The Volokh Conspiracy
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Threatening to Disclose That Someone Had Been Molested Isn't Criminal Harassment (in N.Y.)
Plus a nice catalog of how high the bar can be for punishable threats under New York law.
From People v. Benavente, decided yesterday by Judge Wanda Licitra (N.Y. Crim. Ct.):
The People charge Ms. Benavente—a 24-year-old woman with no criminal record—with second-degree aggravated harassment. That charge, a violation of P.L. § 240.30(1)(a), is a class A misdemeanor punishable by up to 364 days in jail. To establish this charge, the People have filed an information accusing Ms. Benavente of calling another woman on the telephone and saying, in full: "That's why you had daddy issues. That's why you got molested. I'm gonna tell everyone you got molested. Here's my address, pull up. I know where you hang out." …
[According to the criminal information,] informant [i.e., the accuser] and defendant had both [allegedly] been previously involved with the same man….
This case alleges a violation of the penal law based solely on a person's speech. As applicable here, P.L. § 240.30(1)(a) criminalizes speech where someone:
[C]ommunicates … by telephone … a threat to cause physical harm to, or unlawful harm to the property of, such person … and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or property.
On its face, this statute does not criminalize all threats. It only criminalizes threats "to cause physical harm" to a person and threats to cause "unlawful harm" to a person's property.
In addition, however, under the U.S. Constitution, the government may not criminalize all threats of harm to people or property—it may only criminalize "true threats." "True threats" are "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or a group of individuals." The government is restrained in this way because under the First Amendment, it may only enact content-based regulations on a limited set of specific types of speech. In fact, generally, the government has "no power" to restrict speech simply "because of its message, its ideas, its subject matter, or its content." …
In April of 2015, Judge Steven Statsinger exhaustively surveyed how New York courts have applied the "true threat" standard. He concluded that New York courts consistently find that there is no "true threat" where the alleged communication "did not contain a threat of future injury at all" or where "the seeming threat was not sufficiently specific." Judge Statsinger noted that "unwanted, even highly offensive" communications have failed to constitute true threats, where either "no potential future injury was specified" or the "injury threatened was not one covered by the statute." Some of the cases Judge Statsinger collected that found no true threat include:
- People v. Tackie (Bronx Cty. Crim. Ct. 2015) ("Don't let me use my boxing on you.")
- People v. Thompson (Kings Cty. Crim. Ct. 2010) ("I am on my way over there" and then appeared outside the complainant's building).
- People v. Yablov (NY Cty. Crim. Ct. 2000) (Edmead, J.) ("I'll get you.")
- People v. Bonitto (NY Cty. Crim. Ct. 2007) ("I'm going to have to call you.")
- People v. Khaimov (NY Cty. Crim. Ct. 2009) ("Watch your step or something is going to happen to you. Stop calling him about child support. Your daughter is a prostitute.")
- People v. Pierre-Louis (Nassau Cty. Dist. Ct. 2011) ("I'm coming at you with fury," "bitch, you will lose your fucking job," "I got all the juice enough to make sure that you're holding a can in the fucking street," "I will rain hell on your office and make sure heads roll," amongst other statements).
Orr itself, where Judge Statsinger found no true threat, involved the statements, "I can have you handled," "go kill yourself bitch," and "you're not worth the air to take the jump bitch."
In reviewing the cases decided since Judge Statsinger's analysis, this Court finds his thesis to remain true. Since 2015, New York courts have continued to only find "true threats" where the alleged communication contained a specific threat of future injury. Where either element was missing, courts found that there was no true threat. For instance, no true threat was found in these cases:
- People v. Spruill (NY Cty. Crim. Ct. 2015) ("I'm going to take your kids away. I won't send you anymore money. When I see you I'll punch you in the face. Watch your back. Bitch. Whore. Cunt.")
- People v. Gibbs (Bronx Cty. Crim. Ct. 2015) ("David tried to touch me. David is a rapist. I'll have to defend myself if he tries to touch me again. I'm going to put you and David in jail. David owes me money. Watch when I see you. I don't know why you have to involve the police. This has nothing to do with you. If you think it's bad what I did to David, you're going to see what's going to happen to you.").
- People v. Powell (Bronx Cty. Crim. Ct. 2016) ("You fucking bitch now you got the cops involved. Don't let me get you. Why are you lying. I don't know who you think you are. Remember you have to pass around where I see you.")
- People v. DePasquale (Kings Cty. Crim. Ct. 2017) ("You ain't low and watch when I found you, come outside, leave the kid.")
- People v. Grammatico (Monroe Cty. Just. Ct. 2017) ("I am going to hurt you and make you pay for what you did to me, gold digging bitch.")
… In this case, the information does not allege a true threat of physical harm to a person or unlawful harm to property. Indeed, like in Orr, many of the statements here are "not threats at all," let alone true ones.. Statements like "that's why you had daddy issues" and "that's why you got molested" are "clearly efforts to insult and degrade the complainant." "But they are not threats."
The statement "I'm gonna tell everyone you got molested" is arguably a threat, but it does not threaten physical harm to a person or unlawful harm to property, which are the only types of threats that P.L. § 240.30(1) criminalizes. The remaining statements "here's my address, pull up" and "I know where you hang out" are too vague to constitute "true threats." They are analogous to other statements that New York courts have found too vague to constitute true threats, as noted above, like "I am on my way over there," "something is going to happen to you," "I'll get you," "watch your step," or "come outside, leave the kid."
To be clear, the facial defect here is not, as the People construe it, that "innocent inferences could also be drawn from the facts alleged." The defect is that no criminal inferences could be drawn from the facts alleged, and certainly none that would establish a true threat of physical harm to a person or unlawful harm to property. As a result, the information is facially insufficient to make out the charged offense.
{[T]he People have made additional allegations—namely, that Ms. Benavente has been making "harassing phone calls" to the complainant "for two years." This allegation is unsworn and appears only in the People's response, not in the sworn complaint or supporting deposition. In accordance with fundamental facial sufficiency principles, the Court refuses to consider this allegation.}
My sense is that many of the cases cited in the opinion would have been decided differently by other courts (at least outside New York), because they do appear to specifically mention threats of unlawful violence.
But I'm inclined to say that threatening to disclose that someone had been molested—at least absent a blackmail attempt, where the threat is a tool to get money or something else of value—wouldn't be criminally punishable anywhere. (Note that in some states it's possible that threatening to reveal that someone had been molested would be civilly actionable under the tort of disclosure of private facts; but New York doesn't even recognize that tort, so the threat wouldn't have been a threat to commit a civil wrong.)
Congratulations to Julie B. Rendelman, who represented the defendant.