Pennsylvania Statutory Criminal Law

  1. Criminal Nonconsensual Porn, 18 Pa.C.S. § 3131

    a. Introduction

    WMC plaintiffs can also seek relief under the Unlawful Dissemination of Intimate Image law, which holds a defendant accountable for the distribution of photos without the consent of the other party. The photos can be taken with the consent of the victim, but the posting or sharing of the photos or video must be without the victim’s consent.

    b. Text of Statute

    18 Pa.C.S. § 3131. Unlawful dissemination of intimate image.

    (a)  Offense defined. — Except as provided in sections 5903 (relating to obscene and other sexual material and performances), 6312 (relating to sexual abuse of children) and 6321 (relating to transmission of sexually explicit images by minor), a person commits the offense of unlawful dissemination of intimate image if, with intent to harass, annoy or alarm a current or former sexual or intimate partner, the person disseminates a visual depiction of the current or former sexual or intimate partner in a state of nudity or engaged in sexual conduct.

    (b)  Defense. — It is a defense to a prosecution under this section that the actor disseminated the visual depiction with the consent of the person depicted.

    (c)  Grading. — An offense under subsection (a) shall be:

    (1)  A misdemeanor of the first degree, when the person depicted is a minor.

    (2)  A misdemeanor of the second degree, when the person depicted is not a minor.

    (d)  Territorial applicability. — A person may be convicted under the provisions of this section if the victim or the offender is located within this Commonwealth.

    (e)  Nonapplicability. — Nothing in this section shall be construed to apply to a law enforcement officer engaged in the performance of the law enforcement officer’s official duties.

    (f)  Concurrent jurisdiction to prosecute. — In addition to the authority conferred upon the Attorney General by the act of October 15, 1980 (P.L. 950, No. 164), known as the Commonwealth Attorneys Act, the Attorney General shall have the authority to investigate and to institute criminal proceedings for any violation of this section or any series of violations involving more than one county of this Commonwealth or another state. No person charged with a violation of this section by the Attorney General shall have standing to challenge the authority of the Attorney General to investigate or prosecute the case, and, if a challenge is made, the challenge shall be dismissed, and no relief shall be made available in the courts of this Commonwealth to the person making the challenge.

    (g)  Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:

    “Law enforcement officer.” —Any officer of the United States, of the Commonwealth or political subdivision thereof, or of another state or subdivision thereof, who is empowered to conduct investigations of or to make arrests for offenses enumerated in this title or an equivalent crime in another jurisdiction, and any attorney authorized by law to prosecute or participate in the prosecution of such offense.

    “Minor.” —An individual under 18 years of age.

    “Nudity.” —As defined in section 5903(e) (relating to obscene and other sexual materials and performances).

    “Sexual conduct.” —As defined in section 5903(e) (relating to obscene and other sexual materials and performances).

    “Visual depiction.” —As defined in section 6321 (relating to transmission of sexually explicit images by minor).

    c. Cases

    There are currently no cases concerning the statute at this time.

    d. Practice Pointers

    The original 2014 version of Pennsylvania's criminal nonconsensual porn law was drafted to cover only nonconsensual porn conduct perpetrated by a "current or former sexual or intimate partner" who acted with "intent to harass." Therefore, any perpetrator: (1) who was not a former sexual or intimate partner; or (2) "who disclosed private, sexually explicit material for profit, reputation enhancement, entertainment, or 'satire'" could arguably act with impunity. See Franks, Mary Anne, 'Revenge Porn' Reform: A View from the Front Lines (October 17, 2016). Florida Law Review, Forthcoming; University of Miami Legal Studies Research Paper No. 16-43. Available at SSRN: https://ssrn.com/abstract=2853789.  This foreseeable scenario played out in a 2015 Penn State fraternity incident. The KDR fraternity was caught posting photos of naked, unconscious women to a members-only Facebook page, and explained "[i]t was a satirical group." Id. at 54.  As of December 2016, there is proposed legislation that may alter the text and substance of this statute to close the "relationship loophole" in light of the KDR fraternity case. See Franks,  'Revenge Porn' Reform, at 55. In many states, criminal revenge porn laws are passed in original versions and then updated on a regular basis as society's understanding of this crime evolves. When conducting your research, be sure you are reading the current version of the statute for the most up to date definitions of covered conduct.

    ↑ Back to top
  2. Assault

    1. Introduction

      If a WMC victim is assaulted the State may bring criminal assault charges against the defendant(s) for simple assault or aggravated assault. A WMC victim subject to violence can ask the State to bring charges while pursuing related claims of his or her own.

    2. Text of Statute

        (1) 18 Pa. Cons. Stat. § 2701 - Simple assault.

          (a) Offense defined.

          Except as provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he:

            (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;

            (2) negligently causes bodily injury to another with a deadly weapon;

            (3) attempts by physical menace to put another in fear of imminent serious bodily injury; or

            (4) conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of a correctional institution, county jail or prison, detention facility or mental hospital during the course of an arrest or any search of the person.

          (b) Grading

          Simple assault is a misdemeanor of the second degree unless committed:

            (1) in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree; or

            (2) against a child under 12 years of age by a person 18 years of age or older, in which case it is a misdemeanor of the first degree.

        § 2702 – Aggravated assault.

          (a) Offense defined.

