New Jersey Harassment: Two Distinct KindsNew Jersey specifies two kinds of harassment. The first kind we call “traditional” harassment, defined in N.J.S. 2C:33-4. Traditional harassment covers behavior that is intended to annoy, torment, wear out, or exhaust another. The second kind of harassment is cyber-harassment, defined in N.J.S. 2C:33-4.1. Cyber-harassments are communications online using an electronic device. Communications to social networking sites qualify. As with traditional harassment, the communications of cyber-harassment must be those that are intended to annoy, torment, wear out, or exhaust another.
Traditional Harassment“Traditional” harassment comes in three different varieties. The three different varities are communications, offensive touching, and course of alarming conduct.
CommunicationsCommunications can constitute harassment when they have one or more of four qualities: They must be made...
- At extremely inconvenient hours;
- In offensively coarse language; or
- In any other manner likely to cause annoyance or alarm.
Obviously, New Jersey courts have jurisdiction for communications from someone in New Jersey to someone else also in New Jersey. New Jersey would also have jurisdiction for communication from someone in New Jersey to someone not in New Jersey. And, completing the circle, New Jersey would have jurisdiction over communications from someone outside New Jersey to someone in New Jersey. Not surprisingly, the courts of the specific New Jersey town or county where the communications were either sent or received would have jurisdiction.
Communications bearing any of the qualities mentioned above can sometimes be communications that society and the law consider “legitimate.” For example, anonymous communications may contain important, or even welcome, information. Whistle blowing, and communications to the media are examples of anonymous communications often made for totally valid reasons.
Under appropriate circumstances, communications may legitimately be made at extremely inconvenient hours. The hallmark of such legitimate communications is typically urgency. Urgency exists when available time for taking an appropriate response is limited.
Circumstances may also exist where, for whatever reason, extremely inconvenient hours is the only time when the communications may be made, and the importance of the information justifies it. Sometimes the sender and the receiver may disagree on the urgency of the communication. So long as the sender makes a good faith assessment of the urgency of the communication, there is no harassment.
Communications in offensively coarse language must be considered in context. These considerations would include offensively coarse to whom? Is the test for “offensively” objective, or subjective. Does an “objective” test for offensive even exist? If subjective, subjective according to whom? Context must also consider what provoked the coarseness. The nature of the relationship between communicator and receiver is also relevant.
“Any other manner likely to cause annoyance or alarm” is a catch-all for improper communications not covered by the first three. One example of this would be repeated telephone calls by an agency attempting to obtain payment on a debt. Communications falling into this catch-all category, however, must be scrutinized. Springing to mind are certain newspaper headlines.
Catastrophic events, or unfavorable economic developments can reasonably be predicted to cause annoyance or alarm. Good faith reporting of such items, however, clearly is not harassment. Beyond First Amendment protections, such reportage lacks the ingredient that marks all instances of harassment. That ingredient is intent to annoy, torment, wear out, or exhaust another.
Offensive TouchingThe second variety of harassment is offensive touching. N.J.S. 2C:33-4 specifies kinds of touching that can be considered offensive. These include kicking, shoving, or striking. Mere touching, under some circumstances, can constitute offensive touching. The statute also includes a catch-all, “other offensive touching.” Note that kicking, shoving, or striking, in addition to harassment, may constitute other defined offenses, such as assault and aggravated assault.
Course of Alarming ConductConduct other than the kind specified above can constitute harassment under N.J.S. 2C:33-4 when a purpose to harass exists. However, this type of harassment generally must be repeated conduct, and must not be protected under the First Amendment. Thus expressions of opinion, even when expressed publicly and with profanity, about or to another, are typically not harassment.
Vulgarity standing alone is often not harassment. Even inclusion of lewd comments on a photo of another, so long as they do not contain language that interferes in one's privacy or that puts one in fear for one's safety or security, may fail to rise (or descend) to the level of harassment.
In addition to the acts in question, intent to harass is needed to constitute harassment. Intent to harass occurs only when a person's actions were carried out with the main reason of annoying, tormenting, wearing out, or exhausting another. Thus doing something that may or even likely will annoy another is not harassment so long as annoyance was not the chief intent. Conduct that is objectively annoying, but has a purpose separate from annoyance is not harassment. The mere fact that a person reacts in an annoyed or alarmed manner to such conduct does not establish the necessary intent.
