A Pennsylvania teenager’s comment on the social media site Facebook, suggesting that another teen had a sexually-transmitted disease, resulted in a conviction for misdemeanor harassment. An appellate court affirmed her conviction last month. Pennsylvania v. Cox, 2013 PA Super 221 (Pa. Super. Ct., Aug. 2, 2013). Harassment statutes are often controversial, as they may affect a person’s rights to speech or expression. The elements of the offense in Texas’ harassment statute differ significantly from those in Pennsylvania’s law. The Texas law survived a constitutional challenge several years ago, and it was recently used to convict someone for direct communications made via Facebook.
In the Pennsylvania case, the defendant did not send a message directly to the victim, but rather posted a comment to her own Facebook page stating that the victim had herpes and “should stop spreading her legs like her mother.” Id. at 2. The comment was visible to other Facebook users. The defendant was eighteen years old at the time, and the victim was fifteen. According to the court, the “posting received comments and ‘likes’ from multiple people.” Id.
Police charged the defendant with harassment, and a jury convicted her and sentenced her to six months of probation. The definition of “harassment” in Pennsylvania includes, “with intent to harass, annoy or alarm another…communicat[ion]…about such other person [with] any lewd, lascivious,…or obscene words.” 18 Pa.C.S.A. § 2709(a)(4). The defendant raised two issues on appeal: that “the evidence was insufficient to support her conviction,” Cox at 2, and “that the verdict was against the weight of the evidence.” Id. at 5. The court rejected both arguments, finding that the evidence presented at trial fit the elements of the offense, and that the trial court did not err by declining to reverse the jury’s verdict.
In Texas, the offense of harassment only occurs when a person communicates something directly to an alleged victim “with intent to harass, annoy, alarm, abuse, torment, or embarrass” that person. Tex. Pen. Code § 42.07. Unlike Pennsylvania’s law, it does not include statements or acts made about the alleged victim to others. Had the above incident occurred in Texas, the victim might have only been able to bring a civil complaint for defamation, rather than a criminal charge.
The Texas Court of Criminal Appeals reviewed a constitutional challenge to parts of the harassment statute, specifically the provisions prohibiting “repeated telephone” or “repeated electronic” communications. Tex. Pen. Code §§ 42.01(a)(4) and (7). The court upheld their constitutionality, finding that they do not “implicate the free-speech guarantee of the First Amendment.” Scott v. Texas, 322 S.W.3d 662, 670-71 (Tex. Crim. App. 2010).
A Texas appellate court recently affirmed a harassment conviction involving Facebook messages sent directly to an alleged victim. Hernandez v. Texas, No. 05-12-00296-CR, opinion (Tex. App. – Dallas, Jul. 12, 2013). The defendant was accused of sending multiple messages directly to the victim via Facebook that made the victim feel “annoyed and threatened.” She also allegedly posted information publicly on Facebook that “embarrassed” the victim. The court affirmed the verdict based in part on the “repeated electronic communications” element.
Defendants in criminal cases should seek the assistance of an experienced criminal defense attorney in order to ensure that the state respects their constitutional rights. For over twenty years, Michael J. Brown has fought for the rights of the people of west Texas. For a confidential consultation to discuss your case, contact us today online or at (432) 687-5157.
More Blog Posts:
Understanding the Required Mental States in Texas Criminal Statutes, Based on the Allegedly Reckless Italian Seismologists, Texas Criminal Lawyer Blog, October 29, 2012
Supreme Court Will Decide Whether Probable Cause Bars a First Amendment Claim in Reichle v. Howards, Texas Criminal Lawyer Blog, December 7, 2011
Federal Internet Crimes Are Often Prosecuted in Texas Federal Courts, Texas Criminal Lawyer Blog, June 8, 2010