          A person is guilty of aggravated assault if he:

            (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

            (2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c) or to an employee of an agency, company or other entity engaged in public transportation, while in the performance of duty;

            (3) attempts to cause or intentionally or knowingly causes bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c), in the performance of duty;

            (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon;

            (5) attempts to cause or intentionally or knowingly causes bodily injury to a teaching staff member, school board member or other employee, including a student employee, of any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school while acting in the scope of his or her employment or because of his or her employment relationship to the school;

            (6) attempts by physical menace to put any of the officers, agents, employees or other persons enumerated in subsection (c), while in the performance of duty, in fear of imminent serious bodily injury;

            (7) uses tear or noxious gas as defined in section 2708(b) (relating to use of tear or noxious gas in labor disputes) or uses an electric or electronic incapacitation device against any officer, employee or other person enumerated in subsection (c) while acting in the scope of his employment;

            (8) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to a child less than six years of age, by a person 18 years of age or older; or

            (9) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a child less than 13 years of age, by a person 18 years of age or older.

          (b) Grading

          Aggravated assault under subsection (a)(1), (2) and (9) is a felony of the first degree. Aggravated assault under subsection (a)(3), (4), (5), (6), (7) and (8) is a felony of the second degree.

    3. Cases

      None at this time.

    4. Practice Pointers

      • The penalty for simple assault can include a term of imprisonment up to two years (for second degree misdemeanor)

      • The penalty for aggravated assault can include a term of imprisonment up to ten years for second degree felonies and more than ten years for first degree felonies

    ↑ Back to top
  3. Hate Crimes

    1. Introduction

      If a WMC victim is targeted for harassment, assault, stalking, or crimes such as criminal trespass (among others) because of their race, color, religion, or national origin, the State may use this statute to provide further relief.

    2. Text of statute

      1. 18 Pa. Cons. Stat. Ann. § 2710 – Ethnic intimidation.

          (a) Offense defined.

          A person commits the offense of ethnic intimidation if, with malicious intention toward the race, color, religion or national origin of another individual or group of individuals, he commits an offense under any other provision of this article or under Chapter 33 (relating to arson, criminal mischief and other property destruction) exclusive of section 3307 (relating to institutional vandalism) or under section 3503 (relating to criminal trespass) with respect to such individual or his or her property or with respect to one or more members of such group or to their property.

          (b) Grading

          An offense under this section shall be classified as a misdemeanor of the third degree if the other offense is classified as a summary offense. Otherwise, an offense under this section shall be classified one degree higher in the classification specified in section 106 (relating to classes of offenses) than the classification of the other offense.

          (c) Definition

          As used in this section “malicious intention” means the intention to commit any act, the commission of which is a necessary element of any offense referred to in subsection (a) motivated by hatred toward the race, color, religion or national origin of another individual or group of individuals.

    3. Cases

      None at this time.

    4. Practice Pointers

      The potential penalty for hate crimes depends on the classification of the other offense involved, but, at a minimum, can include a term of prison up to a year.

    ↑ Back to top
  4. Eavesdropping and Electronic Surveillance

    1. Introduction

      The Wiretapping and Electronic Surveillance Control Act (“Wiretapping Act”) limits a defendant’s ability to monitor the activities or communications of another person. Liability under the act results in a third degree felony to the defendant if their actions were intentional and were an attempt to monitor any wire, electronic, or oral communication in the absence of all parties consenting to such action.

    2. Text of Statute

      1. (1) 18 Pa. Cons. Stat. § 5701 – Wiretapping and Electronic Surveillance Control Act

        (2) § 5702 – Definitions.

          (a) As used in this chapter, the following words and phrases shall have the meanings given to them in this section unless the context clearly indicates otherwise:

          (b) “Aggrieved person.” A person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed.

          (c) “Aural transfer.” A transfer containing the human voice at any point between and including the point of origin and the point of reception.

          (d) “Communication common carrier.” Any person engaged as a common carrier for hire, in intrastate, interstate or foreign communication by wire or radio or in intrastate, interstate or foreign radio transmission of energy; however, a person engaged in radio broadcasting shall not, while so engaged, be deemed a common carrier.

          (e) “Communication service.” Any service which provides to users the ability to send or receive wire or electronic communications.

          (f) “Communication system.” Any wire, radio, electromagnetic, photo-optical or photoelectronic facilities for the transmission of communications and any computer facilities or related electronic equipment for the electronic storage of such communications.

          (g) “Contents.” As used with respect to any wire, electronic or oral communication, is any information concerning the substance, purport, or meaning of that communication.

          (h) “Court.” The Superior Court. For the purposes of Subchapter C only, the term shall mean the court of common pleas.

          (i) “Crime of violence.” Any of the following:

            (1) Any of the following crimes:

              (i) Murder in any degree as defined in section 2502(a), (b) or (c) (relating to murder).

