Intentional, not Unintended, Results
For most crimes, the prosecutor need only show that the defendant did an act that the law has made illegal. The defendant need not have intended the consequences that result. For example, when someone drives recklessly and causes an accident resulting in death, the driver can be charged with vehicular manslaughter because of his driving, even though he didn’t intend to cause an accident or death.
But many crimes, including harassment, require “specific intent,” which is intending the specific act that one is charged with. This means that the prosecutor must show that the defendant did or said something with the intent that the communication would harass the victim. The person may intend to annoy or intimidate the victim, or the words may be designed to provoke a fight.
Actions that unintentionally cause distress are not considered harassment. For instance, someone who plays loud music and mistakenly thinks that the sound won’t carry has probably not harassed his next-door neighbor.
Stalking as Harassment
Harassment can be committed through verbal or non-verbal means. A person may use physical gestures to threaten or annoy a victim, or a person may intimidate a victim through a pattern of behavior, such as showing up at the victim’s home or workplace. In some states, harassment that involves monitoring or following the victim is known as stalking.
Cyberbullying or Cyberstalking as Harassment
In addition to in-person communication, harassment also occurs where a person uses an electronic device such as a phone or computer to communicate threats, sometimes anonymously. The prevalence of the internet in everyday life has made harassment via email and social networking sites commonplace. Referred to as cyberbullying or cyberstalking, states have responded in differing ways to the growing problem. Some state legislatures have created separate statutes specifically addressing harassment that occurs online. Virginia, for example, directly addresses harassment that occurs on the internet, making it illegal to communicate via a computer network obscene language, threats of illegal or immoral acts, and obscene suggestions.
Hate Crimes and Special Victims as Harassment
Harassment laws also exist to protect specific classes of persons, such as persons holding public office. Hate crime laws typically prohibit harassment that targets victims based on their age, gender, sexual orientation, or race. For additional information on hate crimes, see our topic page covering hate crime laws.
One Act or Many?
For certain types of activity, many states require repeated acts or a pattern of behavior in order for a defendant to be found guilty of harassment. But where the activity involves physical contact, the threat of violence, or conduct likely to provoke a violent reaction, harassment statutes typically require only a single incident. For example, Hawaii’s harassment statute requires repeated phone calls in order for a violation of the law to have occurred, but the same statute requires only a single occurrence if the language or action is likely to cause a violent response or cause the victim to reasonably believe that the aggressor intends to physically harm the victim.
In some states, it is not necessary that a person threatens immediate harm. In Washington state, for example, a person commits harassment even where the threat is to commit a physically violent act at a future time. Other states require an immediate threat, such as California’s criminal threat statute.
Penalties
States recognize both misdemeanor and felony forms of harassment. Many states punish first-time harassment offenses as misdemeanors, but punish subsequent harassment convictions as felonies. In North Carolina, a defendant’s first conviction for stalking is punished as a misdemeanor, but subsequent stalking convictions are punished as felonies.
Some states also identify specific types of harassment as deserving harsher punishment. California punishes as misdemeanors harassing threats that are intended to make a victim fear for his or her safety, but threats to commit a crime that will result in death or severe physical harm are classified as felonies.
In addition to jail time and fines, penalties for harassment can include court-ordered psychological counseling. Sentences also frequently forbid a defendant from having direct or indirect contact with the victim. Violating a no-contact provision can result in new charges, in addition to revoking the probation or parole of a convicted harasser.
State legislatures have also passed laws that require schools to implement anti-bullying policies. A student who harasses another student, either in school or online, may face non-criminal penalties such as suspension or a ban from participating in school sports and activities.
Restraining Orders and Civil Liability
In addition to criminal charges, harassment can result in civil actions brought by the victim. A person who feels victimized by harassing behavior may seek a civil restraining order to prevent further harassment. Restraining orders frequently require that the respondent (that is, the person accused of harassment) not have any contact, direct or indirect, with the person seeking protection. The orders also typically require that the respondent keep a minimum physical distance from the respondent at all times.
While restraining orders are often handled in court as a civil matter, violations of a civil restraining order can trigger criminal charges, including felony charges.
Harassment can also result in civil lawsuits for damages. An employee who feels harassed by a co-worker may sue both the alleged harasser and their employer, regardless of whether the harassing conduct rises to the level of a crime.
Defenses to Harassment Charges
Defendants sometimes raise the following defenses when facing trial on harassment charges.
Free speech
First Amendment free speech principles may come to the aid in some cases. Although both the federal and state constitutions protect the freedom of speech, the freedom is not absolute. Whether a particular communication constitutes free speech, or crosses the line into criminal conduct, often turns on whether the communication is deemed to be for a legitimate purpose.
For example, Alabama’s harassment law states that the statute does not apply to telephone communications conducted for legitimate business purposes. Under such statutes, a collection agency employee that makes multiple calls in an effort to collect a valid debt is protected from criminal harassment charges, while an agent who threatens to harm the debtor’s family faces possible criminal harassment charges because the agent’s threats are not deemed legitimate business practices.
Unintended Consequences
A defendant may also argue that the alleged harassment was an unintended consequence of the defendant’s actions. For example, a person at home might play music that contains offensive lyrics, unaware that his child left a window open; a passerby on a seldom-used path hears the offensive music. Although the passerby feels annoyed, the person playing the music did not commit the crime of harassment because the person did not play the music with the intent to harass the passerby.
Just bluffing?
Defendants may think that they can defend themselves by arguing that their threats were hollow and that they did not intend to carry them out. It is generally not a defense that the defendant did not actually intend to follow through with a threat.
Consult With a Lawyer
Laws concerning harassment can be complex, and the meaning of key parts can depend significantly on how courts have interpreted them. Moreover, many of these laws are new and untested in the appellate courts; without this guidance, it can be difficult to know how trial judges will apply them. Congress and state legislatures are crafting new laws to address the increasing use of the internet and other technologies to perpetrate harassment.
If you are facing harassment charges, consulting an experienced lawyer who understands the charges and how the courts have interpreted the law will be of great help. A good lawyer can evaluate the strengths and weaknesses of your case, seek dismissal or a reduction in the charges, and craft an effective defense strategy should your case proceed to trial. Contact me ASAP if you face or may face harassment charges.