New Jersey Supreme Court Curtails Criminal Harassment Statute in State V. Burkert, Limiting a Common Vehicle for Domestic Violence Charges

New Jersey’s criminal harassment statute has long occupied the space in which the messiest family law disputes cross over into the realm of criminal law. Although there are indeed many legitimate cases of harassment that deserve punishment, in recent years New Jersey appellate courts increasingly had noted that the harassment statute too often criminalized “ordinary domestic contretemps” – i.e. the non-violent verbal sparring that accompanies the disintegration of a marriage or romantic relationship. In the view of the courts (and many frustrated family law and criminal attorneys), New Jersey’s harassment statute was too permissive in allowing an angry spouse or romantic partner to file criminal or civil domestic violence charges after being subjected to hurtful or vile insults, even where there had been no actual violence or threat of harm.

Though the decision received little press coverage, it will drastically affect thousands of civil and criminal domestic violence actions in New Jersey courts.

In State v. Burkert, decided on December 19, 2017, the New Jersey Supreme Court determined that New Jersey’s broadly-written harassment statute could not be squared with the First Amendment to the United States Constitution, which protects the right to voice “offensive discourse, hateful ideas, and crude language” in the name of a free flow of ideas. Rather than strike down the statute as unconstitutional, however, the Court in Burkert chose to rewrite it, effectively decriminalizing the type of non-violent and non-threatening verbal assaults that too often had formed the basis of criminal or civil domestic violence charges. Though the decision received little press coverage, it will drastically affect thousands of civil and criminal domestic violence actions in New Jersey courts.

Burkert arose out of a conflict in the workplace. The defendant, a corrections officer at the Union County Jail, littered the jail with fliers depicting a co-worker’s wedding photos with added sexually-charged, personally offensive comments. The defendant was convicted of harassment, which makes it a criminal offense to “engage in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person” with the purpose to “harass.” In other words, the statute allowed a criminal conviction for the purposeful “harassment” of another as long as the defendant’s intent was to “alarm or seriously annoy.”

Justice Albin, writing for the Court, explained that the harassment statute was never intended to criminalize “the common stresses, shocks, and insults of life that come from exposure to crude remarks and offensive expressions” or to “enforce a code of civil behavior or proper manners.” The vague language of the harassment statute failed to “put a reasonable person on sufficient notice of the kinds of speech that the statute proscribes.” To save the statute from unconstitutionality, the Court chose to effectively rewrite the statute by construing the “any other course of alarming conduct” and “seriously annoy” language as “repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.”

Thus, the new touchstones of non-violent harassment are (1) a reasonable fear for one’s safety, or (2) an “intolerable interference” with one’s reasonable expectation of privacy. An attempt to “seriously annoy” will no longer support a harassment charge.