Online Harassment

Online harassment, also known in the Commonwealth of Virginia as harassment by a computer, is a type of computer crime listed in the Virginia Computer Crimes Act and codified in Section 18.2-152.7:1 of the Virginia Code. These cases are aggressively pursued, but they can also be very complex and difficult to prove.

If you have been charged with online harassment or a related crime, the Commonwealth may have already collected evidence and are putting forth an effort to build a strong case against you. If the police try to question you at any point, it is important to politely decline and raise your right to an attorney.

S.L. England is a trusted and resourceful computer crimes defense attorney representing clients throughout the Washington, D.C. and Alexandria, Virginia region. We will review your case, outline your best options, and discuss a strong, viable defense.

Below is a brief overview of the offense online harassment. If you still have questions or want to start your defense, contact our office today.

HOW DOES VIRGINIA DEFINE ONLINE HARASSMENT?

The definition of harassment by computer is provided under §18.2-152.7:1 as when:

any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act.

HOW DOES A VIRGINIA PROSECUTOR PROVE A CASE OF HARASSMENT BY COMPUTER?

There are several elements to this crime that the prosecutor must prove before a conviction can be rendered.

  • First, your conduct must have been intentional.
  • Second, you must have used a computer or computer network – a computer network can refer to other tech equipment other than a computer, like:
    • iPads
    • tablets
    • smartphones
    • electronic notebooks
    • MacBooks
    • laptops
    • etc.
  • Third, the tone of your communication must have been:
    • coercive
    • intimidating, or
    • amounting to harassment
  • Fourth, the substance of the communication either must have included (1) a threat of an illegal or immoral act; or (2) language that was:
    • obscene
    • vulgar
    • profane
    • lewd
    • lascivious
    • indecent.

With regard to this fourth element, Virginia courts have protected First Amendment speech and, thus, have limited what constitutes unlawful language for this offense. Vulgar, profane, and indecent language on their own does not satisfy this fourth element. The Virginia Code’s definition of obscenity, however, does satisfy this element.

Obscene is defined by Va. Code Ann. § 18.2-372 and is language that:

has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.

As a case in point, in Airhart v. Com., No. 1219-05-2, 2007 WL 88747 (Va. Ct. App. Jan. 16, 2007), a conviction against the defendant was reversed at appeal. The words “whore” and “fuck” were used in instant messaging conversations. The alleged victim felt threatened, but the court stated that – though the tone may have been threatening – these words were used to show the defendant’s anger and contempt rather than to “appeal to the prurient interest in sex.” As such, the fourth element of the crime was not satisfied.

Oftentimes to prove online harassment, other facts and circumstances are included apart from electronic communications. For example, in Motor v. Com, 61 Va. App. 471 (2013), the defendant was convicted of harassment by computer. The evidence against him included both communications via the computer and other facts, like:

  • the defendant sent emails, letters, and called the victim regularly and persistently;
  • the defendant scratched a sexually explicit message on the victim’s vehicle;
  • the defendant sent 40 Facebook messages that included sexually explicit threats.

WHAT ARE THE PENALTIES IN VIRGINIA FOR A CONVICTION OF ONLINE HARASSMENT?

Harassment by computer is charged as a Class 1 misdemeanor. A Class 1 misdemeanor carries the potential of up to one year in jail and a fine of up to $2,500.

It is also important to keep in mind that a protective order may have been taken out against you, so you need to make sure you comply with the terms to avoid additional punishment. Also, a civil lawsuit could be filed against you. Winning a criminal case, however, can sometimes help with a civil case.

ARE THERE DEFENSES TO ONLINE HARASSMENT IN VIRGINIA?

There are defenses to online harassment charges. These could include:

  • lack of intent;
  • failure to prove all the elements of the crime;
  • insufficient evidence;
  • mistaken identity; or
  • mistake of fact.

Even if none of these defenses are present (or even if they are), you can still fight the charges with a good defense strategy. The prosecutor must prove beyond a reasonable doubt that you are guilty, but S.L. England, an experienced computer crimes attorney, aims to create that doubt. If successful, your charges could be dismissed or reduced or you could be acquitted at trial. 

WHAT SHOULD YOU DO IF CHARGED WITH ONLINE HARASSMENT OR A RELATED OFFENSE?

Online harassment is serious. If you want to fight the charge or make sure you get the best outcome available to you, contact S.L. England either online or at 202-489-0720.

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