A Review of Statutes and the Role of the Forensic Psychiatrist in Cyberstalking Involving Youth

Age Reference

Depending on the state, an online stalker may be subject to harsher legal consequences if the victim is a minor.¹⁸ At present, 19 states include an age reference in their cyberstalking laws, however, no two states treat youth stalkers or victims the same. The available literature on juvenile Internet-based risk-taking consistently demonstrates that minors are more likely to both engage in cybercriminal behaviors and become victims of multiple forms of cybercrime.²⁰ The adaptation of age references in cyberstalking statutes is in line with juvenile courts' recent considerations of adolescent neuroscience principles in making fair rulings.^21,22

Several purposes may be served by creating cyberstalking laws that explicitly treat youth in a way that honors their vulnerability to cyberstalking behaviors and victimization. Possible benefits of age specification include special deterrence from acts that target minors; rehabilitative treatment for young, immature perpetrators with mental illness; and protection from severe criminal sanctions of young victims or third parties who were coerced into contributing to an act of cyberstalking. Of the states that refer to age in their stalking or cyberstalking laws, 19 acknowledge the need to impose more severe punishments on those who offend against minors. Only eight states, however, acknowledge developmental immaturity as a factor in considering sentences for young offenders.

In State v. Kohonen,²³ the Court of Appeals of Washington considered the appeal of a youth adjudicated guilty of cyberstalking in the context of an adolescent's state of mind. The court noted that a “reasonable person in her [the adolescent's] position” (Ref. 23, p 20) would not have known her messages would be construed as a “true threat” and thus reversed the conviction. Table 3 summarizes the age variability in state cyberstalking laws.

Allowing the Use of a Device for Cyberstalking

Laws in 13 states specify that someone who knowingly allows another person to use a personal electronic device to perpetrate cyberstalking may be held criminally responsible. An example of this occurred in Boston v. Athearn,²⁴ when the Georgia Court of Appeals held in 2014 that parents could be found negligent for allowing their child's false and offensive statements online to remain posted after learning of their existence. In general, an adolescent's risk of delinquent behavior is mitigated by increased parental involvement²⁵; however, cyberstalking may be difficult for parents to supervise.²⁶

Sexual Solicitation and Offender Registration

In the course of cyberstalking, behaviors such as sexual solicitation, exchanging sexually explicit images, and grooming to perform sexual acts over video may occur.²⁷ Risk factors make certain youth particularly vulnerable to being victimized in this manner.²⁸ In rare cases, parents facilitate their child's online expression of sexual behavior, often for monetary compensation or drugs.²⁹ Laws in 24 states specify that this behavior falls under the purview of cyberstalking and is subject to similar criminal prosecution (see Table 2). Only three states require sex offender registration because of conviction for this behavior (see Table 2). The purposes of explicit statutory language addressing this theme include deterrence, network surveillance for offenders, and public awareness of registered offenders.

Courts have encountered challenges balancing the consideration of a victim's negative reaction to sexual solicitation with protecting free speech. For example, in United States v. Alkhabaz, the defendant created a blog where he posted stories detailing the rape and murder of a woman whose name was the same as his classmate.³⁰ The Sixth Circuit Court of Appeals determined that these postings did not constitute “communication containing a threat” that a reasonable person would believe was real.³⁰

Protective Orders

Certain states' statutes suggest a protective order be filed when the risk of continued cyberstalking is high. The effectiveness of protective orders is highly dependent on whether the order is permanent or temporary,³¹ the unique circumstances, the individual against whom the order is filed, and the measured outcome.³² Depending on the state, laws may specify that sending inappropriate or any electronic messages to the victim constitutes a violation of the protective order. To our knowledge, there have not been any studies that have attempted to determine whether protective orders are effective at deterring continued online abuse between or against minors.

Jurisdiction

Twenty-three state statutes specify jurisdiction over a cyberstalker who was in another state when threatening messages were sent. When a state does not specify such jurisdiction, federal laws prohibiting interstate stalking are the only means of prosecution. For example, in United States v. Matusiewicz, most of the defendant's electronic communications to harass family members in Delaware emanated from Texas. This case resulted in the first convictions of cyberstalking leading to death.³³ The provisions of the federal stalking statute¹⁸ have simplified the prosecution of interstate cyberstalking cases. Furthermore, the October 2013 amendment to this federal law provided that the victim and perpetrator need not be in separate jurisdictions for the law to apply.¹⁸

Threats to Immediate Family

Federal law¹⁸ and two thirds of the states' cyberstalking statutes³⁴ criminalize online threats to a victim's family members. Some statutes specify the meaning of “family member,” and others leave this undefined. A threat directed at a family member, however, may or may not substantiate a case. In United States v. Moreland,³⁵ an Oklahoma federal district court held that Charles Moreland's electronically transmitted threats directed at the victim's brother would not be considered in his adjudication. The court reasoned that the victim had forwarded Mr. Moreland's threatening messages to her brother and therefore, Mr. Moreland, “by his own conduct, [had not] caused the immediate family members emotional distress” (Ref. 35, p 1232).

