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Tools to fight online harassment

Alaska: Statutory Criminal Law

Contents

  1. Offenses Against the Public Order (e.g. Harassment, Nuisance, Voyeurism)
  2. Hate Crimes
  3. Eavesdropping
  4. Offenses Against the Person (e.g., Assault, Stalking, Extortion, Coercion)
  5. Computer-related Crimes
  6. Mischief
  7. Misuse of Confidential Information

  1. Offenses Against the Public Order (e.g. Harassment, Nuisance, Voyeurism)

    1. Introduction

      Alaska’s laws permit prosecution against perpetrators who harass victims by publishing or distributing sexually explicit material to harass or without the victim’s consent. In 2006, Alaska was one of the first states to enact a statute that criminalizes harassment via electronic publication or distribution of images that show nudity and/or sexual act.1 Harassment in the second degree explicitly provides for the prosecution of sexually explicit material with the “intent to harass or annoy another person.” Indecent viewing or photography criminalizes the unconsented to “produc[tion]” of a sexually explicit image.

    2. Text of Statute(s)

      AS § 11.61.120 - Harassment in the second degree

      (a) A person commits the crime of harassment in the second degree if, with intent to harass or annoy another person, that person

      (1) insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response;

      (2) telephones another and fails to terminate the connection with intent to impair the ability of that person to place or receive telephone calls;

      (3) makes repeated telephone calls at extremely inconvenient hours;

      (4) makes an anonymous or obscene telephone call, an obscene electronic communication, or a telephone call or electronic communication that threatens physical injury or sexual contact;

      (5) subjects another person to offensive physical contact;

      (6) except as provided in AS 11.61.116, publishes or distributes electronic or printed photographs, pictures, or films that show the genitals, anus, or female breast of the other person or show that person engaged in a sexual act; or

      (7) repeatedly sends or publishes an electronic communication that insults, taunts, challenges, or intimidates a person under 18 years of age in a manner that places the person in reasonable fear of physical injury.

      (b) Harassment in the second degree is a class B misdemeanor.

      AS § 11.61.123 - Indecent viewing or photography

      (a) A person commits the crime of indecent viewing or photography if, in the state, the person knowingly views, or produces a picture of, the private exposure of the genitals, anus, or female breast of another person and the view or production is without the knowledge or consent of

      (1) the parent or guardian of the person viewed, or who is shown in the picture, if the person who is viewed or shown is under 16 years of age; and

      (2) the person viewed or shown in the picture, if the person viewed or shown is at least 13 years of age.

      (b) Each viewing of a person, and each production of a picture of a person, whose genitals, anus, or female breast are viewed or are shown in a picture constitutes a separate violation of this section.

      (c) This section does not apply to viewing or photography conducted by a law enforcement agency for a law enforcement purpose.

      (d) In a prosecution under this section, it is an affirmative defense that the viewing or photography was conducted as a security surveillance system, notice of the viewing or photography was posted, and any viewing or use of pictures produced is done only in the interest of crime prevention or prosecution.

      (e) In this section,

      (1) “picture” means a film, photograph, negative, slide, book, newspaper, or magazine, whether in print, electronic, magnetic, or digital format; and

      (2) “private exposure” means that a person has exposed the person's body or part of the body in a place, and under circumstances, that the person reasonably believed would not result in the person's body or body parts being (A) viewed by the defendant; or (B) produced in a picture; “private exposure” does not include the exposure of a person's body or body parts in a law enforcement facility, correctional facility, designated treatment facility, or a juvenile detention facility; in this paragraph, “correctional facility” has the meaning given in AS 33.30.901, “designated treatment facility” has the meaning given in AS 47.30.915, and “juvenile detention facility” has the meaning given in AS 47.12.990.

      (f) Indecent viewing or photography is a

      (1) class C felony if the person viewed or shown in a picture was, at the time of the viewing or production of the picture, a minor;

      (2) class A misdemeanor if the person viewed or shown in a picture was, at the time of the viewing or production of the picture, an adult.

