By Jillian McGraw, Associate Editor
Kentucky must amend its stalking law to comport with evolving technology and the new dangers it creates. Unlike offline stalkers, online offenders are able to immediately and anonymously target an unlimited victim pool from anywhere in the world, impersonate their victims and manipulate “innocent” third parties to carry out their harassment. Kentucky has made several strides to update its statute by including cybercrime, such as defining course of conduct to include the use of any communication or information devices, “including computers, the Internet, or other electronic network, cameras or other recording devices, telephones or other personal communications devices.”[1]
Furthermore, Kentucky’s stalking statute contains the reasonable person requirement which focuses on the harm to the victim instead of the acts of the perpetrator, which is a step in the right direction. The reasonable person standard does not require an element of physical or visible proximity to the victim or require the cyberstalker to convey verbal or written threats with the apparent ability to carry out the threat.[2] However, Kentucky should amend its stalking and statutes to include a provision incriminating “innocent” third party conduct. Kentucky also needs to revise an element in its stalking statute to encompass intentional conduct that is not “directed at a specific person or persons.”[3]
There is no question that the use of electronic technology has broadened the way stalkers can harass their victims.[4] In 1999, the Department of Justice reported yearly incidents of cyberstalking to be tens of thousands.[5] Clearly, since that estimate, technology has evolved and the number of incidents with it. The Cyber Angels, a non-profit organization that assists cyberstalker victims, estimate that there are approximately 63,000 Internet stalkers in the United States and 474,000 victims worldwide.[6] According to the United States Attorney’s Bulletin, Cyber Misbehavior, the widespread use of computers and mobile devices enable offenders to not only easily locate victims, but also harass, intimidate, and destroy the lives of victims without leaving the comfort of their dwelling.[7]
Cyberstalking v. Offline Stalking
Stalking that occurs offline and cyberstalking are similar offenses because both involve a desire to exert control over the victim, accompanied by repeated harassing or threatening behavior.[8] Although offline stalking and cyberstalking are similar, there are four differences which highlight the lack of statutory law coverage for cyberstalking.[9] First, cyberstalkers can instantly harass their victims because the internet is borderless and provides a wider, accessible victim population.[10] The cyberstalker has inexpensive, efficient access to a larger public forum and can create websites to post harassing and threatening statements.[11] Offline stalkers must exert more energy to physically locate victims and manually communicate through more cumbersome methods.[12]
Second, the cyberstalker is physically far removed from the victim, but offline stalkers are more likely to come into close proximity or remain in the same jurisdiction.[13] Since a cyberstalker could be anywhere in the world, the victim is left with the terror of uncertainty to the stalker’s location.[14] Because cyberstalkers ability to target victims in different cities, states or even countries, prosecutors are left with several jurisdictional problems.[15]
The third difference focuses on the cyberstalker’s ability to maintain a “veil of anonymity” afforded by the Internet.[16] In general, individuals are drawn to the Internet because of the freeing, psychological impact it provides through enabling anonymous contact, and unfortunately, conduct. The Internet allows a person to overcome personal inhibitions, hesitation and any unwillingness or inabilities of in person confrontation.[17] Furthermore, cyberstalkers use technology to erase identifying markers from their communication by using different screennames, profiles, or networks.[18] This adds an extra layer of conflict when trying to locate the offender compared to offline stalkers.
Fourth, the Internet allows cyberstalkers diverse abilities which are unlikely to be available to offline stalkers. “Cyberstalkers can easily impersonate the victim” by making false profiles, use their screenname to harass others, or post defamatory material to public forums.[19] Frequently, the victim suffers backlash from the cyberstalker’s behavior by being banned from access to certain communication avenues, accused of improper conduct, or even flooded with threatening messages from a third party.[20] Cyberstalkers also have the ability to encourage “innocent” third-party harassment.[21] Cyberstalkers can create advertisements or post identifying information about the victim, eliciting third-parties to act on the offender’s behalf.[22]
The Internet provides cyberstalkers with superior tools compared with offline stalking. The ability to immediately target a plethora of victims from anywhere in the world, under a “veil of anonymity,” protects them from detection and makes the crime vastly different than offline stalking. Moreover, cyberstalkers are armed with additional “cyber powers” to impersonate and manipulate “innocent” third parties to carry out their harassment, intimidation and threats. Stalking laws should evolve with technology to encompass the new dangers it creates.
