Is Prank Calling Illegal?

Prank calling refers to contact through a threatening, harassing, or repeated telephone call or communication through any electronic device intended to annoy the recipient. Any prank call to 911 is unlawful. If you do lack the intent to annoy the recipient, your prank call is legal.

Your prank telephone call to another person will be deemed illegal if your intentions at the time of communication were to annoy, intimidate, or harass the recipient. Also, the phone call remains unlawful if:

• It is obscene
• Recorded without the recipient’s approval
• You make the call to an emergency response help number like 911
• Your action is deemed disorderly behavior

Today, with the introduction of caller IDs, pranksters are finding it more difficult to walk scot-free after pranking calls or texts.

Several states use general criminal statutes to prosecute pranksters. The statutes that the offense is commonly charged under include:

Any offensive or abusive behavior with the objective of triggering anger is disorderly conduct. The prosecutor will charge you with disorderly conduct if the prank call was more than a practical joke and instead was demeaning, abusive, and annoying.

Many states criminalize the recording of phone conversations without the recipient’s approval. Unfortunately, many pranksters record prank calls to capture the funny moments and share them with friends. Sadly, the conduct can result in felony charges for wiretapping.

The law defines wiretapping as the unlawful listening in on another party’s phone conversation. If one party agrees to the recording of the call, the act is legal. In others, call recording is only lawful if everyone involved approves of it. However, if one party disagrees, the recording amounts to wiretapping.

An offensive or unpleasant prank call is different from an annoying one. Calling someone in the middle of the night to make funny jokes is offensive or unreasonable. Still, the conduct becomes illegal if the phone calls are repeated every ten minutes or involve intimidating statements.

Making a prank call to annoy or harass a person because of their race, sexual orientation, or religion could be charged under hate crime laws. Therefore, calling someone to mock their accent is a prank call, chargeable under hate crimes if the recipient falls under the category of protected persons or groups.

Repeated unreasonable remarks or threats through the phone or an electronic device amount to stalking.

When a prankster uses a severe threat of violence like a bomb threat to prank an emergency response team or the local police, they risk charges for making a bomb threat. The offense carries severe penalties because it prompts authorities to evacuate large areas to move people to safety.

In many states, a prank call can be charged under any of these general statutes. Nevertheless, other states have statutes specifically designed to address prank calling.

California is one of the few states with statutes specifically outlawing prank calling. Per PEN 653m, it is unlawful to intentionally utilize obscene language, threaten a recipient, their family, or property, or make constant phone calls to annoy or harass them. The offense is a misdemeanor whose guilty verdict carries at most half a year of jail confinement and court fines of no more than $1,000.

For the prosecutor or DA to find you guilty of a PEN 653m violation, they must demonstrate particular elements. These are:

1. You Made or Allowed Electronic Communication or a Telephone Call

The prosecutor demonstrates the first aspect of prank-calling by making a phone call or contacting an individual electronically. An electronic communication gadget for PEN 653m refers to the standard phone, pager, computer, smartphone, cellphone, fax machine, or video recorder.

You violate PEN 653m when you utilize any of these devices to send harassing text, email, letter through fax, or disturbing images taken or obtained via a smartphone.

You should know that the prosecutor will deem you to have made a call or contacted an individual even if the first time you called, they did not pick up but rang you back later, which is when you utilized intimidating or obscene language.

You can face charges for prank-calling due to unreasonable or annoying conduct on the phone, even when you are not the person who made the call.

For instance, you resent your ex-wife’s husband, Peter, because you believe he destroyed your marriage. One day, you decide to prank him on the phone, posing as a utility bill firm agent. When you can, Peter is unavailable to answer the call, so you leave a message asking him to call you later for more information regarding their utility bill. Peter receives your message later and dials you back. You take the opportunity to insult him using obscene language and threaten physical violence. Under these circumstances, the court will find you guilty of a PEN 653m violation.

Additionally, you attract these charges even when you are not the party that directly called or sent an electronic message to the recipient. You contravene the law when you allow another party to utilize a cell phone or electronic communication device under your control for an annoying telephone call or send an obscene electronic message. The DA should demonstrate that you knew someone was using your electronic communication gadget to call or send annoying messages.

2. You Utilized Obscene Language, Repeated Calls, or Intimidation

A prank call is deemed to be violating PEN 653m under three instances:

• When you use obscene or indecent language in a call or electronic message
• If your call or message involves a threat to hurt or harm the recipient, their family, or damage their property
• When the calls or electronic messages are repeated or several within a short duration, despite the nature of the language used or message content.

You should know that it is not mandatory for the call or electronic message to contain sexual material or language for it to be deemed obscene. The prosecutor only needs to show that the language utilized was offensive, indecent, and inappropriate. Therefore, language depicting graphic physical violence or profanity amounts to obscene. Other messages or calls an ordinary person would deem obscene include:

• Calling someone and then staying silent once they pick
• Sharing images or videos of violent acts
• Sharing photos or videos of intimate or private parts like genitals
• Utilizing sexual innuendo
• Threats that make the recipient fear for their safety or the safety of their family members

The relationship between you, the prankster, and the recipient counts when determining language or content the law deems obscene. If you are familiar with each other or have previously used profane language, then what could be considered indecent in some circumstances would not be sufficient to convict you of prank calls.

Again, you will not be guilty of PC 653m contravention even if you use obscene or annoying language on a party that holds a public role, like a customer care agent who handles complaints from the public.

