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Can Clowning Around Get You Criminally Prosecuted?

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If you’ve watched the news lately, you are aware of this “clown sighting” outbreak throughout the nation. It all started in Greenville, South Carolina, when children reported seeing clowns in wooded areas who were allegedly attempting to lure the children into the woods. This led to copycats throughout the country – with several arrests being made. Although many of the arrests were lawful (i.e. the “clowns” were engaged in unlawful activity), this clown epidemic raises some interesting questions. With Target pulling its clown costumes from this season’s Halloween picks, many people are asking if they can be criminally prosecuted for simply dressing as a clown. In other words, have the bad clowns ruined it for the rest of us?

Simply Dressing As a Clown (Without More) Cannot Lead to Criminal Charges

First, the First Amendment protects your freedom of expression. In other words, it would be unconstitutional for the government to enact content-based restrictions (like a ban on dressing as a clown). However, the “killer clown craze” did not arise from people simply dressing as clowns. The craze was initiated because the clowns engaged in unlawful behavior. This has blurred the line for many people who are unfamiliar with the law. Social media and news outlets continuously report incidents involving clown arrests, however, for the most part, an arrest is only lawful if the police have probable cause to believe that the suspect is engaged in illegal activity -- or if they obtain an arrest warrant. Some may argue that as a result of killer clown sightings around the country, police now have probable cause to detain any “creepy clowns” they may encounter. However, it is likely that a court would disagree – absent additional facts creating probable cause or an exigent circumstance negating the warrant requirement.

While dressing as a clown is not (and cannot) be illegal in the United States under the First Amendment, much of this clown activity does fall within criminal behavior as defined by state statutes. For example, the first creepy clown sighting in South Carolina involved a clown attempting to lure children into the woods. South Carolina describes kidnapping as follows:

“Whoever shall unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry away any other person by any means whatsoever without authority of law, except when a minor is seized or taken by his parent, is guilty of a felony and, upon conviction, must be imprisoned for a period not to exceed thirty years unless sentenced for murder” (S.C. Code Ann. § 16-3-910).

One may be prosecuted for attempted kidnapping as long as they take a substantial step toward the commission of the crime (in this case, kidnapping). Thus, the District Attorney would likely argue that the interaction the clown had with the children, which was interpreted as an invitation to follow him into the woods satisfies the “substantial step” element. Note that because this act is punishable even for a person dressed in plain clothes, prosecuting the clown would not run afoul of the First Amendment. This is because the clothes the suspect was wearing have no bearing on his criminal actions – even if the clothes do add to the “creep” factor.

However, if the clown simply stood in the woods, the children saw the clown, and they wrongfully interpreted this as an invitation to follow the clown, the clown would have a legitimate defense. The caveat for any prosecution of an attempt crime is that the District Attorney is required to prove specific intent. In other words, the District Attorney would have to prove the clown had the specific intent of committing the crime of kidnapping. Because proving this element will likely be left to the children’s testimony, the clown would need a good criminal defense attorney to impeach the children’s perception and credibility on the stand. Raising reasonable doubt as to what the children saw would be key in this defense.

Other Reported Clown Offenses

While standing in the woods dressed as a clown may be creepy, it will not necessarily lead to a conviction or even prosecution, as discussed above. Unfortunately, the “creepy clown” reports include much more than simply standing in the woods.

Dressing like a clown and chasing someone

One of the most recent reports involved a man in Iowa wearing a clown mask and chasing people with a metal bat. The 18-year-old young man now faces serious charges, including two counts of assault with a weapon. Although the man did not injure anyone, and may not have had the intent to injure anyone – his actions are against the law in every state. Generally, criminal assault is defined as a threat of bodily harm with an apparent, present ability to cause the harm. In fact, those who commit an assault are open to both criminal and civil liability. This means that the state can prosecute them criminally – punishable by jail time, restitution, probation and/or community service. Even after they serve their sentence, the victim can sue in civil court for additional damages.