              (ii) Voluntary manslaughter as defined in section 2503 (relating to voluntary manslaughter), drug delivery resulting in death as defined in section 2506(a) (relating to drug delivery resulting in death), aggravated assault as defined in section 2702(a)(1) or (2) (relating to aggravated assault), kidnapping as defined in section 2901(a) or (a.1) (relating to kidnapping), rape as defined in section 3121(a), (c) or (d) (relating to rape), involuntary deviate sexual intercourse as defined in section 3123(a), (b) or (c) (relating to involuntary deviate sexual intercourse), sexual assault as defined in section 3124.1 (relating to sexual assault), aggravated indecent assault as defined in section 3125(a) or (b) (relating to aggravated indecent assault), incest as defined in section 4302(a) or (b) (relating to incest), arson as defined in section 3301(a) (relating to arson and related offenses), burglary as defined in section 3502(a)(1) (relating to burglary), robbery as defined in section 3701(a)(1)(i), (ii) or (iii) (relating to robbery) or robbery of a motor vehicle as defined in section 3702(a) (relating to robbery of a motor vehicle).

              (iii) Intimidation of witness or victim as defined in section 4952(a) and (b) (relating to intimidation of witnesses or victims).

              (iv) Retaliation against witness, victim or party as defined in section 4953(a) and (b) (relating to retaliation against witness, victim or party).

              (v) Criminal attempt as defined in section 901(a) (relating to criminal attempt), criminal solicitation as defined in section 902(a) (relating to criminal solicitation) or criminal conspiracy as defined in section 903(a) (relating to criminal conspiracy) to commit any of the offenses specified in this definition.

            (2) Any offense equivalent to an offense under paragraph (1) under the laws of this Commonwealth in effect at the time of the commission of that offense or under the laws of another jurisdiction.

          (j) “Electronic communication.” Any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system, except:

            (Deleted by amendment).

            Any wire or oral communication.

            Any communication made through a tone-only paging device.

            Any communication from a tracking device (as defined in this section).

          (k) “Electronic, mechanical or other device.” Any device or apparatus, including, but not limited to, an induction coil or a telecommunication identification interception device, that can be used to intercept a wire, electronic or oral communication other than:

            (1) Any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business, or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business, or being used by a communication common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties.

            (2) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

            (3) Equipment or devices used to conduct interceptions under section 5704(15) (relating to exceptions to prohibition of interception and disclosure of communications).

          (l) “Electronic storage.”

            (1) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof.

            (2) Any storage of such a communication by an electronic communication service for purpose of backup protection of the communication.

          (m) “Home.” The residence of a nonconsenting party to an interception, provided that access to the residence is not generally permitted to members of the public and the party has a reasonable expectation of privacy in the residence under the circumstances.

          (n) “In-progress trace.” The determination of the origin of a telephonic communication to a known telephone during an interception.

          (o) “Intercept.” Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device. The term shall include the point at which the contents of the communication are monitored by investigative or law enforcement officers. The term shall not include the acquisition of the contents of a communication made through any electronic, mechanical or other device or telephone instrument to an investigative or law enforcement officer, or between a person and an investigative or law enforcement officer, where the investigative or law enforcement officer poses as an actual person who is the intended recipient of the communication, provided that the Attorney General, a deputy attorney general designated in writing by the Attorney General, a district attorney or an assistant district attorney designated in writing by a district attorney of the county wherein the investigative or law enforcement officer is to receive or make the communication has reviewed the facts and is satisfied that the communication involves suspected criminal activities and has given prior approval for the communication.

          (p) “Investigative or law enforcement officer.” Any officer of the United States, of another state or political subdivision thereof or of the Commonwealth or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter or an equivalent crime in another jurisdiction, and any attorney authorized by law to prosecute or participate in the prosecution of such offense.

          (q) “Judge.” When referring to a judge authorized to receive applications for, and to enter, orders authorizing interceptions of wire, electronic or oral communications pursuant to Subchapter B (relating to wire, electronic or oral communication), any judge of the Superior Court.

          (r) “Mobile communications tracking information.” Information generated by a communication common carrier or a communication service which indicates the location of an electronic device supported by the communication common carrier or communication service.

          (s) “One call system.” A communication system established by users to provide a single telephone number for contractors or designers or any other person to call notifying users of the caller's intent to engage in demolition or excavation work.

          (t) “Oral communication.” Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation. The term does not include any electronic communication.

          (u) “Organized crime.”

            (1) The unlawful activity of an association trafficking in illegal goods or services, including but not limited to, gambling, prostitution, loan sharking, controlled substances, labor racketeering, or other unlawful activities; or

            (2) any continuing criminal conspiracy or other unlawful practice which has as its objective:

              (i) large economic gain through fraudulent or coercive practices; or

              (ii) improper governmental influence.

          (v) “Pen register.” A device which is used to capture, record or decode electronic or other impulses which identify the numbers dialed or otherwise transmitted, with respect to wire or electronic communications, on the targeted telephone. The term includes a device which is used to record or decode electronic or other impulses which identify the existence of incoming and outgoing wire or electronic communications on the targeted telephone. The term does not include a device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communication service provided by the provider, or any device used by a provider, or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of business.

          (w) “Person.” Any employee, or agent of the United States or any state or political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation.

          (x) “Readily accessible to the general public.” As used with respect to a radio communication, that such communication is not:

            (1) scrambled or encrypted;

            (2) transmitted using modulation techniques of which the essential parameters have been withheld from the public with the intention of preserving the privacy of the communication;

            (3) carried on a subscriber or other signal subsidiary to a radio transmission;

            (4) transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication; or

            (5) transmitted on frequencies allocated under 47 CFR Parts 25, 74D, E, F or 94, unless, in the case of a communication transmitted on a frequency allocated under Part 74 which is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio.

