In our previous blog posts, we delved into cyberbullying, a form of harassment among school children through the internet. Today, we will explore equally significant topics - "cyberstalking" and "cyberharassment".
The first Cyberstalking case in California involved the conviction of a jilted lover. He sent emails in the woman’s name, placed ads that that she has fantasies of being raped, gave her address, and consequently 6 different men showed up on different occasions in response to the ad.
A man from Michigan was convicted for cyberstalking. According to the FBI’s website, he “contacted the victims and told them that he found naked pictures of them on the Internet. The defendant then directed the victims to a specific website to view the pictures. In reality, the website was a front—or “phishing site”—by which the defendant sought to surreptitiously obtain the victim’s private e-mail address and password. Once the targeted victim input the requested information, the victim’s personal e-mail addresses and passwords went straight to the defendant via the Internet. The defendant thereafter seized control of the victim’s e-mail accounts, contacted the victims, and threatened that if they did not engage in a Skype video chat with him, he would distribute naked photos of the victims over the Internet. Once a victim and the defendant logged onto Skype…, [he] demanded that the victims take their clothes off and engage in sexual conduct, with the further threat that naked pictures of them would be sent out to all of Western New York if the girl did not comply. As a result of the defendant’s repeated and sustained harassment of the victims, many victims suffered substantial emotional distress.”
In South Carolina, a woman’s former lover sent her and her co-workers dozens of uninvited and harassing emails and facsimile (fax) messages. He also circulated a false background of the woman to her co-workers, hacked her email account and made it appear that she was sending thempornographic materials. The woman was able to get a court order restraining the offender from continuing such offensive acts, yet he violated this order by sending more emails to deny his involvement.
According to cyberharassment.org “While a study by Rutgers University and the University of Pennsylvania indicates the average victim is a female from ages 18 -29, anyone can be the target of cyberstalking. This includes people of all ages and from all walks of life, as well as institutions and organizations.” Moreover, Harvard’s studies also show that:
“In the United States, one out of every 12 women (8.2 million) and one out of every 45 men (2 million) have been stalked at some time in their lives.”
“One percent of all women and 0.4 percent of all men were stalked during the preceding 12 months.”
“Women are far more likely to be the victims of stalking than men - nearly four out of five stalking victims are women. Men are far more likely to be stalkers - 87 percent of the stalkers identified by victims in the survey were men.”
“Women are twice as likely as men to be victims of stalking by strangers and eight times as likely to be victims of stalking by intimates.”
The National Conference of State Legislatures (NCSL) have defined these terms in the following manner:
“Cyberstalking. Cyberstalking is the use of the Internet, email or other electronic communications to stalk, and generally refers to a pattern of threatening or malicious behaviors. Cyberstalking may be considered the most dangerous of the three types of Internet harassment, based on a posing credible threat of harm. Sanctions range from misdemeanors to felonies.”
“Cyberharassment. Cyberharassment differs from Cyberstalking in that it may generally be defined as not involving a credible threat. Cyberharassment usually pertains to threatening or harassing email messages, instant messages, or to blog entries or websites dedicated solely to tormenting an individual. Some states approach Cyberharassment by including language addressing electronic communications in general harassment statutes, while others have created stand-alone Cyberharassment statutes.”
As you can see, the common elements are internet, and electronic communications such as email messages. Both have the consequence of tormenting the victim. The good news is that most states have laws covering Cyberstalking and Cyberharassment. It is important to know your rights and protect yourself from people who unlawfully stalk and harass you online.
Federal laws that cover cyberstalking and cyberharassment include:
18 U.S.C. 871 - Threatening the president, vice-president, or other Secret Service protectee: It is a felony to "threat[en] to take the life of, to kidnap, or to inflict bodily harm upon" the President, Vice-President, or or other officer next in the order of succession to the office of President."
18 U.S.C. 875 - Threatening another person, or his property or reputation: It is a felony to "transmit [including on the Internet] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another [or make] any threat to injure the property or reputation of the addressee."
