BULLYING BY USE OF ELECTRONIC COMMUNICATION DEVICE

Bullying is a serious and prominent issue in the media. Using electronic means to bully is a serious crime in Nevada and can carry harsh penalties.

What is the legal definition of Bullying by use of electronic communication device?

NRS 200.900 – Penalties; Definitions.

1. A minor shall not knowingly and willfully use an electronic communication device to transmit or distribute, or otherwise knowingly and willfully transmit or distribute, an image of bullying committed against a minor to another person with the intent to encourage, further or promote bullying and to cause harm to the minor.
2. A minor who violates subsection 1:
   1. For the first violation, is a child in need of supervision as that term is used in title 5 of NRS, and is not a delinquent child; and
   2. For the second or a subsequent violation, commits a delinquent act, and the court may order the detention of the minor in the same manner as if the minor had committed an act that would have been a misdemeanor if committed by an adult.
3. For the purposes of this section, to determine whether a person who is depicted in an image of bullying is a minor, the court may:
   1. Inspect the person in question;
   2. View the image;
   3. Consider the opinion of a witness to the image regarding the person’s age;
   4. Consider the opinion of a medical expert who viewed the image; or
   5. Use any other method authorized by the rules of evidence at common law.
4. As used in this section:
5. “Bullying” means a willful act which is written, verbal or physical, or a course of conduct on the part of one or more persons which is not otherwise authorized by law and which exposes a person one time or repeatedly and over time to one or more negative actions which is highly offensive to a reasonable person and:
   1. Is intended to cause or actually causes the person to suffer harm or serious emotional distress;
   2. Poses a threat of immediate harm or actually inflicts harm to another person or to the property of another person;
   3. Places the person in reasonable fear of harm or serious emotional distress; or
   4. Creates an environment which is hostile to a pupil by interfering with the education of the pupil.
6. “Electronic communication device” means any electronic device that is capable of transmitting or distributing an image of bullying, including, without limitation, a cellular telephone, personal digital assistant, computer, computer network and computer system.
7. “Image of bullying” means any visual depiction, including, without limitation, any photograph or video, of a minor bullying another minor.
8. “Minor” means a person who is under 18 years of age.

Okay, so what is the basic definition of Bullying?

There are three related parts to a charge of “Bullying.”

1. A willful and intentional physical, verbal, or written act toward another person;
   
2. Is hostile to the intended victim, meaning:
   
   1. The act intends to cause, or actually causes, harm or emotional distress to the intended victim;
      
   2. Poses a threat of immediate harm, or actually inflicts harm, on the intended victim or property of the intended victim;
      
   3. Creates a reasonable fear of harm or serious emotional distress in the intended victim; or
      
   4. Interferes with the intended victim’s ability to receive an education.
      
3. And the act must be offensive to a reasonable person.

Shouldn’t Bullying be something that is dealt with by schools or other organizations that are watching over the children?

To a certain extent, schools and other organizations (youth groups, sports, etc.) do have procedures in place to help prevent bullying. However, the growth of news stories about bullying and cyber-bullying is evidence that these procedures are not stopping the problem.

In some circumstances, bullying can carry criminal charges based on other laws, such as:

• Assault;
  
• Battery;
  
• Harassment; or
  
• Stalking.

There are, of course, other crimes that may apply, depending on the exact circumstances, but these tend to be the most common.

So what is the need for these statutes?

With the growth of electronic communication, bullying has taken a new form, one which does not require face-to-face actions.

Cyber-bullying, as it is often called, has become a prominent issue in our society. The Nevada Legislature decided to criminalize acts of cyber-bullying in NRS 200.900.

Essentially, cyber-bullying is the use of phones, computers, or any other device that allows for electronic communication, to transmit or in some other way distribute any image of bullying committed against a minor. However, the purpose of the transmission or distribution must be for the purpose of encouraging, furthering, or promoting bullying or to cause harm to the minor.

So, cyber-bullying is not using the internet to bully someone?

Technically, “cyber-bullying” is a term used to encompass a lot of different actions. Using the internet to send bullying messages or texts to another person would likely fall under a different crime, such as harassment or assault, rather than NRS 200.900.

