Law and Disorder

Just kidding: The hoax, the prank and the law

 By A.J. Wagner

Assume, for this column, that Notre Dame football player Manti Te’o was a victim. That Ronaiah Tuiasosopo stole the identity of Diane O’Meara and convinced Te’o that she was a woman named Lennay Kekua. That Te’o fell in love with this made-up creature and believed she died of leukemia. What Ohio laws might have been broken?

Put another way, can someone who is the victim of a hoax, where there are no physical injuries, file criminal charges or sue for damages in a civil lawsuit in Ohio?

Let’s start with a few criminal statutes that might apply.

Ohio Revised Code § 2917.11 makes disorderly conduct a crime. That section says, among other things, that no person shall recklessly cause inconvenience, annoyance or alarm to another by threatening harm to persons or property. Insulting, taunting or challenging another, under circumstances in which that conduct is likely to provoke a violent response is also prohibited.
Add to that, creating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender.

Although Te’o certainly suffered inconvenience, annoyance and, maybe, alarm, such feelings did not come about through insult, taunt or challenge. A violent response was not provoked and there was never a risk of physical harm to Te’o. Some hoaxes may fit under this statute, but not the Te’o hoax.

§ 2903.31, hazing, might be closer. That law says: “As used in this section, ‘hazing’ means doing any act or coercing another, including the victim, to do any act of initiation into any student or other organization that causes or creates a substantial risk of causing mental or physical harm to any person. No person shall recklessly participate in the hazing of another.”

However, this was not an act of initiation into a student organization, so let’s look at telecommunication harassment.

§ 2917.21 prohibits telecommunications harassment. “Telecommunication” means the origination, emission, dissemination, transmission or reception of data, images, signals, sounds or other intelligence or equivalence of intelligence of any nature over any communications system by any method, including, but not limited to, a fiber optic, electronic, magnetic, optical, digital or analog method.

One can be convicted of telecommunications harassment if a person knowingly fails to identify the originator to the recipient of the telecommunication and makes the telecommunication with purpose to harass or abuse any person. Harassment is threatening or tormenting behavior, which does not seem to be present in this case. At least, it would be unlikely a prosecutor could prove harassment or abuse beyond a reasonable doubt for this practical joke.

A civil suit is equally unlikely. The only cause of action I have been able to remotely connect to hoaxing behavior is intentional infliction of serious emotional distress. I would be interested in hearing from other attorneys who think other possibilities exist.

These are the requisite elements to establish a case of intentional infliction of serious emotional distress in Ohio:

1. The actor either intended to cause emotional distress or should have known that actions taken would result in serious emotional distress to the plaintiff.
2. The actor’s conduct was so extreme and outrageous as to go beyond all possible bounds of decency and can be considered as utterly intolerable in a civilized community.
3. The actor’s actions were the proximate cause of plaintiff’s psychic injury; and
4. The mental anguish suffered by the plaintiff is serious and of a nature that no reasonable man could be expected to endure it.

The term “serious” goes beyond trifling mental disturbance, mere upset or hurt feelings. Serious emotional distress describes emotional injury, which is both severe and debilitating. Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case. A non-exhaustive litany of some examples of serious emotional distress should include traumatically induced neurosis, psychosis, chronic depression or phobia. The determination of the seriousness of an emotional injury often involves a very fact-intensive inquiry. The determination of seriousness must be accomplished on a case-by-case basis, because no fixed or immutable rule is capable of resolving all the cases brought under an action for the intentional infliction of serious emotional distress. (From Cokely v. Smith, 2007 Ohio 5650)

So far, Te’o, who is doing some television interviews, exhibits no symptoms of neurosis, psychosis, chronic depression or phobia. Nor does he seem to be suffering from some severe and debilitating emotional injury.

A hoax might rise to the level of being illegal in Ohio, but the victim must have some serious physical or emotional injury for the law to come to bear on the situation.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.


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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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