Cyberstalking and Stalking Laws

Distinguishing between electronically mediated and traditional, offline harassment behaviors has been the goal of emerging research and legislation.³⁶ Current research suggests ambiguity with regard to differences in motivation, degree of victimization, and demographic characteristics of the typical perpetrator³⁷ and victim.³⁸ Some states have enacted statutes specific to cyberstalking, and others have used or amended existing harassment statutes to cover Internet-based crime.³⁹ Forty U.S. jurisdictions have augmented existing stalking statutes to include electronically facilitated stalking, and 12 expressly apply different law to such behavior.

Evaluation of the Victim

Cyberstalking is one of the few crimes that include the victim's state of mind as an element of proof.⁴⁰ All states' criminal cyberstalking statutes require that the victim experienced alarm, fear, or emotional distress because of the perpetrator's behavior.³⁴ Many states employ the reasonable person standard to determine whether illegal stalking has occurred. The reasonable person test requires that a reasonable person would agree that such a reaction was warranted.³⁴ For this reason, mental health expert witnesses may or may not be required to testify to prove that a crime was committed. Prosecutors sometimes need help proving that cyberstalking has occurred, that the victim experienced the quality and extent of emotional distress specified by the relevant statute, and that the victim's reaction was reasonable.⁴⁰ For example, a victim who exhibits an atypical reaction or an adaptive response to long-term abuse may not present with symptoms that are adequately probative for a factfinder's determination.^40,41 The emotional distress and reasonable person standards may invalidate a victim's experience of stalking in the absence of an overt psychological reaction. In these cases, a prosecutor may summon a forensic psychiatrist to facilitate a jury or judge's understanding of the nature and effects of cyberstalking.⁴²

The forensic psychiatrist needs to consider a victim's age, mental health diagnoses, and developmental maturity when determining the reasonableness of the victim's reaction. When the forensic psychiatrist is asked to evaluate cyberstalking involving the family members of the main victim, it is important to be aware of the language used in the relevant cyberstalking law because it may require that the family member experienced distress or that the perpetrator intended to send the messages (general intent) or to cause emotional distress in specific family members (specific intent).

The forensic psychiatrist may also be asked to form an opinion about the effects of cyberstalking on the victim's level of functioning, symptoms, prognosis and need for treatment. In the 13 states with civil stalking statutes (i.e., Arkansas, California, Kentucky, Michigan, Nebraska, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Virginia, Washington, and Wyoming),⁴³ the forensic psychiatrist may be asked to perform an assessment of damages for which the cyberstalker may be liable. In jurisdictions where protective orders are issued based on online harassment, the forensic psychiatrist may consider when and by whom such an order was requested to help determine who was most affected and when emotional distress began.

Evaluation of the Perpetrator

A forensic psychiatrist may be asked to evaluate a cyberstalker to answer questions about mens rea, whether mental illness contributed to the commission of the offense, and future risk of violence and recidivism. A pretrial or postconviction risk assessment for future violence or re-offense may be ordered to determine whether involuntary commitment or a protective order is necessary.⁴⁴ In some cases, a prosecutor may request a court order for pretrial supervision and restriction of either online or offline behavior to protect the victim.⁴⁰ These assessments can be particularly challenging for forensic mental health experts.

Little is known about specific cyberstalking characteristics and case factors that predict future violence and risk of recidivism. Evaluators who choose to employ research on future violence risk in traditional stalking to estimate risk associated with cyberstalking should be explicit about the limitations of that risk assessment. The evaluator should highlight factors unique to the cyberstalking index offense that may greatly influence future risk of physical violence, such as how and why a victim was selected and the geographic distance between involved parties. With traditional stalking, a prior relationship, particularly one that involved sexual intimacy,⁴⁵ is predictive of future violence.⁴⁶ Research suggests that after a protective order has been filed to prevent ongoing intimate partner violence, women with children were more likely than women without children to be further victimized by stalking that led to violence.⁴⁷ The more important factors found to predict risk of future violence after traditional stalking were prior criminal record, overt threats, substance use, and stalker characteristics.⁴⁶ Other factors correlated with violence following traditional stalking behavior include history of mental illness, history of violence, history of intimate partner violence, vandalism, pet abuse, and escalating stalking behavior.⁴⁸

When evaluating a perpetrator for future risk of violence, the forensic psychiatrist needs to remain abreast of known differences and research limitations on the similarities and differences between traditional and online stalking. The evaluator should investigate the circumstances of a perpetrator's protective order violations, as they may provide evidence of problems with impulse control, impaired understanding of the order's significance, delusions, severity of mental health impairments, and risk of recidivism without treatment.

