1. When does cyberstalking become a crime in California?

“Cyberstalking” was officially prohibited in 1998 when the California Legislature amended Penal Code 646.9 stalking.  The amendment changed the definition of “credible threat (one of the elements of the crime of stalking in California)…to include “electronically communicated” threats. ^1 2

On-line harassment emerged as a recognized problem in the late 1990s.  The anonymity of the Internet allows those who might have otherwise been unable or unwilling to physically confront their victims the ability to communicate without doing so.

As more incidents of Internet stalking were reported, the crime of “cyberstalking” was born.  Law enforcement agencies even developed special “task forces” to handle this new phenomenon.  The Los Angeles District Attorney, for example, founded STAT (the stalking and threat assessment team).  Under this unit, Los Angeles County prosecutors work closely with the LAPD to handle these specialized cases.

One of the first successful cases that the Los Angeles D.A. prosecuted under the then “new” California cyberstalking law had to do with a man who used the Internet to solicit the rape of a woman who rejected his romantic advances.  The 50-year old security guard pleaded guilty after several men responded to the messages that he posted…while posing as the victim…claiming that she fantasized about being raped.³

2. What are some examples of cyberstalking?

Obviously, not all instances of cyberstalking are as extreme as the one above.  But regardless of how severe the circumstances, Internet stalking cases are still prosecuted aggressively.  Some examples of cyberstalking include (but are not limited to):

• unwanted/unsolicited threatening or harassing emails
• unwanted and/or disturbing pages, instant messages, text or “sext” messages (“sexts” or “sexting” refers to sending explicit photos or messages cell phone to cell phone)
• posing as another person in a chat room and writing things on behalf of that individual that are intended to anger other chat room participants
• posting embarrassing, or humiliating information about the alleged victim
• posting personal information (including a phone number, address, workplace, etc.) about another person encouraging others to harass that person (the Los Angeles case referenced above, for example)
• logging into online accounts to empty a person’s bank account or ruin a person’s credit

3. What are the elements of the crime?

In the same way that the prosecutor proves that someone is guilty of violating the “traditional” California anti-stalking law….with the additional requirement that the “credible threat” is communicated via an electronic device.⁴

In short, the prosecutor must prove that you

1. maliciously or willfully harassed another person, and
2. made a credible threat against that person,
3. placing that individual in reasonable fear for his/her safety or the safety of his/her family,
4. which was communicated by means of the Internet or another “electronic communication device”.⁵

For a comprehensive explanation of the facts that are necessary to prove a cyberstalking charge, please review our article on California Penal Code 646.9 PC stalking.

4. What can happen if a person is convicted of cyberstalking?

Penalties for cyberstalking range a great deal, as the offense is a wobbler.  A wobbler is a charge that prosecutors can file as either a misdemeanor or a felony, depending on (1) the specific facts of the case, and (2) your criminal history.

A misdemeanor cyberstalking sentence may include

• up to a year in a county jail,
• fines of up to $1,000.⁶

A felony cyberstalking sentence may include

• up to five years in the California State Prison,
• fines of up to $1,000, and
• possible lifetime registration as a sex offender under Penal Code 290 PC.⁷

Both misdemeanor and felony cyberstalking convictions also subject you to (1) counseling and/or possible confinement in a state-run hospital that treats mental illness, and (2) a restraining order prohibiting any contact with the alleged victim.⁸

It should also be noted that if the alleged victim is

• your fiance(e),
• your current or former spouse,
• someone with whom you live,
• the parent of your child, or
• anyone you are or were dating,

prosecutors will most likely charge you with cyberstalking under California domestic violence law, subjecting you to possible additional penalties.

Registration as a Sex Offender Pursuant to California Penal Code 290 PC

As previously stated, if you are convicted of felony cyberstalking, the judge may order you to register as a sex offender pursuant to Penal Code 290 PC.  The judge will only impose this penalty if he/she believes that you stalked the alleged victim “as a result of sexual compulsion or for sexual gratification”.⁹

It should additionally be noted that failing to register as a sex offender under Penal Code 290 PC is a separate felony offense, subjecting you to additional criminal penalties.¹⁰

5. What defenses are available?

By refuting the elements of the crime.  In order to convict you of Penal Code 646.9 PC, the prosecutor must prove each and every element of the offense.  If you can demonstrate that even one element isn’t satisfied, you must be acquitted of cyberstalking.