NEED FOR REFORM
Limitations of Current State Statutes
Statutes that shift the focus from the perpetrator’s behavior to the effect on the victim are more useful and successful in protecting victims and prosecuting cyberstalkers.[23] Kentucky’s stalking statute contains several limitations which increase the likelihood that cyberstalkers will not be held accountable for their malicious acts. There are two types of general statutes that can address cyberstalking: those directed at stalking and those directed at harassment.[24]
Some states are taking the lead by adopting new or amending existing laws to reflect rapidly evolving technological concerns. Illinois, Louisiana, Mississippi, North Carolina, Rhode Island, and Washington enacted a new cyberstalking statute.[25] Florida, Nevada, Delaware and Virginia amended existing statutes to include aspects of cyberstalking. In contrast, Kentucky’s stalking statute requires that harassing electronic communication be “directed at a specific person.”[26] This is inefficient to cover cyberstalking because the cyberstalker would have to specifically e-mail or message the victim; thus, cases involving third-party harassers, website posts or impersonations would not be punishable.[27] Ohio, Rhode Island and Washington are the only states that have statutes addressing cases where third parties mistakenly harass the “victim at the cyberstalker’s bidding.”[28]
Another area of concern for states’ strategy of deterring cyberstalking focuses on the jurisdictional component of criminal prosecution. State statutes in one jurisdiction may drastically differ from another. Furthermore, the complete lack of uniformity in the definition of cyberstalking in each state creates inconsistency in criminalized conduct and punishment.[29] “Geography is a virtually meaningless construct on the Internet” and therefore “laws addressing conduct on the Internet should reflect the notion that state boundaries have no meaning on the Internet.”[30] As stated above, the three general categories states have adopted to solve cyberstalking limitations are creating specific cyberstalking laws, amending general stalking laws to cover cyberstalking, or applying non-stalking laws to similar conduct.[31] The multiple strategies states use to bring cyberstalkers to justice differ categorically from state to state, resulting in inconsistent applications of the law and subsequent punishments.[32]
In addition, Kentucky’s stalking statute neglects to consider circumstances where the cyberstalker targets innocent individuals to terrorize his victim. In fact, Ohio is the only state that specifically criminalizes incidents where cyberstalkers entice “innocent” third parties to threaten and cause the victim to fear for her safety.[33] “Statutes criminalizing cyberstalking should directly provide that no person should use the Internet to cause another to engage in conduct that would cause a reasonable person to fear for her safety.”[34] When evaluating a cyberstalker’s conduct, an objective standard should focus on the victim’s fear as opposed to subjectively looking at the cyberstalker’s actions. It is time that more states enact laws that specifically criminalize acts where cyberstalker’s use “innocent” third parties to do the harassment for them.[35]
Jurisdictional Issues
Under the Dormant Commerce Clause, a state or local law is unconstitutional when it imposes a burden on interstate commerce that is “clearly excessive in relation to the putative local benefits.”[36] As applied in this context, this doctrine is used to evaluate state laws that regulate Internet use, such as cyberstalking laws.[37] Courts recognize that certain types of commerce demand consistent treatment and are susceptible to regulation only on a national level, the Internet being one of those areas.[38] For regulations to be effective, national and/or global cooperation is required because “regulation by any single state can only result in chaos” and “conflicting obligations.”[39] For instance, statutes prohibiting sending harmful material to minors are inconsistent because states have different ages of consent.[40] Therefore, an adult in one state could be seducing someone online whom he legitimately believes to be of age in his state.[41]
Internet crimes have the potential to involve international perpetrators, targeting multiple victims from different jurisdictions. Inconsistent statutory language leads to inconsistent punishment. State statutes differ on the elements of harassment and stalking which create different punishments for the same behavior. If cybercrimes are prosecuted under harassment laws then the only recourse is a misdemeanor, while if the state has a sophisticated stalking statute including cybering stalking, the perpetrator could face felony conviction.
Kentucky Stalking Statute Reform
Kentucky amending its current stalking statutes to include electronic communication was a step in the right direction. A cyberstalker’s “twenty-four-hour access, instantaneous connection, efficient and repetitious action, and anonymity” were the driving forces behind updating the law.[42] All statutes related to cyberstalking should focus on the specific intent to harass and the conduct-based behavior behind the act of sending electronic communications.[43]
The Internet provides cyberstalkers with the ability to anonymously target multiple victims, located all around the world. Victims can be contacted online through email or instant messaging; however, threats and harassment can come in indirect forms such as blogs or posts on websites. Kentucky Revised Statutes §508.130 stipulates that a stalker’s course of conduct be directed at a specific person or persons.[44] Therefore, cyberstalkers who use forms of indirect harassment such as blogging, social media or other postings to torment his or her victims escape detection and punishment. Additionally, Kentucky must amend its stalking statute to include a provision incriminating “innocent” third party conduct. Offenders online often post personal information about a victim, such as location, work information, or profile in order to elicit third parties to perform harassing or threatening conduct on their behalf. Offenders also have the ability to post defamatory information to encourage “innocent” third parties to retaliate against the victim. Adding this provision to our state’s stalking statute, will afford victims of this dangerous and sometimes fatal crime greater protections and, most importantly, justice.
Footnotes
[1] Ky. Rev. Stat. Ann. §508.130 (LexisNexis 2020).
[2] Naomi Harlin Goodno, Cyberstalking, A New Crime: Evaluating The Effectiveness Of Current State And Federal Laws, 72 Mo. L. Rev. 125, 128.
[3] ky. rev. stat. ann. §508.130 (LexisNexis 2020).
[4] Goodno, supra note 2, at 126.
[5] Id. at 156.
[6] Id.
[7] Monty Wilkinson, Cyber Misbehavior, U.S Attorneys’ bulletin, https://www.justice.gov/usao/file/851856/download (May 2016).
[8] See Goodno, supra note 2, at 128.
[9] Id.
[10] Id. at 129.
[11] Id.
[12] Id.
[13] Id. at 130.
[14] Id.
[15] Id.
[16] Id. at 131.
[17] Id.
[18] Id.
[19] Id. at 132.
[20] Id.
[21] Id.
[22] Id.
[23] Goodno, supra note 2, at 141.
[24] Id.
[25] Id. at 144.
[26] Id. at 145; ky. rev. stat. ann. §508.130 (LexisNexis 2020).
[27] Goodno, supra note 2, at 141.
[28] Id. at 146.
[29] Id. at 147.
[30] Casey O’Connor, Cutting Cyberstalking’s Gordian Knot: A Simple And Unified Statutory Approach, 43 Seton Hall L. Rev. 1007, 1011 (2013).
[31] Id. at 1011.
[32] Id.
[33] Goodno, supra note 2, at 140.
[34] Id.
[35] Id. at 147.
[36] Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
[37] See O’Connor, supra note 30, at 1018.
[38] Id. at 1020.
[39] Id.
[40] Id. at 1022.
[41] Id.
[42] See Goodno, supra note 2, at 132.
[43] Id. at 155.
[44] ky. rev. stat. ann. §508.130 (LexisNexis 2020).