Some news outlets appear to have gotten that message. But now, some reports claim that Missouri's new harassment law threatens to criminalize student behavior. Those reports are overblown too.
The confusion with the assault laws, as we discussed, appeared to have come from folks not fully comparing the old laws to the new and seeing that they were virtually the same, just numbered differently.
The confusion with the harassment laws, however, is much trickier for non-lawyers. The new law seems to use new language, but, in reality, it's using the exact same language that courts have used for years in published court opinions to describe harassment.
In this post, we'll compare the new harassment law to the old one (including with another handy chart), talk about the important difference between statutory law and case law, compare Missouri's laws to what other states are doing, and talk about the implications for schools and families.
How Has the Harassment Law Changed?
On the surface, the harassment law's language has changed quite a bit. But, because of Missouri courts' interpretations over the past decades, the law hasn't changed much at all. The big change is the potential penalty. Harassment can now be a felony in Missouri.
Before 2017, there was one harassment crime. It was a misdemeanor (it could have been elevated to a felony for a repeat offender or for someone 21 or older harassing someone younger than 18). Now, there are two levels of harassment: one is a misdemeanor, and one is a low-level felony.
To convict a defendant of felony harassment, a prosecutor must prove:
1) The defendant acted without good cause;
2) The defendant acted with the purpose to cause emotional distress to someone else; and
3) The defendant caused that other person to suffer emotional distress.
If the prosecutor cannot prove any one of those elements beyond a reasonable doubt, then the defendant cannot be convicted of felony harassment.
Emotional distress!? That's it!!? You may be thinking, "I'm getting harassed all the time under this new law!"
There are two terms in the law that could use some defining: "good cause" and "emotional distress." What counts?
"Good cause" is not defined in the statute, but "emotional distress" is defined in another law.
Here's the catch, folks: In America, we have case law. Case law is the collection of court interpretations that define what the law is.
After a rule becomes a law, people get prosecuted, and they may disagree that what they did fits within the law. So courts have to figure out what the law means. And, oftentimes, the courts write down their opinions, and these writings form case law, which is used to further define the law.
This definition of emotional distress - the "markedly greater" language above - actually comes from Missouri courts' interpretation of the old law.
This "new" definition of emotional distress has been used by Missouri courts for many years. Take a look at this 2008 Missouri case that actually cites a 1998 case for the same definition.
And that definition comes with a reasonable person standard. Using this definition, the courts in Missouri held that, when deciding whether something is emotionally distressing, we have to look at how the reasonable person would respond, not at how the particular victim with his unique character responded.
So, although the new law doesn't appear to be super clear, it has actually been updated to be in line with old and current Missouri case law, and the case law does provide at least a bit more clarity.
The new harassment law is actually just the old one, now using the language Missouri courts were already using.
Let's look at the old law to fully compare.
We do have a process in Missouri to challenge bad state laws through the courts. In 2012, the Missouri Supreme Court found option 5 in the old harassment law to be unconstitutional because it was overbroad. That means the crime covered too much conduct that was protected free speech. So option 5 was no longer a crime.
Now check out old option 6. It looks pretty similar to the new harassment law. Just take away a few words and it's almost identical. In that same 2012 court case, the Missouri Supreme Court considered option 6 too.
Remember the term "good cause" from the new law that was left undefined? It appears in this old law too.
The Missouri Supreme Court found that the "good cause" language limited the old harassment law enough to protect people. One of the examples the Supreme Court used was a kid in a Halloween costume scaring others. Apparently, that kid would have "good cause" to cause someone emotional distress and would not be in violation of the law.
The Court stated that the words "good cause" required the emotional distress to be "substantial."
The Court provided a definition for "good cause": "a cause that would motivate a reasonable person of like age under the circumstances under which the act occurred."
This definition takes into account the age of the actor.
So, when we take case law into account, the old law is almost the exact same as the new law, other than the potential penalty.
And, just to make things more complicated, there was another old law that included harassment in it (this disorganization happened in the old criminal code, which is one of the big reasons why it was revised and updated).
The other old law was for stalking.
The revised stalking law no longer includes harassment, in case you were worried.
On the surface, the harassment law has changed. But, when we look at what courts have said in the past about Missouri's harassment law, the new changes made to the harassment language just put the written law in line with the court's previous interpretation.
