Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 19, 2018

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Cyber stalking charges are charges for the act of using the internet or email to stalk a victim. Stalking is defined as conduct directed towards a target (the victim) by a person (the stalker) with the intent that the victim will regard the conduct as a threat of bodily injury or death. Laws addressing cyber stalking are relatively new. 

Elements of Cyber Stalking Charges

In some instances, a mere threat is not sufficient to bring a charge of stalking. Many states require a stalker to take some type of action to carry out a threat before they will consider a charge of stalking. Many prosecutors have been able to prove this action by showing how a defendant physically followed a victim, something that is more difficult to prove with a cyber stalking threat.

Even though states have tried to modify their stalking statutes, the passage of new cyber stalking codes has resurrected many of the problems associated with regular stalking offenses. Most states that have enacted cyber stalking laws do not require an overt act or conduct to support a cyber stalking charge. As a result, many current cyber stalking statutes allow defendants to be convicted on the basis of words and speech alone.

Some of these statutes have come under scrutiny, most have survived by demonstrating a significant need to regulate this type of threatening or harassing speech. Defendants who think that they will avoid prosecution because they never physically encounter their victims need to understand all of the issues and consequences associated with cyber stalking.

Not all states have enacted cyber stalking laws. Those that have use a variety of definitions for cyber stalking. Generally, though, cyber stalking is considered to be conduct or communications through electronic devices intended to distress or harass another person. The intent of the communication is the main factor that separates cyber stalking from cyber bullying. The intent required in cyber stalking is to cause real fear or harm to a victim. In cyber bullying, the intent is usually to harass a victim and cause public humiliation, not fear of harm.

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A Misdemeanor Can Become a Felony

Cyber stalking statutes usually classify cyber stalking as a misdemeanor offense. However, cyber stalking charges can be raised to felony level offenses by other factors. For example, in Florida, a defendant who communicates a credible threat of bodily injury or who directs the communications to a minor under 16 years of age would face a third degree felony punishment. A misdemeanor offense is punishable by up to a year in jail, while a third degree felony can result in incarceration for up to ten years. In most states, if a defendant combines the threat with some actual harm to a victim, then the range of punishment and charges could be even higher. Aggravating circumstances significantly impact a defendant’s punishment range.

Proving Identity in Cyber Stalking Cases

A major issue in any cyber stalking case is proving identity. Many people do not use their real identities while communicating on the internet. Everyone from law enforcement to the victim may be fairly certain who made the threats, but securing actual proof has been an issue. Some victims are fortunate because many stalkers say personal things or post images of themselves, which helps the prosecution pursue charges more quickly.

Finding the anonymous cyber stalker is more challenging. Many law enforcement agencies are obtaining equipment or training to identify online stalkers. Agencies that don’t have the resources to find cyber stalkers are turning to federal agencies for help in more difficult cases of cyber stalking.

Issues of Venue

Even if a law enforcement agency is able to identify a cyber stalker, the next issue may be where to file the charges. By the very nature of cyber stalking, a victim can reside in one state, while being stalked online by a person in another state. Most states have venue statutes which require a case to be filed where the actual offense was committed. This is tricky when victims and defendants live in different states.

To eliminate this problem, many states have adopted venue statutes that permit a case to be filed wherever the victim or the defendant resides. This can produce odd results. A defendant technically can be prosecuted for cyber stalking, even when the home state doesn’t have a cyber stalking law. In cases where a law enforcement agency can’t decide where to file a cyber stalking case, many will lean on federal agencies to pick up charges because of the interstate nature of the communication.

The other major issue in a cyber stalking charge is deciding how much stalking communication is enough to justify the charge. Many states only have a general requirement of repeated comments. With that requirement, one event could support a charge, but most agencies try to develop proof of other incidents or a repeating pattern.

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Cyber Stalking Penalties

Many stalkers feel free to engage in cyber stalking because their states don’t have a specific statute on cyber stalking. They should recognize, however, that other serious charges could apply. Instead of carving out a new cyber stalking offense, some states have modified their harassment, stalking, or online solicitation statutes to criminalize the conduct found in other stalking statutes. For example, Texas does not have a statute entitled cyber stalking, but many online stalking charges involving teenagers are prosecuted through another statute called online solicitation of a minor. Regardless of how the charge is prosecuted, cyber stalking results in stiff penalties and can have other collateral consequences.

Cyber stalking can result in penalties beyond time in jail. If the stalking is sexual in nature, it could result in a conviction that requires a defendant to register as a sex offender. Many apartment managers and employers will not accept or hire someone who is registered as a sex offender. If the charged conduct is not sexual in nature, it can still have long term consequences, including restraining orders designed to prohibit any future contact with the victim.

If a defendant is charged a second time with cyber stalking, then the sentence could be increased by the first conviction. A defendant fortunate enough to be placed on probation for a cyber stalking charge usually faces intensive supervision because of the concern for the victim’s safety. Terms of probation can include a requirement that a defendant have no contact with the victim, that the defendant complete a psychological assessment, or that he complete an anger management assessment.

Even though cyber stalking is a relatively new charge, it retains many old problems for victims and defendants alike. Updates in cyber stalking laws and investigation techniques have resolved many of these problems, but despite these changes, anyone grappling with a cyber stalking charge, as either a defendant or a victim, should be familiar with the most recent laws and remedies for a cyber stalking charge in their state.