Rhode Island Cyberstalking Criminal Defense Lawyer
Cyberstalking
If you have been charged with the offense of Cyberstalking please call or email me as soon as possible. Like nearly every other type of criminal charge, it is critical to be proactive and take some action to defend yourself before your next court date.
What is Cyberstalking in Rhode Island?
Under Rhode Island law, Cyberstalking is defined by statute as the transmission of a communication by computer or other electronic device. The Cyberstalking communication has to be made to a person or to his or her family members for the sole purpose of harassing that person or that person’s family members.
Electronic communications is not defined in the Cyberstalking statute or in the Computer Crimes Act. However, common sense suggests that electronic communications would include, but would not be limited to, cell phone text messages, emails and social media postings.
But what does harassing mean?
According to the Cyberstalking statute the term harassment is defined as a knowing and willful course of conduct directed at a specific person which:
1. Seriously alarms, annoys, or bothers the person, and
2. Serves no legitimate purpose.
The course of conduct is further defined by the Cyberstalking statute as meaning a series of acts over a period of time which demonstrates a continuity of purpose.
As criminal statutes go, the Cyberstalking statute is actually well written in that it provides some guidance and term definitions. It even goes so far as to protect constitutionally protected activity under the Free Speech clause of the First Amendment of the United States Constitution.
Statutory Analysis
The Cyberstalking statute is still so new to Rhode Island that the Rhode Island Supreme Court has not interpreted it. In other words, we have no case law for guidance to tell us what is Cyberstalking criminal conduct and what is not Cyberstalking criminal conduct.
Therefore, we are left to interpret the Cyberstalking statute according to the plain meaning of the words in the statute.
It appears to me, based on a plain reading of the Cyberstalking statute, that in order for the alleged Cyberstalking conduct to be criminal, a person would have to intentionally send:
1. More than one electronic communication to a person over a period of time that amounts to a course of conduct; and
2. That the multiple electronic communications have no legitimate purpose other than to harass, alarm, annoy or bother the person.
Is this Constitutional?
There is no question that the Cyberstalking statute criminalizes certain types of protected speech, or speech that would be otherwise not criminal, because the speech is transmitted electronically.
The constitutionality of other statutes similar to the Cyberstalking statute, like the Crank and Obscene Phone Calls statute, have been challenged on the basis that protected speech has been criminalized.
Courts have traditionally upheld these types of statutes, not to criminalize certain types of protected speech, but to criminalize the manner in which the otherwise perfectly legal speech is transmitted. If that sounds intellectually dishonest to you, well, I agree with you.
In my estimation, under Rhode Island law, if a Defendant makes one or possibly two communications by computer or other electronic device for the sole purpose of harassment, said Defendant should be found not guilty if charged.
However, once a Defendant makes three or more communications by computer or other electronic device for the sole purpose of harassment, then said Defendant runs the very real risk of being convicted if charged.
Cyberstalking Has a Risk of Abuse
A very troubling concern about the Cyberstalking statute is the proliferation of text messaging, especially in cases involving Domestic Violence.
A text message is, in the strictest sense, is a transmission of a communication by computer or other electronic device.
It is easy to imagine a case where Defendant has been charged with Domestic Disorderly Conduct. At the Defendant’s arraignment he may be released from custody, but ordered to have ‘No Contact’ with the alleged victim. This means that the Court, by operation of law, issues a Domestic Violence No Contact Order.
A Domestic Violence No Contact Order prohibits the Defendant from having any contact at all with the alleged victim. Any violation of the Domestic Violence No Contact Order results not only in a new criminal charge, but also in having the Defendant’s bail revoked. This means that the Defendant will be held without bail at the state prison pending the outcome of a Bail Violation Hearing.
It also means that the Defendant would then be charged with felony Domestic Cyberstalking.
Can’t you imagine a scenario where the alleged victim is furiously angry with the Defendant who has been charged with Domestic Disorderly Conduct?
If the alleged victim has the Defendant’s cell phone in his possession, he could send himself a series of harassing text messages from the Defendant’s cell phone.
Or worse yet, there are applications that can be downloaded where a person can send himself a text message but make it appear as if the text message is coming from another person’s cell phone.
That is pretty scary, especially for people who are on bail and are the subject of a Domestic Violence No Contact Order.
Cyberstalking Penalties
Cyberstalking is a misdemeanor under Rhode Island law. This means that the maximum penalty that can be imposed is one year in prison and/or a fine of not more than $500.00.
A second conviction under the Cybertsalking statute results in a felony conviction that could result in incarceration for up to two years and a fine of not more than $6,000.00.
These penalties change if there was a restraining order in effect at the time of the alleged Cyberstalking conduct. If a person violates a Court restraining Order, such as a Domestic Violence No Contact Order through Cyberstalking activity, the resulting charge is a felony punishable by up to two years in prison and a fine of up to $6,000.00 for a first offense and up to five years in prison and a fine of up to $10,000.00 for a second or subsequent offense.