Is it a crime to say things that make someone 'lack self-confidence in her relations with the opposite sex and about her body-build'?

I blogged about this case in April, when the Iowa Court of Appeals decision came down, but I thought I'd revisit it now that the Iowa Supreme Court has affirmed (though on other grounds), see In the Interest of D.S. (Iowa Nov. 21, 2014).

1. The facts, from the intermediate appeals court opinion:

On February 20, 2013, three high school classmates got off a school bus on the way home after school. After exiting the bus, D.S. yelled, "T-Bitch," to get the attention of her friend T.B. The victim in this case, also having the initials T.B., thought D.S. was yelling at her so she turned around and said "what?" to D.S. D.S. replied to the victim, "I wasn't talking to you, you fat, skanky bitch. I'm way better than you and prettier than you, and I'm not desperate like you to sleep with the bus driver." The victim replied, "I don't care about looks, at least I have a heart." D.S. and the victim were approximately ten feet from each other during this exchange.

D.S.'s friend than approached D.S. and said, "let's go." The two left the scene and went to D.S.'s house. The victim was hurt by these words and went home and cried, reporting the incident to her mother.

2. D.S. was then prosecuted through the juvenile justice system for criminal harassment; the Iowa criminal harassment statute provides, in relevant part,

A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person. As used in this section, unless the context otherwise requires, "personal contact" means an encounter in which two or more people are in visual or physical proximity to each other.

3. The juvenile court found (some paragraph breaks added):

[D.S.] and [the victim] have known each other since kindergarten and have lived near each other in [a small town] for that entire time. [D.S.] claims she and [the victim] were friends until they entered the third grade. [The victim] claims a history of ill will between [D.S.] and her. [The victim] claims one physical altercation with [D.S.] that occurred two years ago. [The victim] claims that [D.S.] has frequently made mean and hurtful comments to her….

[D.S.]'s comments directed toward [the victim] had no legitimate purpose. [D.S.]'s comments were intended to be a "put down" to [the victim]. This "put down" was intended by [D.S.] to make [the victim] lack self-confidence in her relations with the opposite sex and about her body-build.

It is not reasonable to believe that [the victim] anticipated any physical harm or threat of physical harm from [D.S.] who is substantially shorter and weighs less than [the victim]. [The victim] testified that she was not threatened by [D.S.] during their encounter on February 20, 2013. [The victim] was not in apprehension of imminent physical harm during this encounter either.

[The victim]'s reaction was to return home upset and crying despite her effort to respond to [D.S.]. This incident was the culmination of a number of likely similar incidents. [The victim]'s mother had finally "had enough" and sought assistance from local law enforcement.

The juvenile court "found there was no threat and there was no apprehension of physical threat or harm," but concluded that D.S.'s actions were intended to "intimidate" because they were intended to make the victim "lack self-confidence in her relations with the opposite sex and about her body-build."

4. The intermediate Court of Appeals rejected this theory, concluding that "intimidate" has to mean to "inspire or affect with fear" or to frighten. The Court of Appeals' view seemed to be that this portion of the statute punishes a class of threats (perhaps ones that are less overt than normal threats, but still clearly understood as such), which are generally constitutionally unprotected. Note that D.S. wasn't prosecuted under the theory that her speech was "fighting words," because it consisted of face-to-face personal insults that tend to cause a fight; I think D.S.'s speech was likely constitutionally unprotected under that theory, though I entirely agree with the Court of Appeals that speech shouldn't be punishable simply because it causes someone to "lack self-confidence in her relations with the opposite sex and about her body-build."

5. The Iowa Supreme Court agreed that the conviction should be reversed, though it didn't follow the Court of Appeals' theory. (Because of this affirmance of the Court of Appeals' bottom-line result on a different ground, the Court of Appeals decision is no longer precedent, though the Iowa Supreme Court didn't expressly reject its reasoning.) Here's the Iowa Supreme Court's reasoning:

D.S. … did not purposefully or intentionally initiate the personal contact with T.B., or purposefully engage in conduct that led to the personal contact…. D.S. yelled "T bitch" to one of her other friends, which only incidentally spurred the encounter with T.B. The record revealed that the comment was not directed to T.B., and no evidence was presented that D.S. had any intention of initiating personal contact with T.B…. T.B.'s account to Chief Orr corroborates D.S.'s version of events, namely that D.S. "wasn't talking to [T.B.]," and therefore did not act purposefully or intentionally in creating the encounter. There is insufficient evidence in the record to support this element of harassment.

Moreover, as noted above, the harassment statute requires that at the time the defendant purposefully has personal contact with another, he or she also has the specific intent to threaten, intimidate, or alarm that person. Put another way, in order to sustain a conviction for harassment under section 708.7(1)(b), the State must prove beyond a reasonable doubt D.S. had formed the intent to threaten, intimidate, or alarm T.B. when she purposefully sought out the encounter. Accordingly, had the State established that D.S. purposefully or intentionally had personal contact with T.B., there is still no evidence in the record demonstrating that at the time D.S. initiated the contact with T.B. she possessed the requisite specific intent to threaten, intimidate, or alarm T.B.

Because we have concluded that D.S. did not act purposefully or intentionally in creating the encounter with T.B., or that she possessed
the requisite specific intent to threaten, intimidate, or alarm T.B. at the relevant time, we need not reach the issue addressed by the court of appeals regarding the proper definition of the word "intimidate" under section 708.7(1)(b).

But I'm not sure how this works. First, though D.S. may not have purposefully initiated the conversation, she did purposefully continue the conversation. The statute only requires that the defendant "ha[ve] personal contact with another person, with the intent to threaten, intimidate, or alarm that other person," not that the defendant initiate such contact. I would think that, if A starts a conversation by saying something relatively innocuous to B, and then B (credibly) says "I'm going to beat you up," that would be a threat and punishable as harassment (because it would be "personal contact … with the intent to threaten"); that the threat came in a conversation started by the victim, rather than in a conversation started by the threatener shouldn't change this analysis. The same analysis should apply to "intimidate" under the statute: if someone has "personal contact" with someone else with the intent to intimidate, it should be punishable regardless of who started the broader conversation.

Second, the court correctly points out that, even if D.S. were seen as "purposefully or intentionally ha[ving] personal contact with T.B.," the state would have to show that D.S. had the intent to "threaten, intimidate, or alarm." But how can the court conclude that "there is … no evidence in the record demonstrating" this intent without deciding what constitutes "intimidate"? D.S.'s statement is evidence that she intended to belittle T.B., and make her feel bad. The juvenile court's inference that D.S. intended to make T.B. "lack self-confidence in her relations with the opposite sex and about her body-build" seems quite sensible.

I agree with the court of appeals that this can't itself count as a purpose to "intimidate," because "intimidate" should be read as something akin to "threaten." But that does require "reach[ing] the issue addressed by the court of appeals regarding the proper definition of the word 'intimidate' under section 708.7(1)(b)," something the Iowa Supreme Court claimed it wasn't doing. So I can't see how the Iowa Supreme Court could reasonably conclude that "there is … no evidence in the record demonstrating that at the time D.S. initiated the contact with T.B. she possessed the requisite specific intent to threaten, intimidate, or alarm T.B." without deciding what "intimidate" actually means.

In any event, though this is a good bottom-line result, it strike me as unfortunate that the Iowa Supreme Court declined to adopt the Court of Appeals' approach, and to bury (at least in Iowa) the theory that speech might be criminal simply because it makes someone "lack self-confidence in her relations with the opposite sex and about her body-build."

For more on the First Amendment and such "harassment" statutes, see here.