While bullying may have always been a special problem among teenagers, cyberbullying—bullying that occurs in an electronic format—can be even more harmful. With the rise of the Internet and widespread use of social media and text messaging, this problem may be the most dangerous forms of bullying to date.
This article discusses Michigan's laws concerning cyberbullying by and against teens. These include several criminal statutes (like stalking, for example), but to learn more about criminal harassment and stalking in general, see Harassment and Cyberbullying as Crimes.
Bullying and cyberbullying are criminalized through Michigan's general criminal stalking and cyberstalking statutes, and also through state-mandated anti-bullying policies in schools.
Depending on the circumstances of the offense, bullying may be prosecuted under any of the following state criminal statutes.
Stalking occurs when a defendant engages in two or more acts that would cause a reasonable person to suffer emotional distress (and that actually causes the victim such distress); or causes fright, intimidation, or a feeling of threat in the victim.
Among other specified behaviors, bullying may be prosecuted as stalking when the defendant repeatedly contacted the victim in person, on the phone, or through other electronic media. (Mi. Comp. Laws Ann. § 750.411h.)
Aggravated stalking is a more serious version of stalking because, in addition to the offense described above, it involves at least one credible threat to physically injure or kill the victim (or other specified acts, such as committing the crime in violation of a restraining order).
A “credible” threat just means that the threat was believable, and refers to a threat that was made in a context that would lead a reasonable person in the victim's position to believe the bully could really carry it out (even if the bully was in fact unable to do so). (Mi. Comp. Laws Ann. § 750.411i.)
Posting electronic messages without consent deals with “cyberstalking,” which includes posting a message without the victim's consent through any form of communication (for example, online or in a text message). To be convicted of this crime, the defendant must have had reason to know that posting the message could cause two or more acts of unconsented contact with the victim, and must have posted the message intending to harass, scare, or threaten the victim. And similar to the traditional crime of stalking, the message must have been one that would harass, scare, or threaten a reasonable person in the victim's position, and actually did do one of these things to the victim.
This law could apply, for example, to a bully posting abusive messages on Facebook, so long as the bully's action meets the requirements explained above. (Mi. Comp. Laws Ann. § 750.411s.)
In 2011, Michigan legislators enacted a law requiring all state school boards to adopt an anti-bullying policy. Among other things, each policy must include a ban on bullying by or against students and retaliation against victims, witnesses, or other people who report acts of bullying; the identification of school officials responsible for ensuring that the policy is implemented; and procedures for reporting, investigating, documenting, and addressing acts of bullying. (Mi. Comp. Laws Ann. § 380.1310b.)
Cyberbullying is the electronic cousin of bullying, and can cause even more serious damage because the unique attributes of electronically posted content. For example, when messages or images are posted online, they are often available to anyone with Internet access. And even if they are limited to “friends” (as is sometimes the case on Facebook), it is likely that the victim's real life social group will be connected to the victim in this way, and thus have access to hateful cyber-postings.
Furthermore, data posted online never really goes away (even if it is “deleted”). So while a school-yard incident in front of the same group might eventually fade from memory, a victim of cyberbullying may have to regularly relive the harm and embarrassment of the original post. Indeed, images especially may resurface for years to come, affecting the victim's future social relationships and even professional opportunities (as potential employers are now increasingly using Internet searches as part of pre-hiring screening).
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 profiles). Behind this kind of shield of anonymity, a bully might be bolder—and crueler—than he or she would dare be if faced with the victim in person.
Several defenses may apply if you have been charged with one of the crimes discussed above. These include the defenses discussed next, but your lawyer will be able to determine the best defenses for your unique circumstances.
Your right to free speech is protected under the 1st Amendment of the United States Constitution, however you must understand that this is a limited right. Speech that would pose a serious imminent threat to people or property may be legally limited by the state.
The classic example of this limitation involves someone yelling “fire!” in a crowded theatre. In context, this speech poses a serious and imminent threat of causing pandemonium and a dangerous stampede out of the theatre, and this speech may form the basis for an assault charge.
When it comes to bullying, you are not allowed to utter threats or engage in other abusive behaviors (conduct is also considered “speech” in this context) that pose an imminent threat to someone else. For example, threats to use a weapon are limited speech when the victim knows the bully actually has such a weapon and is nearby enough to make good on the threat.
Conversely, nonviolent or other nonthreatening activities (for example, those intended to express the defendant's political views or to provide lawful information to others) are often constitutionally protected. Examples include taking part in a lawful protest or assembly, even if the views expressed are unpopular or offensive to others.
But the line between a legitimate expression of opinion and seriously threatening speech is not always as clear and easy to draw as in these examples. For this reason, it is worth exploring a free speech defense, especially if your words or actions were ambiguous enough not to put a reasonable person in fear of harm (discussed next).
Stalking requires that the defendant's actions be ones that would put a reasonable person in fear or to feel threatened. This means that if the victim was hyper-sensitive to actions that would not alarm an average reasonable person in the victim's position, the defendant may be acquitted of stalking charges. Similarly, if a reasonable person would be alarmed by the bully's behavior, but the victim was actually unperturbed, the bully will probably not be convicted of bullying.
Your attorney will help you to explore these and other potential defenses based on the unique facts of your case.
In addition to the consequences incurred under school policy, someone who commits an act of bullying may also face criminal penalties. Depending on the specific conduct involved, bullying and cyberbullying may be prosecuted and punished under the Minnesota state criminal statutes described above (with applicable penalties discussed next).
Stalking is usually a misdemeanor, and incurs a fine of up to $1,000, up to one year in jail, or both. However, if the victim was younger than 18 years old at the time of the offense, and the defendant was five or more years older than the victim, the offense is a felony. Penalties include a fine of up to $10,000, up to five years in prison, or both. The judge may also place a person convicted of stalking on probation for up to five years, including an order to refrain from contacting the victim during that time.
Aggravated stalking is a felony, and incurs a fine of up to $10,000, up to five years in jail, or both. However, if the victim was younger than 18 years old at the time of the offense and the defendant was five or more years older than the victim, penalties increase to a fine of up to $15,000, up to ten years in prison, or both. The judge will also place a person convicted of aggravated stalking on probation for at least five (and up to ten years), and will include an order to refrain from contacting the victim during that time.
This offense is a felony, and incurs a fine of up to $5,000, up to two years in prison, or both. However, when the crime occurs in violation of a restraining order, when it involves a credible threat to harm or kill the victim (or a member of the victim's family), and in other similar specified circumstances, penalties increase to a fine of up to $10,000, up to five years in prison, or both.
In addition to the consequences stemming from school antibullying policy, and the fines or jail time from a criminal conviction, victims of bullying may often bring a civil lawsuit for the emotional, social, or financial harm caused by the offense. For example, the judge may award money damages to pay for the cost of therapy for the emotional distress caused by the bully.
Bullying, whether handled only at the school level or handled in court, can incur serious consequences. If you have been charged with one of the crimes described here (or something similar), speak to a qualified local criminal defense attorney. Only 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 cyberbullying or a similar offense. A lawyer can advise you about the potential civil causes of action that might apply to your case.