47 U.S.C. § 223(a)(1)(C), 2006) - Threatening or stalking another person while hiding behind a fictitious identity --- or knowingly allow one's website to be used for this purpose: “Whoever ... in interstate or foreign communications ... makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications...." (2006) "[I]n the case of subparagraph (C) of subsection (a)(1), includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet… (or) (2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity… shall be fined under title 18 or imprisoned not more than two years, or both.”
In the State of Washington, Cyberstalking is punishable under Wash. Rev. Code §§ 9A.46.110, 9.61.260; and Cyberharassment under Wash. Rev. Code §§ 9A.46.020, 10.14.020. (For a list of laws covering other states, please visit this link.
RCW 10.14.020 defines unlawful harassment as "a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or, when the course of conduct would cause a reasonable parent to fear for the well-being of their child.”
Based on the above definition, the elements of unlawful harassment are:
1. a knowing and willful course of conduct
2. directed at a specific person
3. which seriously alarms, annoys, harasses, or is detrimental to such person
4. which serves no legitimate or lawful purpose, and
5. the course of conduct causes a reasonable person to suffer substantial emotional distress.
The law defines “course of conduct” to mean "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” It “includes, in addition to any other form of communication, contact, or conduct, the sending of an electronic communication, but does not include constitutionally protected free speech. Constitutionally protected activity is not included within the meaning of course of conduct."
RCW 9.61.260 paragraph 5 defines "electronic communication" as “the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means. "Electronic communication" includes, but is not limited to, electronic mail, internet-based communications, pager service, and electronic text messaging.”
RCW 9A.46.110 defines stalking and RCW 9.61.260. The former is broader in terms as it includes physical stalking and other forms of stalking like online stalking (paragraph 4 of the law). Legislative Intent -- 1999 c 27 explicitly states that: "It is the intent of chapter 27, Laws of 1999 to clarify that electronic communications are included in the types of conduct and actions that can constitute the crimes of harassment and stalking. It is not the intent of the legislature, by adoption of chapter 27, Laws of 1999, to restrict in any way the types of conduct or actions that can constitute harassment or stalking." RCW 9.61.260 or Cyberbullying is more specific than the former in that “using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act” is an important element of the offense.
In the State of Washington, a person is guilty of stalking “if, without lawful authority and under circumstances not amounting to a felony attempt of another crime:
(a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and
(b) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person. The feeling of fear must be one that a reasonable person in the same situation would experience under all the circumstances; and
(c) The stalker either:
(i) Intends to frighten, intimidate, or harass the person; or
(ii) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person.
The law is explicit that it is not a defense to the crime of stalking that the stalker was not given actual notice that the person did not want the stalker to contact or follow the person; and that the stalker did not intend to frighten, intimidate, or harass the person, but it is a defense that the defendant is a licensed private investigator acting within the capacity of his or her license as provided by chapter 18.165 RCW.
Paragraph 4 of RCW 9A.46.110 states that attempts to contact or follow the person after being given actual notice that the person does not want to be contacted or followed constitutes prima facie evidence that the stalker intends to intimidate or harass the person. "Contact" includes, in addition to any other form of contact or communication, the sending of an electronic communication to the person.
Stalking is generally a gross misdemeanor but it is a class B felony (punishable by confinement in a state correctional institution for a term of ten years, or by a fine in an amount fixed by the court of twenty thousand dollars, or by both such confinement and fine) if any of the following applies:
1. The stalker has previously been convicted in this state or any other state of any crime of harassment, as defined in RCW 9A.46.060, of the same victim or members of the victim's family or household or any person specifically named in a protective order;
2. the stalking violates any protective order protecting the person being stalked;
3. the stalker has previously been convicted of a gross misdemeanor or felony stalking offense under this section for stalking another person;
4. the stalker was armed with a deadly weapon, as defined in RCW 9.94A.825, while stalking the person;
5. the stalker's victim is or was a law enforcement officer; judge; juror; attorney; victim advocate; legislator; community corrections' officer; an employee, contract staff person, or volunteer of a correctional agency; court employee, court clerk, or courthouse facilitator; or an employee of the child protective, child welfare, or adult protective services division within the department of social and health services; and the stalker stalked the victim to retaliate against the victim for an act the victim performed during the course of official duties or to influence the victim's performance of official duties;
6. the stalker's victim is a current, former, or prospective witness in an adjudicative proceeding, and the stalker stalked the victim to retaliate against the victim as a result of the victim's testimony or potential testimony.
