The state of Virginia makes it a Class 1 misdemeanor crime to harass another person over the phone or other electronic media. If you continuously use your phone to communicate with another person using inappropriate and annoying language, you can be found guilty of this offense. With the advancement of technology, the law includes using any form of electronic media to harass another person. This may consist of text messages, photos, or actual phone calls, among others.

If you are accused of this offense, you need to fight it to avoid a conviction that will remain in your record. Having a criminal lawyer is essential in ensuring you are successful in defending yourself and getting a favorable outcome. At Virginia Criminal Attorney, we are committed to ensuring our Fairfax, VA, and Northern Virginia clients receive a fair trial by aggressively defending them against these criminal allegations.

Overview of Virginia Code 18.2-427

According to this statute, the use of profane, vulgar, lascivious, lewd, obscene, and indecent language on the phone or other electronic media with the intent to annoy or embarrass another person is prohibited. Making suggestions that are obscene or threats intending to intimidate, coerce, and harass another person is also prohibited. If one is charged with these allegations, they will get prosecuted on a Class 1 misdemeanor.

Over the telephone, according to the law, it includes any communication that is transmitted electronically and generates electronic or visual messages. The messages, in this case, are sent through a regular phone, cellular phone, or any wireless telecommunication devices.

When Does Telephone Communication Become Harassment?

Not every telephone conversation or communication is harassment according to the law. A person can make annoying conversations without causing harassment. Harassment occurs if the person communicating wants to harass, annoy, or threaten another by:

  • Causing a telephone to keep ringing
  • Using indecent, obscene or lewd language to make requests or suggestions on the phone
  • Calling a person and refusing to identify yourself
  • Making persistent calls and harassing the recipient
  • Making calls and breathing heavily or going silent to intimidate the recipient

A single phone call can also be harassing but does not meet the threshold of harassment. A person may have misdialed and did not intend to harass or annoy you. Writing or sending text messages using indecent and obscene language, and repeatedly doing so amounts to harassment as well.

Other factors can also be taken into account when regarding a telephone conversation as harassing. These include:

  • Timing – A person that intends to harass another may make sure their calls or messages come at a particular time of the day. If the person persistently and consistently communicates either through telephone calls or messages at midnight, they are likely harassing you.
  • How often the messages get sent, or calls get made
  • Whether the messages or calls threaten to cause you harm or kidnap you, and
  • Whether the message gets delivered by use of obscene or indecent language

Defining Harassing Phone Calls or Messages According to the Law

If you are charged with the offense of phone harassment, according to Virginia Code 18.2-427, you will be prosecuted on a Class 1 misdemeanor. A conviction, however, will require the prosecutor to convince the court of your guilt by proving certain elements or facts of the offense. These elements help define the crime of phone harassment in Virginia. These are:

The Defendant Made or Allowed a Telephone Call or Communicated through an Electronic Medium

One of the most critical elements in proving a phone harassment offense is showing the defendant made the calls or contacted the other person through an electronic device. An electronic device, in this case, will include smartphones, cell phones, fax machines, computers, video recorders, or a pager. By use of these devices, the defendant harassed the victim through:

  • Sending obscene text messages
  • Sending lewd, annoying and indecent emails
  • Sending harassing documents or letters by fax
  • Posting disturbing or obscene photos or videos using a smartphone

You can also be accused of violating Virginia code 18.2-427 if you call a person or send them a message asking them to call you back, and when they do, you use abusive language and threats against them. For instance, Mary hates her ex-lover’s current girlfriend, Rose. Mary Calls Rose, and when she doesn’t pick, she leaves Rose a message to call her back, pretending she is a debt collector. When Rose calls back, Mary abuses her and threatens to make her life miserable. Although Rose is the one that made the call, Mary can get charged with the offense of phone harassment because she left a message to be called back.

You can also be charged with phone harassment even when you are not the one that made the communication. When you let a person use your phone or electronic gadget to call or send harassing messages to another, you will get charged with violating Virginia code 18.2-427. However, you will only be convicted if you knew the person used your phone or gadgets to communicate with the victim.

For instance, Ben, your friend, is owed money by Peter. He tells you that Peter has not been picking his calls and needs to use your phone to call him. Ben calls Peter, and when Peter picks, Ben threatens to break his leg if he doesn’t pay him. If you knew that’s what he intended to do and you allowed him, you will be charged with phone harassment. However, if you innocently handed over your phone and were not aware Ben was going to use it to threaten Peter, you cannot be found guilty of the offense.

Repeated Calls, Threats or Obscene Language was Used

This is another element of the offense the prosecutor must satisfy if you are to be convicted of phone harassment in Virginia. Phone calls or electronic communication is considered harassment when:

  • The offender uses obscene language to communicate
  • The offender communicates by issuing threats against the recipient or their family and sometimes property
  • The offender makes repeated communication

Proving a call containing obscene language may be challenging to prove. However, the law recognizes any language that is offensive and annoying to be obscene. Most people believe that for communication to be filthy, it must be sexual, but this is not the case with the law. As long as the language is not appropriate or decent, it is obscene according to the law.

