What is the Colorado definition of cyberbullying?

CRS 18-9-111(1)(e) is the Colorado law that defines cyberbullying as intentionally harassing someone over the phone, text message, or social media sites. Colorado’s cyberbullying statute section is named Kiana Arellano’s Law after the teenage cyberbullying victim who was driven to a suicide attempt in 2013.

Specifically, CRS 18-9-111(1)(e) states that a person commits cyberbullying if:

with intent to harass, annoy, or alarm another person, he or she [d]irectly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene[.]

Colorado law defines obscene under CRS 18-9-111(1.5) as:

[A] patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions.

What are the penalties?

Violating cyberbullying laws is usually a class 2 misdemeanor in Colorado. The punishment is:

• Up to 120 days in jail, and/or
• Up to $750 in fines

But cyberbullying becomes a class 1 misdemeanor if the bully intended to harass or intimidate the victim due to his/her actual or perceived:

• race,
• color,
• religion,
• ancestry,
• national origin,
• physical disability, or
• mental disability

A class 1 misdemeanor sentence include:

• Up to 364 days in jail, and/or
• Up to $1,000 in fines

What are the defenses?

The most effective ways to fight cyberbullying criminal charges turn on the unique facts of the case. Five common defenses under state law include:

1. The defendant had no intent to harass, annoy, alarm or intimidate the victim.
2. None of the defendant’s electronic acts rose to the level of online harassment, obscenities, or threats.
3. The defendant was framed for the bullying incident. Perhaps someone else took the defendant’s cell-phone and sent the offending electronic communications. Or perhaps the victim him/herself sent the messages in order to falsely claim he/she was cyberbullied.
4. The defendant’s speech was protected by the First Amendment of the United States Constitution.
5. Law enforcement found the defendant’s cell phone through an unlawful search or seizure.

Typical evidence in these cases includes the devices the bullying messages were sent on, screenshots of the messages, voicemails, and eyewitness accounts. Criminal defense attorneys may even call on forensic specialists in order to trace the true source of the bullying messages.

What if the defendant is a juvenile?

Many cyberbullying cases involve middle school and high school students. Alleged bullies younger than an 18-year-old are usually prosecuted in juvenile court instead of adult criminal court. If the defendant is found delinquent, the judge can order such penalties as:

• community service,
• counseling services,
• attendance at bullying prevention programs,
• a driver’s license suspension, and/or
• time in a juvenile detention hall

Note that juvenile records do not automatically disappear when the defendant reaches adulthood. The defendant needs to petition for a juvenile records expungement. And there may be a mandatory waiting period depending on how the case resolved.