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How can an attorney defend against cyberstalking charges?

By Spodek Law Group | October 16, 2023
(Last Updated On: October 17, 2023)

Last Updated on: 17th October 2023, 10:57 pm


Defending Against Cyberstalking Charges – A Guide for Attorneys

Cyberstalking can be a scary thing. As an attorney, you may someday have a client who has been accused of cyberstalking. Your job will be to provide the best defense possible. Here’s an overview of cyberstalking laws and how you can build an effective defense.

What is Cyberstalking?

Cyberstalking is when someone uses electronic means like the internet, social media, texts, or emails to harass or threaten someone else. It’s a pretty serious crime that can lead to jail time if convicted.

Each state has its own cyberstalking laws. But in general, cyberstalking is defined as a course of conduct using electronic means that makes someone feel afraid for their safety. That course of conduct has to demonstrate a pattern of harassment or threats.

For example, say someone is sending threatening Facebook messages, texts, and emails to an ex. They say things like “I’m watching you” or “You better watch your back.” That pattern of contact would likely qualify as cyberstalking.

Common Cyberstalking Defenses

If your client is accused of cyberstalking, there are several defense strategies you can use. The key is looking at the specific details of the case to find holes in the prosecution’s argument. Here are some of the most common cyberstalking defenses:

Free Speech

The First Amendment protects free speech, even speech that’s offensive or controversial. As the accused’s attorney, argue that your client was simply exercising their right to free speech. For this to work, show that your client did not make any direct threats. Their speech may have been insulting or vulgar, but did not cross the line into true harassment.

No Threat Made

In many states, cyberstalking requires showing the victim had reasonable fear for their safety. If the messages were annoying but didn’t contain overt threats, argue they didn’t cause true fear. Point out the lack of direct threats and emphasize the victim is overreacting.

Lack of Criminal Intent

Prosecutors must prove your client intended to stalk or harass the victim. Often, these charges arise from interpersonal conflicts like breakups or fights between friends. Argue your client had no criminal purpose. Say they were just venting about the situation but didn’t mean to scare the other person.


In cyberstalking cases, identity is key. The prosecution must prove your client was the one sending the harassing communications. If they’re relying on texts or social media, argue someone else could have accessed your client’s accounts. Or say your client’s phone or computer was hacked. Make them prove your client is truly the culprit.


If there’s evidence the alleged victim was also harassing your client, argue they were acting in self-defense. In a toxic back-and-forth dynamic, show your client felt threatened and only said harsh things to protect themselves after being provoked.

Building Your Defense Strategy

Every cyberstalking case is unique, so you’ll need to tailor your defense strategy to the facts. Here are some tips for planning an effective defense:

  • Review the law – Study your state’s cyberstalking statute and case law precedents. Look for weaknesses you can exploit.
  • Get evidence – Collect online records, texts, posts to show the full context. Preserve anything helpful.
  • Consult experts – Consider enlisting a forensic computer analyst to prove misidentification or hacking.
  • Know the penalties – Evaluate the charges to assess your client’s real legal jeopardy.
  • Negotiate – See if you can plea bargain to get charges dropped or reduced.
  • Consider alternatives – Look into pretrial diversion programs your client may qualify for.

The key is casting reasonable doubt on some element of the cyberstalking charge. By studying the evidence and law, you can build a strong defense tailored to the specifics of your case.

Using Free Speech Arguments

One of the most common cyberstalking defenses is free speech. The First Amendment protects even offensive or insulting speech in many cases. Here are some tips for making a free speech argument:

  • Cite precedents – Find cases where courts overturned cyberstalking charges on free speech grounds. Use these to argue for dismissal. For example, in State v. Ellison, the Ohio Court of Appeals ruled the offensive tweets at issue were protected speech.1
  • Show no true threat – Argue your client’s statements did not contain any direct or credible threat of violence. Insults and vulgarity are not enough to lose First Amendment protection.
  • Prove no intent – Show your client did not intend to make the victim fear violence. Venting, political arguments, and trolling are not criminal cyberstalking.
  • Claim the victim overreacted – If the speech was objectively non-threatening, argue the alleged victim unreasonably interpreted it as threatening based on oversensitivity.

