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Key Defenses Against Harassment Charges

Being accused of harassment is frustrating. All of us have had moments where we acted thoughtlessly or were careless with our words. When those errors in judgement get elevated to the point of involving the law, we feel bound. We start to ask ourselves if we’re allowed to say or do anything wrong without getting into trouble.

Harassment charges can be used frivolously. Luckily, harassment is a charge that is easy to beat, especially when it’s being used in bad faith.

Colorado’s Definition of Harassment

Harassment charges take many shapes in Colorado. The accusation is pretty broad, and it can range anywhere from physical attacks to trailing someone.

The key word, which will come up again, is “intent.” Did the perpetrator intend to cause harm or intend to harass the victim? A harasser is a person who, with intent:

  • tries to instigate a fight. This can be by striking first with a slap, kick, shove, etc., or it can be through verbal confrontation.
  • uses “obscenities” against the victim in public. In this respect, “obscene” is defined as offensively sexual communication. Certain words, hand gestures, or descriptions of a sexual nature can be regarded as obscene.
  • follows someone in public.
  • uses any electronic means to harass someone or to threaten property damage, from a phone call to social media to harassing someone while playing online video games. This charge can be made even when the abuser is anonymous.
  • continuously calls and hangs up on someone just to annoy them. The law specifically talks about making a phone “ring,” but with the use of cellphones and their blocking and silent capabilities, it will be interesting to see if and how this language changes.
  • bothers someone by reaching out to them at inconvenient hours, making it difficult for them to enjoy their time at home.
  • repeatedly insults, mocks, or challenges someone with “coarse language” that will probably incite a violent response.

Penalty for Harassment

In Colorado, harassment is a class 3 misdemeanor. If convicted, the guilty party must pay a fine of $50 to $750. They can serve up to six months in jail, or they may have to pay the fine and serve jail time.

Hate Crime Harassment

When harassment is motivated by prejudice, it is elevated to a class 1 misdemeanor and charged as a hate crime. Hate crime harassment includes all of the criteria mentioned above, but it has an added layer of bigotry. In the eyes of the law, the severity of the harassment increases when it is centered around race, sexuality, gender, religion, etc.

When a harasser is convicted of hate crime harassment, they receive a higher fine, from $500 to $5,000. Jail time ranges from six to 18 months, or the perpetrator may be sentenced with both jail and the fine. Sometimes, with first-time offenders, hate crimes can have alternative sentencing that includes community service, court-ordered sensitivity training, or restorative justice.

Problems with a Harassment Charge

It’s Too Easy

One of the major problems with a harassment accusation is that it is so easy to claim. The language of harassment law is vague and hard to define. Lawyers sometime use the term “kitchen sink” regarding vague laws like this. This term refers to the old idiom, “throwing everything but the kitchen sink at them.” In legal terms, the idea is that if you lob enough accusation at someone, something is bound to stick.

Sympathy from the Jury

The ease with which one can accuse someone of harassment works against the accuser. An accuser could take one phrase or hand gesture out of context and attempt to use that as fodder to get a conviction. Everyone has had moments where they acted like a jerk and regretted what they said. If the harassment charge is weak enough, a jury could easily think, “well, I’ve done that before. It wasn’t nice, but I certainly don’t deserve legal repercussions for it.”

It’s Poorly Defined

The very nature of harassment’s legal language is cyclical. To define “harassment,” the law uses terms such as, “with an intent to harass.” The law uses the word “harass” to define itself. That’s a pretty difficult standard to argue in a court.

Free Speech

At its most extreme, a harassment charge could be considered unconstitutional. When there is no direct threat of violence or stalking, at what point do words go from being “mean” to “harassing?” Unkind speech is unpleasant, but according to our First Amendment, it is protected.

Intent Is Difficult to Prove

A prosecutor says, “This person intended to harass.”

The defendant says, “No, I didn’t.”

And that’s it. It all comes down to one person’s word vs. another’s. From there, it’s up to the judge and jury to decide who they believe. It’s going to take a very persuasive lawyer with a very persuasive case to prove what was in someone’s heart at the time of the action.

Defenses Against Harassment

Intent

As stated above, one of the most obvious defenses is to deny intent. This can take several forms, depending on the case. The defendant was just blowing off steam. Those words and actions weren’t actually meant to incite violence, and the defendant didn’t mean what they said. Perhaps in that fit of frustration, the defendant hadn’t fully thought through the consequences of their actions. Intent is hard to prove and easy to defend.

Free Speech

Also mentioned already, there is the issue of free speech. Getting into a public, back-and-forth fight on Twitter doesn’t necessarily mean someone was purposely harassing someone. The exchange was public, and both parties were involved. This example is different from someone sending a stream of violent, threatening, private messages on Twitter.

Expectation of Privacy

Another defense would be that the plaintiff had no expectation of privacy. A public fight on a message board is not the same as cornering someone in an empty bathroom. A single heckler at a comedy club isn’t the same as a stalker following a comedian from gig to gig. When the plaintiff is in a situation where they are seen by many and likely to be criticized, it’s hard for them to argue harassment.

Mistaken Identity

The accused could claim a case of mistaken identity. Unless there were a lot of witnesses to the event, this is another case of an argument that devolves into a circular, he-said-she-said scenario.

False Accusation

A defendant could claim they were being falsely accused. The plaintiff has a problem with the defendant, and they are using this case to hurt them. In fact, if the situation were extreme and illegitimate, it could be possible for the defendant to turn it around on the plaintiff and accuse them of harassment.

Harassment Isn’t Present

Another option is to dissect the specifics of the charge. Were the defendant’s words and actions overtly threatening? Was it all taken out of context? Did the defendant actually touch the plaintiff? It can be easy to break down, bit by bit, the details of what exactly occurred and show a lack of harassment.

A harassment charge is serious and needs to be taken that way. If found guilty, there are genuine consequences that can do damage to someone’s life. However, these charges are hard to prove. It has to be very clear that harassment was taking place to get a conviction. A good lawyer who shows a reasonable doubt can stop a harassment charge from ruining someone’s good reputation.

If you need help with a harassment charge, we are here for you. Consultations are free and there’s no risk involved, so call today at (303) 622-3281 or contact us online.

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