The crime of harassment has been on the books for a very long time. And of course, the obnoxious and often frightening behaviors associated with harassment have been a part of human existence since the beginning of time. One form of harassment is stalking: a crime that calls to mind the hunter and the prey, a crime of intimidation and psychological terror that often escalates into violence against its victims. Now, as we continue to develop new and immediate ways of communicating with one another, we see forms of stalking through electronic media. The relentless pursuit of a victim through the internet can be disruptive, cause enormous fear, and foreshadow undesirable contact “in real life.” This form of stalking through electronic communication devices is often referred to as “cyberstalking.”
The federal government and all fifty states, including Maryland, have statutes to address stalking. However, the law has not kept pace with rapid changes in technology. Currently, Maryland law defines stalking in this way. It is a malicious course of conduct that includes approaching or pursing another where the person intends to place or knows or reasonably should have known that the conduct would place another in reasonable fear of the following: serious bodily injury, of an assault in any degree, of rape or sexual offense or attempted rape or sexual offense in any degree, false imprisonment or death. Notice that the term “approaching” is ambiguous. Does this mean approaching in the actual physical environment, or does it refer to approaching through electronic media?
The June 1, 2015 decision by the Supreme Court in the case Elonis v. United States, illustrates the difficulties in prosecuting electronic stalking. Despite what many would consider horrendous acts by Defendant Anthony Douglas Elonis, his stalking conviction was overturned by the Supreme Court.
Elonis used Facebook to repeatedly post self-styled rap lyrics containing graphically violent language and imagery related to his wife, co-workers, a kindergarten class and law enforcement personnel and was charged with violating a federal statute which makes it a crime to transmit in interstate commerce “any communication containing any ….threat to injure the person of another.” Elonis argued that he had no intention of harming anyone; he was simply exercising his First Amendment right of free speech. At trial, the jury instructions stated that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat. By a solid 8 to 1 majority, the Supreme Court held that to convict Elonis, the state must prove that the defendant transmits a communication for the purpose of issuing a threat or with the knowledge that the communication will be viewed as a threat. Applying the standard of reasonableness that is typically used in negligence cases is not sufficient in criminal cases where the state must demonstrate not only that the defendant committed a criminal act but must be blameworthy in mind before he is found guilty.
In the wake of the Elonis decision, we can expect legislatures to review stalking statutes and engage in debates to balance the concerns of victims of cyberstalking with our Constitutional rights.
To reduce the likelihood of being a victim of cyberstalking, refraining from sending intimate information over the internet may be a good strategy. Most of us wouldn’t walk around on public street without our clothes on and we should really apply the same cautionary behavior to our transactions on the internet. Certain cyberstalkers may be deterred if victims notify the internet provider of the offensive behavior. By contacting the company whose app or social product is being used in a negative way and then blocking the communication from the harassing individual, the behavior may stop. As a general matter, while clearly distasteful, those who experience cyberstalking should consider documenting the offensive contact to build a case if legal action in the form of a civil lawsuit or criminal prosecution is contemplated.