The fact that the new harassment law does not explicitly include a reasonable person standard is confusing. The law could be read as eliminating that reasonable person standard. And maybe someone will eventually challenge the law on that ground. But, given Missouri courts' recent and historic interpretation of the same language used in the old law, the reasonable person standard very likely still exists.
Here's the big change: Harassment that causes emotional distress is now a felony regardless of who is involved (although keep reading to see how that is limited by the "good cause" language).
Because the words "good cause" have been defined by the Missouri Supreme Court to take into account the age of the harasser, prosecutors who choose to go after older kids for behavior typical of kids their age will have an enormously hard time doing so.
And remember the juvenile justice system?
The big change that could impact kids (and adults) is that harassment has been elevated to a felony, but any impact on kids is highly unlikely.
Just based on a quick read-through of this stalking law database, here's a list of some states with similar laws to Missouri and how they treat basic stalking:
Alabama (misdemeanor), Colorado (felony), Delaware (felony), Washington, D.C. (misdemeanor), Florida (misdemeanor), Idaho (misdemeanor), Illinois (felony), Maine (misdemeanor), Rhode Island (felony), South Carolina (felony), Tennessee (misdemeanor), Utah (misdemeanor), Washington (misdemeanor), West Virginia (misdemeanor), Wyoming (misdemeanor).
Other states other than those listed have stalking laws too, and some states may have independent harassment laws. But Missouri is not the only state that treats this type of behavior as a felony.
But don't do it because of some manufactured threat of prosecution. Do it because it's right.
At the bottom of all of this talk about laws changing is an unspoken understanding that all of our kids are getting screwed. Our poor kids are getting screwed out of opportunity. Even our well-off kids are getting screwed out of a fairer future because we are currently neglecting a whole bunch of kids who will grow up right alongside them.
We're building a broken foundation for the next generation to lay their society on, and a broken foundation can only bear so much potential. It's about time we address the real problems underlying our society and build an America that we know we can be.
This blog post is not meant to provide legal advice. If you are in need of legal assistance, please contact an attorney.
New Harassment Law
The new law reads:A person commits the offense of harassment in the first degree if he or she, without good cause, engages in any act with the purpose to cause emotional distress to another person, and such act does cause such person to suffer emotional distress.This is the felony version. Misdemeanor harassment is the exact same except for the end: the victim does not have to actually suffer emotional distress.
To convict a defendant of felony harassment, a prosecutor must prove:
1) The defendant acted without good cause;
2) The defendant acted with the purpose to cause emotional distress to someone else; and
3) The defendant caused that other person to suffer emotional distress.
If the prosecutor cannot prove any one of those elements beyond a reasonable doubt, then the defendant cannot be convicted of felony harassment.
Emotional distress!? That's it!!? You may be thinking, "I'm getting harassed all the time under this new law!"
There are two terms in the law that could use some defining: "good cause" and "emotional distress." What counts?
"Good cause" is not defined in the statute, but "emotional distress" is defined in another law.
[Emotional distress is] something markedly greater than the level of uneasiness, nervousness, unhappiness, or the like which are commonly experienced in day-to-day living.This definition seems to leave quite a bit unanswered. It appears that uneasiness, nervousness, and unhappiness could qualify as emotional distress, but they need to "markedly" exceed the level commonly experienced in day-to-day living. So what level of emotional distress is considered normal? How much is "markedly"? Does that depend on the victim or on a typical reasonable person? It sounds like we're supposed to look at the typical, common, reasonable person and how she would feel, but that's not explicitly stated.
Here's the catch, folks: In America, we have case law. Case law is the collection of court interpretations that define what the law is.
After a rule becomes a law, people get prosecuted, and they may disagree that what they did fits within the law. So courts have to figure out what the law means. And, oftentimes, the courts write down their opinions, and these writings form case law, which is used to further define the law.
This definition of emotional distress - the "markedly greater" language above - actually comes from Missouri courts' interpretation of the old law.
This "new" definition of emotional distress has been used by Missouri courts for many years. Take a look at this 2008 Missouri case that actually cites a 1998 case for the same definition.
And that definition comes with a reasonable person standard. Using this definition, the courts in Missouri held that, when deciding whether something is emotionally distressing, we have to look at how the reasonable person would respond, not at how the particular victim with his unique character responded.
So, although the new law doesn't appear to be super clear, it has actually been updated to be in line with old and current Missouri case law, and the case law does provide at least a bit more clarity.
The new harassment law is actually just the old one, now using the language Missouri courts were already using.
Let's look at the old law to fully compare.
