Stalking and Harassment

Most states, including North Carolina, have criminalized stalking and harassing behavior.  While most of the laws aim to prevent the same or similar behavior, they fall into two camps with regard to the actus reus requirement: some states require that the stalking behavior be both repeated and rise to the level of a credible threat, while others require only that the repeated behavior inflict severe or substantial emotional distress or that it harasses or annoys the victim.  Many states have also added language to their stalking and harassment statutes to make it clear that the laws include such behavior as performed via telephone, email, text, and other electronic communications.  The federal government has also addressed stalking and harassment, making it a crime to intend to "kill, injure, harass, or place under surveillance with intent to kill, injure, or harass" someone while traveling in interstate or foreign commerce, within the maritime jurisdiction of the U.S., or in Indian country. 18 U.S.C §2261A   The federal stalking statute addresses both those actions which rise to the level of credible threats and those that merely inflict severe emotional distress. 

As the laws regarding stalking and harassment differ across jurisdictions, it is difficult to analyze whether cyberbullying behaviors can serve as successful bases for prosecution under these laws.  Generally speaking, however, prosecutors will have to show that the cyberbully engaged in
(1) repeated behaviors
(2)with the purpose of  
(3) causing emotional distress or
(4) to harass and annoy
(5) Or, that such behaviors rose to the level of a credible threat

Most cyberbullying is made up of repeated behaviors, but it may not be easy to show in all cases that the bully engaged in the subject behavior with the requisite intent.  Whether deemed a joke, a prank, or something else, defendants in most cases will argue that their actions were not meant to cause any real harm, and, especially in the case of minors, juries might be apt to believe them.  Cases of direct cyberbullying will be easier to successfully prosecute as stalking or harassment crimes, especially if the behavior is frequent and virulent.  It will likely be difficult to show that perpetrators of indirect cyberbullying, those who, for example, create MySpace pages dedicated to poking fun of a teacher, possessed the requisite intent to be convicted of stalking or harassment.

Stalking and harassment laws were written, primarily, prior to the advent of the internet, MySpace, and text messaging.  While many have been amended to include such electronic communication tools, the elements required to prove the crimes lend themselves less easily to adaptations.  It may be possible to prosecute some cyberbullies who engage in direct cyberbullying behaviors under these statutes, but, the particular language of the statute, in addition to other factors such as the egregiousness of the behavior and the ages of the perpetrator and victim, will determine whether stalking or harassment laws serve as the most effective way to address these behaviors. 

Hate Crimes

It is important to note here that harassment motivated by race, ethnicity, gender, religion, or disability may be a federal crime.  Federal law prohibits anyone from "by force or threat of force willfully injur[ing], intimidat[ing], or interfer[ing] with – any person because of his race, color, religion, or national origin because he is or has been – enrolling in or attending any public school. . . ." 18 U.S.C. §245(b)(2).  States have also passed laws aimed at preventing hate crimes that could be used in the criminal prosecution of a cyberbully. For example, North Carolina has laws designed to address repeated harassment, including threats of physical violence, of someone based on that person's race, religion, ethnicity, or gender.   Additionally, North Carolina convictions of misdemeanors may be enhanced if the court finds the crime was motivated by race, color, religion, or nationality. 

Illustrative Cases

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