Article II: Non-Sexual Crimes Against Persons
§ 2.02.2 Online Harassment, Threats and Non-Sexual Stalking – Prohibited Activities
(A) It shall be unlawful for any individual or group of individuals through a pattern of computerized communication to engage in harassing, threatening or stalking any person or group of persons via a computer.
(1) A "Pattern of Computerized Communication" [PCC] requires the over act of a person or group of persons being on a computer and consists of the following predicate crimes, of which a violation of only one constitutes a Pattern of Computerized Communication:
(a) Harassment, §2.02.2 (B)
(b) Threats, §2.02.2 (C)
(c) Non-Sexual Stalking, §2.02.2 (D)
(d) Intimidation, §2.02.2 (E )
(e) Intentional Infliction of Emotional Distress, §2.02.2 (F)
(B) A person or group of persons commit the crime of harassment when he/she uses electronic communications for any of the following purposes:
(1) making any comment, request, suggestion or proposal with an intent to offend, which may or may not be obscene and/or
(2) transmitting to any person, with the intent to harass and regardless of whether the communication is read in its entirety or at all, any file, document, or other communication which prevents that person from using his or her telephone service or electronic communications device and/or
(3) transmitting, for no legitimate purpose, a message which contained frightening, intimidating, abusive, or alarming content and resulted in repeated harassment of the recipient by other subsequent readers of the message.
(C) A person's or group of persons' speech constitutes a "true threat," when
(1) the following elements are met:
(a) a person makes a statement, which he/she knowingly or purposely transmits to someone and, in context, a reasonable recipient of the communications would interpret as communicating a serious expression of an intent to inflict or cause serious harm on or to the recipient and
(b) the person intended that the statement be taken as a threat that would serve to place the recipient in fear for his/her personal safety, regardless of whether the person actually intended to carry out the threat.
(2) True Threats are not protected under the First Amendment to the United States Constitution.
(D) A person or group of persons commits the crime of non-sexual stalking when:
(1) without lawful authority, a person or group of persons, willfully or maliciously engages in a course of conduct that would cause a reasonable person to feel terrorized, frightened, intimidated or harassed and
(2) with the intent to place the reasonable person to fear for his/her safety, or the safety of his/her immediate family and
(3) all of which actually causes the victim to feel terrorized, frightened, intimidated or harassed.
(E) A person or group of persons commits the crime of intimidation when he/she purposely sends a message or messages with materially fraudulent information in an attempt to hinder, discourage, encourage, or otherwise influence the recipient's behavior.
(F) A person or group of persons commits the crime of intentional infliction of emotional distress when a person or group of person acts either purposely, knowingly, or recklessly.
(1) Degrees of Culpability:
(a) A person or group of persons acts purposely when he/she has a conscious object to engage in a type of conduct and has knowledge that such a type of conduct will cause such a result
(b) A person or group of persons acts knowingly when he/she is aware of his/her conduct and is practically certain that his/her conduct will cause such a result.
(c) A person of group of persons acts recklessly when he/she consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his/her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.
(2) Elements necessary to establish a prima facie case of the crime of intentional infliction of emotional distress depends on whether a person or group of persons:
(a) sends a message or messages that threaten to cause physical injury or property damage to any person and the messages are of such an outrageous content or nature as to cause severe emotional or mental distress to the recipient; and/or
(b) sends a message or messages that threatens to cause physical injury or property damage to the recipient, the recipient's family or to the recipient's property and that the content of these messages is of such an outrageous nature as to cause severe emotional or mental distress to the recipient; and/or
(c) sends a message or messages that contain obscene, lewd, vulgar, or profane language as measured by constitutional standards, the content of which is sufficiently outrageous as to cause severe emotional or mental distress to the recipient; and/or
(d) sends a message or messages containing the frightening, intimidating, threatening, abusive, or alarming content which is sent repeatedly to the intended recipient and which causes the recipient severe emotional distress.