Old Harassment Law
Here's the old law:A person commits the crime of harassment if for the purpose of frightening or disturbing another person, heThe old law's first four options were very specific. But take a look at that fifth option: "Knowingly makes repeated unwanted communication to another person." Sounds like a presidential election!
(1) Communicates in writing or by telephone a threat to commit any felony; or
(2) Makes a telephone call or communicates in writing and uses coarse language offensive to one of average sensibility; or
(3) Makes a telephone call anonymously; or
(4) Makes repeated telephone calls; or
(5) Knowingly makes repeated unwanted communication to another person; or
(6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person.
We do have a process in Missouri to challenge bad state laws through the courts. In 2012, the Missouri Supreme Court found option 5 in the old harassment law to be unconstitutional because it was overbroad. That means the crime covered too much conduct that was protected free speech. So option 5 was no longer a crime.
Now check out old option 6. It looks pretty similar to the new harassment law. Just take away a few words and it's almost identical. In that same 2012 court case, the Missouri Supreme Court considered option 6 too.
Remember the term "good cause" from the new law that was left undefined? It appears in this old law too.
The Missouri Supreme Court found that the "good cause" language limited the old harassment law enough to protect people. One of the examples the Supreme Court used was a kid in a Halloween costume scaring others. Apparently, that kid would have "good cause" to cause someone emotional distress and would not be in violation of the law.
The Court stated that the words "good cause" required the emotional distress to be "substantial."
The Court provided a definition for "good cause": "a cause that would motivate a reasonable person of like age under the circumstances under which the act occurred."
This definition takes into account the age of the actor.
So, when we take case law into account, the old law is almost the exact same as the new law, other than the potential penalty.
And, just to make things more complicated, there was another old law that included harassment in it (this disorganization happened in the old criminal code, which is one of the big reasons why it was revised and updated).
The other old law was for stalking.
A person commits the crime of stalking if he or she purposely, through his or her course of conduct, harasses or follows with the intent of harassing another person.And harassment had its own definition here because WHY NOT!?
[Harass:] to engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress, and that actually causes substantial emotional distress to that person.Again, this law used the "reasonable person" standard. And this language is also very similar to the new harassment language.
The revised stalking law no longer includes harassment, in case you were worried.
So... Has the Harassment Law Changed?
Other than the increase in the potential penalty, no.On the surface, the harassment law has changed. But, when we look at what courts have said in the past about Missouri's harassment law, the new changes made to the harassment language just put the written law in line with the court's previous interpretation.
The fact that the new harassment law does not explicitly include a reasonable person standard is confusing. The law could be read as eliminating that reasonable person standard. And maybe someone will eventually challenge the law on that ground. But, given Missouri courts' recent and historic interpretation of the same language used in the old law, the reasonable person standard very likely still exists.
Here's the big change: Harassment that causes emotional distress is now a felony regardless of who is involved (although keep reading to see how that is limited by the "good cause" language).
Does This Change Anything For Kids?
Not realistically, but there are some changes.
The law could potentially change things for kids 17 and older because they do not have the protection of the juvenile justice system, but even that is really unlikely.Because the words "good cause" have been defined by the Missouri Supreme Court to take into account the age of the harasser, prosecutors who choose to go after older kids for behavior typical of kids their age will have an enormously hard time doing so.
And remember the juvenile justice system?
A kid under the age of 12 cannot be certified as an adult to stand trial for criminal harassment.
For a kid older than 12 and under 17 to end up in criminal court facing a felony charge for school behavior, the kid would have to:
1) Criminally harass someone;
2) Go through the school discipline system;
3) Be referred by the school to law enforcement;
4) Be determined by law enforcement to have broken the law and be referred to a juvenile officer;
5) Have a juvenile officer think that informal or formal options in the juvenile system would not work and recommend the kid be tried as an adult;
6) Have a juvenile judge certify the child as an adult; and
7) Have a prosecutor also agree and charge the child with felony harassment.
For kids 17 and older, the same process occurs without steps 5 and 6 and with a law enforcement referral to a prosecutor.
In 2015, 0.24% of kids in the juvenile justice system for a law violation were referred for adult criminal prosecution.
1) Criminally harass someone;
2) Go through the school discipline system;
3) Be referred by the school to law enforcement;
4) Be determined by law enforcement to have broken the law and be referred to a juvenile officer;
5) Have a juvenile officer think that informal or formal options in the juvenile system would not work and recommend the kid be tried as an adult;
6) Have a juvenile judge certify the child as an adult; and
7) Have a prosecutor also agree and charge the child with felony harassment.
