What are the laws surrounding cyberbullying? How much trouble can a child get into?
When Opie got his lunch money stolen, Barney Fife taught him how to fight the bully. Probably not an appropriate response anymore, but at least Opie got to face his tormentor and there was a refreshing clarity and closure to the issue. Kids today are subjected to faceless or anonymous tormentors in an entirely new forum, cyberspace. And, bullies face a far more tangled web of outcomes than just a black eye.
When Opie goes bad in cyberspace, the ramifications can be based in the application of school policy and codes of conduct and discipline or in the juvenile justice system, or both. Within the last ten years, most states, including Colorado, enacted laws mandating that schools establish anti-bullying policies. Colorado law relating to school policies defines bullying as “any written or verbal expression, or physical or electronic act or gesture, or a pattern thereof that is intended to coerce, intimidate or cause any physical, mental, or emotional harm to any student.” (See C.R.S. 22-32-109.1) As a result, all schools in Colorado are required to have a policy on this type of conduct when it occurs within the school and apply “Safe School” plans and their individual codes of conduct and discipline and all are “encouraged” to Internet Safety Plans and curriculum for their students. But, what about when it’s outside the school or the conduct rises to such a level that the school administration reports to law enforcement?
As a general proposition, most who discuss this behavior in terms of criminal conduct would explain cyberbullying as electronic-based harassment or bullying of a minor. The unique aspect of the conduct is that a “one-time” offense may well result in the potentially abusive comment or photo being permanently available in cyberspace for hundreds, if not thousands, to see over and over. As a result, the potential harm done to a victim may well continue for days, months or years. Currently, because Colorado does not have a specific crime of cyberbullying, if the conduct occurs “on-line” it must meet the elements of another crime to be prosecuted criminally.
Under our criminal provisions, if the message, post, picture or other form of communication is intended to harass, annoy or threaten injury or property damage, the most likely charge is harassment pursuant to C.R.S. 18-9-111. This is a class 3 misdemeanor charge, but can be a class 1 misdemeanor if intended to harass or intimidate based upon race, color, religion, ancestry, or national origin. Much of the conduct typically considered cyberbullying may well fit under harassment. However, cyberbullying related behavior may also include the charge of Computer Crime pursuant to C.R.S. 18-5.5-102 (a Class 2 misdemeanor) if the perpetrator creates a false on-line presence to hide his or her identity in undertaking the harassing behavior. There are a few far more serious possibilities depending upon the gravity and repetitive nature of the conduct. For instance, engaging in repeated communication with another person or a member of that person’s family with the intent to cause serious emotional distress –and if it does result in serious emotional distress it’s considered Stalking – is a class 5 Felony for a first offense and a Class 4 felony for second or subsequent offense. Finally, if the conduct includes the sending of nude or sexually exploitative pictures, the applicable charge may well be Sexual Exploitation of a Child, a Class 3 felony. This, as with any felony, is a very serious charge with the potential for long term and serious collateral consequences for a juvenile adjudicated under this provision. The possible penalties for juveniles adjudicated for any delinquent act include participation in diversion programs, probation, restorative justice, therapy, fines, victim empathy classes, and in extreme cases, detention in the Department of Youth Corrections.
By Tom Raynes, Executive Director CDAC