          (y) “Remote computing service.” The provision to the public of computer storage or processing services by means of an electronic communications system.

          (z) “Signed, written record.” A memorialization of the contents of any wire, electronic or oral communication intercepted in accordance with this subchapter, including the name of the investigative or law enforcement officer who transcribed the record, kept in electronic, paper or any form. The signature of the transcribing officer shall not be required to be written, but may be electronic.

          (aa) “State.” Any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico and any territory or possession of the United States.

          (bb) “Suspected criminal activity.” A particular offense that has been, is or is about to occur as set forth under section 5709(3)(ii) (relating to application for order), any communications to be intercepted as set forth under section 5709(3)(iii) or any of the criminal activity set forth under section 5709(3)(iv) establishing probable cause for the issuance of an order.

          (cc) “Telecommunication identification interception device.” Any equipment or device capable of intercepting any electronic communication which contains any electronic serial number, mobile identification number, personal identification number or other identification number assigned by a telecommunication service provider for activation or operation of a telecommunication device.

          (dd) “Tracking device.” An electronic or mechanical device which permits only the tracking of the movement of a person or object.

          (ee) “Trap and trace device.” A device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or communication was transmitted. The term includes caller ID, deluxe caller ID or any other features available to ascertain the telephone number, location or subscriber information of a facility contacting the facility whose communications are to be intercepted.

          (ff) “User.” Any person or entity who:

            (1) uses an electronic communication service; and

            (2) is duly authorized by the provider of the service to engage in the use.

          (gg) “Wire communication.” Any aural transfer made in whole or in part through the use of facilities for the transmission of communication by wire, cable or other like connection between the point of origin and the point of reception, including the use of such a connection in a switching station, furnished or operated by a telephone, telegraph or radio company for hire as a communication common carrier.

        (3) § 5703 – Interception, disclosure or use of wire, electronic or oral communications.

          (a) Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:

            (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;

            (2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or

            (3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication.

        (4) § 5725 – Civil action for unlawful interception, disclosure or use of wire, electronic or oral communication.

          (a) Cause of action

          Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication; and shall be entitled to recover from any such person:

            (1) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation, or $1,000, whichever is higher.

            (2) Punitive damages.

            (3) A reasonable attorney's fee and other litigation costs reasonably incurred.

          (b) Waiver of sovereign immunity.

          To the extent that the Commonwealth and any of its officers, officials or employees would be shielded from liability under this section by the doctrine of sovereign immunity, such immunity is hereby waived for the purposes of this section.

          (c) Defense.

          It is a defense to an action brought pursuant to subsection (a) that the actor acted in good faith reliance on a court order or the provisions of this chapter.

    3. Cases

      1. Commonwealth v. Deck , 954 A.2d 603, 609 (Pa. 2008)

        • Procedural Posture: The State appealed the trial court’s entry of judgment barring the introduction of audio taped conversations between the victim and defendant.
        • Procedural Posture: The State appealed the trial court’s entry of judgment barring the introduction of audio taped conversations between the victim and defendant.
        • Law: Wiretapping and Electronic Surveillance Control Act, statutory sexual assault, indecent assault.
        • Facts: Victim, a minor, recorded a phone conversation with her mother’s boyfriend, defendant, without his consent to prove the defendant was engaging in sexual relations with her. Victim gave the audiotape to the police who sought to use it at trial. At trial, the court suppressed the tape, finding it qualified as a wire communication under § 5702 of the Wiretap Act and was protected from interception under § 5703.
      2. Commonwealth v. Spence , 91 A.3d 44 (Pa. 2014)

        • Procedural Posture: After the appeals court affirmed the lower court’s ruling, the Supreme Court granted review on the issue.
        • Law: Wiretapping and Electronic Surveillance Control Act
        • Facts: A high school student was stopped and arrested by a State Trooper for possession of prescription drugs. After the arrest, the Trooper met with the student and arranged to have the student become a confidential informant. In this role, the student permitted the Trooper to contact the student’s drug supplier on the student’s cell phone, which the student placed on speaker to allow the Trooper to listen to his discussion with the supplier. The supplier was later arrested on the basis of a sale arranged with the student through the phone conversation, and sought to have the telephone conversation suppressed as a violation of the Wiretap Act. The State argued the Trooper’s listening in did not violate the Act because the Act specifically excludes telephones from the definition of devices that can be used in unlawfully intercept a communication.
        • Outcome: The court reversed the lower court’s finding that the Trooper listening in on the phone call was an unlawful interception.
    4. Practice Pointers

      • A WMC victim should not secretly record phone calls with a perpetrator to strengthen his or her legal claims, or could risk running afoul of this law.

      • The law is set to expire in December 31, 2018.

      • The Pennsylvania Supreme Court has found that the law does not apply to the covert interception of private communications if the interception is achieved through a telephone (i.e., a third person listening in on a conversation versus recording it).

      • A victim of an intercepted wire, electronic or oral communication in violation of the Wiretap Act can recover civilly the greater of actual damages of $100 a day for each day the Act is violated, or $1,000. Punitive damages and attorney’s fees can also be sought in a civil suit. 18 Pa. Cons. Stat. Ann. § 5747.

