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- There is no single legal definition of harassment across the United States
- Harassment is usually defined by elements that must be proven in court
- Federal statutes show how different laws use the word harassment in different ways
- Stalking laws can overlap with what many people call harassment
- Harassing communications can be treated differently from in person conduct
- Threats and harassment are related but not the same legal concept
- The First Amendment can limit how harassment statutes are enforced
- The government generally has to prove criminal harassment beyond a reasonable doubt
- Confusion is common because the same word is used in many legal contexts
- Sources
Key Facts
- Federal and state: Most criminal law exists at the state level because states have general police power, while federal criminal laws need a specific constitutional and statutory basis.
- State level: A criminal harassment law commonly focuses on targeted conduct directed at a specific person rather than ordinary rudeness or a single unpleasant interaction.
- State level: Many harassment-style laws use concepts like intent, repeated conduct, and the impact on the target, but wording and thresholds vary by state.
- Federal level: Federal stalking law can cover certain harassment-like patterns when conduct involves interstate travel, federal jurisdictions, or interstate communication systems.
- Federal level: Federal law can also address certain harassing or abusive telephone communications in interstate or foreign communications.
- Federal and state: The First Amendment places real limits on when speech can be punished as harassment, especially where the case involves alleged threats.
- Federal level: The Supreme Court has held that true-threat prosecutions require proof of at least recklessness about whether the communication would be viewed as threatening.
- Federal and state: In criminal cases, the government generally must prove every element of the charged offense beyond a reasonable doubt.
There is no single legal definition of harassment across the United States
In everyday speech, “harassment” can mean anything from annoying behavior to bullying to repeated unwanted contact, but criminal harassment law is narrower and depends heavily on the wording of each state’s statutes.
One reason the definition varies is that criminal law is primarily a state responsibility in the U.S., while federal criminal law is limited to specific areas tied to Congress’s enumerated powers and other federal interests, as summarized by the Congressional Research Service report R48177.
Harassment is usually defined by elements that must be proven in court
In criminal law, the “legal definition of harassment” is typically built from elements, meaning specific facts the government must prove to establish the offense charged.
Different states use different wording and structures, but many harassment-type laws are written around themes that also appear in federal statutes and in model laws used for comparison.
Federal statutes show how different laws use the word harassment in different ways
Federal law does not provide a single, general criminal definition of harassment for everyday conflicts, but it does use harassment-related concepts in specific contexts.
For example, a federal statute authorizing protective orders for victims or witnesses in federal criminal cases includes definitions for terms like “harassment” and “course of conduct” that apply within that statute, not as a general nationwide definition, in 18 U.S.C. 1514.
Stalking laws can overlap with what many people call harassment
In many jurisdictions, “stalking” laws cover patterns of unwanted attention or contact that cause fear or serious distress, and these laws may be charged instead of (or in addition to) a separate harassment offense depending on how a state is written.
At the federal level, the stalking statute describes specific jurisdictional triggers and certain harms, including fear of death or serious bodily injury and conduct that causes, attempts to cause, or would reasonably be expected to cause substantial emotional distress, in 18 U.S.C. 2261A.
Harassing communications can be treated differently from in person conduct
Some harassment laws focus on communications, such as repeated calls or messages, and other laws focus on physical following, surveillance, or contact.
Federal law includes a provision addressing certain obscene or harassing telephone calls in interstate or foreign communications in 47 U.S.C. 223.
Threats and harassment are related but not the same legal concept
In criminal law, a “threat” offense generally focuses on a communicated threat to kidnap, injure, or commit violence, while a “harassment” offense may focus on repeated conduct, unwanted contact, intimidation, or distress even without a direct threat of violence, depending on the statute.
As one example of a threat-focused federal statute, federal law criminalizes certain threats transmitted in interstate or foreign commerce in 18 U.S.C. 875.
The First Amendment can limit how harassment statutes are enforced
Because many harassment cases involve words, messages, or other expression, courts sometimes have to balance criminal enforcement with First Amendment protections for speech.
The Supreme Court has described “true threats” as serious expressions of an intent to commit unlawful violence and has explained that the government may ban true threats consistent with the First Amendment in Virginia v. Black, 538 U.S. 343.
More recently, the Supreme Court held that in true-threats cases, the First Amendment requires proof that the defendant had some subjective understanding of the threatening nature of the statements, and that recklessness is sufficient, in Counterman v. Colorado, 600 U.S. 66 (2023).
The government generally has to prove criminal harassment beyond a reasonable doubt
When harassment is charged as a crime, it is typically treated like other criminal offenses in that the government generally carries the burden to prove each element of the charge.
The Supreme Court held that due process protects an accused person against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged in In re Winship, 397 U.S. 358.
Confusion is common because the same word is used in many legal contexts
People often use the term harassment to describe very different situations, including noncriminal conflicts, threats, stalking-like patterns, and workplace or school issues, but criminal statutes usually define narrower categories that turn on specific elements and facts.
Because state laws vary significantly, the same set of facts can be labeled differently from one jurisdiction to another, and the same word can be used to describe different offenses.
