A Case of Cyberstalking or Cyber-Annoyance?

A story recently caught my eye from woman noting how she has been a cyberstalking victim for “15 years.”  My first impression was how could this be and her victimization must be stopped.  However, upon critical examination the catchy headline is really not supported by the story’s content.  In some ways, the woman is quick to criticize the law enforcement response to her plight, which I believe is somewhat misdirected. Based upon the information she provided it is clear she is a victim but the duration and the illegality of the situation is being overstated.

Let me first say that this woman notes in the article that her stalker, “Danny,” had made no “threats of violence.” His conduct has been of a harassing nature. This is important. Under the federal cyberstalking statute, “cyberstalking” includes any course of conduct or series of acts taken by the perpetrator on the Internet that place the victim in reasonable fear of death or serious bodily injury, or causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to the victim or the victim’s immediate family (See 18 U.S.C. § 2261A and Blanch and Hsu).  Based upon the women’s story we are limited to conduct that would reasonably expected to cause … “substantial emotional distress.”

The second issue is the victim has known Danny for 15 years. Not all of those years of interaction could be termed “harassment” in a legal sense, let alone stalking. She indicated that she started interaction with Danny when she was 12 and he was 14.  At first the interaction appears to have been mutual but he became too obsessive, so she blocked him. I am not sure if she told him to buzz off or just blocked him. If she just blocked him without telling him to stop then he might not have realized she had enough. We know from her article that she blocked him sometime in high school.

In about 2006, Danny sees her on Facebook and sends her a “friend” request, which she accepts.  If she felt the previous interactions were that disturbing why in heavens name did she accept?  We clearly are running into difficulty equating her response as indicative of someone who suffered “substantial emotional distress.”

Danny shows up unexpected and she agrees to have coffee with him, accepts his gift, and interacts with him. Does she block him from Facebook afterwards? No, she continues to allow him to send messages to her and have him as a Facebook friend until 2012. So for six years she keeps him as a Facebook friend. Again, is that indicative of someone suffering “substantial emotional distress?”

Finally, for the first time in 2012, she tells him to mediate his behavior noting in part… “sent him a message asking him to please stop messaging me so much or I’d block him.” He continues to send messages and she FINALLY blocks him.   Note, that she was willing to continue him being a friend, provided he quit sending so many messages.

From then on, the situation has gotten to what is clearly negative and indicative of harassment. In short, this is a case were possible criminal conduct has been going on for really about four or five years, not fifteen years, as she portrays.

Finally, she decides to make an official police report and goes to some lengths to point out law enforcement’s apparent ineptitude.  She goes so far as citing New York penal code, on cyberstalking, noting Danny’s conduct was “…is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person’s place of employment or business.” I believe based upon her version of events that his conduct likely does fit this particular statutory element. Ironically, the women also included in her story an additional statutory element … “the actor was previously clearly informed to cease that conduct.”  She then glosses over the second element concluding that law enforcement was wrong in telling her no crime was committed.  The problem is for a crime to be successfully prosecuted ALL elements must be proven.

However, her own facts fail to support that her harasser was “clearly informed” to cease his conduct. Sure, she blocks Danny on AOL, only to later accept his friend request on Facebook.  We have one incident where she tells him to stop sending so many messages or she will block in on Facebook. She later blocks him after he sends more messages.  After that she appears to accept his conduct and there is no indication in her story that she told Danny in clear terms to stop communication with her in any manner.  She knows him after all and could send him a letter, instant message, or email to stop communicating and to cease all interaction. The article does not mention her sending him a “cease” notice.  Under federal cyberstalking the “cease” notice could also be evidence to establish that Danny was causing her “substantial emotional distress.”

The writer goes on to discuss her interactions with several legal scholars who conclude that law enforcement doesn’t know how to deal with cyberstalking/harassing cases.  Law enforcement does have to work on its cybercrime responses. In this case, I think the victim should have been directed to tell “Danny” in clear terms stop contacting and harassing the victim.  Law enforcement has been known to also reach out to the harassing person, if identified, to cease and decease their behavior or they will take action. Obviously, any such notification should be documented.   Additionally, it should have been reinforced that she should stop communication with him after that notice was provided. No more accepting his friend requests, etc.

I think in fairness to law enforcement, they are focused on acts which are threatening of person or property. If she had evidence of threats of harm or Danny’s acts were clearly causing her emotional distress, such as occurs with revenge porn or forwarding obscene material, they would have been more aggressive in their response.  Another indication that would have shown the communication was causing emotional distress was it if was from an unknown person. However, the victim knew it was Danny and from her tone she just found him to be a growing annoyance. I don’t think our only response as citizens to non-threatening annoyances from individuals we know is to call the police.

Documentation of the communication and interactions is just one prong to helping law enforcement.  But like law enforcement, victims also have to learn how to deal with cyber misbehavior in a manner that either ends the troubling conduct or results in situations where law enforcement and prosecutors can go after the cybercriminal.  Nipping an annoyance with clear notification to a person that their communication is unwanted and to cease, may stop the activity before it escalates to something much more serious. Who@ (Working to Halt Online Abuse) provides the following advice on such notices:

Generally speaking, it is unwise to communicate with a harasser. However, as soon as you determine that you are truly being harassed by someone, you must very clearly tell that person to stop. Simply say something like “Do not contact me in any way in the future” and leave it there. You do not need to explain why, just state that you do not want the person to contact you.

This simple notice to stop provides evidence any reasonable person can interpret that a victim finds the interaction distressing. I have included links to additional resources for individuals being victimized below. On that note, I left a cigar lit somewhere.

 

PS: The victim noted that Danny’s lawyer called her and indicated that he would stop all communication. She noted that Danny’s lawyer would not tell her if he had harassed other victims, citing attorney client privilege. Danny’s lawyer contacting her may well have been the result of her formal law enforcement compliant, which was found during a probation officer’s investigation if Danny caught a criminal cyberstalking or harassment case.  If true, law enforcement may have indirectly helped the victim by documenting her concerns. The victim could do a search of Danny’s true name through online court records to determine if he had a criminal case. If Danny has such a criminal case she could reach out to the Court and/or probation office to insure they were aware of her plight as a further preventive step.  If he is on supervision he can be ordered to cease contact or face a sanction (location monitoring, jail time, etc.)

Some Resources

Stalking Resource Center

Who@ (Working to Halt Online Abuse)

WomensLaw.org

 

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