    ↑ Back to top
  5. Harassment

    1. Introduction

      A WMC victim may be harassed if a defendant communicates in a lewd, obscene, or threatening manner with the intent to harass the victim. The communication must be more than a one time occasion to establish the necessary finding that the harassment is a course of conduct, and can include communications made anonymously and over the internet or email.

    2. Text of Statute

        (1) 18 Pa. Cons. Stat. § 2709 – Harassment

          (a) Offense defined.

          A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person:

            (1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same;

            (2) follows the other person in or about a public place or places;

            (3) engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose;

            (4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures;

            (5) communicates repeatedly in an anonymous manner;

            (6) communicates repeatedly at extremely inconvenient hours; or

            (7) communicates repeatedly in a manner other than specified in paragraphs (4), (5) and (6).

          (a.1) Cyber harassment of a child.

            (1) A person commits the crime of cyber harassment of a child if, with intent to harass, annoy or alarm, the person engages in a continuing course of conduct of making any of the following by electronic means directly to a child or by publication through an electronic social media service:

              (i) seriously disparaging statement or opinion about the child's physical characteristics, sexuality, sexual activity or mental or physical health or condition; or

              (ii) threat to inflict harm.

            (2) If a juvenile is charged with a violation of paragraph (1), the judicial authority with jurisdiction over the violation shall give first consideration to referring the juvenile charged with the violation to a diversionary program under Pa.R.J.C.P. No. 312 (relating to Informal Adjustment) or No. 370 (relating to Consent Decree). As part of the diversionary program, the judicial authority may order the juvenile to participate in an educational program which includes the legal and nonlegal consequences of cyber harassment.

              (i) If the person successfully completes the diversionary program, the juvenile's records of the charge of violating paragraph (1) shall be expunged as provided for under section 9123 (relating to juvenile records).

          (b) Venue.

            (1) An offense committed under this section may be deemed to have been committed at either the place at which the communication or communications were made or at the place where the communication or communications were received.

            (2) Acts indicating a course of conduct which occur in more than one jurisdiction may be used by any other jurisdiction in which an act occurred as evidence of a continuing pattern of conduct or a course of conduct.

            (3) In addition to paragraphs (1) and (2), an offense under subsection (a.1) may be deemed to have been committed at the place where the child who is the subject of the communication resides.

          (c) Grading.

            (1) Except as provided under paragraph (3), an offense under subsection (a)(1), (2) or (3) shall constitute a summary offense.

            (2) An offense under subsection (a)(4), (5), (6) or (7) or (a.1) shall constitute a misdemeanor of the third degree.

            (3) The grading of an offense under subsection (a)(1), (2) or (3) shall be enhanced one degree if the person has previously violated an order issued under 23 Pa.C.S. § 6108 (relating to relief) involving the same victim, family or household member.

          (d) False reports.

          A person who knowingly gives false information to any law enforcement officer with the intent to implicate another under this section commits an offense under section 4906 (relating to false reports to law enforcement authorities).

          (e) Application of section.

          This section shall not apply to constitutionally protected activity.

          (f) Definitions.

          As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

            “Communicates.” Conveys a message without intent of legitimate communication or address by oral, nonverbal, written or electronic means, including telephone, electronic mail, Internet, facsimile, telex, wireless communication or similar transmission.

            “Course of conduct.” A pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct. The term includes lewd, lascivious, threatening or obscene words, language, drawings, caricatures or actions, either in person or anonymously. Acts indicating a course of conduct which occur in more than one jurisdiction may be used by any other jurisdiction in which an act occurred as evidence of a continuing pattern of conduct or a course of conduct.

            “Emotional distress.” A temporary or permanent state of mental anguish.

            “Family or household member.” Spouses or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood.

            “Seriously disparaging statement or opinion.” A statement or opinion which is intended to and under the circumstances is reasonably likely to cause substantial emotional distress to a child of the victim's age and which produces some physical manifestation of the distress.

    3. Cases

      1. Com. v. Cox , 2013 PA Super 221, 72 A.3d 719, 720 (2013)

        • Procedural Posture: Defendant appealed from her conviction by a jury of harassment.
        • Law: Harassment
        • Facts: Defendant, an adult, published lewd comments on Facebook referring to the underage victim having herpes and stating “She should stop spreading her legs like her mother.” After being charged with harassment, defendant was convicted by a jury and sentenced to 6 months of probation. Defendant argued her conviction was based on insufficient evidence, without stating how the evidence was insufficient. Defendant did argue that the state had no interest in what were, according to defendant, not criminal actions.
        • Outcome: The court found the “misuse of the Internet and social media was criminal.” The court continued that the defendant posted “a statement indicating the Victim suffered from a sexually transmitted disease on an online forum, and that this statement was viewed by multiple parties.” The court concluded such an action was sufficient to find defendant communicated lewd sentiments about the Victim, with the inference that her intent was to harass, annoy or alarm the victim. Finally, the court dismissed defendant’s argument that the jury gave too much weight to the victim’s emotional testimony, finding the evidence sufficient to support defendant’s conviction.
    4. Practice Pointers

      Harassment is punishable by up to a year in prison if a third degree misdemeanor and up to 90 days if considered a summary offense. If the defendant previously violated an order of protection regarding the same victim, family, or household member, the grading goes up a degree, so the sentence could be as high as two years’ imprisonment.

