Nicole Black

I think I agree w/ Richard on this one (although he and I have disagreed on my blog before, if I recall correctly;)).

In NY, if you slap someone in the face, but don't cause bruising, a cut, etc., the most you can be convicted of is the violation of harassment--it's not a crime/criminal conviction and is similar to a traffic violation, punishable by 15 days in jail at most.

But, if you call them on the phone and *tell* them that you're going to slap them, you can be convicted of aggravated harrasment, a class A misdemanor, punishable by up to 1 one year in jail or 3 years probation.

That doesn't make much sense to me. Phone calls, unless they amount to stalking of some sort, are harmless for the most part. (Hence the old adage: sticks and stones can break my bones, but words can never hurt me. Phone calls amount to words alone.)

Nor does it makes sense that these guys now have a criminal conviction as a result of a phone call.
At most they should have been convicted of a non-criminal offense and maybe have been required to write the letter of apology.


I agree with Happy Feminist. Threatening people and sowing fear are reprehensible acts. Maybe there should be more consequences for slapping (I think as a society we generally are too accepting of violence), not less for threatening violence.


I have to go with Richard on this one too, or else I’d be in need of counseling for disagreeing with myself.

To begin with, the charge itself doesn’t even make sense. Harassment in most states requires a pattern of conduct, not a single event. Here in Pennsylvania the statute reads: “A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose.” As the judge’s home received only a single telephone call from the drunks that night, there wasn’t any “course of conduct” or pattern as to the judge.

Next, it was the police who claimed the calls were "threatening". I do enough criminal work to know that police routinely write drama-queen reports that all seem to mysteriously have the same adjectives in them. They learn these “probable cause adjectives” at their nine-week course, How To Be A Policeman, just before they’re handed a gun and told to go out and catch bad people just like they watched on Miami Vice as kids. One of their favorite probable cause adjectives is "threatening" and it’s not at all unusual to see the word show up six or seven times within a couple paragraphs of the police report (“threatening glance” “threatening stance” “threatening appearance” “threatening maneuver” “threatening attitude” “threatening voice” “threatening manner” etc etc) Actually I’m surprised they didn’t throw in “terrorizing” too, as it’s quite in vogue for police reports these days. (Haven’t you notice, too, how every single DUI defendant of the last 20 years in the contiguous 48 states had (in this order) “glassy eyes,” “slurred speech,” “an unsteady gate,” and “strong smell of alcohol emanating from the vehicle” at the time of their apprehension? I find that unsettling.)

I don’t believe for one second that the call was taken as threatening by anyone, or else the court’s "assignment" for the two guys wouldn't have be characterized as relating to "practical jokes," now would it? This is about an influential man, a judge, getting all pissy because he got a late night telephone call, and about how the police and a prosecutor sucked up to him by bringing silly charges against some stupid young men for their irritating behavior. It’s about criminalizing offensive behavior and we’re seeing more and more of this kind of thing in courts today.

p.s. Nicole Black rocks!

The Happy Feminist

I agree that there are some crappy harassment statutes out there. In fact, I actually (successfully!) defended a guy on a stupid telephone harassment case on a statute that was later invalidated for being unconstitutionally vague and overbroad. (The charge was for (a) communicating with someone by telephone (b) after having been notified that that person did not desire further communication and (c) with the purpose to annoy or alarm another.) MY case was a good example of what Richard is talking about. (Hey the rule is whatever side of the courtroom I'm on, I'M right!)

But I don't really have a problem with criminalizing the behavior of obscene phone callers or repeated hang-up callers. It's pretty disturbing to get an obscene, anonymous phone call in the middle of the night. The difficulty is to craft a statute that isn't overbroad.

The Missouri harassment statute takes a decent stab at it-- and I'm guessing that Richard's prank callers fall into category (1), which is completely appropriate if they made a threat. I'd be more comfortable with the statute if (2) and (3) were combined and if (3) and (4) were combined.

565.090. Harassment. —

A person commits the crime of harassment if for the purpose of
frightening or disturbing another person, he

(1) Communicates in writing or by telephone a threat to commit any
felony; or

(2) Makes a telephone call or communicates in writing and uses coarse
language offensive to one of average sensibility; or

(3) Makes a telephone call anonymously; or

(4) Makes repeated telephone calls.

The Happy Feminist

Oh my goodness, Richard, you have to be a real "true believer" to complain about the fact that police reports in DUI cases are so similar. The fact is that drunk people tend show similar signs and symptoms of intoxication --the said "slurred speech," "glassy eyes," and "unsteady gait." That's how we can tell they're drunk.

Now police officers have to come up with creative synonyms for these things every time they write a report?


"Now police officers have to come up with creative synonyms for these things every time they write a report?"

Oh come on. You of all people, a former prosecutor, telling me police don't -- how shall I say -- embellish things for the sake of a better case? Have you ever seen a person who is somewhere between a .08 BAC and say, 1.2 BAC? Most of them show no physical outwardly visible signs of intoxication. I went to a seminar once where they liquored up half the class and monitored their BACs. About 50 of us there so about 25 people drank up to .10 (this was before PA lowered it to .08) Based on appearances and behavior it was next to impossible for the us non-drinkers to tell who had been drinking and who had not. And in fact, this was part of the point of the experiment. You'd have to put drinkers at those levels through some pretty stringent clinical testing to show that their reaction times had indeed slowed down.

And yet the same brainless phrases about slurred speech and uneven gait show up on police reports time after time, regardless of whether the guy blew a .08, a 1.0, 1.6 or 3.5. Judges don't bat an eye, police testify with straight faces, and prosecutors believe their witness. You're saying you still believe those reports are objective renditions of the truth? Really? (You must be a "true believer" ;) These Affidavits of Probable Cause are written to fit a template police have learned will get them past pre-trial challenges which is why the very same language shows up across America regardsless of the truth.

The Happy Feminist

Oh, I agree that cops have been known to "embellish." After all, I am the daughter of card carrying ACLU members (who are very disappointed in my career choices, by the way.)

But, I just don't think that the language used in DUI reports is a good example of that. I've sat in on one of those drinking exercises and I was surprised at how some people became unsteady well before the .08 "per se" intoxication level. (Were you in the half of the class that was liquored up?) I agree that it would be bizarre for every DUI defendant to be described as falling-down drunk and slurring, but that hasn't been my experience with police reports. And I've seen lots of booking and cruiser videos where I myself can see the unsteady gait and hear the slurred speech. (Best line ever: "You exshpect me to walk that line? I can't even do that shober!")

Of course, as you know, every defendant claims to have had only "two beers." :) :) :)


"Every defendant claims to have had only 'two beers.'"

It's "three beers" in western Pennsylvania, unless it's deer hunting season. Then it's "about three".

The Happy Feminist

We're a much less hardy group of people in my jurisdiction.

The Galloping Beaver

I believe in Canada the behaviour of that pair would have earned them prosecution under the Criminal Code 264.1 Uttering Threats. The severity and nature of the threat would determine whether the offence was prosecuted as an indictable offence or whether it took the form of a summary conviction. (Summary conviction having a lesser maximum sentence.)

They could also be charged under Criminal Code 264 Criminal Harassment, although that "usually" requires a pattern of conduct to be established and it is more difficult to prove without a prior recognizance or court order against the accused.

Now, as for the DUI/DWI contribution, you should have a look at this link. You'll have to watch right to the end for the full effect. (You might have to scroll down to get the video. It's really quite funny.

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