Commentary
§2.02.2 (B) Harassment
Prior to technology, harassment could reach only a limited number of people. Word of mouth, mail, and even publication in a newspaper pale in comparison to the potential numbers of people one can reach through cyberspace. The Internet allows an individual to create an online persona with little relationship to his or her real life identity. This "facelessness of cyberspace" lends itself to extreme forms of expression and allows people to say things that they might never say face-to-face. This certain sense of removal does not absolve people who harass, threaten, or stalk others in cyberspace of legal responsibility.
A possible scenario that may be addressed by §2.02.2 (B), Harassment by electronic communications, may be the following case of Will County, Chicago. [FN1] In this case, an individual proficient with the use of a computer used the Internet to post a child's (or adult's) name and telephone number on sexual explicit Internet sites. This posting invited visitors to call and inquire about the named individual, who was a child. As a result, the named individual was subjected to consistent, harassing and possibly sexual explicit telephone calls every day of the week, at any and all hours. The repeated inquiries caused the recipient of the calls and/or messages to become fearful for his/her safety and the safety of their family. The Boehle family decided that they had to move outside of Will County in order to protect their daughter, who was the subject of the postings, telephone calls and messages, from any potential harm they feared might occur as a result of such harassment. [FN2]
The theory is that harassing someone in cyberspace is just as illegal as doing it through the mail and/or via the telephone. The purpose of this section of the statute is to open the doors of cyberspace to the legal consequences of online harassment. Without such a section, if a state is not one to have a law regulating electronic harassment, the victim must wait until the harassment takes on an off-line form. [FN3] Such a "waiting period" can be dangerous to the victim, thereby, this section of the statute allows a victim to see help before the harassment can escalate to a potentially harmful result.
§2.02.2 (C) Threats
Under the common law and many statutes, a threat was only one of the elements of the offense of extortion or blackmail, and the prosecution must also show that the purpose of the threat was to obtain money, property, or some other thing of value. [FN4] The crime of threatening another individual has evolved from the use of mail, telegraph and telephone as subscribers began to use the Internet to reach their intended victims. Online threats are perhaps the most complicated offense of this statute. The nature of the offense is serious because the law must determine which transmissions are "true threats" rather than protected speech. [FN5] While it is important to prohibit threats, it is also important not to chill free speech in cyberspace by too broadly defining what speech equals a "threat." [FN6] However, "true threats" are not protected by the first amendment and therefore they can be prohibited without violating the United States Constitution. [FN7]
The Internet functions as a vast marketplace of ideas, and as such, it is extremely important that it receive the highest level of First Amendment freedom of speech protection possible. Many people use e-mail, posting to newsgroups and bulletin boards, chat rooms and web pages, or any combination to send threats to others. [FN8] The consequences of this behavior are two-fold: 1) threats are harmful to their victims and 2) threats are harmful to the freedom of speech in cyberspace, because individuals fearing retaliation may cease to express their opinions or even enter the forum at all. The purpose behind prohibiting threats is to prevent the harm that would come of their actual execution and to prevent the harm that comes from the mere threat itself, such as the anxiety and fear that are created by a threat of harm.
