HARASSMENTHARASSMENTHARASSMENTHARASSMENTHARASSMENT
(See also, DISORDERLY PERSONS, this Digest)
I. HISTORY
The harassment statute, N.J.S.A. 2C:33-4, provides
that a person commits a petty disorderly persons offense
if, with purpose to harass another, he (a) makes, or causes
to be made, a communication or communications
anonymously or at extremely inconvenient hours, or in
offensively coarse language, or any other manner likely to
cause annoyance or alarm; (b) subjects another to
striking, kicking, shoving, or other offensive touching, or
threatens to do so; or (c) engages in any other course of
alarming conduct or of repeatedly committed acts with
purpose to alarm or seriously annoy such other person. A
communication under subsection (a) may be deemed to
have been made either at the place where it originated or
at the place where it was received. In addition, under
subsection (d) a person commits a crime of the fourth
degree if in committing and offense under this section, he
acted with a purpose to intimidate an individual or group
of individuals because of race, color, religion, gender,
handicap, sexual orientation or ethnicity.
Under subsection (e) a person commits a crime of the
fourth degree if, in committing an offense under this
section, he was serving a term of imprisonment or was on
parole or probation as the results of a conviction of any
indictable offense under the laws of this State, any other
state of the United States.
In State v. Hoffman, 149 N.J. 564, 578-79 (1997)
the Court quoted the commentary to the American Law
Institute’s Model Penal Code (“MPC”) section 250.4 on
the purpose to be served by enactment of the harassment
statute to make criminal, private annoyances that are not
entitled to constitutional protection. Id. at 576. Thus,
when enacting N.J.S.A. 2C:33-4, the Legislature sought
to fill gaps in the Code of Criminal Justice. 2 Final
Report, supra, commentary to section 2C:33-4, at 296.
The commentary to the Final Report states:
Special provision for these private annoyances is required
since Section 2C:33-2 (Disorderly Conduct) is limited to
disturbance of some general impact [as opposed to
impact on a particular individual]. The present Section
is also needed to fill a gap caused by some exclusions from
the provisions of Section 2C:12-1 (Assaults).
Subsection (d) was added in 1995 as part of a
legislative design to treat bias-motivated crime more
harshly. It was subsequently amended to conform to the
constitutional mandate in R.A.V. v. City of St. Paul, 505
U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), by
deleting the language which required that the actor acted
“at least in part, with ill will, hatred or bias toward”
members of the specific groups, leaving only the
intimidation aspect of the crime. See State v. Mortimer,
135 N.J. 517, 533-34, cert. denied, 513 U.S. 970 (1994).II. CONSTITUTIONALITY
In State v. Hoffman, 149 N.J. 564 (1997),
defendant’s former wife filed complaints against
defendant for harassment and contempt for violating a
final domestic restraining order after he twice mailed to
her two torn-up copies of a support order. The trial court
found defendant guilty, but a majority of the Appellate
Division reversed, finding that the two mailings did not
constitute harassment under N.J.S.A. 2C:33-4a because
they were not likely to alarm or “seriously” annoy the
victim. Appealed as of right to the Supreme Court on the
basis of the dissent, the Supreme Court addressed the
issue of whether the method or manner of
communication established an harassing intent to annoy
or alarm, and in that context considered constitutional
challenges to the statute on vagueness and overbreadth
grounds. It found that the statute was not vague. The
Court defined annoyance as conduct that would “irritate,
disturb or bother,” and construed N.J.S.A. 2C:33-4a to
proscribe a single act of communicative conduct when its
“purpose is to harass.” To avoid having the catchall
phrase “any other manner” be found unconstitutionally
overbroad, the Court interpreted the communication
covered by subsection (a) to encompass only those types
of communications that are also invasions of the
recipient’s privacy. It thus held that the two mailings
constituted a violation of the final domestic violence
restraining order but did not constitute harassment
under N.J.S.A. 2C:33-4a because they did not invade the
victim’s privacy. The Court emphasized, however, that in
determining whether conduct constitutes harassment
under subsection (a), the trial court is permitted to
examine the totality of the circumstances, especially and
including the context of domestic violence, in
determining whether a defendant’s conduct is likely to
cause the required annoyance.In State v. Mortimer, 135 N.J. 517, cert. denied, 513
U.S. 970 (1994), the New Jersey Supreme Court rejected
a constitutional challenge to the penalty enhancement
provision of the harassment statute, N.J.S.A. 2C:33-4d,
finding that it does not create a separate substantive crime
but merely enhances the penalty for harassment as