Home > Burden-Shifting Devices in Criminal CH Law > A Balance of Convenience: Burden-Shifting Devices in Criminal Cyberharassment Law

A Balance of Convenience: Burden-Shifting Devices in Criminal Cyberharassment Law

March 22, 2012

1-1-2011

A Balance of Convenience: Burden-Shifting

Devices in Criminal Cyberharassment Law

Aimee Fukuchi

aimee.fukuchi@bc.edu

This Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for 

inclusion in Boston College Law Review by an authorized administrator of Digital Commons @ Boston College Law School. For more information, 

please contact emick@bc.edu

Recommended Citation 

Aimee Fukuchi,A Balance of Convenience: Burden-Shifting Devices in Criminal Cyberharassment Law,

52 B.C.L. Rev. 289 (2011), http://lawdigitalcommons.bc.edu/bclr/vol52/iss1/5

Boston College Law Review

Volume 52|Issue 1 Article 5

1-1-2011

A Balance of Convenience: Burden-Shifting

Devices in Criminal Cyberharassment Law

Aimee Fukuchi

aimee.fukuchi@bc.edu

This Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for

inclusion in Boston College Law Review by an authorized administrator of Digital Commons @ Boston College Law School. For more information,

please contactemick@bc.edu.

Recommended Citation

Aimee Fukuchi,A Balance of Convenience: Burden-Shifting Devices in Criminal Cyberharassment Law,

52 B.C.L. Rev. 289 (2011), http://lawdigitalcommons.bc.edu/bclr/vol52/iss1/5

289

A BALANCE OF CONVENIENCE: THE USE

OF BURDEN-SHIFTING DEVICES IN

CRIMINAL CYBERHARASSMENT LAW

Abstract: As communication using the Internet and electronic media be-

comes more prevalent, incidents of online harassment have likewise in-

creased. In recent years, the U.S. Congress and state legislatures have en-

acted new legislation and amended existing criminal statutes to target

cyberharassment, also called cyberstalking or cyberbullying. The definition

of cyberharassment consequently varies between jurisdictions, particularly

with regard to statutory emphasis on the mental state of the accused and

the reaction of the victim. This Note argues that the reasonableness and

specific intent standards employed by most cyberharassment laws are in-

adequate to balance the safety interests of victims and the First and Four-

teenth Amendment rights of electronic speakers. The Note proposes that

cyberharassment statutes be supplemented with burden-shifting devices

such as affirmative defenses and nonmandatory presumptions, which have

historically been employed in other contexts where the prosecution is pro-

cedurally disadvantaged and the details of the crime are peculiarly within

the knowledge of the accused. After surveying statutes that have success-

fully incorporated burden-shifting elements, the Note concludes that real-

locating evidentiary burdens increases the efficiency and fairness of cyber-

harassment law while reconciling the interests of both the victim and the

accused. Continue to original article.

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