Cyberstalking is stalking or harassment carried out over the internet. With the proliferation of chat rooms, instant messaging and social media, the world has gotten much smaller and it has become easier to send unwanted messages to other people no matter where they may be. In 2000, the Michigan Legislature passed new laws that criminalize cyberstalking and subject the offender to penalties that include fines, probation or even imprisonment. In addition, a victim can seek relief in civil court and even obtain a PPO to prevent further contact under penalty of contempt of court.
CRIMINAL PENALTIES FOR CYBERSTALKING
According to MCL 750.411s,“[a] person shall not post a message through the use of any medium of communication, including the internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the victim’s consent”, if the prosecutor can prove all of the following elements beyond a reasonable doubt:
- First, “[t]he person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim.” MCL 750.411s(1)(a). “Unconsented contact” means “any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued.” MCL 750.411s(8)(j). Unconsented contact includes any of the following:
- Following or appearing within sight of the victim.
- Approaching or confronting the victim in a public place or on private property.
- Appearing at the victim’s workplace or residence.
- Entering onto or remaining on property owned, leased, or occupied by the victim.
- Contacting the victim by telephone.
- Sending mail or electronic communications to the victim through the use of any medium, including the internet or a computer, computer program, computer system, or computer network.
- Placing an object on, or delivering or having delivered an object to, property owned, leased, or occupied by the victim.
- Second, “[p]osting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL 750.411s(1)(b).
- Third, “[C]onduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL 750.411s(1)(c).
- Fourth, “[C]onduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL 750.411s(1)(d).
“Post a message” means “transferring, sending, posting, publishing, disseminating, or otherwise communicating or attempting to transfer, send, post, publish, disseminate, or otherwise communicate information, whether truthful or untruthful, about the victim.” MCL 750.411s(8)(i). This means that it doesn’t matter if the posting was not actually directed towards the victim (e.g. by email or chat message) or if it was not posted in a forum where the victim could see it immediately (e.g. posted on Facebook or Twitter when victim is not a “friend” or a “follower”). The statute defines “victim” as “the individual who is the target of the conduct elicited by the posted message or a member of that individual’s immediate family.” MCL 750.411s(8)(k).
The penalties for cyberstalking are as follows:
- Unless otherwise specified, the person is guilty of a felony punishable by a fine up to $5,000.00 or up to 2 years in prison, or both. MCL 750.411s(2)(a).
- The punishment is increased to a fine up to $10,000.00 or up to 5 years in prison, or both, if ANY of the following apply:
- “Posting the message is in violation of a restraining order and the person has received actual notice of that restraining order or posting the message is in violation of an injunction or preliminary injunction.” MCL 750.411s(2)(b)(i).
- “Posting the message is in violation of a condition of probation, a condition of parole, a condition of pretrial release, or a condition of release on bond pending appeal.” MCL 750.411s(2)(b)(ii).
- “Posting the message results in a credible threat being communicated to the victim, a member of the victim’s family, or another individual living in the same household as the victim.” MCL 750.411s(2)(b)(iii).
- The person has been previously convicted of Using A Computer To Commit A Crime (MCL 750.145d or MCL 752.796), Stalking (MCL 750.411h), Aggravated Stalking (MCL 750.411i), or a substantially similar law of another state, a political subdivision of another state, or of the United States. MCL 750.411s(2)(b)(iv).
- “The victim is less than 18 years of age when the violation is committed and the person committing the violation is 5 or more years older than the victim.” MCL 750.411s(2)(b)(v).
- “The court may order a person convicted of violating this section to reimburse this state or a local unit of government of this state for the expenses incurred in relation to the violation” (e.g. costs of prosecution). MCL 750.411s(4).
- A person can still be charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate the cyberstalking statute. MCL 750.411s(5).
However, the cyberstalking statute “does not prohibit constitutionally protected speech or activity.” MCL 750.411s(6). The First Amendment, applicable to the states through the Fourteenth Amendment, provides that “Congress shall make no law… abridging the freedom of speech.” Virginia v Black, 538 US 343, 358; 123 S Ct 1536; 155 L Ed 2d 535 (2003), quoting US Const, Am I. “[T]he federal constitution protects speech over the Internet to the same extent as speech over other media”. Reno v American Civil Liberties Union, 521 US 844, 870; 117 S Ct 2329; 138 L Ed 2d 874 (1997). However, the right is not absolute. “There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem.” Chaplinsky v New Hampshire, 315 US 568, 571-572; 62 S Ct 766; 86 L Ed 1031 (1942). “These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” Id at 572. A defendant cannot merely just assert the First Amendment and hope that the legal proceedings will just be dismissed. A prosecutor who believes the speech was not constitutional protected can still file charges and go forward while the accused has the burden of asserting his or her rights in defense.
CIVIL REMEDIES FOR CYBERSTALKING
Cyberstalking behavior can be grounds for the victim to get a personal protection order (PPO). The circuit court can grant a non-domestic PPO if “the petition alleges facts that constitute stalking as defined in section 411h or 411i, or conduct that is prohibited under section 411s (cyberstalking), of the Michigan penal code… [but] [r]elief may be sought and granted under this subsection whether or not the individual to be restrained or enjoined has been charged or convicted under section 411h, 411i, or 411s of the Michigan penal code…”. MCL 600.2950a(1). A PPO can be put in force for up to one year, but can be extended upon motion of the victim if the judge feels it appropriate to do so.
If the victim and the stalker were in a domestic relationship (e.g. married, have a child in common, dating relationship), then the victim can obtain a domestic PPO much easier if there is “reasonable cause” that the other person committed or may commit cyberstalking behavior.
For violating an issued PPO, the judge has the power to impose both civil contempt and criminal contempt sanctions against the offender. The penalties for civil contempt include paying any fine (up to $7,500.00), costs or expenses of the proceeding, or coerce the offender to comply with the order by threat of imprisonment up to 93 days until compliance is achieved. MCL 600.1715. If there was an actual loss or injury to the victim, the court can also order civil sanctions to compensate the victim for out-of-pocket expenses that include attorney’s fees. MCL 600.1721. The penalty for criminal contempt, whether the offender pleads guilty or is found guilty after a hearing, is up to 93 days in jail or a fine up to $500.00, or both. MCR 3.708(H)(5)(a); MCL 600.2950(23); MCL 600.2950a(23). The court may also impose other conditions on the existing PPO. MCR 3.708(H)(5).
THE BOTTOM LINE
Anyone facing cyberstalking charges in civil or criminal court needs skilled legal counsel on their side to aggressively protect their rights. Very often, what is considered unwanted and harassing behavior is in the eyes of the beholder. In some cases, someone may actually be posing as the defendant on the internet (which is not difficult with the right credentials) and commit crimes under the guise of an innocent person. A defendant charged with this crime can employ an attorney to thoroughly investigate the matter, cross-examine the alleged victim in court, and even call lay or expert witnesses that can attack the prosecutor’s version of events. Judges and prosecutors will not take this offense lightly. You should do no less and get the best possible representation in your corner.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.