for instance, when that bully applies for a job and the prospective employer does a little Internet research.
Bullying in Wisconsin may be punished under school policy and sometimes under state criminal law.
Unlawful telephone use. Prosecutors in Wisconsin may be able to use the state’s unlawful telephone use law to prosecute a cyberbully when the bully has used a telephone to threaten or purposely irritate the victim. This behavior might include calls or text messages to the victim containing unwanted lewd suggestions, or even less serious behavior, like repeatedly causing the victim’s phone to ring for the sake of annoying the victim.
Unlawful telephone use is sometimes a class B forfeiture crime—such as when the bully merely causes the victim’s phone to ring repeatedly with the intent to harass. (This kind of forfeiture crime can incur a fine of up to $1,000.) But it can also be punished as a class B misdemeanor, which incurs a fine of up to $1,000, up to 90 days in jail, or both. The crime is punished this way when, for example, it involves threats to injure the victim. (Wi. Stat. Ann. § 947.012; for more, see Wisconsin Misdemeanor Crimes by Class and Sentences.)
Unlawful use of computerized communications is a similar crime, but involves annoying or threatening communications via a computer, such as those sent through electronic mail or via Facebook. This crime can also be punished as either a class B forfeiture crime or a class B misdemeanor depending on the severity of bully’s actions. It’s generally punished as the former when the bully intended only to harass or annoy the victim, such as by sending repeated and unwanted obscene emails. But it becomes a misdemeanor when the bully intended to seriously frighten or threaten the victim. (Wi. Stat. Ann. § 947.0125.)
Criminal harassment is another crime that can cover cyberbullying. It applies when there are two or more acts that seriously annoy or intimidate the victim. Penalties increase when there are aggravating factors, 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 him or her in fear of injury or death. (Wi. Stat. Ann. § 947.013.)
Harassment is usually a class B forfeiture crime. But it increases to a class A misdemeanor, carrying a fine of up to $10,000, up to nine months in jail, or both, under certain circumstances. These circumstances include the bully threatening the victim in a way that causes fear of injury or death. And under even more serious circumstances, such as when the bully purposely gains access through electronic means to the victim’s personal information in order to harass him or her, the crime is a class H felony. Penalties include a fine of up to $10,000, up to six years in prison, or both. (Wi. Stat. Ann. § 947.013; see Wisconsin Felony Crimes by Class and Sentences.)
Stalking charges may also be available for cyberbullying. Stalking occurs when someone:
The defendant has to have known, or has to have been in a position where he should have known, that at least one of the acts would cause the victim to experience this kind of fear.
Examples of stalking include contacting the victim by phone, monitoring or recording the victim, and sending material to the victim.
Stalking is usually a class I felony, which incurs a fine of up to $10,000, up to three and a half years in prison, or both. However, penalties increase under certain specified circumstances. For example, stalking is a class H felony when the victim was younger than 18 at the time of the offense. (Wi. Stat. Ann. § 940.32.)
Wisconsin law requires each school board to adopt a policy prohibiting bullying by or against students, to annually distribute the policy to all students, and to provide a copy of the policy to anyone who requests it.
Each policy must include, in part, a definition of bullying and procedures for reporting and investigating instances of such abuse. It must also specify which school staff are responsible for carrying out these procedures. (Wi. Stat. Ann. § 118.46.)
Those who face criminal charges stemming from bullying accusations may consider the following defenses, or others.
Free speech is a fundamental yet limited right protected by the United States 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 the 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.
In addition to school-based punishment and criminal charges, cyberbullies may face consequences in civil court: Victims of bullying may bring civil lawsuits. (For more, see Can a Victim of Cyberbullying Sue for Future Damages?)
If you have questions about how the law applies to you or are facing discipline or criminal charges related to bullying, talk with a qualified attorney. Only a lawyer can fully explain which laws apply to your situation and give you proper legal advice.