ARS § 13-2916 is the Arizona statute that defines the crime of telephonic or electronic harassment. People commit this offense if they use their telephone or computer to terrify, intimidate, threaten, or harass a specific person. A violation of this law is a Class 1 misdemeanor punishable by up to six months in jail.
- making several telephone calls daily to an ex-girlfriend and leaving messages saying, “We’re meant to be together.”
- sending text messages to someone threatening to sexually assault the person.
- emailing a person nude images with messages asking for sex.
Criminal defense lawyers draw upon several legal strategies to help defendants challenge harassment charges. Some of these include showing that a defendant:
- did not act with criminal intent,
- did not leave or offer a lewd or obscene message, and/or
- practiced his/her right to free speech.
- custody in jail for up to six months, and/or
- a maximum fine of $2,500.
In this article, our criminal defense attorneys will discuss what the law is under these statutes, defenses available if charged, the penalties for a conviction, and related crimes.
1. How does Arizona law define “telephonic harassment”?
People in Arizona are guilty of telephonic harassment if they use electronic communications (for example, telephone use) to terrify, intimidate, threaten, or harass a specific person.1
The language of ARS 13-2916 sets forth three ways in which a person can commit this offense. These are when, with an intent to terrify, intimidate, threaten, or harass a person, someone:
- directs any obscene, lewd, or profane language or suggests any lewd or lascivious act to a person via the use of electronic communication,
- threatens to inflict physical harm to a person or property in any electronic communication, and/or
- disturbs a person’s peace or privacy via repeated anonymous, unwanted, or unsolicited electronic communications.2
For this section, “electronic communication” means a wireline, cable, wireless or cellular telephone call, a text message, an instant message, or electronic mail.3
Note that people often commit this crime while threatening to commit some other offense concerning the “victim.” Some of these offenses include:
- domestic violence, per ARS 13-3601,
- aggravated assault, per ARS 13-1204,
- child abuse, per ARS 13-3623,
- criminal damage, per ARS 13-1602,
- 2nd-degree murder, per ARS 13-1104,
- endangerment, per ARS 13-1201,
- abuse of a vulnerable adult, and
- violating an order of protection or court order.
Note that while ARS 13-2916 is the Arizona statute that addresses telephonic harassment, ARS 13-2921.01 is the state statute on “aggravated harassment.” People commit this crime when:
- they harass another person, and
- a court has issued an order of protection or an injunction against harassing “the victim.”4
2. Are there defenses to ARS 13-2916 charges?
Defendants have the right to challenge a charge brought under this statute with a legal defense. Three common defenses to unsolicited electronic communications include showing that:
- the accused did not act with criminal intent.
- the accused did not leave or offer a lewd or obscene message.
- the defendant was engaged in free speech.
2.1 No criminal intent
People are only guilty of telephonic harassment if they act with the intent to terrify, intimidate, threaten, or harass. A defense is for a person to show that they did not act with any of these aims. Maybe, for example, someone repeatedly “butt dialed” a person, or maybe they texted someone as a joke. Both of these are acts without criminal intent.
2.2 No lewd or obscene message
It is a crime under this statute for people to leave or offer lewd or obscene electronic messages. But remember that the messages must be lewd or obscene to a reasonable person. This means it is always a defense for people to show that a message was not reasonably offensive.
2.3 Free speech
The language of ARS 13-2916 specifically states that the law does not apply to constitutionally protected speech or activity.5 Therefore, defendants can always try to assert that the First Amendment right to free speech protected their electronic communication.
Consider, for example, the scenario where a person sends out an anti-abortion email campaign with pictures of fetal remains. While many people might find the images offensive, the First Amendment protects the emails.
3. What are the penalties?
Telephonic harassment is a Class 1 misdemeanor under Arizona law.6
The crime is punishable by:
- custody in jail (as opposed to state prison) for up to six months, and/or
- a maximum fine of $2,500.
Note that instead of jail time a judge can award a defendant up to three years of probation.
4. Are there related offenses?
There are three crimes related to telephonic harassment. These are:
- disorderly conduct – ARS 13-2904,
- criminal trespass – ARS 13-1502, and/or
- unlawful imprisonment – ARS 13-1303.
4.1 Disorderly conduct – ARS 13-2904
Per ARS 13-2904, disorderly conduct is the crime where people:
- knowingly engage in a certain type of disruptive behavior (like making loud noise or using offensive language), and
- do so with the intent to disturb the peace.
As with ARS 13-2916 violations, most violations of this statute are Class 1 misdemeanors.
4.2 Criminal trespass – ARS 13-1502
Under ARS 13-1502, criminal trespass is the offense where people knowingly enter or unlawfully remain on real property after the property owner or law enforcement/peace officers request that they leave.
As with telephonic harassment, people must have a criminal intent to commit the crime of trespass. They must act knowing that they are entering or unlawfully remaining on someone’s property.
4.3 Unlawful imprisonment – ARS 13-1303
Per ARS 13-1303, unlawful imprisonment is a crime where people knowingly restrain another person without consent and legal authority.
Unlike this statute, people violate ARS 13-2916 without taking any physical act or stance against another person. The law focuses solely on a person’s communications.
- Arizona Revised Statutes 13-2916A. The language of the statute reads as follows:A. It is unlawful for a person to knowingly terrify, intimidate, threaten or harass a specific person or persons by doing any of the following:1. Directing any obscene, lewd or profane language or suggesting any lewd or lascivious act to the person in an electronic communication.
2. Threatening to inflict physical harm on any person or to property in any electronic communication.
3. Otherwise disturbing by repeated anonymous, unwanted or unsolicited electronic communications the peace, quiet or right of privacy of the person at the place where the communications were received.
4. Without the person’s consent and for the purpose of imminently causing the person unwanted physical contact, injury or harassment by a third party, use an electronic communication device to electronically distribute, publish, email, hyperlink or make available for downloading the person’s personal identifying information, including a digital image of the person, and the use does in fact incite or produce that unwanted physical contact, injury or harassment. This paragraph also applies to a person who intends to terrify, intimidate, threaten or harass an immediate family member of the person whose personal identifying information is used.
B. Any offense committed by use of an electronic communication in violation of this section is deemed to have been committed at either the place where the communications originated or at the place where the communications were received.
C. This section does not apply to:
1. Constitutionally protected speech or activity or to any other activity authorized by law.
2. An interactive computer service, as defined in 47 United States Code section 230(f)(2), or to an information service or telecommunications service, as defined in 47 United States Code section 153, for content that is provided by another person.
D. A person who violates this section is guilty of a class 1 misdemeanor.
E. For the purposes of this section:
1. “Electronic communication” means a social media post, a wire line, cable, wireless or cellular telephone call, a text message, an instant message or electronic mail.
2. “Electronic communication device” includes a telephone, mobile telephone, computer, internet website, internet telephone, hybrid cellular, internet or wireless device, personal digital assistant, video recorder, fax machine or pager.
3. “Harassment” means a knowing and wilful course of conduct that is directed at a specific person, that a reasonable person would consider as seriously alarming, seriously disruptive, seriously tormenting or seriously terrorizing the person and that serves no legitimate purpose.
4. “Personal identifying information”:
(a) Means information that would allow the identified person to be located, contacted or harassed.
(b) Includes the person’s home address, work address, phone number, email address or other contact information that would allow the identified person to be located, contacted or harassed.
5. “Social media post” means a social media communication that is knowingly intended to communicate to a specific person or persons in violation of subsection A of this section.
- ARS 13-2916A1-3.
- ARS 13-2916E.
- ARS 13-2921.01.
- ARS 13-2916C.
- ARS 13-2916D.