New Hampshire: Statutory Criminal Law

  1. Offenses Against the Public Order (e.g. Criminal Defamation, Harassment, Nuisance)

    1. Introduction

      There is a claim for criminal defamation for communications involving information that a defendant knows is false and will tend to lead to public hatred, contempt, or ridicule. There is also a claim for harassment for making unwanted communications.

    2. Text of Statute(s)

      N.H. Rev. Stat. § 644:11 Criminal Defamation.

      I. A person is guilty of a class B misdemeanor if he purposely communicates to any person, orally or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule.

      II. As used in this section “public” includes any professional or social group of which the victim of the defamation is a member.

      N.H. Rev. Stat. § 644:4 Harassment.

      I. A person is guilty of a misdemeanor, and subject to prosecution in the jurisdiction where the communication originated or was received, if such person:

      (a) Makes a telephone call, whether or not a conversation ensues, with no legitimate communicative purpose or without disclosing his or her identity and with a purpose to annoy, abuse, threaten, or alarm another; or

      (b) Makes repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another; or

      (c) Insults, taunts, or challenges another in a manner likely to provoke a violent or disorderly response; or

      (d) Knowingly communicates any matter of a character tending to incite murder, assault, or arson; or

      (e) With the purpose to annoy or alarm another, communicates any matter containing any threat to kidnap any person or to commit a violation of RSA 633:4; or a threat to the life or safety of another.

      (f) [Repealed.]

      II. As used in paragraph I, “communicates” means to impart a message by any method of transmission, including but not limited to telephoning or personally delivering or sending or having delivered any information or material by written or printed note or letter, package, mail, courier service or electronic transmission, including electronic transmissions generated or communicated via a computer. For purposes of this section, “computer” means a programmable, electronic device capable of accepting and processing data.

      III. [Repealed.]

      IV. A person shall be guilty of a class B felony if the person violates RSA 644:4, I(a) under circumstances involving making telephone calls to a telephone number that he or she knows is being used, at the time of the calls, to facilitate the transportation of voters to polling places or otherwise to support voting or registering to vote.

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  2. Hate Crimes

    1. Introduction

      New Hampshire law allows extended prison terms if the crime was conducted because of hostility to the victim’s sex or sexual orientation, among other things.

    2. Text of Statute(s)

      N.H. Rev. Stat. § 651:6 Extended Term of Imprisonment

      I. A convicted person may be sentenced according to paragraph III if the jury also finds beyond a reasonable doubt that such person:

      (f) Was substantially motivated to commit the crime because of hostility towards the victim's religion, race, creed, sexual orientation as defined in RSA 21:49, national origin or sex....1

    3. Cases

      1. State v. Costella, 166 N.H. 705, 103 A.3d 1155 (2014)

        • Procedural Posture: Defendant was convicted in Superior Court of disorderly conduct and two counts of criminal threatening, and the convictions for criminal threatening were subject to enhanced sentences under the hate crime statute. Defendant appealed.
        • Law: Hate crime sentencing enhancement
        • Facts: Defendant brought car in for oil change, upon seeing a photo of defendant in front of a swastika flag, the employee refused service. Defendant threatened to kill the employee who was a Jew.
        •  Outcome: The Supreme Court held the state must prove only that a defendant was substantially motivated to commit a crime because of his hostility towards the victim’s perceived “religion, race, creed, sexual orientation…, national origin or sex” and that it need not prove the actual status of the victim. to obtain an enhanced sentence under the hate-crimes statute. In addition, evidence was sufficient to show that defendant was substantially motivated to commit criminal threatening because of hostility towards Judaism and that he perceived that victims were Jewish.
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  3. Eavesdropping

    1. Introduction

      New Hampshire law prohibits interceptions of telecommunications, which as defined could include files (i.e., images).

    2. Text of Statute(s)

      N.H. Rev. Stat. § 570-A:2 Interception and Disclosure of Telecommunication or Oral Communications Prohibited.

      N.H. Rev. Stat. § 570-A:1 Definitions.

    3. Cases

      1. Fischer v. Hooper, 143 N.H. 585, 732 A.2d 396 (1999)

        • Procedural Posture: Former wife sued former husband for violation of N.H. wiretapping and eavesdropping statute and for common law tort of invasion of privacy. The Superior Court entered judgment on jury verdict for the wife. Husband appealed.
        • Law: N.H. eavesdropping statute
        • Facts: Divorced couple shared custody of their daughter, who also had a therapist and guardian ad litem appointed by the court. The guardian ad litem recommended to both parents, in writing, that conversations with the daughter be recorded, in order that they might be reviewed with the therapist to the communications difficulties that had arisen between the parties. The former husband proceeded to record the former wife’s calls without her permission. The wife learned about the calls from the therapist, and sued the husband for damages.
        • Outcome: “Wilfully,” as used in New Hampshire wiretapping and eavesdropping statute, means that defendant must act with intentional or reckless disregard for lawfulness of his conduct; in other words, defendant has not violated that statute if he has “good faith” belief that his conduct was lawful. The Supreme Court reversed and remanded as the trial court failed to instruct jury properly on the appropriate level of intent for violation of the eavesdropping statute.
    4. Practice Pointers

      Facts supporting a claim for eavesdropping can also be used to plead invasion of privacy.

