A Balance of Convenience: Burden-Shifting Devices in Criminal Cyberharassment Law

Abstract

As communication using the Internet and electronic media becomes more prevalent, incidents of online harassment have likewise increased. In recent years, the U.S. Congress and state legislatures have enacted new legislation and amended existing criminal statutes to target cyberharassment, also called cyberstalking or cyberbullying. The definition of cyberharassment consequently varies between jurisdictions, particularly with regard to statutory emphasis on the mental state of the accused and the reaction of the victim. This Note argues that the reasonableness and specific intent standards employed by most cyberharassment laws are inadequate to balance the safety interests of victims and the First and Fourteenth Amendment rights of electronic speakers. The Note proposes that cyberharassment statutes be supplemented with burden-shifting devices such as affirmative defenses and nonmandatory presumptions, which have historically been employed in other contexts where the prosecution is procedurally disadvantaged and the details of the crime are peculiarly within the knowledge of the accused. After surveying statutes that have successfully incorporated burden-shifting elements, the Note concludes that real-locating evidentiary burdens increases the efficiency and fairness of cyberharassment law while reconciling the interests of both the victim and the accused.