Fundamentals of Criminal Law by Adam J. McKee

Harassment, as a criminal offense, involves a range of behaviors intended to disturb, upset, or threaten an individual. This offense has evolved significantly over time, partly due to the influence of societal changes and technological advancements. In its most general sense, harassment includes actions that are repeatedly directed towards a person, causing emotional distress, fear, or discomfort. The nature of harassment can vary greatly, ranging from verbal abuse and stalking to cyber-harassment.

Statutory Examples

Many jurisdictions have specific statutes addressing different forms of harassment. For instance, the Model Penal Code (MPC), which serves as a guideline for many states, defines harassment as a person who, with purpose to harass another, makes a telephone call without purpose of legitimate communication or causes a communication to be made to such person or a third party. Under the MPC, this is considered a petty misdemeanor. However, individual states often have their own specific statutes. For example, Arkansas Code Annotated § 5-71-208 outlines harassment as engaging in conduct or repeatedly committing acts that alarm or seriously annoy another person and that serve no legitimate purpose.

The Arkansas Example

Arkansas Code § 5-71-208, as of 2020, provides a detailed statutory framework for the offense of harassment. This statute not only defines the conduct that constitutes harassment but also outlines the legal consequences and potential defenses. Let’s break down each subsection to understand its implications better.

Subsection (a) – Definition and Acts Constituting Harassment

Subsection (a) outlines specific behaviors that, if performed with the purpose to harass, annoy, or alarm another person without good cause, constitute harassment. These include:

  1. Physical Acts: Striking, shoving, kicking, or otherwise touching a person or attempting or threatening to do so.
  2. Obscene Language or Gestures: Using obscene language or gestures in public in a way likely to provoke a violent or disorderly response.
  3. Following: Following a person in or about a public place.
  4. Verbal Provocation: In public, repeatedly insulting, taunting, or challenging another person in a manner likely to provoke a violent or disorderly response.
  5. Alarming or Annoying Conduct: Engaging in conduct or repeatedly committing acts that alarm or seriously annoy another person, serving no legitimate purpose.
  6. Surveillance: Placing a person under surveillance outside their school, workplace, vehicle, or residence, solely to harass, alarm, or annoy.

Subsection (b) – Classification of the Offense

Harassment, as defined by this statute, is classified as a Class A misdemeanor. This classification informs the potential penalties, which in Arkansas for a Class A misdemeanor can include up to one year in jail and a fine of up to $2,500.

Subsection (c) – Affirmative Defense

This subsection outlines specific circumstances where the actions might otherwise meet the definition of harassment but are considered justifiable. These include situations where the actor is a law enforcement officer, private investigator, attorney, process server, licensed bail bondsman, or store detective, acting within the reasonable scope of their duty during official work.

Subsection (d) – No Contact Order and Judicial Procedures

Upon pretrial release of a defendant accused of harassment, this subsection mandates that a judicial officer must enter a no contact order, prohibiting the defendant from contacting the victim. The no contact order remains in effect even during any appeal of a conviction under this section. The judicial officer or prosecuting attorney must provide a copy of this order to the victim and the arresting agency without delay.

Subsection (e) – Mental Health Consideration

If there is a reason to believe that the defendant’s mental health is or will become an issue in the case, the judicial officer is instructed to enter orders consistent with specific sections that deal with mental disease or defect. This acknowledges the potential intersection between mental health issues and criminal behavior, ensuring that defendants receive appropriate evaluation and treatment if needed.

Arkansas’ approach to harassment is comprehensive, covering a wide range of behaviors and providing a clear legal pathway for addressing the offense. The statute’s detailed nature reflects the state’s commitment to protecting individuals from harassment while balancing the need for reasonable defenses and considering the mental health of the accused.

Cyber Harassment

The advent of the internet and social media has given rise to a new form of harassment known as cyber-harassment or cyberstalking. Many states have amended their harassment laws or enacted new ones to address this growing issue. These laws typically cover actions such as sending threatening emails, posting derogatory messages on social media, or engaging in other forms of online bullying.

Cyber Harassment in Arkansas

Arkansas, like many states, recognizes the seriousness of harassment that occurs through electronic means, often referred to as cyber harassment. Although the term “cyber harassment” itself may not be explicitly used, Arkansas law addresses behaviors that fall under this category.

According to Arkansas Code § 5-71-217, which deals with “Cyberbullying,” the state criminalizes certain behaviors that can be executed electronically. This statute covers a range of communication methods, including electronic means, thus encompassing various forms of cyber harassment.

The law specifically targets actions that intentionally harass, annoy, alarm, or cause substantial emotional distress to another person. It includes, but is not limited to, sending or posting electronic communications that are intended to frighten, intimidate, threaten, abuse, or harass another person. This could involve emails, text messages, social media posts, and other forms of digital communication.

The statute not only recognizes the traditional forms of harassment but also evolves to include the modern platforms where such behavior often takes place. The inclusion of electronic means in the statute demonstrates an understanding of the changing landscape of communication and harassment in the digital age.

By incorporating these behaviors into its legal framework, Arkansas aims to protect individuals from the distress and harm that can result from such cyber activities, acknowledging the significant impact these actions can have on individuals’ lives in the era of digital communication.

General Elements of Harassment

To successfully prosecute a harassment case, certain elements must be proven. Firstly, there must be a pattern of behavior or a repeated act. A single incident, unless extremely severe, usually doesn’t constitute harassment. Secondly, the behavior must be intended to cause distress, fear, or annoyance. Thirdly, the actions must indeed cause distress or a reasonable fear of harm to the victim. Lastly, the behavior must serve no legitimate purpose.

Penalties and Sentencing

Penalties for harassment vary widely based on the severity of the behavior and the laws of the specific jurisdiction. In many cases, harassment is considered a misdemeanor, punishable by fines, probation, or short jail terms. However, more severe cases, especially those involving threats of violence or cyber harassment, can be classified as felonies, leading to more significant penalties. Courts may also issue restraining orders or injunctions to protect the victim.

Challenges and Controversies

One of the challenges in prosecuting harassment cases is the subjective nature of what constitutes “annoyance” or “distress.” What may be extremely disturbing to one person might be perceived as innocuous by another. This subjectivity can make it difficult to establish the requisite intent for harassment. Additionally, harassment laws sometimes raise free speech concerns, particularly in cases where the alleged harassment involves verbal or written communication. Balancing the protection of individuals from harassing behaviors with the protection of free speech rights remains a complex and ongoing legal challenge.

Harassment laws have evolved to address the changing nature of interpersonal interactions in the modern world. While they offer important protections for individuals, their enforcement continues to navigate the fine line between personal safety and freedom of expression.

References and Further Reading

Modification History

File Created:  07/17/2018

Last Modified:  10/31/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


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