Free speech defenses often succeed when the offensive speech stopped short of direct threats. But context matters, so analyze the specific circumstances carefully.

Arguing Misidentification

In any cyberstalking case, identity is crucial. Prosecutors must prove your client was actually the person sending harassing communications. Often, they rely on texts, social media posts, or emails that are easy to fake. Here are some strategies for arguing misidentification:

  • Show accounts were accessible – Prove your client’s phone or computer was not password protected so others could access their accounts.
  • Point to shared devices – If your client accessed accounts from shared devices, argue someone else could have sent the messages.
  • Allege hacking – Claim your client’s accounts were hacked by someone out to frame them.
  • Demand tech analysis – Request prosecutors produce technical evidence like IP addresses definitively tracing messages to your client.
  • Highlight inconsistencies – Note any messages sent while your client provably didn’t have access to their accounts.

By raising doubts about who truly sent the harassing messages, you can often defeat cyberstalking charges. Just make sure your misidentification theory is plausible based on the facts.

Using Self-Defense Arguments

Sometimes in cyberstalking cases, the alleged victim was also harassing the defendant. Situations like bad breakups or social media wars can get messy. When appropriate, argue your client acted in self-defense responding to initial harassment. Strategies include:

  • Cite provocation – If the alleged victim made threats first, show your client felt endangered and was defending themselves.
  • Claim proportionality – Argue your client’s statements didn’t escalate the situation, but were proportional to the initial harassment.
  • Show victim’s intent – Point out evidence the alleged victim meant to provoke your client, like harassing communications.
  • Prove reasonableness – Argue a reasonable person in your client’s shoes would feel the need to defend themselves from harassment.

The key is framing your client’s actions as defensive rather than criminal. But self-defense claims can fail if your client clearly overreacted, so argue proportionality.

When Cyberstalking Crosses State Lines

Cyberstalking often involves electronic contacts crossing state borders. This can create jurisdiction issues impacting your defense. Here’s how to handle interstate cyberstalking cases:

  • Know the federal law – Charges may be brought under the federal interstate stalking statute2 with harsher penalties.
  • Challenge venue – Argue for moving the case to your client’s home state if they are being prosecuted out of state.
  • Research other state laws – Each state’s cyberstalking laws are a bit different. Use favorable laws from your client’s state in their defense.
  • Claim extraterritoriality – Argue the court lacks jurisdiction over communications sent from out of state.

The interstate nature of cyberstalking gives prosecutors more tools but also provides grounds for jurisdiction challenges. Use the complexities to your client’s advantage.

When to Consider Plea Bargains

While many cyberstalking charges can be fought and beaten, sometimes plea bargains make sense too. Consider pleading when:

  • Your client clearly did it – If the evidence of guilt is overwhelming, negotiating is often wise.
  • The victim wants resolution – Pleas can provide closure for victims who want to move on.
  • Your client fears trial – Trials are uncertain. A plea brings guaranteed closure.
  • The deal is favorable – Prosecutors often offer light pleas to avoid weak cases going to trial.

The decision depends on the case facts and your client’s wishes. But don’t hesitate to bargain if you feel conviction is likely or the plea offer is reasonable.

Alternative Programs to Seek

Many states offer alternatives to criminal prosecution for first-time, low-level cyberstalking defendants. These diversion programs can lead to dropped charges after completing rehabilitation requirements. Common options include:

  • Pretrial intervention – Defendants get counseling, stay out of trouble for 6-12 months, charges dismissed.
  • Deferred adjudication – No conviction if probation terms are met over a set time period.
  • Mental health court – Supervised treatment program leading to dismissal of charges.

Diversion programs both help your client avoid conviction and provide needed services like counseling. Research options in your jurisdiction.

The Importance of Mitigating Factors

Courts have discretion in sentencing, so presenting mitigating factors can help your client avoid harsh punishment after conviction. Be sure to research and raise:

  • Minimal criminal history – First-time offenders generally get leniency.
  • Mental health issues – Conditions like depression may explain cyberstalking behaviors.
  • Provocation – Show how your client was provoked by the victim.
  • Remorse – Your client admitting fault and expressing regret looks good.
  • Good character – Have family and friends testify to your client’s overall law-abiding life.