The young man undoubtedly presented a threat of bodily harm by pursuing his victims and wielding a metal bat. Even if he only meant to scare the victims, the very act of inflicting this type of fear is built into assault statutes. In addition, it is irrelevant whether the young man knew his actions were against the law, or the type of punishment these actions may bring. He is now facing potential jail time.

Clowns scaring people from inside of a car

Another similar arrest, made in Louisiana, involved a man who wore a clown mask and pointed a gun at other drivers. Although the gun turned out to be an air soft rifle, the man now faces charges of terrorizing. Louisiana defines terrorizing as:

“The intentional communication of information that the commission of a crime of violence is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; or causing evacuation of a building, a public structure, or a facility of transportation; or causing other serious disruption to the general public.”

Even though the defendant only possessed an air soft gun, and not a real rifle, this fact is irrelevant. The statute focuses on the victim’s interpretation of the intentional communication. Here, the defendant’s intentional communication was done by pointing a gun at other drivers. The drivers believed it to be a real gun, creating a fear of imminent danger to their lives. In addition, it is reasonable to believe the defendant intended members of the general public to fear for their safety. Although to some it may seem like mischief, the punishment in Louisiana for violation of this statute is up to $15,000 and/or imprisonment up to 15 years.

An affirmative defense for charges of terrorizing is that the defendant was not involved in the commission of a crime of violence or that he reasonably believed his actions were necessary to protect the welfare of the public. Since the latter defense is not very common, a good attorney will prove that the defendant was not involved in the commission of a crime of violence. In addition, a good defense attorney will question the witness’s recollection and perception of the events.

Dressing like a clown and stalking

Even if the clown is not brandishing weapons, chasing, or attempting to lure children, stalking is also against the law. In fact, California stalking laws have more teeth than stalking laws in other states. In other words, California does not take this violation lightly. California defines stalking as following, harassing, or threatening another person to the point where that individual fears for his or her safety or the safety of his or her family. The original clown sightings that occurred in South Carolina were repetitive, and would likely fall within California’s stalking laws. Similar to the other behavior discussed in this blog, the fact that the suspect is dressed as a clown is irrelevant. Any person engaging in the behavior described in the California stalking statute is open to prosecution. The fact that the suspect is dressed as a clown simply adds to the “creep” factor.

There are, however, several defenses to stalking. One obvious defense to “clown stalking” would be misidentification. If the stalker has a mask on or has a painted face, the witness will likely not be able to tell for certain the identity of the suspect – unless, of course, the clown is caught red-handed.

Killer clowns being chased down and attacked

While the nation seems to view clowns as the enemy lately, there is also another side to the story. For example, there have been several stories about citizens chasing clowns and attacking them, even if the clowns are not involved in criminal behavior. Simply dressing as a “creepy clown” seems to incite violent behavior among many citizens. When that is the case, those who are chasing and attacking the clown may be criminally prosecuted for the same reasons that a clown can be prosecuted for engaging in this behavior. This is where basic knowledge of the law comes in handy. While you may feel disturbed seeing a creepy clown walking around or standing in public – this is inadequate provocation to make a subsequent assault lawful. If however, the clown is engaged in activity such as chasing or terrorizing, then a citizen would have a legitimate defense if charges were to be filed against them. For example, self-defense is available, even if you are defending someone else. As long as you have a reasonable belief that the defense was necessary to prevent harm to another, and as long as the force used was in proportion to the threatened harm, it will likely be a successful defense. However, it is critical to note that the force must be proportionate. In other words, you do not have free reign to shoot a clown for simply scaring someone.

This is where most of the litigation occurs – so it is critical to have an experienced criminal defense attorney who will become apprised of all the facts and argue that the harm was both necessary and proportionate

Common sense says don’t dress as a clown this year

Although many of these situations fit within current laws, a good criminal defense attorney will help their client prevent a criminal case altogether. It makes sense to avoid all of the above situations by simply choosing a different costume this Halloween. However, no matter which costume you choose, be sure that your conduct is lawful to avoid having to explore any of these defenses.