Additionally, in establishing whether the language was obscene or not, the relationship between the offender and the recipient must be established. If the accused and the accuser have known each other for long and often use strong language when communicating, the language may not be obscene between them, but it is with others.

It is essential to understand that not all repeated calls using some obscene words can be said to be harassing. For instance, if a person repeatedly calls a customer service line to complain about a service they are providing and uses obscene words, he or she will not be charged with a phone harassment crime.

The Communication Never Intended to Annoy or Harass

This is the last element a prosecutor must prove to get you convicted of violating Virginia code 18.2-427. If a person communicates in good faith or is playing a practical joke against another person that is well known to them, they will not be found guilty of the offense. Additionally, a person looking at providing a particular service to customers may call them, and if he does not get them, he leaves a message to call back. If the person doesn’t call back, he would call them again repeatedly. Although this is annoying, it is not intended to harass the recipient. The intention of the caller was not to annoy or harass them.

Penalties for Violating Virginia Code 18.2-427

When the prosecutor can prove the various elements of this offense beyond doubt, the defendant is convicted of a Class 1 misdemeanor. In Virginia, Class 1 misdemeanors are the most serious of misdemeanors. The carries stiff penalties where the defendant can be jailed for a year with a fine of $2,500.

The punishment, however, depends on the criminal background of the defendant and the circumstances of the offense. This means the judge can sentence the defendant to both jail time and a fine or either of them and will not exceed the guidelines of the law.

Legal Defenses when Faced with Virginia Code 18.2-427 Charges

When faced with these charges, finding a lawyer to fight the allegations is essential to avoid a conviction. For any criminal case, preventing a sentence that will end up in your record is crucial. When there is a conviction in your history, you are likely to face difficulties getting a job or housing, among other challenges. A lawyer will evaluate the prosecutor’s case and see its weaknesses. This will enable them to formulate a defense that would yield favorable results for you. Some of the defenses your lawyer may use include:

  1. You Lacked the Intention to Harass or Annoy the Recipient

Earlier, we discussed one of the elements a prosecutor must establish is your intention to harass or annoy the recipient with your communication. If you communicated in good faith or made persistent communication for business purposes, this is not a violation of the law. The prosecutor, in this case, will not get a conviction against you even when the recipient felt harassed or annoyed.

  1. You did not Use Obscene Language

To violate Virginia Code 18.2-427, the language used must have been obscene or threatening. If the prosecutor accuses you of harassing phone calls or electronic communication by using obscene language, your lawyer will fight the allegations that you never threatened or used obscene language. It will be argued that you were merely expressing yourself using your right to freedom of speech but not to harass the other person.

  1. Insanity Defense

Most individuals that use electronic communication or phones to harass, threaten, or annoy others often suffer from an emotional or mental condition. This means the insanity defense can help avoid a conviction for phone harassment in Virginia. For this defense to prevail, the following must be true:

  • The defendant was unable to know or understand their actions when they committed the offense and
  • The defendant could not differentiate between right and wrong when they committed the offense

A lawyer must, however, produce evidence in support of these claims. Without proving this to be accurate, the prosecutor will refute the defense with evidence as well, and the defendant will be convicted. If a lawyer can convince the court their client was insane, the defendant will be acquitted of the crime or sentenced to counseling instead of imprisonment.

  1. False Allegations

People have multiple reasons for accusing others of crimes they never committed. If a person has a vendetta against you, they may charge you for making threatening and harassing phone calls to them. For instance, a lady may want to seek revenge against their boyfriend that left them for another woman. If they had a child together and the ex-boyfriend keeps calling to talk to the son or convince the woman to allow him to see their child, out of vengeance, she can accuse him of phone harassment. A lawyer can investigate the allegations and establish the truth behind the phone calls.

If you believe you were falsely accused of this offense, you must let your lawyer understand the circumstances of your communication to the person for the defence to be successful. This can be shown by determining the relationship you have with the accuser and if there are witnesses to your calls to testify on your behalf. Your lawyer can also provide character witnesses that will help with your case and get the charges dismissed for lack of evidence.

Related Offenses to Phone Harassment Crime

When a crime is related to another, it means it can get charged alongside or instead of a specific offense. In Virginia, when one gets accused of phone harassment, various offenses can get charged alongside this offense or instead of it. Here, we discuss these offenses and how they relate to phone harassment offenses.

Criminal Threats as Found Under Virginia Code 18.2-60

This statute states that any person that communicates electronically or through the phone by issuing threats to harm or kill another is guilty of a crime. When a person accuses you of threatening to cause harm or kill them or a member of their family, the offense is severely prosecuted.

