UPDATED: June 19, 2018
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Harassment charges are usually a misdemeanor, but that classification does not negate the seriousness of a harassment charge. Harrasment charges do not punish conduct but instead punish certain types of alarming or annoying communications. Anyone charged with harassment should understand what harassment is, how harassment charges are filed, and the consequences of a harassment conviction before accepting a plea bargain.
What Is Considered Harassment?
The first element of any harassment charge is proving that something was said or communicated. Before the electronic age, charges usually involved harassing conversations, either in person or over the phone. Many harassment statutes now cover any type of communication, including emails, social networking sites, and texting.
The second element of a harassment charge is evidence that the communication was likely to harass, annoy, alarm, torment, or embarrass the victim. Every state provides examples of communications or conduct deemed likely to harass. These include: threats of bodily injury or death, making obscene proposals, causing a victim's phone to ring repeatedly, and sending repeated electronic communications. What is actually considered harassment depends on the objective of the sender and the likely effect on the receiver. For example, if a debt collector calls a victim on an hourly basis for the admitted purpose of harassing the victim until the account is paid, the debt collector could be charged with harassment because his specific intent is to harass or annoy the victim. Intent and effect often provide the basis for a defense against a harassment charge.
Some phrases are used more casually today than they were in the past. For instance, “I’m going to kick your butt” can be interpreted in different ways depending on how and when it is used. A defendant charged with harassment may not want to deny making the comment, but instead contest the intent and context of the comment. The defense could argue that the comment was made during a playful exchange at a basketball game, no other threatening comments were made, others were present, and no other persons felt harassed, annoyed, or alarmed by the comment. The focus of the defense strategy is to rebut the intent and likely effect of the statement.
Using the same example, if the state wanted to pursue a harassment charge for the same comment, the state would need to introduce testimony or evidence that the comment was intended to harass or alarm the victim and was likely to alarm the victim. Evidence could include instances of other similar comments, the angry or hostile demeanor of the defendant at the time the comment was made and any gestures consistent with an intent to complete the threat, such as raising a fist and movement toward the victim. The type of evidence required to make a harassment charge will depend on the nature of the alleged harassing communication.
Who Can File Charges
State venue and jurisdiction laws affect where a defendant can be prosecuted for a harassment charge. Some states have very broad venue provisions which permit a harassment charge to be filed where the harassment communication was made or where the communication was received. Potentially a defendant could be prosecuted in a state where he was never present physically if all communications were made electronically.
Usually the victims file harassment charges, but parents or guardians can also file charges on behalf of their child or ward, if the child/ward was a recipient of the harassing communication. Onlookers are normally not considered victims for purposes of harassment charges.
Harassment Charges Overlap With Other Charges
Most states categorize verbal harassment as a misdemeanor offense, but any number of aggravating factors can elevate a harassment charge to a higher-level misdemeanor or felony charge. For example, if the harassing communication occurs repeatedly, a harassment charge could evolve into a stalking offense. If a harassment charge was based on an obscene proposal via email, and the victim was a minor, then the charge could be elevated to the much more serious offense of online solicitation of a minor. Because harassment charges tend to be lesser included offenses of other types of charges, they are frequently used in plea bargaining.
No one wants to plead guilty to harassment, but compared to some of the possible higher offenses, pleading guilty may be the best course for a defendant to resolve the case. For example, in Texas, some types of indecent exposure are usually considered misdemeanor offenses when a child is not involved. If a defendant is convicted of two misdemeanor indecent exposure offenses, he would be required to register as a sex offender. In this case, a better plea option for a defendant might be to accept a higher sentence or punishment on a harassment charge, rather than being labeled a sex offender. A defendant should always understand and consider all of the consequences associated with a plea and speak with a criminal defense lawyer before making any decisions regarding a plea.
Consequences of a Harassment Conviction
If there are no aggravating circumstances to elevate the charge, most harassment charges are misdemeanor level offenses. A misdemeanor can result in punishment for one or two years in a county jail, depending on the state. A defendant placed on probation usually will be required to participate in a rehabilitative program linked to the type of harassment. For example, if harassing statements were made in anger, the defendant could be required to complete an anger management class. A defendant who made obscene proposals could be required to undergo sex offender evaluation or treatment. The court also could require a defendant to refrain from any future contact with the victim.
In addition to the criminal punishments, a harassment conviction could have other negative consequences. Many employers will not hire anyone with personality traits that could lead to a civil lawsuit. An individual convicted of harassment could also be charged with emotional damage in a collateral lawsuit. Some parents have resorted to the civil courts to file lawsuits or injunctions against defendants who engaged in harassment directed toward their children.