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  4. Stalking

    1. Introduction

      Obtaining, collecting, and disseminating images for public consumption in such a manner that causes a victim to fear for for her safety could be the basis for a stalking charge.

    2. Text of Statute(s)

      N.H. Rev. Stat. § 633:3-a Stalking.

    3. Cases

      1. Despres v. Hampsey, 162 N.H. 398, 400, 33 A.3d 1133, 1135 (2011)

        • Procedural Posture: a final stalking protective order was appealed. The court affirmed.
        • Law: Stalking has three variants, including “course of conduct targeted at a specific” individual or person.
        • Facts: Defendant frequently walked to Plaintiff’s apartment to make sexual comments and advances to her. Plaintiff sought a protective order.
        • Outcome: Supreme Court affirmed lower court’s decision, holding that two or more specific acts can constitute a course of conduct.
    4. Practice Pointers

      Repeated (2 or more) instances of conduct to cause a person fear for their personal safety, such as multiple postings online, may be able to support a stalking charge.

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  5. Menacing/Coercion

    1. Introduction

      Criminal threatening is the threat to commit any crime against the property of another for the purpose to coerce or terrorize a person. A WMC client might be able to claim that a photo is her property, and threats to post it online for purposes of coercion or terror can constitute threatening.

    2. Text of Statute(s)

      N.H. Rev. Stat. § 631:4 Criminal Threatening.

    3. Cases

      No relevant case found.

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  6. Trespass

    1. Introduction

      Criminal trespass in New Hampshire can be charged as a violation, a misdemeanor, and even a felony. Criminal trespass can occur when an individual knows they are not permitted to be in a place, or if they remain in a place after being told to leave. The state may pursue criminal charges against a perpetrator for trespass if he or she obtained an image of a WMC victim by trespassing into the victim’s home.

    2. Text of Statute(s)

      N.H. Rev. Stat. § 635:2

    3. Cases

      1. State v. Ruff, 155 N.H. 536, 927 A.2d 489 (2007)

        • Procedural Posture: Defendant was convicted of criminal trespass in Superior Court. Defendant appealed.
        •  Law: Trespass.
        • Facts: Defendant was commanded to vacate her mother-in-law’s home and was physically removed from the home several times, but repeatedly forced her way back in. The mother-in-law’s son (the defendant’s brother-in-law), who had lived at the home for a number of years, ordered the defendant to leave in front of his mother, who did not object. Defendant argued that the evidence did not show that she had been ordered to leave by the “owner or authorized person.”
        • Outcome: Court reasoned that a lawful resident has actual authority to exclude a non-resident from the home in which he lives and thus constitutes an “authorized person” under the criminal trespass statute who can give an order to leave or not enter. Conviction was affirmed.
    4. Practice Pointers

      This could be a claim against a “peeping tom” who enters a WMC victim’s property to take inappropriate photos or videos of the victim, where the perpetrator knows that the victim or other resident did not authorize him to trespass on the property, and even if he or she was initially invited but stays after the victim asks him or her to leave.

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  7. Cyberbullying

    1. Introduction

      A defendant can be charged with bullying if the WMC client is a pupil and the defendant uses an electronic communication (such as an image) or electronic device to cause emotional distress, interfere with education, create a hostile educational environment, or disrupts the school.

    2. Text of Statute(s)

      N.H. Rev. Stat. § 193-F:3 Definitions.

      In this chapter:

      I. (a) “Bullying” means a single significant incident or a pattern of incidents involving a written, verbal, or electronic communication, or a physical act or gesture, or any combination thereof, directed at another pupil which:

      (1) Physically harms a pupil or damages the pupil's property;

      (2) Causes emotional distress to a pupil;

      (3) Interferes with a pupil's educational opportunities;

      (4) Creates a hostile educational environment; or

      (5) Substantially disrupts the orderly operation of the school.

      (b) “Bullying” shall include actions motivated by an imbalance of power based on a pupil's actual or perceived personal characteristics, behaviors, or beliefs, or motivated by the pupil's association with another person and based on the other person's characteristics, behaviors, or beliefs.

      II. “Cyberbullying” means conduct defined in paragraph I of this section undertaken through the use of electronic devices.

      III. “Electronic devices” include, but are not limited to, telephones, cellular phones, computers, pagers, electronic mail, instant messaging, text messaging, and websites.

      IV. “Perpetrator” means a pupil who engages in bullying or cyberbullying.

      V. “School property” means all real property and all physical plant and equipment used for school purposes, including public or private school buses or vans.