The "True Threats" standard that is encompassed in §2.02.2 (C)(1)(a-b) is one which contains both an objective and subjective standard. [FN9] The objective part of the test asks whether a reasonable person would construe the defendant's speech or statement as a threat, given the context in which it was made. To have a test only with an objective element is very restrictive on free speech because the "reasonable person" standard can be problematic. It invites a jury to consider the unique sensitivities of the particular recipient. For instance, a defendant's speech may be prohibited in one instance, where the recipient is unusually sensitive, while it would not have been prohibited if the "threat" if had been directed at a less sensitive recipient. As a result, the drafter added a subjective element to this test, which looks at the speaker's intent in making the statement. The subjective element increases the burden on the prosecution and thus makes it less likely that speech that is not truly a threat will be attacked for the sole purpose of silencing the speaker. It is the threat itself that, simply being uttered, causes the harm the statute aims to prevent: the victim's sense of fear. No further "over act" is needed. To date, the Supreme Court of the United States had not spoken directly on the issue of a "true threats" test. [FN10]
The United States v. Baker case illustrates the reluctance of the Courts to punish all but the most egregious of threats under this "true threat" standard. [FN11] While a student at the University of Michigan, Baker began to write sexually graphic and explicit stories depicting the rape and torture of women. In these stories, Baker used the name and physical description of a classmate as a main character in one of these stories. After these sexually explicit stories were posted on the Internet, several individuals read these postings and reported Baker out of concern for the named female student in these stories. [FN12] Mr. Baker was charged with five counts of violating 18 USC §875(c). The district court dismissed the charges against Baker by ruling that the threatening messages were "only a rather savage and tasteless piece of fiction" and without more evidence, was entitled to First Amendment protection. [FN13] The Court of Appeals in the Baker case held that to constitute a "true threat" under 18 USC Section 875(c), a communication must be such that a reasonable person 1) "would take the statement as a serious expression of an intention to inflict bodily harm (mens rea) and 2) would perceive such expression as being communicated to effect some change or achieve some goal through intimidation (the actus reus)." The Court of Appeals held that while Baker's stories and messages were offensive, they did not constitute "true threats" because they were sent through private e-mail to a friend. In other words, threats made in a private e-mail, to an individual who is not the target of the threats, and made about an indistinct, undefined group will not likely meet the "true threat" standard.
A scenario that may be addressed by §2.02.2 (C) is that of a person sending messages directly to a specific victim. A nineteen year old St. John's University student was charged with aggravated harassment for terrorizing an Indianapolis family. [FN14] He allegedly sent the family threatening e-mail that promised "to hunt then down, rape their 12 year old daughter, and kill them." [FN15] In another case, a fourteen year old boy was charged with threats to commit murder and civil rights violations for making anti-Semitic death threats to his teacher via the Internet. [FN16] The differences in these cases to Baker is that these perpetrators threatened violence against specific individuals intending to cause fear in their victims. These victims took these threats seriously and thus these two perpetrators could be prosecuted under §2.02.2 (C).
Hate groups and extremists have found a new forum in the Internet to spread their propaganda. The Internet allows these groups to reach impressionable audiences with an ease that they have never been able to accomplish. However much people might disagree with these views, the First Amendment forbids silencing speech because of its content. The First Amendment protects the materials published in these hate sites just as it would protect the same information spoken or published in a book or a newspaper. [FN17] As a result, it is important to note that this section of this statute does not make uttering derogatory comments illegal. It is only when a person "crosses the line" by directing his/her hate-filled message at another person in the form of a threat. A prime example would be the case of Richard Machando, a former college student at the University of California at Irvine. [FN18] Mr. Machando sent racist death threats to fifty-nine Asian students at the University. Mr. Machando blamed the Asian students for lack of campus quality. His e-mails stated: "I personally will make it my life career to find and kill everyone of you personally." He signed the e-mail "Asian Hater." As a result of transmitting these messages, Mr. Machando was sentenced to one year in jail. [FN19]
§2.02.2 (D) Non-Sexual Stalking
Non-Sexual Stalking is an electronic version of the real world crime: unwanted, obsessive pursuit of an individual by another individual. "The architecture of cyberspace might make it more common because you can do it all from your chair...without going to the trouble of tracking [a victim] down, going to their house and leaving a note." [FN20] Therefore, the drafter created non-sexual stalking to contain the same elements as physical stalking: willfully, maliciously and repeatedly following or harassing another person.