    3. Practice Pointers

      • AS § 11.61.120 has been heralded as Alaska’s “Revenge Porn” statute. Although there are no judicial opinions applying the statute in the “revenge porn” context, media reports suggest the statute is being used to prosecute perpetrators.2

      • With regard to the provision prohibiting threatening messages or calls (11.61.120(a)(4)), a defendant may argue that the conduct is protected speech, but Alaska law is clear that “the government need not prove that it was the speaker’s subjective intent to carry out the threat. Rather it is sufficient if the speaker utters or transmits a communication with knowledge that the communication will be viewed as a threat.”3

      Specifically, in State v. Borowski4, which dealt with an online threat to kill a local assemblyman, the court held that the government need not prove the defendant intended to carry through with an act of physical violence.5 Reversing the district court’s dismissal, the appellate court clarified that Alaska’s harassment statute was enacted to “penalize the act of communicating with another person in a way that the speaker knows will be understood as a threat to inflict . . . harm[], if the speaker’s intent in making this communication is to harass or annoy another person.”6 Second-degree harassment involving may be proved by establishing: (1) the defendant knowingly made an electronic communication, (2) that this electronic communication threatened physical injury, (3) that the defendant knew that the communication would be viewed as a threat, and (4) that the defendant made the communication with the intent of harassing or annoying another person.7

    1. 2006 Alaska Laws Ch. 112 (H.B. 326). ↩
    2. See, e.g., Jerzy Shedlock, Anchorage man charged with harassment after creating fake Facebook accounts ADN.com (Jan. 4, 2014, updated Sept. 28, 2016)https://www.adn.com/crime-justice/article/anchorage-man-charged-hundreds-harassment-counts-creating-fake-facebook-accounts/2014/01/05/. ↩
    3. State v. Borowski, 378 P.3d 409, 412 (Alaska App. July 22, 2016). ↩
    4. Id. at 409. ↩
    5. 378 P.3d at 413. ↩
    6. Id. at 412-13. ↩
    7. Id. at 413. ↩
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  2. Hate Crimes

    1. Introduction

      Although not a stand-alone crime, Alaska’s hate crime statute may be used to increase sentencing against a perpetrator. Hate crimes—crimes motivated by a person’s sex, race, color, creed, physical or mental disability, ancestry, or national origin—must be considered by the court during sentences and may serve as an aggravating factor.

    2. Text of Statute(s)

      AS § 12.55.155 - Factors in aggravation and mitigation

      (a) Except as provided in (e) of this section, if a defendant is convicted of an offense and is subject to sentencing under AS 12.55.125(c), (d), (e), or (i) and

      (1) the low end of the presumptive range is four years or less, the court may impose any sentence below the presumptive range for factors in mitigation or may increase the active term of imprisonment up to the maximum term of imprisonment for factors in aggravation;

      (2) the low end of the presumptive range is more than four years, the court may impose a sentence below the presumptive range as long as the active term of imprisonment is not less than 50 percent of the low end of the presumptive range for factors in mitigation or may increase the active term of imprisonment up to the maximum term of imprisonment for factors in aggravation.

      (b) Sentences under this section that are outside of the presumptive ranges set out in AS 12.55.125 shall be based on the totality of the aggravating and mitigating factors set out in (c) and (d) of this section.

      (c) The following factors shall be considered by the sentencing court if proven in accordance with this section, and may allow imposition of a sentence above the presumptive range set out in AS 12.55.125

      [Preceding and proceeding aggravating factors intentionally omitted.]

      (22) the defendant knowingly directed the conduct constituting the offense at a victim because of that person's race, sex, color, creed, physical or mental disability, ancestry, or national origin[.]

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  3. Eavesdropping

    1. Introduction

      The Alaska Constitution guarantees Alaska’s citizens the right to privacy.1 Although this right to privacy often arises as a defense against unreasonable search and seizure, it may prove to be an opportunity to prosecute perpetrators for nonconsensual publication and distribution of sexually explicit audio recordings of victims. Alaska’s eavesdropping statute is, in part, a codification of this right to privacy.

    2. Text of Statute

      AS § 42.20.310 - Eavesdropping

      (a) A person may not

      (1) use an eavesdropping device to hear or record all or any part of an oral conversation without the consent of a party to the conversation;

      (2) use or divulge any information which the person knows or reasonably should know was obtained through the illegal use of an eavesdropping device for personal benefit or another's benefit;

      (3) publish the existence, contents, substance, purport, effect, or meaning of any conversation the person has heard through the illegal use of an eavesdropping device;

      (4) divulge, or publish the existence, contents, substance, purport, effect, or meaning of any conversation the person has become acquainted with after the person knows or reasonably should know that the conversation and the information contained in the conversation was obtained through the illegal use of an eavesdropping device.