While you should fight the charges, also compile evidence of mitigating factors in case your client is convicted despite your best efforts.

The Role of Expert Witnesses

Experts can bolster cyberstalking defenses by providing specialized knowledge. Consider retaining:

  • Computer forensics experts – Analyze devices to prove hacking, misidentification, or planting of evidence.
  • Psychiatrists – Provide medical explanations for client’s behavior due to mental illness.
  • Law enforcement experts – Explain how conduct falls short of cyberstalking based on their experience.

Find experts with credentials that will impress the judge and jury. Objective third-party input can reinforce defenses centered on technology, psychology, or proper application of the law.

Fighting Overly Broad or Vague Charges

Some cyberstalking laws are poorly written or overly broad. This gives you grounds to challenge the constitutionality of the charges. Try arguing:

  • The law is vague – Argue terms like “harass” or “emotional distress” are unconstitutionally vague.
  • The law is overbroad – Prove the statute criminalizes protected speech along with true threats.
  • The law violates due process – Claim the law is so vague your client couldn’t know their acts were illegal.

Constitutional challenges are complex but can get charges thrown out in some cases. Consult with other attorneys who have fought cyberstalking laws successfully.

Using the Discovery Process

Discovery is crucial in cyberstalking cases to collect all available evidence. Make sure to:

  • Get copies of all online communications – Review messages on both sides for context.
  • Demand device and account access – Inspect devices used to prove misidentification.
  • Subpoena platform records – Get IP logs, account access logs, and metadata from social media companies.
  • Depose the victim – Question them on the stand to prove overreaction or provocation.

Leave no stone unturned in gathering every scrap of evidence to support potential defenses. The smallest details can make or break these cases.

Educating the Jury on Technology

Many cyberstalking trials involve complex technologies like social media, texts, hacking, and device forensics. Jurors often don’t understand the tech nuances. You should:

  • Use graphics and analogies – Avoid jargon and make tech concepts relatable.
  • Highlight authentication gaps – Explain how messages can be faked in simple terms.
  • Call tech experts – Have them walk through device analysis reports and explain what they mean.
  • Leverage ignorance – If jurors don’t understand the tech, they should have reasonable doubt.

The more you can simplify and visualize technological evidence, the better chance the jury will grasp concepts beneficial to your defense.

Humanizing Your Client

Never lose sight of the human side of cyberstalking cases. To humanize your client:

  • Share their full story – Explain the context leading up to the charges from their perspective.
  • Have them testify – Jurors connect more if they hear directly from the defendant.
  • Highlight vulnerabilities – Discuss mental health issues, past traumas, or neurodivergences driving their behavior.
  • Present character witnesses – Friends and family can describe your client’s true nature.

Combat assumptions by showing your client is a complex human being, not just a criminal cyberstalker. This engenders empathy that gets better results.

When to Seek Mental Health Treatment

In some cases, cyberstalking relates to underlying mental health problems. As counsel, consider advising treatment if your client shows signs of:

  • Severe obsession or compulsions regarding the victim
  • Delusional beliefs about relationships with the victim
  • Prior stalking behaviors or criminal charges
  • Diagnosed conditions like schizophrenia or erotomania

Treatment can help avoid future incidents and may enable diversion programs. Your job is protecting your client in and out of court.

The Importance of Client Communication

Defending complex cyberstalking cases requires close client collaboration. Make sure to:

  • Explain the legal process every step of the way.
  • Warn about risks of going to trial vs. plea deals.
  • Have frank talks about mental health and past behavior.
  • Listen to their story compassionately, not just gathering facts.
  • Manage expectations around possible outcomes.

By building trust and keeping your client informed, you will get the best results at trial or in negotiating pleas.

Avoiding Burnout When Defending Difficult Cases

Representing cyberstalking defendants can take an emotional toll. To avoid burnout:

  • Take breaks from the case – Get other attorneys to cover hearings for you.
  • Confide in colleagues – Seek support without violating privilege.
  • Pursue hobbies – Make time for fun outside work.
  • Exercise self-care – Focus on healthy habits like sleep, diet, and socializing.
  • Try therapy – Process stressful cases in a safe environment.

Don’t become so consumed with defending your client that you neglect your own well-being. Protecting your mental health makes you a better advocate.

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