    ↑ Back to top
  6. Stalking

    1. Introduction

      Where a WMC victim is repeatedly harassed, the State may bring charges against a defendant for stalking. This includes instances where harassment occurs over communications including the internet or email.

    2. Text of Statute

        (1) 18 Pa. Cons. Stat. § 2709.1 – Stalking

          (a) Offense defined.

          A person commits the crime of stalking when the person either:

            (1) engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person; or

            (2) engages in a course of conduct or repeatedly communicates to another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person.

          (b) Venue

            (1) An offense committed under this section may be deemed to have been committed at either the place at which the communication or communications were made or at the place where the communication or communications were received.

            (2) Acts indicating a course of conduct which occur in more than one jurisdiction may be used by any other jurisdiction in which an act occurred as evidence of a continuing pattern of conduct or a course of conduct.

          (c) Grading

            (1) Except as otherwise provided for in paragraph (2), a first offense under this section shall constitute a misdemeanor of the first degree.

            (2) A second or subsequent offense under this section or a first offense under subsection (a) if the person has been previously convicted of a crime of violence involving the same victim, family or household member, including, but not limited to, a violation of section 2701 (relating to simple assault), 2702 (relating to aggravated assault), 2705 (relating to recklessly endangering another person), 2901 (relating to kidnapping), 3121 (relating to rape) or 3123 (relating to involuntary deviate sexual intercourse), an order issued under section 4954 (relating to protective orders) or an order issued under 23 Pa.C.S. § 6108 (relating to relief) shall constitute a felony of the third degree.

          (d) False reports.

          A person who knowingly gives false information to any law enforcement officer with the intent to implicate another under this section commits an offense under section 4906 (relating to false reports to law enforcement authorities).

          (e) Application of section.

          This section shall not apply to constitutionally protected activity.

          (f) Definitions

          As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

            “Communicates.” To convey a message without intent of legitimate communication or address by oral, nonverbal, written or electronic means, including telephone, electronic mail, Internet, facsimile, telex, wireless communication or similar transmission.

            “Course of conduct.” A pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct. The term includes lewd, lascivious, threatening or obscene words, language, drawings, caricatures or actions, either in person or anonymously. Acts indicating a course of conduct which occur in more than one jurisdiction may be used by any other jurisdiction in which an act occurred as evidence of a continuing pattern of conduct or a course of conduct.

            “Emotional distress.” A temporary or permanent state of mental anguish.

            “Family or household member.” Spouses or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood.

    3. Cases

      None at this time.

    ↑ Back to top
  7. Extortion

    1. Introduction

      A person who intentionally threatens to publish photos or videos of a WMC victim, where the photos or videos are the victim’s property, to commit another crime or expose the victim to ridicule may be charged with extortion.

    2. Text of Statute

        18 Pa. Cons. Stat. § 3923 – Theft by Extortion

          (a) Offense defined.

          A person is guilty of theft if he intentionally obtains or withholds property of another by threatening to:

            (1) commit another criminal offense;

            (2) accuse anyone of a criminal offense;

            (3) expose any secret tending to subject any person to hatred, contempt or ridicule;

            (4) take or withhold action as an official, or cause an official to take or withhold action;

            (5) bring about or continue a strike, boycott or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act;

            (6) testify or provide information or withhold testimony or information with respect to the legal claim or defense of another; or

            (7) inflict any other harm which would not benefit the actor.

          (b) Defenses.

          It is a defense to prosecution based on paragraphs (a)(2), (a)(3) or (a)(4) of this section that the property obtained by threat of accusation, exposure, lawsuit or other invocation of official action was honestly claimed as restitution or indemnification for harm done in the circumstances to which such accusation, exposure, lawsuit or other official action relates, or as compensation for property or lawful services.

    3. Cases

      None at this time.

    ↑ Back to top
  8. Theft

    1. Introduction

      It is possible, but not likely, that a WMC victim could bring a claim when their sexually intimate video or photograph is unlawfully taken by a defendant. This claim could be a challenge to establish for a WMC victim, however, because he or she must show the property taken is something “of value.”

    2. Text of Statute

        (1) 18 Pa. Cons. Stat § 3901 – Definitions.

        Subject to additional definitions contained in subsequent provisions of this chapter which are applicable to specific provisions of this chapter, the following words and phrases when used in this chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:

          (a) “Deprive”

            (1) To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or

            (2) to dispose of the property so as to make it unlikely that the owner will recover it.

          (b) “Financial institution.” A bank, insurance company, credit union, building and loan association, investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.

          (c) “Firearm.” Any weapon that is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.

          (d) “Government.” The United States, any state, county, municipality, or other political unit, or any department, agency or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of government.

          (e) “Movable property.” Property the location of which can be changed, including things growing on, affixed to, or found in land, and documents although the rights represented thereby have no physical location. “Immovable property” is all other property.

          (f) Obtain

            (1) To bring about a transfer or purported transfer of legal interest in property, whether to the obtainer or another; or

            (2) in relation to labor or service, to secure performance thereof.

          (g) “Property.” Anything of value, including real estate, tangible and intangible personal property, contract rights, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power.

          (h) “Property of another.” Includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.