For example, you frequently buy ice cream from an ice cream chain store. Occasionally, you call the chain’s customer care to report poor service from one of their shops. In these phone calls, you sometimes use curse words like the “F” word. Your calls to customer care could be annoying. You use the curse word to communicate your frustration and emotions. Nevertheless, these words cannot be construed as obscene or annoying by the customer care representative because their position is public, and they are not entitled to the same privacy as a private citizen.

3. Intent or Objective to Annoy

Prank calling is an intent or motive offense. The prosecutor should show that you intended to threaten or harass for you to be guilty. If your call or electronic message is well intended or for genuine business reasons, you are innocent of the charges.

For instance, Jane and Carol are friends who regularly make practical or funny jokes about each other. One time, Carol decides to prank Jane by sending her repeated emails from an address Jane does not recognize, which makes her believe it is a psychotic individual contacting her. The emails contain strong and obscene language threatening to harm Jane or her property. Carol sends the emails with the intention of informing her the following day that she was the one who sent the emails and not the psychotic person she made her believe to be contacting.

In this situation, Carol did not send the emails with the intention of harassing or offending Jane. She was playing a prank, and since they did this, the court could not convict her of prank-calling.

Prank calling is a misdemeanor. When convicted, the court sentences you to no more than half a year in jail and, at most, $1,000 in financial court fines. Alternatively, the court can impose misdemeanor or summary probation instead of jail incarceration with mandatory counseling as a condition for the program. The judge imposes probation if your violation is minor and it is your first crime.

The condition will be added to your criminal record and will have consequences even after you serve your sentence. Property managers or employers who run background checks on you will come across the record, which could be used as a reason for discrimination. A conviction, even for a misdemeanor, can be life-altering, hence the need to contest the allegations aggressively.

Consider having an experienced criminal lawyer in your corner to contest the allegations for a fair result. A fair verdict could be a case dismissal. However, if this is not possible, the lawyer can negotiate for a charge or sentence reduction, leading to lesser penalties.

The DA secures a guilty verdict against you when they prove you contacted someone through a phone call or electronic message with the intent or objective to annoy the recipient and the language or content of the message was threatening or indecent. Your defense lawyer can craft defense strategies to refute or challenge the allegations. The defenses your lawyer will apply depending on your case’s circumstances are:

If you are to be convicted of prank calling, intent or motive is a critical aspect of the case the prosecutor demonstrates. You can claim that your objective when you contacted the alleged accuser was not to annoy. You can claim that you were contacted for other reasons or in good faith, but the recipient provoked you, leading to annoying or obscene language.

The DA has no way of proving you planned to annoy. They are forced to rely on circumstantial evidence to show your state of mind as the defendant during the alleged crime. Circumstantial evidence is insufficient to demonstrate beyond moral certainty that you planned or intended to annoy, creating room for your lawyer to poke holes in the assertion to confirm it is not true you planned on harassing the recipient of your call or electronic message. 

Language or content that qualifies as indecent or obscene is subjective. Therefore, whether your language is vulgar depends on your case’s circumstances, even if it meets the legal definition under PEN 653m. You can assert that your statement was an artistic expression or does not rise to the obscene standard.

You can hire an expert witness to testify in court using short clips of shows or movies that depict your language or message as one that fails to meet the level of obscenity. The judge will drop the charges if you can prove the communication was not indecent.

Many pranksters are mentally or emotionally troubled. If you had mental or psychological issues that led you to make the harassing calls, you could argue that you are innocent because of the insanity defense.

When you use the insanity defense, you should show with a preponderance or majority of the proof that when you made the pranking call, you could not comprehend your actions or differentiate between right and wrong. You do not have to prove these elements beyond moral certainty. You have to show that it is more likely than not that when you committed the crime, you were insane. The proof you need to support the assertion includes medical records showing the mental or psychological condition you have been diagnosed with, testimony from eyewitnesses, and video footage.

Even though the bench or jury is not entirely convinced of your insanity, presenting the evidence will show that there was a possibility you were insane and, therefore, deserve fair treatment. In these situations, the court can sentence you to summary probation in place of jail or suspend the sentence.

The offense of prank calling happens alongside other criminal offenses. Therefore, when you violate PEN 653m, you could face other charges besides prank calling. These related offenses include:

1. Criminal Threats

California PEN 422 criminalizes willful threats to kill or harm another person. You will face these charges alongside prank calling when you make criminal threats through a telephone call or electronic communication means like email or text message.

Criminal threats facts the prosecutor must demonstrate are:

• You deliberately threaten to harm or end someone’s life
• You intended for the target to take your threats seriously
• Your statement was specific to make an ordinary person in the victim’s circumstances fear for their safety or the safety of their close family

The offense is a wobbler, and your punishment depends on the charges the prosecutor prefers.

2. Restraining Order Violation

If you are a restrained party, the court expects you to comply with all conditions, including avoiding all forms of contact with the protected party, including phone calls, text messages, or emails. If you contact the protected party repeatedly or make threats, you will face two separate charges:

• PEN 653 violation
• Breaching protective orders

3. California Stalking

PEN 646.9 prohibits stalking or cyberstalking. The crime involves malicious harassment or threats to an individual. If you accomplish the stalking through electronic communication or telephone calls, you can face PEN 653m violation charges alongside cyberstalking.

A practical or funny joke can become illegal contingent on the circumstances, leading to prank-calling charges. If you face these accusations, you should take them seriously because a guilty verdict will result in severe penalties and a criminal record. At the Los Angeles Criminal Lawyer, we have the experience you require to contest the accusations effectively. Call us at 310-502-1314 for a case evaluation to determine if your prank call is funny or will attract criminal charges.