Instead, NRS 200.900 criminalizes using the internet to further or encourage bullying. Some common examples include:

• Sending videos of a minor being bullied with the intent to promote bullying of the minor;
  
• Taking screenshots of bullying messages that are sent to a minor, and transmitting them to others to inform them of the bullying, so long as the intent is to further the bullying;
  
• Emailing threatening images to a minor with the intent that the minor believes the conduct in the images will be done to him or her.

I’m confused, is bullying something that will be prosecuted, or handled by the schools?

Generally, because bullying takes place between an aggressor who is a minor and a victim who is also a minor, schools will take disciplinary action for the bullying itself and leave the transmission of images intended to further bullying to the Courts.

As an example, if a minor were to send threatening emails to another minor, the threats would likely be handled by disciplinary action at the school. If the threats didn’t stop, or if they escalated, or caused actual physical or emotional harm to the victim, then the aggressor might be charged with harassment, assault, or battery. If the aggressor were to take screenshots of the emails, or were to “cc” or “bcc” the email to other minors at the school in an attempt to get them to join in on the bullying, then the minor could be charged with harassment, assault, battery, or simply dealt with by disciplinary actions at the school, but can also be charged with violating NRS 200.900.

What are the possible penalties?

The penalties for bullying depend on what crime is being charged. For a description of the Nevada laws for Assault, please click here; for Battery, please click here; for Harassment, please click here; and for Stalking, please click here.

Penalties for violating NRS 200.900 increase with each violation.

• For a first offense, the minor will be deemed a “child in need of supervision.” This is similar to probation in criminal court, and often requires that the minor adhere to certain requirements, such as:
  
  • Paying a small fine;
    
  • Community Service;
    
  • Taking classes – related to bullying and violence; and/or
    
  • Suspension of the aggressor’s driver’s license.
    
• For a second offense, the juvenile court will deem the child “delinquent.” This means that the penalties are harsher. All of the possible requirements for a first offense may be imposed for a second offense, but the judge may also impose a sentence at juvenile hall. The possible penalties include:
  
  • Fines;
    
  • Community Service;
    
  • Classes;
    
  • Suspension of driver’s license; and/or
    
  • Up to 6 months in juvenile hall.

Please Note: It should go without saying, but any criminal punishments imposed do not take the place of disciplinary actions taken by the school.

Are there any Defenses?

Yes, of course there are. Some of the possible defenses include:

• False Accusation – One of the problems with crimes that involve the use of electronic communication devices is that prosecutors often have difficulty specifically proving that the alleged criminal was, in fact, the person who committed the illegal act. Violations of NRS 200.900 are no different. Computer hacking, stolen phones or computers, or other access to someone’s computer or other electronic device are all ways that the person who sent the image could be mis-identified. If the prosecutor cannot prove, beyond a reasonable doubt, that you were the person who sent the bullying image, then the charges against you should be dropped or dismissed.
  
• No bullying – If the image that was sent does not depict actual bullying, then there was no violation of NRS 200.900. If the image or video is taken out of context, or does not depict what the prosecutor is implying, then you may not have violated NRS 200.900, and the charges against you should be dropped or dismissed.
  
• Victim was not a minor – Bullying, as it is defined in NRS 200.900, can only be done toward a minor. The Nevada Legislature has determined that once someone has reached the age of majority, then “bullying” does not apply. This does not mean that charges of Assault, Battery, Harassment, Stalking, or other crimes will not apply, but if the victim is at least 18 years old, then there has been no violation of NS 200.900, and the charges against you should be dropped or dismissed.
  
• No Intent – As noted above, violations of NRS 200.900 require that the alleged violator intended to promote, encourage, or further bullying of a minor. This creates a vast “gray area” of intent because it can often be difficult for a prosecutor to prove, beyond a reasonable doubt, a person’s intent. If the prosecutor cannot show that your intent was specifically to further, encourage, or promote bullying of a minor, then the charges against you should be dropped or dismissed.
  

What should I do if I’ve been charged with Stalking?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.