Dealing with offensive SMS

By Musyoki Kimanthi

Question: My partner’s ex-girlfriend has incessantly been sending me abusive and threatening text messages. I have tried to ignore her, but she won’t stop. Can the law stop this and how do I go about it?

Answer: It is very easy to choose to ignore an sms and move on with life because after all, it is just an sms. But it is also true that incessant text messaging, especially where the words are unwelcome, intrusive, malicious, offensive, abusive or threatening, can cause great emotional distress. Human mind can only take so much and such text messages cannot be ignored.

It is generally accepted that the motivation in sending abusive messages is to exercise power, control or domination over their victim. They derive some perverse sense of satisfaction from such behaviour. When the target responds, it is a sure sign that the aggressor has succeeded in the evil machinations. The first rule, therefore, is not to respond to abusive or provocative messages.

What the law says

Depending on the content, the text messages can fall under the general legal provisions dealing with nuisance, molestation or intimidation. The Penal Code makes it criminal for anyone to use threatening, abusive or insulting words or engaging in provocative acts or breach of the peace. If one is found guilty the penalty is a fine not exceeding Sh5,000 or to imprisonment for a term not exceeding six months or both. Section 238 of the Penal Code dwells on intimidation and molestation. Any person who intimidates or molests is liable to imprisonment for a term not exceeding three years.

Possible penalty

But what amounts to intimidation or molestation? Section 238 (2) of the Penal Code states that a person is deemed to have intimidated another where, with intent to cause alarm to that person or to cause him to do any act which he is not legally bound to do, causes or threatens to cause unlawful injury, reputation or property of that person or anyone in whom that person is interested.

Molestation is where the aggressor dissuades or attempts to dissuade, by whatever means, anyone from entering or approaching or dealing at any premises. All this behaviour is manifested through the sms and for which the law provides remedy. But the victims never seek assistance from the police.

Besides the Penal code, the Kenya Communications Act refers to an offensive message as a message or other matter that is grossly offensive or of an indecent, obscene or menacing character. Where a text is offensive, the sender becomes liable to a sentence of up to three months or a fine of up to Sh50,000.

A simple unsolicited ‘I love you’ text message to a married man or woman can be deemed as offensive. We are all aware of the case of Esther Mwende who was recently fined Sh30,000 for sending a text message ridiculing the private parts of Stephen Kithuka.

In the US, the incessant sending of text messages to one recipient has added to the long definition of stalking. This happened in a case where a woman was taken to court by her ex-boyfriend for sending him a message 10,783 times over 65 days — an average of one text message every eight minutes.

Any victim should run to the police. But more importantly, the law gives us some leeway to engage in some self-help — a scenario where we mitigate the detriment we are likely to suffer without necessarily breaking the law. With technology one can block calls and messages from ‘blacklisted’ numbers so that they don’t reach one’s phone. Would it not be easier to do this, rather than glorifying an aggressor’s evil machinations by reading their texts and running to the police?