Let’s take, for example, a “credible threat”.  If your threat was so ridiculous or grandiose that you couldn’t possibly execute it, you can’t be convicted of cyberstalking.  For example, if John threatens “that he will have aliens come down and carry Sue away if she doesn’t marry him”, that wouldn’t qualify as a credible threat.

Similarly, if you didn’t intend to place the recipient of your actions in fear, you must be acquitted of Internet stalking.  Repeatedly professing love through a series of e-mails…without some type of accompanying threat…does not amount to cyberstalking.

It should be noted that if you threaten harm to an individual while you are in jail or prison, the fact that you are incarcerated will not by itself serve as a defense to cyberstalking.¹¹

Some other defenses to Internet stalking include (but are not limited to):

Mistaken identity

This defense is particularly relevant to a cyberstalking charge.  Unless an alleged victim is particularly technologically savvy, it may be difficult to pinpoint an Internet stalker.  Someone may “suspect” you of stalking him/her…but without actual proof…you can’t be convicted of this offense.

False accusations

False accusations typically present themselves in two forms:  (1) where a person honestly (but mistakenly) believes that the accused is the person responsible for committing a crime, and (2) where an individual knowingly makes false accusations that someone committed a crime.  “Mistaken identity” is an example of the first scenario.  As for the second…

There are a variety of reasons why someone may falsely accuse another of stalking.  As acclaimed San Jose criminal defense lawyer Jim Hammer explains¹², “Since very little evidence is needed to accuse someone of cyberstalking, a jealous, angry, or even vengeful individual could accuse someone he/she knows of this stalking offense.  I work with a team of experts who conduct their own thorough investigations in an effort to prove your innocence.”

These types of experts

• listen to audio recordings,
• track e-mails, texts, or other electronic communications, and
• view video recordings

in order to authenticate them if you are a victim of false accusations and a wrongful arrest.

6. Related offenses

California Penal Code 422 criminal threats

California Penal Code 422 criminal threats (formerly known as terrorist threats) is a charge that is frequently charged in connection with cyberstalking.  This is because criminal threats are threats that are intended to place their recipient in fear of immediate harm.¹³ If you send criminal threats to the alleged victim on more than one occasion via any electronic communication device, prosecutors could charge you with cyberstalking and criminal threats.

California Penal Code 288.2 harmful matter sent to a child

Penal Code 288.2 “harmful matter sent with the intent of seducing a minor” prohibits sending or e-mailing “obscene” or “erotic” literature or materials to a minor with the intent of sexually arousing yourself or the recipient.¹⁴

This means that if you repeatedly call, e-mail, or “sext” message these types of matter to a minor, prosecutors could charge you with Internet stalking as well as this California sex crime.

California Penal Code 653m telephone calls or contact by other electronic communication device with intent to annoy

California Penal Code 653m PC (annoying phone calls) is closely related to cyberstalking in that it prohibits annoying telephone calls or repeated contact by other electronic devices.¹⁵ It doesn’t involve the additional element of malice that stalking requires.  This is a less serious offense than cyberstalking, subjecting the accused to fewer…and less severe penalties.

California Penal Code 653.2 posting harmful information on the internet

Penal Code 653.2 PC posting harmful information on the internet is also known as “indirect electronic harassment.” This offense occurs when someone posts personal information or a harmful message about a victim on the internet, with the intent to incite third parties to harass that person.¹⁶

In other words, while cyberstalking is the act of using the internet to personally and directly harass someone, indirect electronic harassment amounts to doing the same thing indirectly–by using the internet to persuade someone else to harass a victim.

Posting harmful things on the internet carries only misdemeanor penalties.¹⁷

California Penal Code 647(j)(4) “revenge porn”

“Revenge porn” in California was made a crime in 2013, under Penal Code 647(j)(4) PC. This crime consists of intentionally distributing sexual images of another person that s/he expected would be kept private, with the intent to cause him/her emotional distress.¹⁸

Revenge porn is a misdemeanor and carries a maximum six-month jail sentence for a first offense.¹⁹

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