May 27, 2014

5-Year Cyberstalking Sentence Upheld by Appellate Court

by The Law Office of Timothy L. Healy

Given the breezy nature of electronic communications, it can be easy to forget that a few clicks could result in potential prison time.
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Of particular interest in recent months has been the issue of "revenge porn," which involves sharing images, texts, videos of a sexual nature of a person without his or her consent. It includes the word "revenge" because it most often involves ex-romantic partners whose relationship has soured, with the sharing of images being a means of retaliation.

Washington state legislators proposed a "revenge porn" bill - HB 2250 - in February of this year, which would have made revenge porn a Class C felony, punishable by up to five years in prison. The measure isn't expected to advance beyond committee, though it may arise again in future sessions.

In the meantime, Tacoma criminal defense lawyers warn any who share explicit images of exes without permission that such activities could still fall under the purview of the state's harassment or cyberstalking statutes.

RCW 9.61.260 holds that a person can be convicted of cyberstalking if he or she has the intent to intimidate, harass, torment or embarrass another by making an electronic communication to a third party that includes lewd, lascivious, indecent or obscene words, images or language.

This is generally considered a gross misdemeanor, unless the defendant has previously been convicted of harassment of the same victim or a family or household member of the victim and has a no-contact order against the defendant. It could also be upped to a felony if there are threats to kill the target or any other person.

Additionally, there is the possibility that such action could fall under federal crime statutes.

In the recent case of United States v. Sayer, the defendant was convicted on one count of cyberstalking pursuant to 18 U.S.C. ยง 226 and sentenced to five years in prison.

The defendant later challenged the legality, noting that the sentence was an upward departure from guidelines. However, the appellate court affirmed the trial court's sentence, finding it appropriate in light of the circumstances.

Here, the defendant was the ex-boyfriend of the alleged victim. Over the course of four years, he reportedly stalked and harassed her after the pair broke up. According to court records, he created accounts on dating sites in her name with her photograph. He prompted strangers to arrive at her home expecting various sexual favors - even after she moved three times and changed her name. He also uploaded onto a number of pornography and dating websites a series of images and videos of her engaged in sexual acts with him while the two were together. Most of this was done after she had successfully obtained a restraining order against him.

The defendant upon appeal attacked the constitutionality of the cyberstalking statute, alleging that it infringed upon his First Amendment rights. The court rejected this argument.

Secondly, he challenged the five-year sentence, noting that the sentencing guidelines, given his previous lack of a criminal record, should have put him in the 47-month range, the court had deviated upward, despite his agreeing to a plea. However, the court indicated that in exchange for a plea, a second felony charge had been dropped. Further, the severity and length of his crimes made an upward departure appropriate.

If you have been arrested in Tacoma, contact Timothy L. Healy at 888-312-3093 - a 24-hour hotline.

Additional Resources:
United States v. Sayer, May 1, 2014, U.S. Court of Appeals for the First Circuit

More Blog Entries:
Washington v. Kipp - Suppression of Evidence Under Washington's Privacy Act, Feb. 26, 2014, Tacoma Cyberstalking Defense Lawyer Blog