Cyberbullying in Minnesota

Teenagers have probably faced bullying throughout history, but only with the advent of the Internet and common use of social media, texting, and other forms of electronic communication has bullying graduated to “cyberbullying”—bullying that takes place in an electronic format — a potentially far more serious problem.

This article discusses Minnesota’s laws on cyberbullying by and against teens. These include state stalking and harassment laws, but to learn more about criminal harassment and stalking in general, see Harassment and Cyberbullying as Crimes.

Bullying Laws in Minnesota

Bullying and cyberbullying are criminalized in Minnesota’s general criminal statutes, and also through state-mandated anti-bullying policies in schools.

General criminal statutes that apply to bullying and cyberbullying

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 any conduct that the defendant knows (or should know) will cause the victim to feel frightened, threatened, oppressed, or intimidated. Increased fines and prison time apply when the conduct includes a “pattern of stalking” (which means two or more incidents in a five year period). (Mn. Stat. Ann. § 609.749.)

Harassment refers to a single incident of physical (or sexual) assault, or repeated incidents of intrusive or unwanted acts or words that actually have (or are intended to have) a substantial adverse effect on the safety or privacy of the victim.

As you can see, cyberbullying can be prosecuted as harassment when the defendant repeatedly sends or posts unwanted electronic communications to or about the victim in order to invade the victim’s privacy, or effect the victim’s safety. One way such electronic communication might affect the victim’s privacy and safety, for example, would be if the bully publicly posted the entry code to the victim’s apartment on Facebook (or a similar website), knowing that someone could use it to break into the victim’s residence. (Mn. Stat. Ann. § 609.748.)

Obscene or harassing telephone calls occur when a defendant uses a telephone (including a cellular or “smart” phone) to make obscene or lewd comments, requests, or suggestions to the victim; repeatedly calls the victim; or causes the victim’s phone to ring repeatedly with the intent to disturb or distress the victim. This law would probably also apply to someone who uses text messaging to do any of these things, although it is questionable whether it would apply to a victim merely accessing abusive Internet posts that the defendant did not use a telephone to create. (Mn. Stat. Ann. § 609.79.)

State-mandated school policies

Since 2007, all Minnesota public and private school boards have been required to adopt a written anti-bullying policy.

Each policy is required to address both electronic and nonelectronic bullying and intimidating behavior.

And while students may get help at school (and bullies should face school-imposed consequences), school-imposed sanctions do not preclude the victim from also seeking civil and criminal damages in court, described more under "Penalties," below. (Mn. Stat. Ann. § 121A.0695.)

Data Caching: Long Term Effects of Cyberbullying

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 even more serious than its nonelectronic cousin for several reasons.

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 have access to these hateful postings.

And while a school-yard incident in front of the same group might eventually fade from memory, once data is posted online, it never really goes away (even if it is “deleted”). So 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.

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.

Defenses to a Criminal Charge

Cyberbullying, which may be prosecuted criminally under the statues described above, is a serious crime, and your attorney may recommend several defenses if you have been charged with one of these or a similar offense.

Free speech

The 1st Amendment of the United States Constitution protects your right to free speech (especially where opinion is expressed). However, the state may limit speech that would pose a serious imminent threat to people or property. So while protected, your right to free speech is not absolute.

For example, you have probably heard about the classic example of someone yelling “fire!” in a crowded theater. In context, this speech poses a serious and imminent threat of causing pandemonium and a dangerous stampede out of the theater The speech can form the basis for a criminal charge.

When it comes to bullying, you are not allowed to utter threats or engage in other abusive behaviors that pose an imminent threat to someone else. This kind of threatening speech (including conduct, which is also considered “speech”) is legally limited by state law. 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. Such speech could form the basis for an attempted assault or battery charge.

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).

Not really threatening

Stalking usually requires that the defendant’s actions be ones that would put a reasonable person in fear of harm. 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.

Legal activities

Nonviolent or other nonthreatening activities intended to express the defendant’s political views or to provide lawful information to others, such as during a lawful protest or assembly, are often protected from prosecution.

Similarly, a defendant charged with stalking will often be acquitted if the conduct was legally allowed as part of the defendant’s job. For example, a process server is legally allowed to seek out the person whom he is trying to serve with court documents. Waiting for several days in a row outside the person’s home during business hours would be an example of behavior that might be viewed as stalking except that the process server was acting on legitimate business. If, however, the defendant engages in abusive or otherwise harassing behavior during the course of business, the abuse itself may be prosecuted.

Your attorney will help you to explore these and other potential defenses based on the unique facts of your case.

How is Bullying/Cyberbullying Punished?

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

Stalking may be punished as a gross misdemeanor or felony depending on the actual conduct involved in the offense. For example, a defendant who repeatedly calls or text messages a victim knowing that the victim will feel frightened is guilty of a gross misdemeanor; and may face a fine of up to $3,000, up to one year in jail, or both.

By contrast, a defendant who commits a stalking crime while falsely impersonating someone else is guilty of a felony; and penalties include a fine of up to $10,000, up to five years in prison, or both. This could include a crime where a defendant poses as the victim’s best friend on a social media site in order to make it seem as though that friend is suddenly being abusive or mean (and thereby further traumatizing the victim).

Harassment

Harassment is handled through court-issued restraining orders. In addition to paying for the victim’s court fees, the defendant will face penalties for violating the restraining order if the defendant does not cease to harass the victim. Penalties usually include a fine of up to $3,000, up to one year in jail, or both.

However, the offense is treated as a felony under some circumstances. For example, if the violation was motivated by the victim’s actual or perceived race, color, religion, sex, sexual orientation, disability, age, or national origin, the penalties include a fine of up to $10,000, up to five years in prison, or both.

Obscene or harassing telephone calls

This offense is a misdemeanor, and penalties include a fine of up to $1,000, up to one year in jail, or both.

Civil Lawsuits

As you have seen, bullies may be punished under school policies and under state criminal statutes. Often, victims of bullying may also bring a civil lawsuit for the emotional, social, or financial harm caused by the offense. 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.

Talk to a Lawyer

Bullying, whether handled only at the school level or prosecuted 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.

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