The harassment statute in Colorado is broad and criminalizes several different types of behaviors. It prohibits certain physical contact, repeated calls, cyberstalking and more. In this article we’ll discuss the difference between acts that amount to harassment and speech protected by the First Amendment. We will also cover some potential defenses that are available to defendants, and when is it possible for such charges to be labeled as domestic violence.
Harassment Defined
Under Colorado Revised Statutes §18-9-111, harassment is a crime in Colorado that can be charged as a Misdemeanor 1, Misdemeanor 2, or as a Petty Offense. One type of harassment is when a person intentionally strikes another individual to harass, irritate or alarm another. This includes shoving, kicking or touching another person. The law also prohibits directing obscene language towards another person in public place. Harassment may include all forms of communication designed to annoy the intended party/victim. This can also be through the means of computer or through telephone communication.
Types of Harassment
Physical Harassment: Unwanted physical contact, this is commonly called “strike, shove, kick”.
Verbal Harassment: Repeated insults or threats spoken directly to someone.
Cyberbullying: When threats or intimidation are involved, internet trolling can quickly cross the line to becoming harassments. When a person uses the internet or social media to threaten, harass, or intimidate another it could be the basis for a criminal charge.
Stalking: Repeatedly following, contacting, or surveilling another.
Sexual Harassment and obscene language: Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. This is referred to as using “obscene language”. This isn’t referring to using swear words, but to discussion of sex acts as listed in the statute.
First Amendment Protection
The First Amendment protects our right to freedom of speech, but this protection can be limited when that speech is used to harass others. You may have heard that yelling “Fire!” in a crowded theater, wouldn’t qualify as protected speech. This type of language can create a dangerous situation and could be charged as disorderly conduct. Speech that is intended to harass or threaten others is also not protected by the U.S. Constitution, and can lead to criminal charges.
Distinguishing between harassment and protected free speech can be complex. When defending verbal harassment, we consider the intent, the context, and its effect on the alleged victim.
Defenses to Harassment
Defenses against harassment violations varies on the specifics of every case. Some examples include:
Lack of Intent: We may present evidence or testimony that the accused did not intend to harass, annoy, or alarm the victim.
Consensual Interaction: The interactions were welcomed or consented to by the victim. This could be a mutual “trash talk” situation.
Freedom of Speech: An overzealous or ill-informed law enforcement officer may charge a person with harassment when the speech is protected under the First Amendment. When I was a young prosecutor, I handled a case where a person was charged with harassment for giving a stranger the middle finger at a convenience store. My opinion then, as it is now, is that giving “the bird” in that situation is protected speech. I was happy to quickly dismiss that case.
Mistaken Identity: The accused was not the person who engaged in the harassing behavior. This is a common defense to most crimes where identification is at issue.
Harassment Charged can be charged as Domestic Violence
In Colorado, harassment can also be charged as domestic violence if the harassment occurs between partners in a current or former intimate relationship.
This includes spouses, boyfriend/girlfriend, or co-parents. Colorado law defines domestic violence as an act or threatened act of violence upon someone with whom the perpetrator is or has been involved in an intimate relationship. Harassment qualifies as domestic violence when it is used by the offending party as a method of coercion, control, punishment, intimidation, or revenge.
Many different crimes can be charged with a D.V. “tag”, or aggravator. Some commonly charged domestic violence offenses are third degree Assault, violation of protection order, telephone obstruction and false imprisonment.
Colorado Penalties for Harassment
Petty Offense:
Max of 10 days in jail and a $300 fine.
Misdemeanor 1:
Strike/shove/kick or Bias-motivated (race, religion, sexual orientation, etc.)
Penalty: Max of 364 days jail and a $1,000 fine.
Misdemeanor 2:
All other types of Harassment.
Max of 120 days in jail and a $750 fine.
Conclusion
Harassment comes in a lot of shapes and sizes in Colorado and prohibits a wide range of behaviors. The law is intended to protect parties from unwarranted annoying and alarming activities of others. The U.S. Constitution provides broad protection for speech under the 1st Amendment, however, that doesn’t mean that everything goes.
See below the complete language of the Colorado Harassment Statute:
§ 18-9-111. Harassment – Kiana Arellano’s Law
- A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:
a. Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or
b. In a public place directs obscene language or makes an obscene gesture to or at another person; or
c. Follows a person in or about a public place; or
d. Repealed.
e. Directly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene; or
f. Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or
g. Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another’s home or private residence or other private property; or
h. Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.
(1.5) As used in this section, unless the context otherwise requires, “obscene” means a patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions.
2. [ Editor’s note: This version of subsection (2) is effective until March 1, 2022.] Harassment pursuant to subsection (1) of this section is a class 3 misdemeanor; except that harassment is a class 1 misdemeanor if the offender commits harassment pursuant to subsection (1) of this section with the intent to intimidate or harass another person, in whole or in part, because of that person’s actual or perceived race; color; religion; ancestry; national origin; physical or mental disability, as defined in section 18-9-121 (5)(a); or sexual orientation, as defined in section 18-9-121 (5)(b).
(2) Editor’s note: This version of subsection (2) is effective March 1, 2022. A person who violates subsection (1)(a) or (1)(c) of this section or violates any provision of subsection (1) of this section with the intent to intimidate or harass another person, in whole or in part, because of that person’s actual or perceived race; color; religion; ancestry; national origin; physical or mental disability, as defined in section 18-9-121 (5)(a); or sexual orientation, as defined in section 18-9-121 (5)(b), commits a class 1 misdemeanor.
(b) A person who violates subsection (1)(e), (1)(f), (1)(g), or (1)(h) of this section commits a class 2 misdemeanor.
(c) A person who violates subsection (1)(b) of this section commits a petty offense.
3. Any act prohibited by paragraph (e) of subsection (1) of this section may be deemed to have occurred or to have been committed at the place at which the telephone call, electronic mail, or other electronic communication was either made or received.
4. Repealed
5. Repealed
6. Repealed
7. Paragraph (e) of subsection (1) of this section shall be known and may be cited as “Kiana Arellano’s Law”.
8. This section is not intended to infringe upon any right guaranteed to any person by the first amendment to the United States constitution or to prevent the expression of any religious, political, or philosophical views.