SB2539.DOC

SECTION 1. The legislature finds that across the country, states are grappling with escalating instances of cyberbullying and their often tragic results. Currently, twenty-five states have passed laws against cyberbullying, and most states direct local school districts on how to deal with cyberbullying – ranging from training personnel to disciplining students.

The department of education and board of education have both rules and policies governing cyberbullying. Legislation was passed in 2011 to require the monitoring and enforcement of these policies, however concerns were raised that this legislation would not provide protection during non-school hours or to non-department of education students and the general public.

The legislature further finds that currently, the department refers cyberbullying issues to the police. The police, however, are hampered in their response because there is no clear penalty for cyberbullying.

The purpose of this Act is to provide greater protection for victims of cyberbullying by establishing an offense of harassment by cyberbullying, with the first or second offense as a misdemeanor, and a third or any subsequent offense as a class C felony.

SECTION 2. Chapter 711, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§711- Harassment by cyberbullying. (1) A person commits the offense of harassment by cyberbullying if, with intent to harass, annoy, or alarm another person, or in reckless disregard of the risk thereof, that person engages in a course of conduct involving pursuit, surveillance, or nonconsensual contact upon the other person on more than one occasion without legitimate purpose.

(2) A person convicted under this section may be required to undergo a counseling program as ordered by the court.

(3) For purposes of this section:

"Cyberbullying" means electronically transmitted acts, whether by the Internet, cell phone, personal digital assistance device, or any wireless hand-held device, which a person has exhibited toward another person that causes mental or physical harm to the other person and is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive environment.

"Nonconsensual contact" means any contact that occurs without that individual's consent or in disregard of that individual's express desire that the contact be avoided or discontinued. Nonconsensual contact includes direct personal visual or oral contact and contact via telephone, facsimile, or any form of electronic communication, as defined in section 711‑1111(2), including electronic mail transmission.

(4) A person shall be sentenced for harassment by cyberbullying as follows:

(a) For the first offense, the offense shall be a misdemeanor, and the person shall serve a minimum jail sentence of forty-eight hours;

(b) For a second offense that occurs within one year of the first conviction, the offense shall be a misdemeanor, and the person shall be termed a "repeat offender" and serve a minimum jail sentence of thirty days; and

(c) For a third or any subsequent offense that occurs within two years of a second or subsequent conviction, the offense shall be a class C felony."

SECTION 3. Section 708-890, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Cyberbullying" means electronically transmitted acts, whether by the Internet, cell phone, personal digital assistance device, or any wireless hand-held device, which a person has exhibited toward another person that causes mental or physical harm to the other person and is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive environment."

SECTION 4. Section 708-893, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of use of a computer in the commission of a separate crime if the person:

(a) Intentionally uses a computer to obtain control over the property of the victim to commit theft in the first or second degree; or

(b) Knowingly uses a computer to identify, select, solicit, persuade, coerce, entice, induce, or procure the victim or intended victim of the following offenses:

(i) Section 707-726, relating to custodial interference in the first degree;

(ii) Section 707-727, relating to custodial interference in the second degree;

(iii) Section 707-731, relating to sexual assault in the second degree;

(iv) Section 707-732, relating to sexual assault in the third degree;

(v) Section 707-733, relating to sexual assault in the fourth degree;

(vi) Section 707-751, relating to promoting child abuse in the second degree; [or]

(vii) Section 711- , relating to harassment by cyberbullying; or

[~~(vii)~~] (viii) Section 712-1215, relating to promoting pornography for minors."

SECTION 5. The provisions of this Act shall be liberally construed to give effect to the purposes thereof.

SECTION 6. Nothing in this Act is intended to interfere with the First Amendment rights of free speech and expression of any person affected.

SECTION 7. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2539
TWENTY-SIXTH LEGISLATURE, 2012
STATE OF HAWAII