For kids 17 and older, the same process occurs without steps 5 and 6 and with a law enforcement referral to a prosecutor.
In 2015, 0.24% of kids in the juvenile justice system for a law violation were referred for adult criminal prosecution.
Before harassment was made a felony, no kid in the juvenile system could be certified to stand trial as an adult.
Now it's legally possible that a kid between the ages of 12 and 17 could stand trial in a criminal court for harassment. But, given the need to have school staff, law enforcement, a juvenile officer, a juvenile judge, and a prosecutor all believe the kid needs to be charged as an adult, despite the availability of other options, that result is highly unlikely.
The big change that could impact kids (and adults) is that harassment has been elevated to a felony, but any impact on kids is highly unlikely.
Does This Change Anything for Schools?
No. Schools already had to report criminal harassment to law enforcement even in 2016 and still have to in 2017. The new definition is almost identical to the old when we consider not only the statutory language, but the case law too.Even If the Law's Language Isn't Changing, Are There Problems with It?
That depends on your view about how much discretion prosecutors should have. For anyone who ends up in a criminal court charged with harassment, a lot will be up to the jury. Given the defendant's age, what is "good cause?" What is "substantial emotional distress?" Did the defendant actually have an intent to cause emotional distress?
A prosecutor has a significant amount of leeway to work with here. And because kids 17 and older are not protected by the juvenile justice system, they could quickly be on the wrong end of discretion.
But, realistically, an elected prosecutor is not going to stretch to go after children for school harassment.
The real issue hiding under all of this talk about laws changing is the lack of trust the American people have in their institutions, the feeling of regular folks that they don't have a voice in our system, the inequities that exist for those who have less resources or who have been historically marginalized. This particular law provides (and has provided) discretion to one of our institutions, and that's something many folks don't feel like providing much of anymore.
Are Other States Like Missouri?
Yes. There are other states with stalking laws that use language similar to Missouri's new harassment law.Just based on a quick read-through of this stalking law database, here's a list of some states with similar laws to Missouri and how they treat basic stalking:
Alabama (misdemeanor), Colorado (felony), Delaware (felony), Washington, D.C. (misdemeanor), Florida (misdemeanor), Idaho (misdemeanor), Illinois (felony), Maine (misdemeanor), Rhode Island (felony), South Carolina (felony), Tennessee (misdemeanor), Utah (misdemeanor), Washington (misdemeanor), West Virginia (misdemeanor), Wyoming (misdemeanor).
Other states other than those listed have stalking laws too, and some states may have independent harassment laws. But Missouri is not the only state that treats this type of behavior as a felony.
Does That Mean Parents, Schools, and Others Shouldn't Do Anything?
No! Absolutely do something! Talk to your kids about how to act civil. Teach them that their actions can really hurt people, that as a human being they have the choice to make their communities better homes or to trash this place for everyone. Put them in environments that challenge them, that encourage them to ask questions about the society we have built. Ask them about what's going on in that Twilight Zone social media world they spend so much time in. And be patient with them. They're learning how to be humans.But don't do it because of some manufactured threat of prosecution. Do it because it's right.
At the bottom of all of this talk about laws changing is an unspoken understanding that all of our kids are getting screwed. Our poor kids are getting screwed out of opportunity. Even our well-off kids are getting screwed out of a fairer future because we are currently neglecting a whole bunch of kids who will grow up right alongside them.
We're building a broken foundation for the next generation to lay their society on, and a broken foundation can only bear so much potential. It's about time we address the real problems underlying our society and build an America that we know we can be.
Here's the link to our story in the St. Louis American story:
http://www.stlamerican.com/news/columnists/guest_columnists/new-laws-will-not-increase-prosecutions-for-school-fights/article_a32c9394-cea1-11e6-9fdb-1f85dacbefe4.html
http://www.stlamerican.com/news/columnists/guest_columnists/new-laws-will-not-increase-prosecutions-for-school-fights/article_a32c9394-cea1-11e6-9fdb-1f85dacbefe4.html
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Elad Gross is a former Assistant Attorney General of Missouri. He graduated from Washington University School of Law.
This blog post is not meant to provide legal advice. If you are in need of legal assistance, please contact an attorney.
Elad Gross, J.D.
President and CEO
Education Exchange Corps