      (b) In this section “eavesdropping device” means any device capable of being used to hear or record oral conversation whether the conversation is conducted in person, by telephone, or by any other means; provided that this definition does not include devices used for the restoration of the deaf or hard-of-hearing to normal or partial hearing.

      AS § 42.20.390 - Definitions

    3. Practice Pointers

      Although Alaska lacks case law addressing nonconsensual imagery in this area, the state provides broad privacy protections for private communications. In State v. Glass,2 he Alaska Supreme Court held that Alaska’s constitutional right to privacy protected private conversation between defendant and third party from being admissible where defendant had a reasonable expectation of privacy conversation would not be secretly recorded or broadcast.3 There, defendant was indicted after police secretly recorded an informant’s conversation with defendant during a drug sale. Defendant alleged the police’s warrantless recording violated the Fourth Amendment of the U.S. Constitution, as well as Alaska’s constitutional right to privacy. The Court reasoned that the right to privacy protected “uninhibited, robust, and wide-open public and private expression,”4 including comments about sex, religion, politics, acquaintances, personal finances and even one’s innermost thoughts.5 And, while “[o]ne takes the risk that his friend may repeat what has been said[,] [o]ne shouldn’t be required to take the additional risk of an entirely different character that his conversation is being surreptitiously transcribed or broadcast.”6

    1. Alaska Const. art. I, § 9 (“The right of the people to privacy is recognized and shall not be infringed.”). ↩
    2. 583 P.2d 872 (Alaska 1978). ↩
    3. Id. at 880-82. ↩
    4. Id. at 877 (internal quotations omitted). ↩
    5. Id.at 878. ↩
    6. Id. ↩
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  4. Offenses Against the Person (e.g., Assault, Stalking, Extortion, Coercion)

    1. Introduction

      In situations in which a WMC victim is physically assaulted or repeatedly harassed, the defendant may be charged with assault or stalking (including cyberstalking). Reckless endangerment charges are brought against perpetrators in a wide variety of circumstances and may be useful to WMC victims. Finally, a perpetrator may be charged with extortion if the perpetrator threatens to publish intimate photos or videos of the victim with the intention of forcing the victim to engage in conduct he or she would otherwise not engage.

    2. Text of Statute(s)

      AS § 11.41.200 - Assault in the first degree

      (a) A person commits the crime of assault in the first degree if

      (1) that person recklessly causes serious physical injury to another by means of a dangerous instrument;

      (2) with intent to cause serious physical injury to another, the person causes serious physical injury to any person;

      (3) the person knowingly engages in conduct that results in serious physical injury to another under circumstances manifesting extreme indifference to the value of human life; or

      (4) that person recklessly causes serious physical injury to another by repeated assaults using a dangerous instrument, even if each assault individually does not cause serious physical injury.

      (b) Assault in the first degree is a class A felony.

      AS § 11.41.210 - Assault in the second degree

      AS § 11.41.220 - Assault in the third degree

      AS § 11.41.230 - Assault in the fourth degree

      AS § 11.41.250 - Reckless endangerment

      AS § 11.41.260 - Stalking in the first degree

      AS § 11.41.270 - Stalking in the second degree

      (a) A person commits the crime of stalking in the second degree if the person knowingly engages in a course of conduct that recklessly places another person in fear of death or physical injury, or in fear of the death or physical injury of a family member.

      (b) In this section,

      (1) “course of conduct means repeated acts of nonconsensual contact involving the victim or a family member

      (2) “device” includes software;

      (3) “family member” means a

      (A) spouse, child, grandchild, parent, grandparent, sibling, uncle, aunt, nephew, or niece, of the victim, whether related by blood, marriage, or adoption;

      (B) person who lives, or has previously lived, in a spousal relationship with the victim;

      (C) person who lives in the same household as the victim; or

      (D) person who is a former spouse of the victim or is or has been in a dating, courtship, or engagement relationship with the victim;

      (4) “nonconsensual contact” means any contact with another person that is initiated or continued without that person's consent, that is beyond the scope of the consent provided by that person, or that is in disregard of that person's expressed desire that the contact be avoided or discontinued; “nonconsensual contact” includes

      (A) following or appearing within the sight of that person;

      (B) approaching or confronting that person in a public place or on private property;

      (C) appearing at the workplace or residence of that person;

      (D) entering onto or remaining on property owned, leased, or occupied by that person;

      (E) contacting that person by telephone;

      (F) sending mail or electronic communications to that person;

      (G) placing an object on, or delivering an object to, property owned, leased, or occupied by that person;

      (H) following or monitoring that person with a global positioning device or similar technological means;

      (I) using, installing, or attempting to use or install a device for observing, recording, or photographing events occurring in the residence, vehicle, or workplace used by that person, or on the personal telephone or computer used by that person;

      (5) “victim” means a person who is the target of a course of conduct.

