A Washington Lawyer’s Perspective on Criminal Harassment, Stalking, Cyberstalking & the Internet
Overview
In any society, people have to deal with a lack of civility and bad manners. That said, such behavior becomes criminalized when it reaches the law’s definition of harassment, or it can be addressed via civil protection orders when it falls just short of the criminal definition. See our section on civil harassment for a better idea of what this means as civil anti-harassment orders can proceed or follow a criminal charge. All this said, if you are getting a call from the police or sheriff asking to take with you about some alleged behavior that arguably could be considered harassment, you are being subject to an investigation and you should call us immediately.
“Traditional” criminal harassment in Washington’s all about legitamate threats to people or property with the intent to do harm. It is when an individual without lawful authority knowingly threatens to cause bodily injury to the person threatened, to cause physical damage to the property of a person, to subject the person to physical confinement or restraint, or maliciously do any other act which is intended to substantially harm the person (either mental or physical health or safety) and the victim has reasonable fear of that threat being carried out. A individual will generally be charged with a gross misdemeanor for this kind of violation. Under certain circumstances, harassment can rise to a class C felony (the lowest level of felony) when certain things happen. Typically we see this happen in cases where there is any kind of threat to kill. The statute that drives these kinds of accusations is the Revised Code of Washington, RCW 9a.46.020. Look it up or we can explain it to you.
With societies growing prevalence of social media, the Washington legislature created a criminal cyberstalking statute, encompassing harassing behavior, which our criminal defense lawyers are quite familiar with. The statute covers text messaging, emailing, and pretty much all forms of social media. Cyberstalking charges arise when someone, with the intent to harass, intimidate, torment, or embarrass any other person, makes an electronic communication to such a person or third party using lewd, lascivious, indecent, or obscene words, images, or language or suggesting the commission of any lewd or lascivious act or threatens to inflict injury on the person, the person’s family, or the person’s property. The statute that drives this kind of charge is Washington Revised code of Washington, RCW 9.61.260.
Just like with harassment, cyberstalking is typically a gross misdemeanor but under circumstances, like threat to kill, the crime becomes a class C felony.
Keep in mind in Washington, if there is simply one anonymous message sent with the intent to harass, intimidate, torment, or embarrass, then there is a basis for charging cyberstalking. The “anonymous” portion of the statue means anytime you spoof an email you can get charged, however, the anonymous portion is also a proof problem for the prosecuting attorney … how do you prove who sent it?
Catfishing -> Is it Criminal Conduct?
“Catfishing” is when an individual lures another into a relationship by creating a fictional online persona. The term “catfishing” has become more common for a variety of reasons, ranging from an MTV show by the same name discussing the topic, to a well-publicized “catfish” incident involving a nationally-known college football player (now an NFL player). In the role of civil lawyers, we have represented victims of catfishing in civil protection orders and defended people accused of catfishing in civil protection orders as well as cyberstalking charges.
When determining whether a specific “catfishing” is criminal, one must look at the intent as both criminal harassment or criminal cyberstalking require proof of intent. Arguably, creating a fictional online persona with the intent to simply communicate and hopefully, foster a relationship – no matter how unlikely or misguided of an attempt it may be – is not done with the necessary intent to harass, intimidate, torment, or embarrass. Instead, it is done out of loneliness or attraction – neither of which are a basis for criminal intent.
The lack of criminal intent may not be much comfort for a victim. Even if it was not the intent of the messages, a victim may still end up being emotionally hurt, embarrassed, and angry. This may possibly be the basis of obtaining a civil anti-harassment protection order, a situation we have dealt with. In our opinion, one message is not sufficient to establish the necessary pattern in a civil anti-harassment protection order. The victim will then probably want to argue under the theory the “catfishing” scheme was a knowing and willful course of conduct which was detrimental to the victim, and which served no legitimate or lawful purpose. Relationships are difficult and complex to understand, even when you are in one, and it is common knowledge breaking up regularly leads to hurt feelings. Arguably, the use of a fictional online persona to seek out a relationship will be detrimental to the target if some bond is created before the discovery of the lies. Be aware, the creation of lingering trust issues and counseling would be an expected ramification of creating and growing a living a relationship based on lies. The criminal defense lawyers and civil lawyers in our office understand the interaction and distinctions of the law in this area as we have argued both sides of these kinds of cases. If you are involved in these kinds of facts, call our office immediately for counsel.
In our opinion, in Washington, if the fictional online persona was created to “mess” with the victim or “troll,” then even one electronic message could be enough for a cyberstalking criminal charge. While there may be a name attached to the message, it is fictional so the message is arguably sent from an anonymous source, which would only require one message to violate the cyberstalking statute. If the “catfishing” is done with the intent to trick the victim out of money, the intent probably will not fall under cyberstalking. Instead, it probably will probably fall under some type of Washington criminal fraud statute like criminal impersonation in the first degree or second degree. Again the criminal and civil lawyers in our office are aware of nuances of these kinds of distinctions and can give counsel and representation during the investigation or charging stage of these kinds of cases. Washington attorneys familiar with this area of law can and will advice you on affirmative steps to take to mitigate or avoid liability.
If you are the concerned about an investigation or charge involving criminal harassment, stalking or cyberstalking, it is important to consult with an experienced firm who can help you navigate these difficult waters. The Rhodes Legal Group has collectively decades of experience representing the accused and victims in criminal and civil harassment cases. Email or call 206-708-7852 to set an appointment.