As touched upon above, analysis of relationships between people often is a major factor in determining whether conduct constitutes harassment. Spouse to spouse, partner to partner, and parent to child relationships are sometimes less than harmonious. The complexities of these relationships can be used to a defendant's advantage with the assistance of a skilled lawyer.
So what is the takeaway on this harassment discussion? Unfortunately or, perhaps, fortunately, no straightforward answer to that question exists. We suggest “fortunately” because the very ambiguity of “harassment” often enables lawyers to spin events into a context that is not harassment.
A case that examined the context of alleged harassment was Pazienza v. Camarata, 381 N.J. Super. 173 (App. Div., 2005). In Pazienza, an ex-husband sent recurring communications, usually text messages, to his ex-wife. These communications continued over a two-month period, even after she had told him multiple times to stop, and had not responded to most of his messages. This in itself, without regard to the actual content of the text messages, suggested harassment. Moreover, his text messages suggested he was watching his ex-wife and her daughter.
These facts constituted a significant intrusion on the ex-wife's privacy, and established ex-husband's main intention of causing annoyance or emotional harm to her. In this case, the fact that the ex-husband's behavior had displayed not only a chief purpose of disturbing his ex-wife, but also a course of alarming conduct that lasted over a significant period of time, made it clear to the New Jersey courts that ex-husband's conduct was harassment.
Grading of New Jersey Harassment (non-cyber)New Jersey law defines most harassment to be a petty disorderly persons offense. However, when committed by a person who is imprisoned or on parole or probation, harassment becomes a fourth degree crime. Penalties upon conviction for these types of defenses is below.
New Jersey Cyber-HarassmentCyber-harassment is a specific kind of harassment. New Jersey defines cyber-harassment in its own statute, N.J.S. 2C:33-4.1. It differs from traditional harassment in that it requires use of an electronic device or social networking platform.
Cyber-harassment occurs when a person sends a communication or communications with the intent to harass. This harassment can be a threat of physical harm, an indecent comment to or about another with the intention of causing emotional harm, or the threat to commit a crime against another. Knowingly sending posts, comments, requests, suggestions, or proposals that contain lewd material to or about another, coupled with the intent of causing that person emotional harm or fear of physical or emotional harm, qualifies as cyber-harassment. As with traditional harassment, cyber-harassment can simultaneously constitute additional crimes. One such additional crime might be terroristic threats.
Cyber-harassment is usually a fourth-degree crime. However, cyber-harassment becomes a third-degree crime when all of the following elements are found:
- The actor is twenty-one years old, or older;
- The actor is impersonating a minor; and
- The purpose of the impersonating is to cyber-harass a minor.
New Jersey Penalties for harassment and for cyber-harassmentAs indicated above, traditional harassment in New Jersey is either a petty disorderly persons offense, or a fourth degree crime, depending on circumstances. Cyber-harassment in New Jersey, as we have seen, also has different levels of seriousness. It is either a fourth degree crime or a third degree crime. Table One, below, specifies the maximum penalties for these offenses under New Jersey sentencing law.
Harassment as it Relates to Domestic Violence“Domestic violence” is a term of art. Under New Jersey law, actual violence is not often needed for domestic violence to be established, as that term is defined. Harassment is one of these “predicate acts” that can support a finding of domestic violence. For that reason, the consequences of a finding of domestic violence can extend far beyond the criminal penalties indicated above. We discuss domestic violence elsewhere on this site.
The Telephone Consumer Protection ActActs that constitute harassment can violate laws other than law defined in New Jersey's Code of Criminal Justice. Domestic Violence, discussed just above, is one example of that. Another example is the federal Telephone Consumer Protection Act (TCPA). Harassing telephone calls, in order to violate the TCPA, must be made using an Automated Telephone Dialing System (ATDS). Calls of that nature are sometimes made in efforts to collect debts. Other such calls are made in efforts to sell merchandise or services.
Whether calling equipment qualifies as an ATDS poses extremely complex and technical questions. The TCPA itself, and federal regulations under that act, are very complex. Federal law entitles victims of TCPA-type harassment to recover $500.00 or, sometimes, $1,500.00 per call. Thus, calls made in efforts to collect debts can result in recoveries to consumers that exceed by far the amount of the original debt.