      (c) Stalking in the second degree is a class A misdemeanor.

      AS § 11.41.520 Extortion

      (a) A person commits the crime of extortion if the person obtains the property of another by threatening or suggesting that either that person or another may

      (1) inflict physical injury on anyone, except under circumstances constituting robbery in any degree, or commit any other crime;

      (2) accuse anyone of a crime;

      (3) expose confidential information or a secret, whether true or false, tending to subject a person to hatred, contempt, or ridicule or to impair the person's credit or business repute;

      (4) take or withhold action as a public servant or cause a public servant 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 person making the threat or suggestion purports to act;

      (6) testify or provide information or withhold testimony or information with respect to a person's legal claim or defense; or

      (7) inflict any other harm which would not benefit the person making the threat or suggestion.

      (b) A threat or suggestion to perform any of the acts described in (a) of this section includes an offer to protect another from any harmful act when the offeror has no apparent means to provide the protection or when the price asked for rendering the protection service is grossly disproportionate to its cost to the offeror.

      (c) It is a defense to a prosecution based on (a)(2), (3), or (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 the accusation, exposure, lawsuit, or other official action relates, or as compensation for property or lawful services.

      (d) In this section, “property of another” means property in which a person has an interest that the defendant is not privileged to infringe, whether or not the defendant also has an interest in the property and whether or not the person from whom the property was obtained or withheld also obtained the property unlawfully. “Property of another” does not include property in the possession of the defendant in which another has only a security interest, even if legal title is in the secured party under a conditional sales contract or other security agreement; in the absence of a specific agreement to the contrary, the holder of a security interest in property is not privileged to infringe the debtor's right of possession without the consent of the debtor.

      (e) Extortion is a class B felony.

      AS § 11.41.530 Coercion

      (a) A person commits the crime of coercion if the person compels another to engage in conduct from which there is a legal right to abstain or abstain from conduct in which there is a legal right to engage, by means of instilling in the person who is compelled a fear that, if the demand is not complied with, the person who makes the demand or another may

      (1) inflict physical injury on anyone, except under circumstances constituting robbery in any degree, or commit any other crime;

      (2) accuse anyone of a crime;

      (3) expose confidential information or a secret, whether true or false, tending to subject a person to hatred, contempt, or ridicule or to impair the person's credit or business repute;

      (4) take or withhold action as a public servant or cause a public servant 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 person making the threat or suggestion purports to act;

      (6) testify or provide information or withhold testimony or information with respect to a person's legal claim or defense.

      (b) It is a defense to a prosecution under (a)(2), (3), or (4) of this section that the defendant reasonably believed that the accusation or exposure was true or that the lawsuit or other invocation of official action was justified and that the defendant's sole intent was to compel or induce the victim to take reasonable action to correct the wrong that is the subject of the accusation, exposure, lawsuit, or invocation of official action or to refrain from committing an offense.

      (c) Coercion is a class C felony.

    3. Cases

      1. Powell v. Powell, 194 P.3d 364 (Alaska 2008).

        • Procedural Posture: Plaintiff petitioned to vacate a property division resulting from divorce.

        • Law: Civil Procedure

        • Facts: After a husband and wife divorced, wife filed a Rule 60(b) motion to vacate the property division based, in part, on husband’s alleged misconduct. Wife alleged that husband used sexually explicit emails from her email account to force her into a lopsided division of marital assets. Even though the it was established that husband asked wife “what she would think if her children, friends, and co-workers knew about her affair,” the court found wife lacked clear and convincing evidence of extortion because the “tone of communications” after husband’s alleged threat did not suggest “one person holding anything over the other person.”

        • Outcome: The Supreme Court affirmed the lower court’s decision to deny relief under Rule 60(b)(3) because the nature and “tenor” of email communications gave no sense of fear, intimidation, or coercion.

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  5. Mischief

    1. Introduction

      A WMC victim whose perpetrator intentionally damages his or her property to try to punish or victimize him or her for ending a relationship, could file a report of mischief.