Cyberstalking is committed by an individual “if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:
(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;
(b) Anonymously or repeatedly whether or not conversation occurs; or
(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.
It is clear that even a person who sends anonymous email messages can be prosecuted for Cyberstalking if his identity is found out later on and the other elements of the offense are present. Modern technology and IP (internet protocol) address enable the proper enforcement agencies to find out the identity of the offender. While most companies value the privacy of their clients and will reveal very limited information, the courts can compel them to submit what is otherwise confidential information to track the offender.
An important element of the offense is a threat to inflict injury on the person or property of the person called or any member of his or her family or household. Since the law did not qualify that injury should be physical, the injury may be in the form of damage to reputation or one’s livelihood such as a business (property).
Just like Stalking, Cyberstalking is generally a gross misdemeanor, but it is a class C felony (punishable by confinement in a state correctional institution for five years, or by a fine in an amount fixed by the court of ten thousand dollars, or by both such confinement and fine) if either of the following applies:
(a) The perpetrator has previously been convicted of the crime of harassment, as defined in RCW 9A.46.060, with the same victim or a member of the victim's family or household or any person specifically named in a no-contact order or no-harassment order in this or any other state; or
(b) The perpetrator engages in the behavior prohibited under subsection (1)(c) of this section by threatening to kill the person threatened or any other person.
The offense is deemed to have been committed either at the place from which the communication was made or at the place where the communication was received.
Under RCW 9A.46.020, a person is guilty of harassment “if without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or
(ii) To cause physical damage to the property of a person other than the actor; or
(iii) To subject the person threatened or any other person to physical confinement or restraint; or
(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety.
It is also an element of the offense that the person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. "Words or conduct" includes, in addition to any other form of communication or conduct, the sending of an electronic communication.
Similar to Stalking/Cyberstalking, Harassment is also a gross misdemeanor. Harassment becomes a class C felony if any of the following apply:
(i) The person has previously been convicted in this or any other state of any crime of harassment, as defined in RCW 9A.46.060, of the same victim or members of the victim's family or household or any person specifically named in a no-contact or no-harassment order;
(ii) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person;
(iii) the person harasses a criminal justice participant who is performing his or her official duties at the time the threat is made; or
(iv) the person harasses a criminal justice participant because of an action taken or decision made by the criminal justice participant during the performance of his or her official duties. For the purposes of (b)(iii) and (iv) of this subsection, the fear from the threat must be a fear that a reasonable criminal justice participant would have under all the circumstances. Threatening words do not constitute harassment if it is apparent to the criminal justice participant that the person does not have the present and future ability to carry out the threat.
According to RCW 9.92.020 “Every person convicted of a gross misdemeanor for which no punishment is prescribed in any statute in force at the time of conviction and sentence, shall be punished by imprisonment in the county jail for a maximum term fixed by the court of up to three hundred sixty-four days, or by a fine in an amount fixed by the court of not more than five thousand dollars, or by both such imprisonment and fine.”
The penalties for harassment do not preclude the victim from seeking any other remedy otherwise available under law (such as damages).
Now you know what constitutes Cyberstalking and Cyberharassment, at least in the State of Washington. The next time somebody stalks or harasses you online, give him the link to this blog; maybe he’ll learn a thing or two and will think twice next time he thinks of pulling the same act on you.
What should you do if you are a victim of cyberstalking and/or cyberharassment? The F.B.I. investigates and works with the Department of Justice to prosecute threats against government officials and citizens and has established an Internet crime reporting page. You can also contact your nearest F.B.I. field office (http://www.fbi.gov/contact-us/field), or call the DC headquarters at (202) 324-3000. To report a threat against current and former presidents and their spouses, and other designated protectees the U.S.S.S. requests that you contact your nearest field office.
댓글