While bullying has always been a stumbling block during the teenage years, the Internet and other forms of electronic communication have spawned cyberbullying—bullying that occurs in an electronic format. For the reasons discussed below, this new form is perhaps the most harmful kind of bullying to date.
This article discusses Massachusetts’ laws concerning cyberbullying by and against teens. To learn more about criminal harassment and stalking in general, see Harassment and Cyberbullying as Crimes.
Massachusetts legislators have addressed bullying (and its electronic cousin, cyberbullying) in their general criminal statutes, and also by requiring all schools to implement antibullying policies, discussed more below.
Bullies may be charged with several general Massachusetts criminal statutes, depending on the circumstances of the offense.
Harassment applies to instances of bullying and cyberbullying, and refers to repeated conduct (two or more acts) in person or over electronic media that are directed at a specific victim, that seriously alarm that victim, and that would cause a reasonable person in the victim’s position to feel distressed. (265 Ma. Gen. Laws Ann. § 43A.)
Stalking usually applies to more serious bullying behaviors, as it requires harassment (as defined above) that also includes a threat that puts the victim in fear of imminent injury or death. As with harassment, stalking applies to both in person and electronic conduct. (265 Ma. Gen. Laws Ann. § 43.)
Annoying telephone calls or electronic communication occurs when a defendant repeatedly contacts a victim for the purpose of harassing or annoying the victim (or the victim’s family). This offense includes repeated contact even if no conversation ensues (such as calling and hanging up), and “contact” may include words, images, sounds, or other forms of communication. (269 Ma. Gen. Laws Ann. § 14A.)
By state law, Massachusetts school boards must have an anti-bullying policy that covers both electronic and nonelectronic bullying.) The policy must include acts:
Among other things, each school policy must include a statement prohibiting bullying; a procedure for reporting instances of bullying; investigation and documentation procedures for following up and acting on such reports; and consequences and actions to be taken by the school (and by whom) to stop and prevent incidents of bullying.
School-imposed sanctions do not preclude the victim from also seeking civil and criminal damages in court, described more under Penalties, below. (37 Ma. Gen. Laws Ann. § 37O.)
As mentioned above, cyberbullying is harassment that occurs through electronic media. In addition to the social and mental harm that bullying causes the victim, cyberbullying can be more serious for several reasons.
Images and messages posted online are often accessible to anyone with Internet access, so victims often suffer before a wider audience than when bullying is limited to the classroom or other school property.
Similarly, data posted online never really goes away (even if it is “deleted”), and so the victim may suffer well beyond an analogous incident of face-to-face bullying. Images may also resurface for years to come, affecting the victim’s future social relationships and professional opportunities.
And while a schoolyard bully is usually easy to identify, the Internet offers cyber bullies relative anonymity, for example, through a fake social media user profile. Indeed, behind a shield of anonymity, a bully might be bolder—and crueler—than he or she would dare be if faced with the victim in person.
Depending on the circumstances of the offense, different defenses will apply to each case of cyberbullying to goes to court. The following are two examples that might apply.
Your right to free speech is protected under the 1st Amendment. This is true especially when you are expressing your opinion. However, this right is not absolute; the state may limit free speech when it is considered a serious and imminent threat, and may prosecute you if such speech causes (or threatens to cause) harm.
For example, talking about how much you like firearms would usually be protected speech; however, you are not allowed to make threats to harm someone with your gun if that person reasonably believes that the you actually have a weapon and you are nearby enough to make good on the threat. You could face charges of assault or attempted battery.
As you can probably see, the line between a legitimate expression of opinion and seriously threatening speech is not always easy to draw. For this reason, it is worth exploring this defense, especially if your words or actions were ambiguous enough not to put a reasonable person in fear of harm (see below).
As explained above, harassment and stalking require actual distress felt by the victim and that this reaction is “reasonable.” In other words, if the victim is abnormally sensitive to behavior that wouldn’t bother most people in the victim’s position, the alleged bully may be acquitted of the harassment or stalking charges.
In addition to the consequences incurred under school policy, bullies may face criminal prosecution. This section explains the penalties imposed for a conviction under the criminal statutes discussed above.
In Massachusetts, harassment incurs a fine of up to $1,000, up to two years and six months in jail, or both. For second and subsequent offenses, the judge may elect to impose either up to two years and six months in jail, or up to ten years in state prison.
Penalties for stalking include a fine of up to $1,000; and either up to two years and six months in jail, or up to five years in prison, or both.
When the offense occurred in violation of a restraining or other similar civil protective order and in other similar specified circumstances, the defendant will face at least one and up to five years jail or state prison (in addition to any applicable monetary fines). And second and subsequent convictions incurs at least two (and up to ten) years in jail or state prison (and any fines imposed by the judge).
This offense incurs a fine of up to $500, up to three months in jail, or both.
In addition to sanctions imposed under school antibullying policy and the criminal charges discussed above, bullies may also face civil lawsuits brought by the victim (or victims).
Civil lawsuits may seek monetary damages (payment) for the emotional, social, or financial harm caused by instances of bullying. For example, the judge may award monetary awards for property damage caused by the crime. Similarly, a bully may have to pay for the cost of therapy for the emotional distress caused to the victim.
Bullying and cyberbullying are serious crimes that can incur harsh fines and even prison time. If you have been charged with one of the crimes discussed here (or something similar), or if you have questions about how Massachusetts law applies to you, contact a qualified local criminal defense lawyer. Only an attorney can give you legal advice and help you to chart your best course of legal action.