Cyberstalking and Online Harassment

New York makes it a crime to stalk someone in person or online; the same applies to harassment.  All too often we receive calls from people who have been told by the police or social media companies that the only thing that can be done to lessen the effects of an online harasser is to “block them.”  Blocking your harasser does not address the root of the problem and places the burden on you, not the person engaging in cyberstalking and online harassment.  Even though modern technology sometimes makes it more difficult to identify an online attacker, it is still possible to identify those who hide behind anonymous text messaging apps or fake social media accounts.  If someone is harassing you online, there are many legal options available.

Cyberstalking

Cyberstalking in New York is a criminal offense that can be dealt with by filing a police report or, in some instances, by bringing a family offense petition seeking an order of protection in Family Court.

New York Penal Law 120.45 – Stalking in the Fourth Degree

Stalking occurs when a person engages in a course of conduct for no legitimate purpose that the person knows or should know would 1) be likely to cause another to materially fear for their, their family member, or an acquaintance’s health, safety, or property; 2) cause material harm to the mental health of another by telephoning or contacting them, their family, or an acquaintance, if that person has been clearly informed not to do so; or 3) is likely to cause a person to reasonably fear their employment, business, or career is threatened because a person is telephoning or contacting another’s place of business and the person has been clearly informed not to do so.   When this conduct occurs via digital means, such as in text messages or e-mails sent to you, members of your family, your friends, or your employer, it is often referred to as cyberstalking.

Practically speaking, if you are receiving threats – by phone, email, text message, or any other means – that cause you to fear for your safety or the safety of your friends and family, call the police.  If you, your family member, or an acquaintance are repeatedly receiving communications that leave you feeling emotionally distressed and you have asked that person to stop contacting you, call the police.  And if someone is repeatedly contacted your place of business and you have previously asked them to stop, call the police.  In certain instances, you can also bring a family offense petition against them seeking an order of protection.  If someone is cyberstalking you, you do not have to sit in silence.

Stalking in the fourth degree is a Class B misdemeanor and, if your stalker is convicted, they can be ordered to serve up to three months in jail and be fined up to $500.It’s important to remember that, to be considered stalking, the person must be acting with no legitimate purpose.  If the person is attempting to contact you for debt collecting purposes or due to missed rent payments, it is likely insufficient to establish stalking.

Online Harassment

Harassment in New York is a criminal offense that can be dealt with by filing a police report or, in some instances, by bringing a family offense petition seeking an order of protection in Family Court.  If someone is harassing you through electronic means or otherwise, your first step should always be to call the police.  Like with stalking, the bad actor must be engaging in such conduct for no legitimate purpose.  As always, remember to preserve all the evidence you think might be needed to make your case.

New York Penal Law 240.25 – Harassment in the First Degree

Harassment in the first degree occurs when another person intentionally and repeatedly harasses another by following them in public or repeatedly committing acts which place another in reasonable fear for their physical safety.

Harassment in the first degree is a Class B misdemeanor and, if your harasser is convicted, they can be ordered to serve up to three months in jail and be fined up to $500.

New York Penal Law 240.26 – Harassment in the Second Degree

Harassment in the second degree occurs when a person, with intent to harass, annoy, or alarm another: 1) strikes, shoves, kicks or otherwise subjects another to physical conduct or threatens to do the same; 2) follows another in public; or 3) engages in a course of conduct which alarms or seriously annoys another for no legitimate purpose.

Harassment in the first or second degree can occur digitally, and when that happens, it’s often referred to as online harassment.  While there’s no civil cause of action for online harassment, it is a criminal offense.  If you are a victim of online harassment, call the police and/or an attorney, who may be able to help you find relief in family court.

If you are a victim of cyberstalking or online harassment, in addition to reporting the crime to the police, you can also bring your case in family court.  One important thing to note is that, in criminal court, the standard of proof is beyond a reasonable doubt, whereas in family court, the standard of proof is a preponderance of the evidence or, a more likely than not standard.  Because of these differing standards, the district attorney would need to prove your case beyond a reasonable doubt, whereas you or your attorney would only need to establish that it was more likely than not your family offense petition is true.  As a result, you are more likely to be successful in obtaining an order of protection against an offender than a criminal conviction.