        (2) 18 Pa. Cons. Stat § 3921– Theft by unlawful taking or disposition.

          (a) Movable property.

          A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.

          (b) Immovable property.

          A person is guilty of theft if he unlawfully transfers, or exercises unlawful control over, immovable property of another or any interest therein with intent to benefit himself or another not entitled thereto.

    3. Cases

      None at this time.

    ↑ Back to top
  9. ↑ Back to top
  10. Criminal Invasion of Privacy

    1. Introduction

      WMC victims are protected from the gathering of information, including nude photographs and video, without their consent under the Invasion of Privacy criminal statute. A typical fact pattern for violations of the law is the taking of illicit photos without a party’s consent, and distributing it to a third party (though distribution is not required for liability under the Act). Defendants found guilty under the statute can be charged with a misdemeanor for a first offense of the law, resulting in up to a year in prison and a $2,500 fine. Multiple violations increase the severity of the charge to up to 2 years in confinement and $5,000 in fines.

      It should also be noted that once convicted under the Invasion of Privacy Act, the defendant must register as a sex offender pursuant to Megan’s Law.

    2. Text of Statute

        (1) 18 Pa. Stat. and Cons. Stat. Ann. § 7507.1

          (a) Offense defined.

          Except as set forth in subsection (d), a person commits the offense of invasion of privacy if he, for the purpose of arousing or gratifying the sexual desire of any person, knowingly does any of the following:

            (1) Views, photographs, videotapes, electronically depicts, films or otherwise records another person without that person's knowledge and consent while that person is in a state of full or partial nudity and is in a place where that person would have a reasonable expectation of privacy.

            (2) Photographs, videotapes, electronically depicts, films or otherwise records or personally views the intimate parts, whether or not covered by clothing, of another person without that person's knowledge and consent and which intimate parts that person does not intend to be visible by normal public observation.

            (3) Transfers or transmits an image obtained in violation of paragraph (1) or (2) by live or recorded telephone message, electronic mail or the Internet or by any other transfer of the medium on which the image is stored.

          (a.1) Separate violations.

          A separate violation of this section shall occur:

            (1) for each victim of an offense under subsection (a) under the same or similar circumstances pursuant to one scheme or course of conduct whether at the same or different times; or

            (2) if a person is a victim of an offense under subsection (a) on more than one occasion during a separate course of conduct either individually or otherwise.

          (b) Grading.

          Invasion of privacy is a misdemeanor of the second degree if there is more than one violation. Otherwise, a violation of this section is a misdemeanor of the third degree.

          (c) Commencement of prosecution.

          Notwithstanding the provisions of 42 Pa.C.S. Ch. 55 Subch. C (relating to criminal proceedings), a prosecution under this section must be commenced within the following periods of limitation:

            (1) two years from the date the offense occurred; or

            (2) if the victim did not realize at the time that there was an offense, within three years of the time the victim first learns of the offense.

          (d) Exceptions.

          Subsection (a) shall not apply if the conduct proscribed by subsection (a) is done by any of the following:

            (1) Law enforcement officers during a lawful criminal investigation.

            (2) Law enforcement officers or by personnel of the Department of Corrections or a local correctional facility, prison or jail for security purposes or during investigation of alleged misconduct by a person in the custody of the department or local authorities.

          (e) Definitions.

          As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

          “Full or partial nudity.” Display of all or any part of the human genitals or pubic area or buttocks, or any part of the nipple of the breast of any female person, with less than a fully opaque covering.

          “Intimate part.” Any part of:

            (1) the human genitals, pubic area or buttocks; and

            (2) the nipple of a female breast.

          “Photographs” or “films.” Making any photograph, motion picture film, videotape or any other recording or transmission of the image of a person.

          “Place where a person would have a reasonable expectation of privacy.” A location where a reasonable person would believe that he could disrobe in privacy without being concerned that his undressing was being viewed, photographed or filmed by another.

          “Views.” Looking upon another person with the unaided eye or with any device designed or intended to improve visual acuity.

    3. Cases

      1. Phillips v. Donahoe , No. CIV.A. 12-410, 2013 WL 5963121 (W.D. Pa. Nov. 7, 2013)

        • Procedural Posture: Defendant filed a motion for summary judgment to dismiss plaintiff’s claim that plaintiff was sexually harassed by male co-workers and discharged in retaliation for her complaints of harassment.
        • Law: Title VII of the Civil Rights Act of 1964, Pennsylvania Human Relations Act
        • Facts: Plaintiff was hired as a post office worker. After a dispute between co-workers, plaintiff learned the co-workers had shown a nude image of her to the supervisor of the office, obtained without plaintiff’s consent. Plaintiff was fired shortly thereafter. In bringing her complaint against the Postmaster General, plaintiff alleged she had been subject to sexual harassment and discrimination based on her sex and race.
        • Outcome: The portion of the opinion that sheds light of Pennsylvania’s invasion of privacy statute is the court’s discussion of whether the treatment plaintiff received met Title VII’s requirement of “harassment.” The court found “[s]ince the [invasion of privacy] law reflects a societal interest in preventing the unauthorized exposure of an individual’s intimate body parts, a trier of fact could plausibly conclude that an objectively reasonable person in [plaintiff’s] situation would find his or her work environment to be ‘hostile or abusive’” and therefore constitute harassment under Title VII.
    ↑ Back to top
  11. Criminal Mischief

    1. Introduction

      A WMC victim whose property was intentionally damaged by another can seek for the State to charge the perpetrator with criminal mischief.

