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Threatening to reveal that someone has been molested is not criminal harassment (in NY)

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Of People v Benaventedecided yesterday by Judge Wanda Licitra (NY Crim. Ct.):

El Pueblo accuses Ms. Benavente, a 24-year-old woman with no criminal record, of second-degree aggravated harassment. That charge, a violation of PL § 240.30(1)(a), is a class A misdemeanor punishable by up to 364 days in jail. To establish this charge, people filed an information accusing Ms. Benavente of calling another woman on the phone and saying, in full: “That’s why you had problems with dad. That’s why they bothered you. I’m going to tell everyone that you got bothered. Here’s my address, pull over. I know where you hang out.” …

[According to the criminal information,] informant [i.e., the accuser] and the defender had both [allegedly] previously been involved with the same man….

This case alleges a violation of criminal law based solely on one person’s speech. As applicable here, PL § 240.30(1)(a) criminalizes speech when someone:

[C]communicates…by telephone…a threat to cause bodily harm or unlawful damage to such person’s property…and the actor knows or reasonably should know that such communication will cause said person to reasonably fear harm to the physical safety or the property of that person.

At first glance, this statute does not criminalize all threats. It only criminalizes threats to “cause bodily harm” to a person and threats to cause “unlawful damage” to a person’s property.

In addition, however, under the US Constitution, the government cannot criminalize all threats of harm to person or property; it can only criminalize “true threats”. “True threats” are “those statements in which the speaker intends to communicate a serious expression of intent to commit an act of unlawful violence against a particular individual or group of individuals.” The government is restricted in this way because, under the First Amendment, it can only enact content-based regulations on a limited set of specific types of speech. In fact, in general, the government “has no power” to restrict speech simply “because of its message, its ideas, its theme, or its content.” …

In April 2015, Judge Steven Statsinger took a comprehensive look at how New York courts have applied the “actual threat” standard. He concluded that New York courts consistently find that there is no “real threat” where the alleged communication “contained no threat of future harm at all” or where “the apparent threat was not specific enough.” Judge Statsinger noted that “unwelcome, even highly offensive” communications could not have constituted true threats, in which “no possible future harm was specified” or “the harm threatened was not covered by statute.” Some of the cases collected by Judge Statsinger that found no real threat include:

  • people v tackle (Bronx Cty. Crim. Ct. 2015) (“Don’t let me use my boxing on you”).
  • people v thompson (Kings Cty. Crim. Ct. 2010) (“I’m on my way there” and then appeared outside the complainant’s building).
  • people v yablov (NY Cty. Crim. Ct. 2000) (Edmead, J.) (“I’ll Get You”).
  • people v nice (NY Cty. Crim. Ct. 2007) (“I’m going to have to call you”).
  • people v jaymov (NY Cty. Crim. Ct. 2009) (“Watch your step or something will happen to you. Stop calling him about child support. His daughter is a prostitute.”)
  • people v Pierre-Louis (Nassau Cty. Dist. Ct. 2011) (“I’m coming at you in a rage”, “bitch you’ll lose your fucking job”, “I got all the juice to make sure you’re holding a can in the fucking street”, “ I will rain hell on your office and make sure heads roll,” among other statements).

Orr itself, where Judge Statsinger found no real threat, involved the statements, “I can get you handled,” “go kill yourself bitch,” and “you ain’t worth taking the air to take the jump bitch.”

In reviewing the cases decided since Judge Statsinger’s analysis, this Court finds that his thesis remains true. Since 2015, New York courts have continued to find only “true threats” when the alleged communication contained a specific threat of future harm. Where either element was missing, the courts found there was no real threat. For example, no real threat was found in these cases:

  • people v spruill (NY Cty. Crim. Ct. 2015) (“I’m taking your kids away from you. I’m not sending you any more money. When I see you, I’m going to punch you in the face. Watch your back. Bitch. Slut. Cunt.”)
  • people v gibbs (Bronx Cty. Crim. Ct. 2015) (“David tried to touch me. David is a rapist. I’ll have to defend myself if he tries to touch me again. I’m going to put you and David in jail. David owes me money. Look when I see you. I don’t know why you have to get the police involved. This has nothing to do with you. If you think what I did to David is bad, you’re going to see what it is. It’s going to happen to you”) .
  • people v powell (Bronx Cty. Crim. Ct. 2016) (“Damn bitch, you got the cops on it now. Don’t let ’em catch you. Why you lying? I don’t know who you think you are. Remember you gotta pass where I see you .”)
  • People v DePasquale (Kings Cty. Crim. Ct. 2017) (“You ain’t short and look when I found you come out leave the boy”).
  • people v grammar (Monroe Cty. Just. Ct. 2017) (“I’m going to hurt you and make you pay for what you did to me, you gold digger bitch.”)

… In this case, the information does not allege an actual threat of physical harm to a person or unlawful damage to property. Indeed, as in Orr, many of the statements here are “not threats at all”, let alone true. Statements like “that’s why you had problems with your dad” and “that’s why they bothered you” are “clearly attempts to insult and demean the complainant.” “But they are not threats.”

The statement “I’ll tell everyone they bothered you” could be said to be a threat, but it does not threaten to physically harm a person or unlawfully damage property, which are the only types of threats that PL § 240.30(1) criminalizes. . The remaining statements “here’s my address, come closer” and “I know where you hang out” are too vague to constitute “true threats.” They are analogous to other statements that New York courts have deemed too vague to constitute true threats, as noted above, such as “I’m on my way,” “something’s going to happen to you,” “I’ll get you.” “,” watch your steps “or” come outside, leave the child “.

To be clear, the facial flaw here is not, as people interpret it, that “innocent inferences could also be drawn from the alleged facts.” The flaw is that no criminal inferences can be drawn from the alleged facts, and certainly none that establish a real threat of bodily harm to a person or unlawful damage to property. As a result, the information is apparently insufficient to distinguish the crime charged.

{[T]The town has made additional allegations, namely that Mrs. Benavente has been making “harassing phone calls” to the complainant “for two years.” This accusation is not sworn and appears only in the town’s response, not in the sworn complaint or statement of support. In accordance with the fundamental principles of facial sufficiency, the Court refuses to consider this allegation.}

My sense is that many of the cases cited in the opinion would have been decided differently by other courts (at least outside of New York), because they seem to specifically mention threats of unlawful violence.

But I am inclined to say that threatening to reveal that someone has been abused—at least in the absence of an attempt at blackmail, where the threat is a tool to obtain money or something else of value—would not be criminally punishable anywhere. (Note that in some states threatening to reveal that someone has been abused may be civilly actionable under the tort of disclosing private facts; but New York doesn’t even recognize that tort, so the threat would not have been a threat.) of committing a civil crime).

Congratulations to Julie B. Rendelman, who represented the defendant.

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