A possible scenario that may be addressed by §2.02.2 (D), non-sexual stalking, is the Dellapenta case. [FN21] The alleged stalking began when the victim rejected Mr. Dellapenta's romantic advances. The victim and Mr. Dellapenta were both members of the same church, a place where they first met each other. [FN22] Mr. Dellapenta unrelentlessly pursued the victim, to the point where she asked church members to intervene, which they did. Mr Dellapenta told men the victim's name, address, phone number, a her physical description and how to bypass her home security system. Mr. Dellapenta's later posted an ad on the Internet which contained the following message, in addition to the victim's personal information: "I am into rape fantasy and gang-bang fantasy." [FN23] The victim, who didn't even own a computer at the time, began receiving phone calls and had men showing up at her apartment saying that they were responding to her online personal ads. The non- sexual stalking section of this statute is partly modeled after California's Stalking law, of which Mr. Dellapenta had been charged with violating.
§2.02.2 (E) Intimidation
Intimidation can be considered a lesser included offense of online threats, §2.02.2 (C). However, there are situations where a person might not necessarily intent to threaten a victim, but rather intimidate the victim to do something he/she might not otherwise do before the intimidation. This is why the drafter felt that a section on intimidation still be part of the Online Harassment, Threats and Non-Sexual Stalking statute.
A possible scenario that may be addressed by §2.02.2 (E), intimidation, is witness intimidation. A fifteen year old girl claims that her uncle sexually abused her. As a result, she brings criminal charges against him. In an effort to keep the abuse victim from testifying, the accused posts messages on the Internet claiming that the fifteen year old abuse victim is interested in sexual encounters. [FN24]
Another possible scenario that may be addressed by §2.02.2 (E) is political intimidation. Tara Newell, an undergraduate student at McGill received several threatening and obscene messages at the beginning of the election period for President of the Student Society of McGill Undergraduates. [FN25] By reading Newell's saved messages, the perpetrator learned personal details about his/her victim. The perpetrator threatened to continue harassing her until Newell dropped out of the election.
§2.02.2 (F) Intentional Infliction of Emotional Distress
Intentional Infliction of Emotional Distress is often referred to as the Tort of Outrage in the civil realm. [FN26] This section is meant to address behavior that is caused by "ill will or wickedness of the heart." [FN27] This section's degrees of culpability are modeled after the general requirements of culpability in the Model Penal Code, §2.02.2 (2)(a-c). The drafter decided to created degrees of culpability to better define the behavior of the perpetrator and to allow for more precise prosecution. Intentional Infliction of Emotional Distress can be categorized as a lesser included offense of harassment and threats. As a result, a Prosecutor has lesser standards or elements to prove in these types of cases. For example, a prosecutor may not be able to meet the elements for threats, however, he/she might be more able to prove the elements of emotional distress. This allows the victim a sense of justice, without letting the perpetrator escape criminal liability.
A possible scenario that may be addressed by §2.02.2 (F)(1)(a), purposely inflicting emotional distress, is that of virtual rape. "The heretofore unknown crime of "virtual rape" has emerged as an issue with the rise of cyberspace and the Internet, because it is now possible to simulate a sexual attack and thereby cause psychological and emotional, though not physical, injury to the victim(s)." [FN28] The drafter recognizes that the harm in a case of virtual rape is not the physical harm, because there exists no physical contact that is part of the crime of "rape." [FN29] An act that would be considered a virtual rape would include the following scenario. A perpetrator videotapes a female neighbor without her consent. He takes the video image that he obtained and uses computer equipment to "metamorphize" the image of his female neighbor on to another individual's body who is being physically assaulted and raped. The perpetrator then takes the images he created and disseminates them on the Internet. He also sends his victim a copy of what he created. The perpetrator informs the victim as to where she may find these metamorphized images on the Internet. [FN30] Such actions clearly have the intent to purposely inflict emotional distress on the victim. These actions can also be argued that they constitute "true threats" under §2.02.2 (C) because the perpetrator sent the video tape to the victim, with sites that she should also view to see "herself" on the Internet. Such actions go beyond the Baker test of being pure fantasy stories between two email correspondents. The perpetrator actually contacted the victim with material she would view as threatening and the perpetrator intended her to view the material and thus fear for her safety.
