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Last Updated on: 17th October 2023, 10:57 pm
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.
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.
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:
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.
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.
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.
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:
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.
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:
Free speech defenses often succeed when the offensive speech stopped short of direct threats. But context matters, so analyze the specific circumstances carefully.
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:
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.
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:
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.
Cyberstalking often involves electronic contacts crossing state borders. This can create jurisdiction issues impacting your defense. Here’s how to handle interstate cyberstalking cases:
The interstate nature of cyberstalking gives prosecutors more tools but also provides grounds for jurisdiction challenges. Use the complexities to your client’s advantage.
While many cyberstalking charges can be fought and beaten, sometimes plea bargains make sense too. Consider pleading when:
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.
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:
Diversion programs both help your client avoid conviction and provide needed services like counseling. Research options in your jurisdiction.
Courts have discretion in sentencing, so presenting mitigating factors can help your client avoid harsh punishment after conviction. Be sure to research and raise:
While you should fight the charges, also compile evidence of mitigating factors in case your client is convicted despite your best efforts.
Experts can bolster cyberstalking defenses by providing specialized knowledge. Consider retaining:
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.
Some cyberstalking laws are poorly written or overly broad. This gives you grounds to challenge the constitutionality of the charges. Try arguing:
Constitutional challenges are complex but can get charges thrown out in some cases. Consult with other attorneys who have fought cyberstalking laws successfully.
Discovery is crucial in cyberstalking cases to collect all available evidence. Make sure to:
Leave no stone unturned in gathering every scrap of evidence to support potential defenses. The smallest details can make or break these cases.
Many cyberstalking trials involve complex technologies like social media, texts, hacking, and device forensics. Jurors often don’t understand the tech nuances. You should:
The more you can simplify and visualize technological evidence, the better chance the jury will grasp concepts beneficial to your defense.
Never lose sight of the human side of cyberstalking cases. To humanize your client:
Combat assumptions by showing your client is a complex human being, not just a criminal cyberstalker. This engenders empathy that gets better results.
In some cases, cyberstalking relates to underlying mental health problems. As counsel, consider advising treatment if your client shows signs of:
Treatment can help avoid future incidents and may enable diversion programs. Your job is protecting your client in and out of court.
Defending complex cyberstalking cases requires close client collaboration. Make sure to:
By building trust and keeping your client informed, you will get the best results at trial or in negotiating pleas.
Representing cyberstalking defendants can take an emotional toll. To avoid burnout:
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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