Harassing or Threatening Text Messages

Until very recently, South Dakota had a telephone harassment/threat statute that looked pretty much like similar statutes in other states.

Here is what it said:

It is a Class 1 misdemeanor for a person to use a telephone for any of the following purposes:
(1) To call another person with intent to terrorize, intimidate, threaten, harass or annoy such person by using obscene or lewd language or by suggesting a lewd or lascivious act;
(2) To call another person with intent to threaten to inflict physical harm or injury to any person or property;
(3) To call another person with intent to extort money or other things of value;
(4) To call another person with intent to disturb him by repeated anonymous telephone calls or intentionally failing to replace the receiver or disengage the telephone connection.

South Dakota Codified Laws § 49-31-31.

In March, the South Dakota legislature passed a bill that revised this statute so it would read as follows:

It is a Class 1 misdemeanor for a person to use a telephone or other electronic communication device for any of the following purposes:
(1) To call contact another person with intent to terrorize, intimidate, threaten, harass or annoy such person by using obscene or lewd language or by suggesting a lewd or lascivious act;
(2) To call contact another person with intent to threaten to inflict physical harm or injury to any person or property;
(3) To call contact another person with intent to extort money or other things of value;
(4) To call contact another person with intent to disturb him that person by repeated anonymous telephone calls or intentionally failing to replace the receiver or disengage the telephone connection.

South Dakota House Bill 1313 (approved March 12, 2008). As you can see from the text I've highlighted, the new bill expands the statute so that it encompasses the use of "electronic communication devices" in addition to telephones. The South Dakota governor signed the bill into law on March 12, 2008, the day the legislature passed it.

One of the frustrating things about legislation at the state level is that it’s often difficult, or even impossible, to get what we in the law call “legislative history.” Legislative history, which tends to be abundant at the federal level, is a legislative body’s explaining why it adopted a particular measure. It can take the form of committee reports on the proposed legislation, debates on the measure on the floor of the legislature, transcripts of hearings on the measure, etc. Most states don’t compile legislative history, so you often have to guess as to why they did something.

Why did South Dakota do this? Well, I think they actually did a very good, a very rational thing: They looked at their threatening/harassment communication statute and saw that it was technologically limited – it only criminalized the use of a TELEPHONE to threaten or harass someone. Statutes like this began to come into existence in the last century as phones became more popular. Every state has a statute similar to this, and many of them are still based on using a telephone.

To remedy this problem, states sometimes just enact law that creates a new crime. So some states still have phone harassment but they’ve also added a new crime: computer harassment. I happen to think that approach is wrong. As I’ve written before, criminal law is not about the method you use, it’s about the “harm” you inflict. So we outlaw homicide (the “harm” of causing the death of another human being), not the method you use. We don’t, in other words, break our homicide statutes out into (i) homicide by poison, (ii) homicide by strangulation, (iii) homicide by stabbing, (iv) homicide by gun . . . and so on.

I suspect the South Dakota legislators were responding, after the fact or proactively, to the issue that was recently raised before a New York court.

A New Yorker was charged with two counts of aggravated harassment for sending “approximately six text messages” to the victim’s “phone threatening” her “by stating that” he “was outside of [her] resident and [she] would end up in the hospital.” People v. Limage, 19 Misc.3d 395, 851 N.Y.S.2d 852 (Criminal Court – City of New York, Kings County, February, 2008). Limage moved to dismiss the charges against him arguing, in part, that what he was alleged to have done did not quality as harassment under the applicable New York statute.

Here’s the statutory provision he was charged under:

The relevant portion of [New York] Penal Law § 240.30 provides that: “[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, or alarm another person, he or she:

1. Either (a) communicates with a person . . . by telephone . . . or any form of written communication, in a manner likely to cause annoyance or alarm; or

(b)causes a communication to be initiated by . . . electronic means with a person . . . by telephone . . . or any form of written communication, in a manner likely to cause annoyance or alarm.”

People v. Limage, supra.

One of Limage’s arguments for dismissing the charges was, apparently, that text messages aren’t encompassed by the statute above because “text messages are brief, easy to ignore, and therefore not as serious as phone calls, letters, or e-mails”. People v. Limage, supra. The court disagreed:

With the advancement of technology, telephones have come to be used for more than simply placing and receiving calls. They now have the capability of sending and receiving messages and pictures, accessing the internet, playing music, and much more. . . . [T]ext messages are communicated in writing, just like letters or e-mails, and access the recipient often instantaneously, like a phone call directly to the person's cell phone. Additionally, the brevity of a text message has no impact on the severity of its meaning. A short text message can be more vicious and threatening then a lengthy, convoluted e-mail or letter. The defendant too easily dismisses the technological developments which have facilitated ever faster communication, and which, along with their many benefits, bring . . . ever greater potential for abuse.

People v. Limage, supra.

This issue will probably come up in cases in other states, because I don’t think any state’s harassment/threat statutes specifically mention using text messages . . . and I, personally, don’t think they should. This goes back to what I said above, about how criminal statutes should outlaw the infliction of particular “harm” (threats, harassment), not inflicting-a-particular-“harm”-by-a-specific-method. I think what the South Dakota legislature did is a pretty good approach to the situation.

I really think, though, that we need to focus the “harm” not the method at all, because I’m sure email and text messages, as we currently understand them, will be quite obsolete in . . . what? . . . 10 years? Less? Why can’t we just make it a crime to threaten or harass someone?