When evaluating a perpetrator for treatment recommendations and amenability, the evaluator should attempt to appreciate whether the stalking behavior qualitatively fits into the constellation of a known psychiatric disorder. Examples of such diagnoses include psychotic disorders,⁴⁹ obsessive-compulsive disorder,⁵⁰ paraphilias,⁵¹ developmental disorders including autism spectrum disorder,⁵² impulse control disorders, substance use disorders,⁵³ and personality disorders.⁴⁹ When cyberstalking occurs across state lines, the forensic psychiatrist needs to be familiar with the motives associated with remote online harassment,⁵⁴ how they relate to diagnosis,⁵⁵ and implications for treatment.

Categorizing stalker types with respect to their behavior may lead to better violence risk assessments and intervention for this population.⁵⁶ It is difficult to discern one generally accepted classification method, however, because stalking behavior is complex and individual cases are distinct.⁵⁷ Proposed adult stalker categories have included obsessive, erotomanic, delusional,⁵⁸ predatory, disorganized, intimacy-seeking, rejected, retaliating, and bullies.⁵⁹

A forensic psychiatrist may be asked to evaluate the perpetrator's state of mind to determine if it was consistent with the commission of a general or specific intent crime. The intent behind cyberstalking is an element of all states' relevant statutes,³⁴ and is one of the harder elements to prove.⁴⁰ According to general intent statutes, a crime has been committed simply if cyberstalkers intended to text, email, or communicate electronically. Proving a specific intent crime was committed requires demonstration of the perpetrator's intent to induce consequences of fear, alarm, or emotional distress in a given victim. In either case, the forensic psychiatrist must provide an opinion about the offender's state of mind at the time of the act.

Experts can be helpful in assessing whether transmitted messages were consistent with cyberstalking as opposed to transient, self-limited behavior.⁶⁰ When the behavior is clearly consistent with stalking, the evaluator may be asked to determine whether mental illness, at the time of the act, may form a basis for legal insanity.⁴⁴ In addition to the usual interview, record review, and collateral contacts, it is important for the forensic psychiatrist to review records beyond what is normally provided, such as texts, emails, letters, videotaped police interviews, and the offender's correspondence with people other than the victim.⁴⁴

Reviewing a cyberstalker's electronic messages during the course of cyberstalking may help inform determinations of state of mind or legal insanity. The insanity defense has been successfully mounted in cases of traditional stalking.⁶¹ In 2010, for example, Steve Richard Burky was granted an insanity acquittal and given a 10-year protective order for stalking Jennifer Garner, her husband (Ben Affleck), and their two daughters for eight years.⁶² To our knowledge, there have not been any cases of cyberstalking that have successfully used the insanity defense.

There are only 10 U.S. jurisdictions with stalking statutes that specify the court's ability to order mental health evaluation and treatment for the offender (see Table 2). These evaluations may either be ordered before a formal conviction or after a guilty verdict. In either case, the forensic psychiatrist may be asked to provide an opinion about whether the offender has a mental illness, if treatment would aid rehabilitation, and if the offender is amenable to such treatment. It is important to opine within the scope of expertise and evidence presented rather than comment on other aspects of the case, such as the likelihood that the victim experienced extortion, identity theft, blackmailing, or other occurrences associated with cyberstalking.

Evaluating Youth Victims and Perpetrators

There are special considerations when evaluating youth with immaturity or with diagnoses such as neurodevelopmental disorders or autism spectrum disorders. The developmental perspective is crucial to questions about state of mind, treatment amenability, and future violence risk. Although stalking behaviors are common in adolescence, they are infrequently associated with malicious intent and may instead reflect inexperience with forming and ending relationships in developmentally immature youth.⁶³ Persons with autism spectrum disorders may be at higher risk of engaging in lengthier stalking pursuits, inappropriate courting, and fixating on strangers, colleagues, and ex-partners.⁵² The forensic psychiatrist should be familiar with useful interventions to mitigate stalking behavior in persons with autism, such as direct teaching of social and romantic skills.⁶⁴

In addition to neurodevelopmental considerations, forensic psychiatrists need to consider the child's home environment; for example, whether a child has had adequate supervision or was coerced during the commission of the crime. The forensic psychiatrist needs to take parental involvement into account when rendering an opinion about amenability to treatment for juvenile cyberstalking offenders. Similarly, awareness of child abuse reporting laws in the relevant jurisdiction is important. If reasonable suspicion of parent, guardian, or third party enablement of the crime arises in the course of an evaluation, a mandated report may be required.⁶⁵ Criminal responsibility may apply to a knowing third-party participant who understands the intent of the stalking behavior.³⁴ Compared with adults, juveniles more frequently recruit accomplices in the course of stalking behavior.⁶⁶ In the evaluation of a third party involved in cyberstalking, collateral information may be important in determining whether the person was a knowing participant.