    2. Text of Statute(s)

      AS § 11.46.486 Criminal mischief in the fifth degree

      (a) A person commits the crime of criminal mischief in the fifth degree if, having no right to do so or any reasonable ground to believe the person has such a right,

      (1) with reckless disregard for the risk of harm to or loss of the property or with intent to cause substantial inconvenience to another, the person tampers with property of another;

      (2) with intent to damage property of another, the person damages property of another in an amount, adjusted for inflation as provided in AS 11.46.982, less than $250; or

      (3) the person rides in a propelled vehicle knowing it has been stolen or that it is being used in violation of AS 11.46.360 or 11.46.365(a)(1).

      (b) Criminal mischief in the fifth degree is a class B misdemeanor.

      AS § 11.46.496 - Definitions

      In AS 11.46.400--11.46.495, unless the context requires otherwise,

      (1) “highway” has the meaning given in AS 19.59.001;

      (2) “motor vehicle” has the meaning given in AS 28.90.990;

      (3) “official traffic control device” means a traffic control device that has been placed on a highway by authority of a state or municipal agency, a utility, or a contractor employed by a state or municipal agency or a utility;

      (4) “oil or gas pipeline or supporting facility ” means real property or tangible personal property used in the exploration for, production or refining of, or pipeline transportation of oil, gas, or gas liquids, except for property used solely in the retail distribution of oil or gas;

      (5) “tamper” means to interfere with something improperly, meddle with it, or make unwarranted alterations to its existing condition;

      (6) “traffic control device” includes a sign, signal, road marker, barricade, flare, warning light, reflector, railroad sign or signal, shield, insignia, milepost, or similar device intended to warn, inform, or control the flow of pedestrian, equestrian, bicycle, or motor vehicle traffic;

      (7) “utility” means an enterprise, whether publicly or privately owned or operated, which provides gas, electric, steam, water, sewer, or communications service, and any common carrier;

      (8) “widely dangerous means” means any difficult-to-confine substance, force, or other means capable of causing widespread damage, including fire, explosion, avalanche, poison, radioactive material, bacteria, collapse of a building, or flood.

    3. Cases

      1. Stephanie F. v. George C., 270 P.3d 737 (Alaska 2012).

        • Procedural Posture: Plaintiff’s appeal from custody determination.

        • Law: Divorce & Child Custody

        • Facts: Plaintiff and defendant divorced and each sought custody of their children.1 Plaintiff was granted an ex parte protective order against defendant who punched a hole in the door during an argument while plaintiff was in the bathroom.2 During the custody hearing, the court ruled that defendant’s acts of “domestic violence” triggered a presumption against custody. Defendant argued that punching a door in his own home did not constitute domestic violence because it is not “criminal mischief to damage one’s own property.”3 The court held that defendant rebutted the presumption and awarded defendant custody. Plaintiff appealed and during appeal, defendant argued the presumption was not properly triggered.4

        • Outcome: The Alaska Supreme Court held the trial court did not err when it ruled the presumption was triggered.5 Defendant punching a hole in door to his own home was criminal mischief, and thus domestic violence, because plaintiff had an interest in the property as a co-owner.6 (citing AS § 11.46.90(13) which defines “property of another” as “property in which [another] person has an interest which the defendant is not privileged to infringe, whether or not the defendant also has an interest in the property”).

    1. Id. at 739. ↩
    2. Id. at 740. ↩
    3. Id. at 750. ↩
    4. Id. ↩
    5. Id. at 751. ↩
    6. Id. ↩
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  6. Misuse of Confidential Information

    1. Introduction

    2. Text of Statute(s)

      AS § 11.76.115 - Misconduct involving confidential information in the second degree

      (a) A person commits the crime of misconduct involving confidential information in the second degree if the person, without legal authority or the consent of another person, knowingly obtains confidential information about the other person.

      (b) Conviction under this section does not limit a person's ability to obtain civil relief from another person.

      (c) In this section, “confidential information” includes

      (1) information that has been classified confidential by law;

      (2) information encoded on an access device, identification card issued under AS 18.65.310, or driver's license.

      (d) Misconduct involving confidential information in the second degree is a class B misdemeanor.

      AS § 11.81.900 - Definitions

      [Preceding and proceeding definitions intentionally omitted.]

      (b) In this title, unless otherwise specified or unless the context requires otherwise,

      (1) “access device” means a card, credit card, plate, code, account number, algorithm, or identification number, including a social security number, electronic serial number, or password, that is capable of being used, alone or in conjunction with another access device or identification document, to obtain property or services, or that can be used to initiate a transfer of property.

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