The word “harassment” is one of those terms I hear all the time as a family law attorney. I have had complaints from clients that their spouse made a mess of the house just to “harass” them. Or, I have had adversaries who intentionally misconstrue every single dispute between our clients as “harassment.” It is just one of those hot-button words that everyone likes to use so much, that there are times when I wonder whether it has lost all meaning with judges and other family lawyers.
Merriam-Webster defines the word “harassment” as follows:
- a: Exhaust; fatigue; b: 1) to annoy persistently; 2) to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct.
- to worry and impede by repeated raids.
And maybe making a mess around the house in order to drive your wife crazy or picking fights about what to feed the children, who last filled the car up with gas, or who is responsible for paying the nanny this week is harassment as Merriam-Webster defines it.
But when we start bandying about this word to one another before the Court and in the context of family law litigation, there is a legal definition that applies and that we should all be mindful of before labeling what is simply domestic contretemps as legally actionable harassment.
A person commits the criminal act of Harassment when:
[. . .] with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Thus, to be legally actionable, the “harassment” must meet the above criteria. In the recent matter of State v. Burkert, the New Jersey Supreme Court addressed subpart (c) of this definition of harassment. The Court in Burkert found that – where the alleged harassment is based on purely expressive activity – a liberal reading of subpart (c) may run afoul of the First Amendment right to freedom of speech, which guarantees protection of speech even if it is offensive in nature.
In Burkert, the “purely expressive activity” had to do with the Defendant super-imposing some very, uh, colorful, language on a photograph of his co-worker’s wife and circulating it at work. There was no question this act was committed “with purpose to alarm or seriously annoy” Burkert’s co-worker. At the same time, to find Burkert guilty of harassment for engaging in this speech would run afoul of his First Amendment Protections. No matter how offensive speech may be, it is generally protected barring a risk to one’s reasonable expectation of privacy or safety.
In order to reconcile First Amendment Protections with subpart (c) of the statute, then, the Court held the following:
Therefore, for constitutional reasons, we will construe the terms ‘any other course of alarming conduct’ and ‘acts with purpose to alarm or seriously annoy’ as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.
While State v. Burkert is a criminal case, it is important for all family law practitioners and any individual considering obtaining a domestic violence restraining order based on harassment to take heed of Burkert. In cases where a restraining order is sought based on allegations of harassment, the plaintiff must prove that harassment has occurred as defined by the above statute. Therefore, the Court’s narrow construing of subpart (a) of the statute is critically important to those seeking the protections of a domestic violence restraining order based on harassment.
Practically speaking, then, what does this ruling change? Well, it ensures that speech alone cannot be the basis of a harassment crime or of a domestic violence alone. For example, if your spouse called you by an expletive instead of by your name 100 times in a 48 hour period, it might fit the Merriam-Webster definition of harassment, but it won’t fit the new definition of harassment under subpart (c), unless combined with harassing conduct and / or speech that reasonably makes you fearful for your life, or intolerably interferes with your reasonable expectation of privacy.