All too often, in family law cases, the spouses/parents experience a breakdown in their communications with each other to a point where one party’s communications turn threatening, harassing and abusive. The “out of control” spouse or parent starts sending vicious, threatening and upsetting text messages or emails to the other spouse or parent. If the “out of control” person used the Internet, emailed or texted the messages or utilized other electronic communications and devices to transmit the offensive communication, that person may be charged with cyberstalking.
What is cyberstalking?
Cyberstalking is a Class 2 misdemeanor in North Carolina and is codified under General Statutes Section 14-196.3. Cyberstalking is the use of electronic communication and electronic devices to transmit or communicate threatening, abusive or offensive messages to another person. Oftentimes, cyberstalking involves the use of text messaging or email. Cyberstalking also includes the use of tracking devices to locate and track another person without that person’s knowledge and consent.
What specific conduct is prohibited by the cyberstalking statute?
North Carolina’s cyberstalking statute identifies five categories of conduct that constitutes cyberstalking:
- Use in electronic mail or electronic communications any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse, or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.
- Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing any person,
- Electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person electronically mailed or of any member of the parent’s family or household with the intent to abuse, annoy, threaten, terrify, harass, or embarrass” the recipient,
- knowingly permit an electronic communication device under the person’s control to be used for any purpose prohibited by this section,
- knowingly install, place, or use an electronic tracking device without consent, or cause an electronic tracking device to be installed, placed, or used without consent, to track the location of any person.
Not all uses of an electronic tracking device to locate and track a person constitute cyberstalking. For example, the statute exempts instances where an electronic tracking device is used by a parent to locate their child. The statute provides a list of situations where tracking is not considered cyberstalking, such as when used by law enforcement and private investigators.
Currently, there are no substantive appellate court opinions in North Carolina that explain and interpret the cyberstalking statute, G.S. 14-196.3.
Questions about the cyberstalking statute
Of the five categories of cyberstalking under the statute, the one most likely to occur in separation and divorce cases is G.S.14-196.3 (b)(2), where one spouse/parent is accused of “repeatedly sending texts, emails or other electronic communications” to the other party for the purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing the other party. Here are some observations about this statute.
The word “repeatedly” is not defined by statute. There is no measure offered that could be used to determine how many times and over what period of time the communication has to occur before the sender of the communication is in jeopardy of being charged with cyberstalking. The word “repeatedly “can mean different things to different people. Ultimately, it’s up to the trier of fact to decide whether the sender “repeatedly” sent electronic communications to the targeted person. If that is the case, then how can one determine whether the six text messages you sent to your deadbeat spouse over one weekend to pay the support constitutes cyberstalking? This presents a possible constitutional issue.
Unlike some cyberstalking statutes in other states, the state of mind of the intended recipient of the communication is not an essential element of the crime under G.S. 14-196.3. The court is not statutorily required to make a finding as to the effect of the communication on the targeted person., e.g., whether the targeted person felt threatened, harassed, annoyed, etc., because of the communication. Conversely, the statute makes as an essential element of the crime the communicator’s intent to cause the victim to be annoyed, feel threatened, terrified, harassed or embarrassed.
Should the effect of the communication on the victim be considered, as well? Obviously, the statute does not require consideration of that aspect. However, what if the evidence was that the recipient of the communication was not, in reality, annoyed nor felt threatened, terrified, harassed or embarrassed by the communication? Should the sender of the message be found guilty under those circumstances?
There is also a constitutional aspect to this subsection. An expected defense to the criminal charge of cyberstalking is that the communicator was merely exercising their right to free speech protected under the First and Fourteenth Amendments to the United States Constitution. Any restrictions on speech are to be closely scrutinized by the court to determine whether it meets constitutional standards. G.S. Section 14- 196.3(b)(2) regulates speech in that it prohibits the transmission of communication that is intended by the communicator to abuse, annoy, threaten, terrify, harass or embarrass the intended recipient. If the challenged statute prohibits constitutionally protected activity or expression, the statute is overly broad and subject to being struck down as being unconstitutional.
If you are the target of offensive, threatening communications proscribed by the cyberstalking statute, remember that in addition to obtaining a civil restraining and/or “no contact” order, you have the cyberstalking statute to address this problem. Talk to your attorney to find out what steps need to be taken.
If you are going through a separation or divorce that is contentious and have any question as to whether to send a text message or email to the other party, have your attorney review and approve it before sending it out. You should always assume that any text message or email that you send to your spouse will be read by your spouse, your spouse’s attorneys and the judge in your case.
Avoid engaging in “online” arguments (e.g., texting, emailing)
Avoid the temptation to use cell phones, apps and other tracking devices to locate and track your spouse or any other person(other than your minor children). Retain the services of a licensed private investigator, if recommended by your attorney, to conduct the tracking and surveillance.
Author: Elizabeth Hodges, Esq.
Articles have been Reprinted with permission from the charlotte observer and Mike Hunter.
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