    2. Text of Statute

        (1) 18 Pa. Cons. Stat § 3304 – Criminal Mischief

          (a) Offense defined.

          A person is guilty of criminal mischief if he:

            (1) damages tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means listed in section 3302(a) of this title (relating to causing or risking catastrophe);

            (2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property;

            (3) intentionally or recklessly causes another to suffer pecuniary loss by deception or threat;

            (4) intentionally defaces or otherwise damages tangible public property or tangible property of another with graffiti by use of any aerosol spray-paint can, broad-tipped indelible marker or similar marking device;

            (5) intentionally damages real or personal property of another; or

            (6) intentionally defaces personal, private or public property by discharging a paintball gun or paintball marker at that property.

          (b) Grading.

          Criminal mischief is a felony of the third degree if the actor intentionally causes pecuniary loss in excess of $5,000, or a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service. It is a misdemeanor of the second degree if the actor intentionally causes pecuniary loss in excess of $1,000, or a misdemeanor of the third degree if he intentionally or recklessly causes pecuniary loss in excess of $500 or causes a loss in excess of $150 for a violation of subsection (a)(4). Otherwise criminal mischief is a summary offense.

          (c) Definition.

          As used in this section, the term “graffiti” means an unauthorized inscription, word, figure, mark or design which is written, marked, etched, scratched, drawn or painted.

    ↑ Back to top
  12. Identity Theft

    1. Introduction

      When a victim’s name or identifying information is accessed and used without the victim’s consent, for instance by posting a picture and name of the victim online, the State can bring a claim for identity theft.

    2. Text of Statute

        (1) Pa. Cons. Stat. § 4120 – Identity Theft

          (a) Offense defined.

          A person commits the offense of identity theft of another person if he possesses or uses, through any means, identifying information of another person without the consent of that other person to further any unlawful purpose.

          (b) Separate offenses.

          Each time a person possesses or uses identifying information in violation of subsection (a) constitutes a separate offense under this section. However, the total values involved in offenses under this section committed pursuant to one scheme or course of conduct, whether from the same victim or several victims, may be aggregated in determining the grade of the offense.

          (c) Grading.

          The offenses shall be graded as follows:

            (1) Except as otherwise provided in paragraph (2), an offense under subsection (a) falls within the following classifications depending on the value of any property or services obtained by means of the identifying information:

              (i) if the total value involved is less than $2,000, the offense is a misdemeanor of the first degree;

              (ii)if the total value involved was $2,000 or more, the offense is a felony of the third degree;

              (iii) regardless of the total value involved, if the offense is committed in furtherance of a criminal conspiracy as defined in section 903 (relating to criminal conspiracy), the offense is a felony of the third degree; or

              (iv) regardless of the total value involved, if the offense is a third or subsequent offense under this section, the offense is a felony of the second degree.

            (2) When a person commits an offense under subsection (a) and the victim of the offense is 60 years of age or older, a care-dependent person as defined in section 2713 (relating to neglect of care-dependent person) or an individual under 18 years of age, the grading of the offense shall be one grade higher than specified in paragraph (1).

          (d) Concurrent jurisdiction to prosecute.--In addition to the authority conferred upon the Attorney General by the act of October 15, 1980 (P.L.950, No.164), known as the Commonwealth Attorneys Act, the Attorney General shall have the authority to investigate and to institute criminal proceedings for any violation of this section or any series of such violations involving more than one county of this Commonwealth or another state. No person charged with a violation of this section by the Attorney General shall have standing to challenge the authority of the Attorney General to investigate or prosecute the case, and if any such challenge is made, the challenge shall be dismissed and no relief shall be made available in the courts of this Commonwealth to the person making the challenge.

          (e) Use of police reports.

          A report to a law enforcement agency by a person stating that the person's identifying information has been lost or stolen or that the person's identifying information has been used without the person's consent shall be prima facie evidence that the identifying information was possessed or used without the person's consent.

          (e.1) Venue.

          Any offense committed under subsection (a) may be deemed to have been committed at any of the following:

            (1) The place where a person possessed or used the identifying information of another without the other's consent to further any unlawful purpose.

            (2) The residence of the person whose identifying information has been lost or stolen or has been used without the person's consent.

            (3) The business or employment address of the person whose identifying information has been lost or stolen or has been used without the person's consent, if the identifying information at issue is associated with the person's business or employment.

          (f) Definitions.

          As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

          “Document.” Any writing, including, but not limited to, birth certificate, Social Security card, driver's license, nondriver government-issued identification card, baptismal certificate, access device card, employee identification card, school identification card or other identifying information recorded by any other method, including, but not limited to, information stored on any computer, computer disc, computer printout, computer system, or part thereof, or by any other mechanical or electronic means.

          “Identifying information.” Any document, photographic, pictorial or computer image of another person, or any fact used to establish identity, including, but not limited to, a name, birth date, Social Security number, driver's license number, nondriver governmental identification number, telephone number, checking account number, savings account number, student identification number, employee or payroll number or electronic signature.

    3. Cases

      None at this time.

    ↑ Back to top