Victims of harassment, stalking, and other criminal offenses including disorderly conduct, unlawful dissemination of an intimate image, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, menacing, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation, assault or attempted assault, criminal mischief, identity theft, grand larceny, and coercion can also find justice in Family Court.

There are Family Courts in each borough of New York City as well as in each county of the greater-New York area.  While there are some restrictions on who can bring actions in Family Court, filing a family offense petition is another way to put an end to the offending conduct.  A family court judge can order an offender to stay away from you and your children, discontinue contact with you and others, move out of your house, give up their guns, follow custody orders, or pay child support.

Who Can Bring an Action in Family Court?

To bring a family offense petition in Family Court, it is necessary that you have an “intimate relationship” with the offender.  An intimate relationship includes members of your family or household, but can also apply to other sorts of close relationships.  If you and the offender are legally married or divorced, have a child in common, are related by marriage, are related by blood, reside or resided in the same house, or are or were in an intimate relationship, a court will likely consider you to have an intimate relationship with the offender.  Intimate relationships are not necessarily sexual in nature and do not need to be current.  For example, a person you once dated or your roommate might be considered an intimate relationship but your co-worker would not.While there is no hard and fast line governing the definition of an intimate relationship, courts consider the nature or type of your relationship, how often you see or saw each other, and the duration of the relationship.

There are two important upsides to bringing your action in family court.  First, family court records are private and not open for public inspection.  If you are worried about the allegations in your family offense petition making their way onto a public e-filing system, family court is the best way to avoid that.  Second, if you want to bring a family offense petition but are concerned for your safety, you can ask that your address remain confidential by completing an address confidentiality affidavit.

What Happens in Family Court?

First you must file your family offense petition in family court.  Once your family offense petition has been accepted for filing, you will go before a judge or referee who will review your petition and listen to your allegations.  The person who you have brought the family offense petition against, the respondent, will not be present in the courtroom or at the courthouse.  After hearing your story, the judge or referee will determine whether to issue a temporary order of protection and will set a date for your next appearance.  If you receive a temporary order of protection, you must have it served on the respondent.  You cannot serve the respondent with the order of protection yourself.

Temporary orders of protection can and often contain many of the same restrictions as a final order of protection.  For instance, you can ask that the respondent be ordered to stay away from your home and/or workplace and refrain from communicating with you and others.  Temporary orders of protection are only valid until the following court appearance and must be extended at each subsequent court date.

It is important that you show up to your next court date or your temporary order of protection will no longer be in effect and your case will be dismissed.  The respondent should also be present at your second court date, but if they are not, the court can consider your allegations and issue a final order of protection without the respondent being present.   If you are both present, the respondent will either consent to an order of protection or the judge or referee will set a date for a trial.

At the trial, both parties present their facts to the judge or referee.  This is your opportunity to tell your side of the story and show the judge or referee your preserved evidence.  The respondent will also tell their side of the story and present evidence of their own.  At the conclusion of the trial, the judge will decide whether to issue a final order of protection.

What Happens When a Judge Determines I’ve Proven the Allegations in My Family Offense Petition?

If, after a fact-finding hearing is held, the judge determines you have proven your allegations, a dispositional hearing is held. At a dispositional hearing, the judge will issue an order which may 1) suspend judgment for up to six months; 2) place the offender on probation for up to a year and require they participate and pay for a batterer’s education program and potentially alcohol or drug treatment; 3) require the offender pay up to $10,000 in restitution; and/or 4) issue a final order of protection which can last up to two years.  If the judge finds there are aggravating circumstances, they may issue a five-year order of protection.

What Happens if the Protection Order is Violated?

If you have an order of protection against your offender and they violate it, they can be sentenced to up to six months in jail for each violation.  The court may also suspend or revoke the person’s license to carry a gun.