Cyberbullying Laws in West Virginia
Bullying is behavior that may be punished under school policy (see below) and even criminal statutes, such as the following.
Stalking and harassment. Prosecutors may charge cyberbullying under West Virginia’s stalking and harassment law, as when the bully repeatedly bothers or threatens a victim in a way that causes reasonable mental or emotional distress, or reasonable fear of imminent injury.
Violation of this law carries a fine of up to $1,000, up to six months in jail, or both. However, potential fines and time behind bars increase when certain aggravating factors exist. Among such factors are prior harassment convictions and the crime taking place in violation of a restraining order. (W. Va. Ann. Code § 61-2-9a; for more on sentencing in West Virginia, see West Virginia Misdemeanor Crimes by Class and Sentences and West Virginia Felony Crimes by Class and Sentences.)
Unlawful telephone calls. Bullies may also face criminal charges for making unlawful telephone calls. This crime applies where someone makes telephone calls to a victim that are obscene, repeated, anonymous, or threatening toward the victim or the victim’s property. The crime of unlawful telephone calls may incur a fine of up to $500, up to six months in jail, or both. (W.Va. Ann. Code § 61-8-16.)
Unlawful computer communications. Conduct that would be criminal under the unlawful-telephone-calls law, but which occurs by way of computer or other electronic device, constitutes the offense of unlawful computer communications. This offense applies to other kinds of similar behavior, too. It carries a fine of up to $500, up to six months in jail, or both. Second and subsequent convictions incur up to $1,000 by way of fine, up to one year in jail, or both. (W.Va. Ann. Code § 61-3C-14a.)
West Virginia law requires that each county school board establish an anti-bullying policy for its schools. Each policy must contain several components. Among the necessary components are :
- a definition of harassment, intimidation, and bullying, and a statement prohibiting such behavior
- procedures for reporting, documenting, and responding to bullying incidents
- procedures for protecting victims and people who report bullying, and
- a disciplinary procedure for students who bully.
Board policies must appear in student handbooks, and in county board publications that set forth the rules and standards for school conduct. (W.Va. Ann. Code § 18-2C-3.)
Defenses to Criminal Charges
Depending on the circumstances, those who face criminal charges stemming from bullying accusations may be able to claim the following defenses or ones similar to them.
Free speech (which includes words and related actions) is a fundamental, yet limited right under the United States Constitution. Examples of speech potentially constituting a crime are falsely yelling “fire!” in a crowded theatre and comments that may qualify as terrorist threats.
The line between protected and criminal speech isn’t always clear. In a given case, a defense attorney might have a legitimate argument that alleged acts of cyberbullying really constituted legitimate speech that’s protected under the Constitution.
Some crimes require that the victim experience a particular reaction that’s reasonable under the circumstances. For instance, West Virginia’s criminal harassment and stalking law requires that the bully’s behavior cause the victim to feel fear or mental or emotional distress, and that the fear or distress be reasonable under the circumstances. So, if the victim was hypersensitive to behavior that wouldn’t have created the required reaction in a reasonable person, then a violation of the statute hasn’t occurred.