Cyber-Stalking as Domestic Violence in Washington State (©Bruce Clement)

Posted about 4 years ago. Applies to Washington, 5 helpful votes

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What is Cyberstalking? An example of cyber-stalking would be if a husband during a divorce used spyware to access his wife's home computer by using the "key stroke retrieval" or "screen shot" functions. "Domestic violence" is defined by RCW 26.50.010 (1) (c) to include "stalking as defined in RCW 9A.46.110 of one family or household member by another family or household member." "Family or household members" include "spouses...former spouses [and] adult persons...who have resided together in the past...and persons who have a biological or legal parent-child relationship." RCW 26.50.010.

How is Stalking Defined? RCW 9A.46.110 (1) provides that "A person commits the crime of stalking if, without lawful authority and under circumstances not amounting to a felony attempt of another crime: (a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and (b) The person being harassed or followed is placed in fear that the stalker intends to injure the person..; and (c) The stalker either: (i) Intends to frighten, intimidate, or harass the person; or (ii) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person... (6) As used in this section... (b) "follows" means deliberately maintaining visual or physical proximity to a specific person over a period of time... (e) (R)epeatedly means on two or more separate occasions.

What Caselaw Might Apply to Cyberstalking? Although there is no Washington case law directly on point, the existing caselaw on stalking does have some language supporting the proposition that electronic surveillance under constitutes stalking. For example, in State v. Askham, 120 Wn. App. 872 (Div. III Court of Appeals, 2004) cyberstalking was a major factor in a stalking conviction. Askham accessed Schlatter's computer where he worked at Washington State University, and placed pornographic and racist materials on his hard drive. Askham then anonymously called WSU, and reported that Schlatter was misusing state property (his computer) by accessing pornography and racist web sites. Askham's conviction for felony harassment, stalking, second degree theft, and criminal libel were affirmed on appeal. State v. Haines, 151 Wn. App. 428 (Division I 2009) makes it clear that only two incidents of harassment are sufficient to establish the crime of stalking. Overt threats need not be shown in order to get a protection order against stalking; several instances of following and secretly viewing the victim are sufficient to establish the crime of stalking. Washington v. Aineslie, 102 Wn. App. 1, 11 P.3d 318 (Washington Court of Appeals 2000).

Is Cyberstalking a Crime? On July 1, 2004 the Washington State Legislature enacted a new statute making cyber-stalking a gross misdemeanor. The cyberstalking statute (RCW 9.61.260) provides: "(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person . . . makes an electronic communication to such other person or a third party; (b) Anonymously or repeatedly whether or not conversation occurs; or (c) threatening to inflict injury on the person or property of the person called or any member of his or her family or household. (4) Any offense committed under this section may be deemed to have been committed either at the place from which the communication was made or at the place where the communication was received. (5) For purposes of this section, "electronic communication" means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means. "Electronic communication" includes, but is not limited to, electronic mail, internet-based communications, pager service, and electronic text messaging."

Is Cyberstalking Currently Included in the Definition of Stalking? Until June 10, 2010, there was some doubt as to whether "cyberstalking" was included in the domestic violence definition of "stalking" in RCW 9.61. All of these doubts were resolved, however, by the enactment of Washington State Substitute House Bill 2777, on June 10, 2010. The statute now provides that the Court, as a remedy against domestic violence, may: "Restrain the respondent from harassing, following, keeping under physical or electronic surveillance, cyberstalking as defined in RCW 9.61.260, and using telephonic, audiovisual, or other electronic means to monitor the actions, location, or communication of a victim of domestic violence, the victim's children, or members of the victim's household." Ch. 274, Laws of 2010 Section 304 (1) (i)...

Is there a Form for Protection Against Cyberstalking? Washington State's mandatory form petition for domestic violence now provides that the court can "restrain respondent from harassing, following, keeping under physical or electronic surveillance, cyber-stalking ... and using telephonic, audiovisual, or other electronic means to monitor the actions, location, or wire or electronic communication of" the petitioner. Washington Pattern Forms DV-1.015 Mandatory (6/2010).

DISCLAIMER: © Bruce Clement This AVVO Legal Guide is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney author. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Legal Guide is general in nature and may not apply to the factual circumstances in your situation. The applicable law may be different in the State or States where the relevant facts occurred. For a definitive solution to your situation you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation.

Additional Resources

• “Electronic Surveillance,” located at: http:\\lawbrain.com\wiki\Electronic_Surveillance (page 5, “Private Sector”); • “A High-Tech Twist on Abuse: Technology Intimate Partner Stalking, and Advocacy, located at: http:\\www.mincava.umn.edu/documents/commissioned/stalkingandtech, page 4 (“Computer & Internet Technology”), and page 5 (“Computer Monitoring Software”, “Keystroke Login Hardware,” and “Online Databases and Information Brokers”); • “Violence Against Women,” “Intimate Partner Violence, Technology and Stalking,” Cynthia Southworth at pages 843 (“Stalking with Technology, Spyware Software and Keystroke Login Hardware, page 848, located at: http:\\vaw.sagepub.com; and • “The Use of Technology to Stalk,” located at: http:\\www.ncvc.org/src/main.aspx?dbID=DB_StalkingTechnology139 (7/23/2010). See also Bruce Clement's AVVO Legal Guide on Stalking in Washington State

Bruce Clement

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