Under §2.02.2 (F)(1)(c), reckless infliction of emotional distress, a potential perpetrator must be aware of the high risk of emotional harm that his/her actions may cause, but still grossly deviate from behavior that the society or community considers reasonable. The case of Jake Baker could be prosecuted under this section. One can argue that Mr. Baker (real last name is Alkhabaz) acted recklessly in writing a story that included the name of an actual student at the university he was attending at the time, who just happened to have the same physical features of the woman in his story.
Footnotes
1. See Stanley Ziembhca, Joilet Man faces Cyber-Harassment Suit, Former Neighbor Seek 3 Million for Alleged Posting of Home Number, Chicago Tribune, March 25, 1998.
2. Id.
3. Maryland, Michigan, Alaska, Oklahoma, Wyoming, and Illinois are among the several states that have adopted electronic harassment statutory provisions.
4. See American Jurisprudence, Second Edition, Extortion, Blackmail, and Threats, Volume 31A, §3 Threat.
5. See Sally Greenberg, Threats, Harassment, and Hate On-Line: Recent Developments, Boston Public Interest Law Journal, Spring 1997.
6. Id.
7. See Watts v. U.S. 4 U.S. 705 (1969).
8. See Anne Bevilacqua, Electronic Harassment, May 2, 1997 on the Computers & Law Homepage, http://wings.buffalo.edu/Complaw/CompLawPapers/bevilacq.htm
9. The "true threats" utilized in §2.02.1 (C)(1)(a-b) is Justice Jones' definition of what a "true threat" is. This test is located as a footnote in the Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists (also known as the "Nuremberg Files case") See 23 F.Supp 2d 1182 (D.Or. 1998).
10. For a history of the different "true threats" standards, See Watt v. U.S., 394 U.S. 705 (1969), Rogers v. U.S., 422 U.S. 35 (1975), U.S. v. Kelner, 534 F.3d 1020 (2nd Cir. 1976), and Roy v. U.S., 416 F.2d 874 (9th Cir. 1969).
11. See the Jake Baker case, U.S. v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997)
12. See Heather Brooks-Szacha, U.S. v. Jake Baker: The Role of Unique Features of Electronic Mail in a "True Threat" Analysis at http://www.libraries.wayne.edu/~jlitman/pbrooks.html
13. United States v. Baker, 890 F.Supp 1375 (E.D. Mich. 1995).
14. See Sally Greenberg, Threats, Harassment and Hate On-Line: Recent Developments, Boston Public Interest Law Journal, Spring 1997.
15. Id.
16. Id.
17. Brandenburg v. Ohio, 395 U.S. 444 (1969).
18. See Courtney Macavinta, Prison Time for Email Threats, CNETnews.com, May 4, 1998, http://news.cnet.com/news/0-1005-200-328979.html?tag=st.cn.1.
19. Id.
20. See Brooke A. Masters, Cracking Down on E-Mail Harassment, Washington Post, November 1, 1998 (Quote from Jonathan Zittrain, Executive Director of Harvard University's Berkman Center for Internet and Society).
21. See California Presses Cyberstalking Case: Man Accused of Impersonating Woman Online, APBnews.com, January 22, 1999, http://www.apbnews.com/newscenter/breakingnews/1999/01/23/22/ stalk0122_01.html
22. Id.
23. Id.
24. See Stanley Zienbhca, Will County Focusing on Internet Criminals, Chicago Tribune, May 26, 1998.
25. See Darcy Doran, McGill Student a Victim of High-Tech Harassment.
26. See John L. Diamond, Lawrence C. Levine, and M. Stuart Madden, Understanding Torts, Matthew Bender & Co, Inc. (1996).
27. Blacks Law Dictionary (West 1996).
28. Quote from Professor Susan Brenner, via e-mail to drafter, Noel Ann DeSantis
29. See MSCCC §3.04.1
30. See Brenner, Susan Professor (visited December 4, 1998)
AKA Michael Delaney Dowd, Jr.