It’s not WHAT you say, but HOW you say it!

In order to be found guilty of an act domestic violence for harassment, the Court must determine that the accused person acted with a “purpose” to harass.  Makes sense, right?  Sure.  However, it begs  further questions: How does a victim seeking to obtain a restraining order prove that the alleged harasser had the “purpose” to harass?   How does someone defending a charge of harassment prove that he/she did not have the “purpose” to harass?

Let’s try to answer these questions.

Of course, there are many instances where one single communication clearly constitutes harassment; this blog does not concern those instances.  This blog concerns those gray areas where the communication at issue might not on its face, standing alone, be construed by the Court as made with the “purpose” to harass.  What should one do when faced with this situation?  The answer is all about history and a pattern.  If that one communication is too vague to show the required “purpose” to harass, then ask yourself this one question:  Is there a history of the same type of communications that clearly creates a pattern that demonstrates a “purpose” to harass”? While one gray communication may not in and of itself demonstrate a “purpose” to harass, a pattern or history of the same gray texts may, when viewed as a whole, demonstrate a “purpose” to harass.

Thus, it may not be so much about what is in the actual communication, but rather how many similar communications have happened in the past, that is the critical factor for the Court when determining whether there has been a “purpose” to harass. 

One need look no further than the case of L.W. v. A.W. to prove the above point.  There, the accused attempted to argue that a few communications he made to his former spouse did not rise to the level of demonstrating a “purpose” to harass because they were not threatening, alarming or annoying enough in nature when viewed in isolation.  Rejecting his argument, the Court looked at the history of similar communications the accused had sent to his spouse.  The Court determined that while the communications at issue taken in isolation may not rise to the level of a finding of a “purpose” to harass, the fact that so many of the same type of communications had consistently happened during the parties’ history created a pattern that evidenced a clear “purpose” to harass.

What is to be learned?  If you believe you are the victim of harassment, but are not quite sure if the communication you have received is enough to demonstrate a “purpose” to harass, make sure you disclose any and all similar communications to help create a pattern that irrefutably demonstrates that the accused had the “purpose” to harass you.   To the contrary, if you have been charged with harassment, but believe that the communication you sent to your accuser certainly does not rise to the level of demonstrating any “purpose” on your part to harass, make sure you emphasize that you have no prior history of any such communications being made to the accuser.

The bottom line:  It may not be what you say, but how many times you say it when it comes to harassment.