When allegations of phone harassment are brought against you, they can be accompanied by charges of issuing criminal threats to the recipient or their family. The accuser can claim that when the defendant called them, they threatened them with harm or death. This means, besides the Class 1 misdemeanor charges you are facing for phone harassment, you can be charged with another offense.

Criminal threats in Virginia are prosecuted as Class 6 felonies. These felonies are the least serious, but the penalties are nonetheless harsh. A violation of Virginia Code 18.2-60 is, however, a more serious offense than that of phone harassment. Depending on the circumstances of the crime, the prosecutor may opt to charge you criminal threats instead of phone harassment.

Defining Criminal Threats According to the Law

Although this offense is often charged alongside that of phone harassment or instead of it, before you are charged with it, the prosecutor must convince the court or determine the following factors of the crime:

  • That when you made that phone call or electronically communicated with the alleged victim, you willingly threatened to harm or kill them
  • That the intention of your phone call, verbal or electronic communication was to threaten the recipient
  • That the threat on its face value and based on the circumstances was specific, immediate and unconditional and conveyed the possibility of its execution in a short while
  • That the recipient of the threats had a reason to be afraid for their lives and that of their family

Possible Legal Defenses to Criminal Threat Charges

When faced with these allegations, the penalties, as mentioned, are steeper than those of a misdemeanor phone harassment charge. You need a lawyer to fight these allegations and avoid a conviction or get convicted on a lesser charge. Your lawyer will come up with various defenses to help with the case. Some of these defenses are:

The Threat was not Immediate

One of the elements of the offense is that the danger was immediate, specific, unequivocal and unconditional, conveying a message of possible immediate execution. This threat to the recipient may not mean that it would happen at that very moment but that if they failed to comply with the defendant’s demands, the warning would get executed.

If the threat was, however, vague and there was no indication of when it gets executed, your lawyer can use vagueness as a defense.

The Threat was Ambiguous and Vague

A threat, according to the law, must be specific but doesn’t have to indicate the actual time or how it was executed. A person can make a vague threat that they will not perform, but the recipient may assume that it will be. For instance, some neighborhood teenagers play basketball together, and one feels disrespected by one of them. During the game, he gets knocked down and assumes it’s on purpose. He may threaten the person that knocked them down that they will get them back.

The threat is vague and does not indicate what will get done and when it will get done. This is vague, and the defendant cannot be found guilty of the offense.

Similarly, with phone harassment, when Peter hears that John is spreading rumors about him, he may call him and threaten to get him for the rumors. John gets scared and reports the threat made by Peter over the phone. Although Peter threatened John, the threat was vague and will not result in a conviction.

Penalties for Issuing Criminal Threats according to Virginia Code 18.2-60

When you make harassing phone calls and get accused of issuing criminal threats through the calls or other electronic devices, you will be charged with this offense additionally. The offense in California is a Wobbler meaning it is prosecuted as a Class 1 misdemeanor or a class six felony.

How the prosecutor charges you with the offense will depend on the circumstances of the offense and your criminal background. If convicted on Class 1 misdemeanor, you face imprisonment for not more than a year and a fine of $2,500. The judge can also sentence you to either of the penalties.

A class six felony conviction, on the other hand, will have you face up to five years imprisonment besides cash fines.

Violating a Protective or Restraining Order in Virginia

Most people that are charged with the crime of phone harassment are known or have had a relationship with the victim. It can be a former boyfriend or girlfriend, spouse, or business associate. Sometimes, the alleged victim can get a court order barring the offender from calling them or using any electronic device to communicate with them.

The victim will get any of the three types of protective orders in Virginia. These depend on the offense and its seriousness. Unfortunately, even with a restraining order, some perpetrators of phone harassment will violate the court orders and continue with their offensive behavior.

Violating a court order is an offense in Virginia that is prosecuted and punished as a Class 1    misdemeanor. A conviction for violating a restraining order will see the perpetrator face a year in jail and a fine of $2,500.

If the perpetrator had prior violations in the last five to twenty years and if the offenses were violent, the penalties for violating a restraining order are harsher. A second violation in five years, and when the offense was violent or based on threats, the judge will sentence the offender to mandatory jail time of sixty days minimum.

If the defendant commits another offense in twenty years, and also the offense was based on threats or violence, violating a restraining order will be charged as a Class Six felony. A conviction, in this case, will see the defendant serve a jail sentence of one to five years and or a fine of $2,500.

Find a Fairfax Criminal Lawyer Near Me

Phone harassment may seem like a simple offense, but the consequences in your record once convicted can last a lifetime. Sometimes, the offense could be out of a misunderstanding or false accusations. When one does not get an aggressive defense, they may end up facing severe consequences out of a conviction. Engaging a passionate attorney to fight the allegations against you will help you avoid the harsh penalties and a criminal conviction in your record. At Virginia Criminal Attorney we are passionate and committed to fighting these claims against you and Fairfax, VA and Northern Virginia residents for a favorable outcome. Find us at 703-718-5533, and let us defend you.