Way back in the olden days, when words had definitions that weren’t altered by shedding tears of victimhood, there was a concept that pervaded criminal law: harm.  Many crimes included an element that the conduct prohibited caused harm to someone. It was a threshold requirement, and an escalation requirement. The more harm, the more serious the crime.

Harm was used because it was objectively ascertainable. If a person punched another person, but left no mark, the harm it caused was deemed too trivial to be worthy of legal recognition.  It wasn’t that punching people was a good thing to do, but not bad enough to invoke the moral culpability of criminal law unless it resulted in damage serious enough to cause some degree of objectively discernible harm.

Good times.

At Sui Generis, Niki Black noted a New York County Supreme Court decision by Justice Steven M. Statsinger that harkened back to those good old days of word having meaning.  In People v. Selinger, the defendant was charged with stalking and harassment, having taken to the internet to place her sister’s picture and telephone number online, together with hashtags that she was looking for sex.

She also received a reply to her wedding invitation at TheKnot.com from the defendant, who was not invited:

On that date, at approximately 5:30 PM, I received the above described online RSVP email notifications from the following 3 names: (1) Hannah Selinger, (2) Pickle Selinger, and (3) Neil Selinger. I know the name “Pickle Selinger” to be associated with the defendant’s dog and I know the name “Neil Selinger” to belong to the defendant’s deceased father.

Finally, her sister had a wildlife conservation group name a cockroach after the complainant as a Valentine’s Day gift from a “secret admirer.”

Due to the defendant’s above described conduct, I am annoyed, alarmed, and fear for my safety and the safety of my family members. I do not want to be contacted by the defendant.

The language of the complaint, “annoyed, alarmed,” etc., tracks the statutory language for the harm required for the offense.  The judge said no, calling the conduct “internet pranks.”

The statute requires that the defendant have either actual or constructive knowledge that her behavior will cause the victim to fear “material harm” to one of the specified interests. In this case, defendant’s Internet pranks, while clearly calculated to annoy her sister and cause her mental distress, do not reflect the knowledge require by this section. Obnoxious but non-threatening behavior is not, by itself, enough.

Notably, the court doesn’t question whether the purported feelings of mental distress are real. If the defendant’s sister says she felt threatened, the court was prepared to accept it. But feelings, alone, don’t suffice. Rather, the perpetrator of the conduct must know, as a mens rea requirement, that her actions would cause those feelings of threatened material harm.

This Court sees the conduct here in much the same way. Defendant’s behavior was the Internet equivalent of having pizza delivered to an enemy, albeit over and over and over again. The Court does not doubt that the complainant experienced fear for her personal safety. But, as nettlesome the defendant’s behavior was, it would not be reasonable, absent other facts not pled, to conclude that defendant knew, either actually or constructively, that the complainant would perceive the complainant’s behavior as threatening.

What makes an otherwise unremarkable opinion jarring is that it flies in the face of so much that’s propounded as nightmarish, horrible, insufferable harm by so many sensitive souls on the internet. Justice Statsinger dismissed the charges as facially insufficient, albeit with leave to replead.

Arguments proliferate that every act that causes mental anguish of any degree, from microaggressions such as calling the United States the “land of opportunity” to suggesting being overweight isn’t healthy, has given cause to demand punishment.  Niki noted this disparity as well:

For that reason I would hope that judges err on the side of caution with most cases like this and allow a jury the opportunity to hear and assess testimony regarding the circumstances surrounding the alleged stalking in order to determine whether the alleged behavior was intended to cause fear as delineated in the statute.

The Internet is a wonderful technology that offers many benefits and conveniences. But it also allows those with less than benevolent intent the ability to, with little effort and in very subtle ways, make the lives of others miserable. So, if nothing else, I would suggest that it is wise to proceed with caution when it comes to crimes allegedly committed via the information highway.

Curiously, Niki’s plea for caution suggests that conduct that is annoying and obnoxious on the internet, but falls short of being performed with knowledge that it would be perceived by a sensitive soul as threatening material harm, not be dismissed by the judge as falling below the minimum threshold for a crime, but rather go to a jury.

Let the sensitivities of a jury determine whether the sensitivities of a complainant are reasonable?  That’s a lot to put a defendant through, given that the reason judges rule on motions to dismiss is to avoid putting defendants through trial over trivial conduct. There stands a decent chance that a jury, attuned to the pervasive belief that today’s flavor of mental anguish should be criminal, and convict a defendant for a prank deemed sufficiently annoying.

But as Niki goes on to say, the internet “allows those with less than benevolent intent the ability to, with little effort and in very subtle ways, make the lives of others miserable.”  And there is no shortage of people on the internets claiming that someone made them miserable.

But have we reached the point where feeling misery is worse than a punch that caused no discernible harm?  There is no objective method of determining the degree of harm caused by hurt feelings, and so the complainant’s tears are all the law can see. Are we prepared to recognize tears of victimhood as the measure of criminality? Or should the difference be actual harm?