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DIGITAL BULLYING: NEW MEDIUMS FOR MISCONDUCT

A New Jersey Case Laid a Foundation for Cyber Harassment/Stalking Law

“…the Internet and related technology have also become new mediums for misconduct, in that communications via the Internet can be used to threaten, harass, intimidate, and cause harm to others.”

– Patricia R. Recupero, JD, MD (2008)

 

New Jersey Cyber-Stalking Lawyer Tara Breslow-Testa is fully aware the modern world has moved bullying and harassment from one-on-one physical and verbal interactions from the schoolyard and the neighborhood, to a vastly larger technological playground where bullies can splash false accusations and private images all over the internet for everyone to see – instantaneously, and worldwide.

Technology moves much faster than humans can respond and in the last decade, state and federal lawmakers and courts have struggled to keep up with the speed and many facets of internet communications – and to identify, define and legislate against cyber stalking and cyber harassment.

The Federal Government has laws against cyber bullying and harassment but has also allowed lawmakers to act on the state level. In New Jersey,  a nationwide case of cyber harassment which might have lead to the suicide of a young Rutgers students resulted in N.J.S.A. 2C:33-4.1, which defines and lays out punishment for the Crime of Cyber-harassment.

The law is brief and to the point but covers a wide spectrum of digital bullying.

2C:33-4.1 Crime of cyber-harassment.

1.a. A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person:

     (1) threatens to inflict injury or physical harm to any person or the property of any person;

     (2) knowingly sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person; or

     (3)threatens to commit any crime against the person or the person’s property.

b. Cyber-harassment is a crime of the fourth degree, unless the person is 21 years of age or older at the time of the offense and impersonates a minor for the purpose of cyber-harassing a minor, in which case it is a crime of the third degree.

c. If a minor under the age of 16 is adjudicated delinquent for cyber-harassment, the court may order as a condition of the sentence that the minor, accompanied by a parent or guardian, complete, in a satisfactory manner, one or both of the following:

       1. a class or training program intended to reduce the tendency toward cyber-harassment behavior; or

       2. class or training program intended to bring awareness to the dangers associated with cyber-harassment.

d. A parent or guardian who fails to comply with a condition imposed by the court pursuant to subsection c. of this section is a disorderly person and shall be fined not more than $25 for a first offense and not more than $100 for each subsequent offense.

 

THIRD AND FOURTH DEGREE CRIMES

There are as many flavors and facets to cyberbullying as there are means of communication on the Internet: Spy cameras, smart phones, laptop cameras, Twitter, Reddit, Facebook, Snapchat and countless internet sites.

In New Jersey, cyberbullying is a crime of the fourth degree which carries a prison sentence of up to 18 months and a fine up to $10,000. Cyberbullying becomes a third degree crime if the the accused is 21+ and impersonates a minor for bullying another minor. A third degree conviction can result in three to five years in prison and a fine up to $15,000.

Actions that can lead to a charge of cyberbullying can also result in additional charges, such as stalking, a Federal crime which could potentially increase any incarceration time and fines upon conviction. In 2016, New Jersey made cyber bullying an act of domestic violence, which allows afflicted parties to apply for restraining orders against the bullies.

There are some circumstances that allow for less serious consequences. For example, a minor under the age of 16 who is adjudicated delinquent for cyberbullying may be ordered to complete a class or training program (along with a parent or guardian). This class could be focused on reducing the tendency toward bullying behavior or bringing awareness to the dangers associated with bullying.

Cyber-harassment is not a felony in New Jersey but the same actions that meet the definition of cyberbullying in New Jersey can be charged as a felony under federal cyberstalking laws: U.S.C. 2261A (2)).

 

STATE OF NEW JERSEY VS DAHRUN RAVI (2010 – 2012)

A conviction for cyberbullying can also lead to expulsion from schools, loss of jobs and state and national ignominy – as was the case of Dharun Ravi. In 2010, Ravi was a Rutgers student sharing a room with Tyler Clementi. On September 19, Rhavi and a female accomplice Molly Wei captured secret camera images of Tyler Clementi having sex with another man. Two days later, on September 21, 2010, Ravi and Wei attempted a live feed on Twitter of Clementi and partner in another private tryst. The live feed never happened.

On September 22, Clementi committed suicide by jumping off the George Washington Bridge.

On September 28, Ravi and Wei were charged with four and two counts of invasion of privacy.   This is a fourth degree offense under New Jersey law, if one observes another person without that person’s consent under circumstances in which a “reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact.”

It is a third-degree crime if someone makes public a “reproduction of the image” of the person whose privacy was invaded. Ravi was charged with invasion of privacy in the third and fourth degree.

The court responded to calls from gay rights advocates and bloggers to consider hate crimes charges against Ravi and Wei. Prosecutor Bruce Kaplan didn’t think the hate crime charges would stick, but in April of 2011, Ravi was indicted on 15 counts of bias intimidation, invasion of privacy, witness tampering and evidence tampering.

Molly Wei avoided prosecution by agreeing to testify against Ravi.

State of New Jersey vs. Dharun Ravi was a complicated, emotional, 13-day trial that attracted attention across the country and around the world – and put a very bright spotlight on cyber bullying and cyber harassment.  

In May 2012, Ravi was sentenced to a 30-day jail term, three years of probation, 300 hours community service, a $10,000 fine, and counseling on cyberbullying and alternate lifestyles.

Many thought the sentence was light, although the suicide of Clementi was not allowed as evidence in the trial. The judge stated Ravi acted out of “colossal insensitivity, not hatred.”

Ravi served 20 days and was let out for good behavior and work credits.

State of New Jersey vs. Dahrun Ravi became an important case in passing the bill in January of 2014 that would become N.J.S.A. 2C:33-4.1: Crime of cyber-harassment.

 

VICTIMS AND PERPETRATORS

Cyberbullying has become a constant act and a constant crime, most often committed by middle school, high school and college students. Targets are often minorities, the disabled or LGBTQ or otherwise emotionally vulnerable young people.

Young people have always bullied each other, but social media has taken the practice to new dimensions – from one on one interactions in the schoolyard to images broadcast state, nation and worldwide.

There also have been instances of “catfishing” in which a person online takes on a false identity to lure another person into a relationship – to manipulate them for money, or sex or some other reason.

Cyber harassment and cyberbullying have many facets and flavors, but the courts have experienced enough cases to evolve laws protecting citizens young and old from being threatened, harassed, intimidated or manipulated by known or anonymous people, using the internet, cameras, computers.

 

INTENT IS IMPORTANT

According to Steven D. Hazelwood & Sarah Koon-Magnin in Cyber Stalking and Cyber Harassment Legislation in the United States: A Qualitative Analysis  “In order to prove someone guilty of a crime (with the exception of strict liability crimes) the state must show evidence of both actus reus and mens rea.

Actus reus, “guilty act,” is evident in the criminal behavior (in this case CH or CS).

Mens rea, “guilty mind,” refers to the mal intent of the individual who committed the act. This mal intent, because of its necessity in the U.S. criminal justice system, was the only theme present in each state’s CS and CH statutes (n = 49; 100% of the sample).”

 

BETTER CALL TARA

These “new methods of misconduct” have inspired new laws, court cases and precedents. Cyber stalking cases are still relatively new, the laws are still evolving and the cases are often complicated as in State of New Jersey vs. Dahrun Ravi. If you believe you are a victim of cyber stalking or cyber harassment – or if you have been accused of cyber harassment or stalking –  Tara Breslow-Testa is a cyber harassment attorney for New Jersey who is the first person you should talk to.

For a free consultation, contact Tara Breslow-Testa at (732) 784-2880