      VI. “Victim” means a pupil against whom bullying or cyberbullying has been perpetrated.

      N.H. Rev. Stat. § 193-F:4 Pupil Safety and Violence Prevention.

      N.H. Rev. Stat. § 193-F:9 Private Right of Action Not Permitted.

      Nothing in this chapter shall supersede or replace existing rights or remedies under any other general or special law, including criminal law, nor shall this chapter create a private right of action for enforcement of this chapter against any school district or chartered public school, or the state.

    3. Cases

      No relevant case found.

    4. Practice Pointers

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  8. Revenge Porn

    1. Introduction

      The nonconsensual dissemination of private sexual images with the intent to harass, intimidate, threaten, or coerce the depicted person is a class B felony in New Hampshire.

    2. Text of Statute

      N.H. Rev. Stat. § 644:9-a

      I. In this section:

      (a) “Disseminate” means to import, publish, produce, print, manufacture, distribute, sell, lease, exhibit, or display.

      (b) “Image” means a photograph, film, videotape, or digital image or recording.

      (c) “Intimate parts” means the fully unclothed, partially unclothed, or transparently clothed genitals, pubic area, or anus, or, if the person is female, a partially or fully exposed nipple, including exposure through transparent clothing.

      (d) “Sexual act” means sexual penetration, masturbation, or sexual activity.

      (e) “Sexual activity” means any:

      (1) Knowing touching or fondling by any person, either directly or through clothing, of the sex organs, anus, or breast of that person, or another person, or animal; or

      (2) Any transfer or transmission of semen upon any part of the clothed or unclothed body of a person; or

      (3) An act of urination within a sexual context; or

      (4) Any bondage, fetter, or sadism masochism; or

      (5) Sadomasochism abuse in any sexual context.

      II. A person commits nonconsensual dissemination of private sexual images when he or she:

      (a) Purposely, and with the intent to harass, intimidate, threaten, or coerce the depicted person, disseminates an image of such person:

      (1) Who is identifiable from the image itself or information displayed in connection with the image; and

      (2) Who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and

      (b) Obtains the image under circumstances in which a reasonable person would know or understand that the person in the image intended that the image was to remain private; and

      (c) Knows or should have known that the person in the image has not consented to the dissemination.

      III. The intentional dissemination of an image of another identifiable person who is engaged in a sexual act or whose intimate parts are exposed is exempt from the provision of this section:

      (a) When the dissemination is made for the purpose of a criminal investigation that is otherwise lawful.

      (b) When the dissemination is for the purpose of, or in connection with, the reporting of unlawful conduct.

      (c) When the images involve voluntary exposure in public or commercial settings.

      (d) When the dissemination serves a lawful public purpose.

      (e) When the dissemination is done in compliance with a subpoena or court order.

      IV. Nothing in this section shall be construed to impose liability upon the following entities solely as a result of content or information provided by another person:

      (a) An interactive computer service, as defined in 47 U.S.C. section 230(f)(2);

      (b) A provider of public cellular or mobile services or private radio services; or

      (c) A telecommunications network or broadband provider.

      V. Any property used in committing, or facilitating the commission of, any offense under this section shall be subject to forfeiture.

      VI. Any person who violates the provisions of this section shall be guilty of a class B felony.

    3. Cases

      No relevant case found. News articles have reported that the revenge porn law has been used to charge defendants who share private images without consent. See, e.g., Exeter woman accused of posting online 'revenge porn', (last visited Oct. 26, 2018); Newfields man charged under ‘revenge porn’ law, (last visited Oct. 26, 2018).

    4. Practice Pointers

      • Under the statute, the victim must be identifiable from or in connection with the image (i.e., identifiable in the image, or name is displayed with the image).
      • The alleged defendant must know, or have reason to know, that the victim did not consent to dissemination.
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  9. Violation of Privacy

    1. Introduction

      In addition to common law invasion of privacy, the state has a criminal statute, but which is not enforceable by a private citizen.1

    2. Text of Statute(s)

      I. A person is guilty of a class A misdemeanor if such person unlawfully and without the consent of the persons entitled to privacy therein, installs or uses:

      (a) Any device for the purpose of observing, photographing, recording, amplifying, broadcasting, or in any way transmitting images or sounds of the private body parts of a person including the genitalia, buttocks, or female breasts, or a person's body underneath that person's clothing; or

      (b) In any private place, any device for the purpose of observing, photographing, recording, amplifying or broadcasting, or in any way transmitting images or sounds in such place; or

      (c) Outside a private place, any device for the purpose of hearing, recording, amplifying, broadcasting, observing, or in any way transmitting images, location, movement, or sounds originating in such place which would not ordinarily be audible, visible, or comprehensible outside such place.2

    3. Cases

      No relevant case found.

    4. Practice Pointers

    1. Graham v. Warden, No. 07-cv-247-PB, 2008 WL 2699671, at *8 (D.N.H. June 30, 2008)
    2. N.H. Rev. Stat. § 644:9.
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