[Sharing Lights]

Part IV


Hate groups and extremists have found a new forum in the Internet to spread their propaganda. The Internet allows these groups to reach impressionable audiences with an ease that they have never been able to accomplish. However much people might disagree with these views, the First Amendment forbids silencing speech because of its content. The First Amendment protects the materials published in these hate sites just as it would protect the same information spoken or published in a book or a newspaper. [FN17] As a result, it is important to note that this section of this statute does not make uttering derogatory comments illegal. It is only when a person "crosses the line" by directing his/her hate-filled message at another person in the form of a threat. A prime example would be the case of Richard Machando, a former college student at the University of California at Irvine. [FN18] Mr. Machando sent racist death threats to fifty-nine Asian students at the University. Mr. Machando blamed the Asian students for lack of campus quality. His e-mails stated: "I personally will make it my life career to find and kill everyone of you personally." He signed the e-mail "Asian Hater." As a result of transmitting these messages, Mr. Machando was sentenced to one year in jail. [FN19]

§2.02.2 (D) Non-Sexual Stalking

Non-Sexual Stalking is an electronic version of the real world crime: unwanted, obsessive pursuit of an individual by another individual. "The architecture of cyberspace might make it more common because you can do it all from your chair...without going to the trouble of tracking [a victim] down, going to their house and leaving a note." [FN20] Therefore, the drafter created non-sexual stalking to contain the same elements as physical stalking: willfully, maliciously and repeatedly following or harassing another person.

A possible scenario that may be addressed by §2.02.2 (D), non-sexual stalking, is the Dellapenta case. [FN21] The alleged stalking began when the victim rejected Mr. Dellapenta's romantic advances. The victim and Mr. Dellapenta were both members of the same church, a place where they first met each other. [FN22] Mr. Dellapenta unrelentlessly pursued the victim, to the point where she asked church members to intervene, which they did. Mr Dellapenta told men the victim's name, address, phone number, a her physical description and how to bypass her home security system. Mr. Dellapenta's later posted an ad on the Internet which contained the following message, in addition to the victim's personal information: "I am into rape fantasy and gang-bang fantasy." [FN23] The victim, who didn't even own a computer at the time, began receiving phone calls and had men showing up at her apartment saying that they were responding to her online personal ads. The non- sexual stalking section of this statute is partly modeled after California's Stalking law, of which Mr. Dellapenta had been charged with violating.



§2.02.2 (E) Intimidation

Intimidation can be considered a lesser included offense of online threats, §2.02.2 (C). However, there are situations where a person might not necessarily intent to threaten a victim, but rather intimidate the victim to do something he/she might not otherwise do before the intimidation. This is why the drafter felt that a section on intimidation still be part of the Online Harassment, Threats and Non-Sexual Stalking statute.

A possible scenario that may be addressed by §2.02.2 (E), intimidation, is witness intimidation. A fifteen year old girl claims that her uncle sexually abused her. As a result, she brings criminal charges against him. In an effort to keep the abuse victim from testifying, the accused posts messages on the Internet claiming that the fifteen year old abuse victim is interested in sexual encounters. [FN24]

Another possible scenario that may be addressed by §2.02.2 (E) is political intimidation. Tara Newell, an undergraduate student at McGill received several threatening and obscene messages at the beginning of the election period for President of the Student Society of McGill Undergraduates. [FN25] By reading Newell's saved messages, the perpetrator learned personal details about his/her victim. The perpetrator threatened to continue harassing her until Newell dropped out of the election.

§2.02.2 (F) Intentional Infliction of Emotional Distress

Intentional Infliction of Emotional Distress is often referred to as the Tort of Outrage in the civil realm. [FN26] This section is meant to address behavior that is caused by "ill will or wickedness of the heart." [FN27] This section's degrees of culpability are modeled after the general requirements of culpability in the Model Penal Code, §2.02.2 (2)(a-c). The drafter decided to created degrees of culpability to better define the behavior of the perpetrator and to allow for more precise prosecution. Intentional Infliction of Emotional Distress can be categorized as a lesser included offense of harassment and threats. As a result, a Prosecutor has lesser standards or elements to prove in these types of cases. For example, a prosecutor may not be able to meet the elements for threats, however, he/she might be more able to prove the elements of emotional distress. This allows the victim a sense of justice, without letting the perpetrator escape criminal liability.

A possible scenario that may be addressed by §2.02.2 (F)(1)(a), purposely inflicting emotional distress, is that of virtual rape. "The heretofore unknown crime of "virtual rape" has emerged as an issue with the rise of cyberspace and the Internet, because it is now possible to simulate a sexual attack and thereby cause psychological and emotional, though not physical, injury to the victim(s)." [FN28] The drafter recognizes that the harm in a case of virtual rape is not the physical harm, because there exists no physical contact that is part of the crime of "rape." [FN29] An act that would be considered a virtual rape would include the following scenario. A perpetrator videotapes a female neighbor without her consent. He takes the video image that he obtained and uses computer equipment to "metamorphize" the image of his female neighbor on to another individual's body who is being physically assaulted and raped. The perpetrator then takes the images he created and disseminates them on the Internet. He also sends his victim a copy of what he created. The perpetrator informs the victim as to where she may find these metamorphized images on the Internet. [FN30] Such actions clearly have the intent to purposely inflict emotional distress on the victim. These actions can also be argued that they constitute "true threats" under §2.02.2 (C) because the perpetrator sent the video tape to the victim, with sites that she should also view to see "herself" on the Internet. Such actions go beyond the Baker test of being pure fantasy stories between two email correspondents. The perpetrator actually contacted the victim with material she would view as threatening and the perpetrator intended her to view the material and thus fear for her safety.

to be continued