Threatening Telephone Calls & Aggravated      Harassment In The Second Degree : The Need For Legislation

March 1, 2001
By Judge Thomas A. Dickerson[1]



A Tale Of Two Threats


In two cases [ P.I. v. C.D.[2] and A.M. v. M.I.[3] ] recently before me I became aware of the need to expand the scope of the Family Offense [ FCA § 812(1) ] of Aggravated Harassment in the Second Degree [ PL § 240.30(1) ], particularly within the context of domestic violence, to provide protection for the recipients of threatening telephone calls. In both cases women were the recipients of death threats, delivered over the telephone, from men. In P.I. the woman initiated the telephone call while in A.M. the man " paged " the woman who then initiated the telephone call. In P.I. I dismissed the Family Offense of PL § 240.30(1) on a motion to dismiss while I sustained the same Family Offense after trial in A.M. The rationale for these two decisions explains why it is necessary for legislation to broaden the scope of PL § 240.30(1).


Malicious Telephone Calls

The victims of domestic violence are often threatened by their abusers with physical harm or death during a telephone conversation. Penal Law § 240.30(1) [ Aggravated Harassment In The Second Degree ] makes it a misdemeanor to communicate or cause a communication to be initiated by mechanical or other electronic means in a manner likely to cause annoyance or alarm to the recipient of the phone call. PL § 240.30(1) and its predecessor PL §§ 551 and 555 were enacted to protect the recipients of " malicious " telephone calls[4].


The Initiating Phone Call

Several recent decisions[5] interpreting PL § 240.30(1) have reviewed the statute's legislative history and concluded that a necessary requirement is that the defendant must " initiate " the threatening telephone call. At least, one court[6] has disagreed with this view finding that " a person need not initiate a telephone call in order to violate ( PL § 240.30(1) )".


The Precipitating Event

Some Courts[7] have recognized an exception to the initiation rule, i.e.,

" where a defendant intentionally precipitates telephone contact from the complainant in order to use the instrumentality of the phone for the purpose of communicating threats or abuse "[8]
Precipitating events would include placing a help wanted ad in a local newspaper which induces the victim to call the abuser[9], posting signs at a train station which induce strangers to call and harass the victim[10] and " paging " the victim who responds by phoning the abuser who then threatens the victim [11].


The Paradox Of The Initiation Rule

Notwithstanding support for the requirement that the abuser initiate the phone call[12] or otherwise induce the victim to to make the call first[13], such an analysis creates a paradox which may be inexplicable to the victims of domestic violence

[ " Call me on the phone and, if I threaten to kill you, there's not much you or the law can do about ( it ) because, well, you called me "[14] ].

The Need For Legislation

Because of the strong correlation between threats of physical violence and making that threat a reality, particularly, within the context of domestic violence

[ " Threats are acts of domestic violence because they seek to intimidate and control the ( victim ). Social science research reveals that threats and harassment, left unchecked, frequently escalate to greater violence...Many battered women's lives are threatened. Of all women killed by their abusers, 41% to 50% previously had been threatened with death "[15] ],
there is a need, within the context of a Family Offense [ FCA § 812(1)], to modify PL § 240.30(1) to make it, unambiguously, applicable to respondents who harass and threaten their victims regardless of whether they initiate or precipitate the telephone call[16].

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[1]. Thomas A. Dickerson is a Westchester County Court Judge serving as an Acting Family Court Judge with a Web Site at Judge Dickerson wishes to acknowledge the assistance of his Principal Law Clerk, Ms. Brenda V. Mechmann, in preparing this article.

[2].  P.I. v. C.D., New York Law Journal, November 22, 2000, p. 32, col. 2 ( West. Fam.Ct. ).

[3]A.M. v. M.I., New York Law Journal, December 28, 2000, p. 28, col. 4 ( West. Fam. Ct. ).

[4]. Staff Notes of the Commission on Revision of the Penal Law. Proposed New York Penal Law, Study Bill Senate Intro. 3918, Assembly Intro. 5376 Section. 250.10(8) ( 1964 ).

[5]. See P.I. v. C.D., New York Law Journal, November 22, 2000, p. 32, col. 2 ( West. Fam.Ct. ); People v. Monroe, 183 Misc. 2d 374, 703 N.Y.S. 2d 690, 694 ( 2000 ); People v. Amalfi, 141 Misc. 2d 940, 942, 535 N.Y.S. 2d 313 ( 1988 ); People v. Rusciano, 171 Misc. 2d 908, 656 N.Y.S. 2d 822, 825 ( 1987 ).

[6]. People v. McDermott, 160 Misc. 2d 769, 771, 610 N.Y.S. 2d 984 ( 1994 ).

[7]. See A.M. v. M.I., New York Law Journal, December 28, 2000, p. 28, col. 4 ( West. Fam. Ct. ); People v. Diraimondo, 174 Misc. 2d 937, 667 N.Y.S. 2d 206, 206 ( 1997 ); People v. Monroe, supra, at 703 N.Y.S. 2d 693; People v. McDermott, supra, at 610 N.Y.S. 2d 985.

[8]. People v. Monroe, supra, at 703 N.Y.S. 2d 693.

[9]People v. McDermott, supra, at 610 N.Y.S. 2d 985.

[10]. People v. Diraimondo, supra, at 667 N.Y.S. 2d 206.

[11]. A.M. v. M.I., New York Law Journal, December 28, 2000, p. 28, col. 4 ( West. Fam. Ct. ).

[12]. See N. 9, supra.

[13]. See N. 8, supra.

[14].  Editorial, "Calling for new language," The Journal News, December 1, 2000, p. 10B.

[15]. Klein & Orloff, Symposium On Domestic Violence: Providing Legal Protection For Battered Women: An Analysis Of State Statutes And Cases Law, 21 Hofstra L. Rev. 801, 857-864, Summer 1993.

[16]. For example, the following language might be added to PL § 240.30(1).

" When this subdivision is the basis of a family offense pursuant to Family Court Act Section 812 Subdivision 1, the initiation of said communication by the respondent shall not be a required element of the offense where the communication includes a threat of bodily injury or death ".

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