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Kentucky: Statutory Criminal Law

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

   1. Introduction

      In situations in which a WMC victim is harassed (either “electronically” or otherwise), the State may charge a defendant with harassing if the defendant threatens the victim with physical injury or the victim reasonably believes that the defendant will physically harm him or her. It may be appropriate in situations of cyberstalking and cybercrime.

   2. Text of the Statute(s)

      1. KY. REV. STAT. § 525.070 (Harassment)

         (1) A person is guilty of harassment when, with intent to intimidate, harass, annoy or alarm another person, he or she:

         (a) Strikes, shoves, kicks, or otherwise subjects him to physical contact;

         (b) Attempts or threatens to strike, shove, kick or otherwise subject the person to physical contact;

         (c) In a public place, makes an offensively coarse utterance, gesture, or display or addresses abusive language to any person present;

         (d) Follows a person in or about a public place or places;

         (e) Engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose; or

         (f) Being enrolled as a student in a local school district, and while on school premises, on school-sponsored transportation, or at a school-sponsored event:

         1. Damages or commits a theft of the property of another student;

         2. Substantially disrupts the operation of the school; or

         3. Creates a hostile environment by means of any gestures, written communications, oral statements, or physical acts that a reasonable person under the circumstances should know would cause another student to suffer fear of physical harm, intimidation, humiliation, or embarrassment.

         (2)

         (a) Except as provided in paragraph (b) of this subsection, harassment is a violation.

         (b) Harassment, as defined in paragraph (a) of this subsection (1) of this section, is a Class B misdemeanor.

      2. KY. REV. STAT. § 525.080 (Harassing communications)

         (1) A person is guilty of harassing communications when, with intent to intimidate, harass, annoy, or alarm another person, he or she:

         (a) Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail or any other form of written communication in a manner which causes annoyance or alarm and serves no purpose of legitimate communication;

         (b) Makes a telephone call, whether or not conversation ensues, with no purpose of legitimate communication; or

         (c) Communicates, while enrolled as a student in a local school district, with telephone, the Internet, telegraph, mail, or any other form of electronic or written communication in a manner which a reasonable person under the circumstances should know would cause the other student to suffer fear of physical harm, intimidation, humiliation, or embarrassment, and which serves no purpose of legitimate communication.

         (2) Harassing communications is a Class B misdemeanor.

   3. Cases

      Research is ongoing.

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2. Hate Crimes

   1. Introduction

      Where a victim is specifically targeted because of his or her race, color, religion, ancestry, nationality, gender, sexual orientation, or mental, physical or sensory handicaps, this statute may provide additional relief.

   2. Text of the Statute(s)

      KY. REV. STAT. § 532.031 (Hate crimes—Finding—Effect)

      (1) A person may be found by the sentencing judge to have committed an offense specified below as a result of a hate crime if the person intentionally because of race, color, religion, sexual orientation, or national origin of another individual or group of individuals violates a provision of any one (1) of the following:

      (a) KRS 508.010, 508.020, 508.025 or 508.030;

      (b) KRS 508.050 or 508.060;

      (c) KRS 508.100 or 508.110;

      (d) KRS 509.020;

      (e) KRS 510.040, 510.050, 510.060, 510.070, 510.080, 510.090, 510.100, or 510.110;

      (f) KRS 512.020, 512.050, or 512.060;

      (g) KRS 513.020, 513.030, or 513.040; or

      (h) KRS 525.020, 525.050, 525.060, 525.070, or 525.080.

      (2) At sentencing, the sentencing judge shall determine if, by a preponderance of the evidence presented at the trial, a hate crime was the primary factor in the commission of the crime by the defendant. If so, the judge shall make a written finding of fact and enter that in the court record and in the judgment rendered against the defendant.

      (3) The finding that a hate crime was a primary factor in the commission of the crime by the defendant may be utilized by the sentencing judge as a the sole factor for denial of probation, shock probation, conditional discharge, or other form of nonimposition of a sentence of incarceration;

      (4) The finding by the sentencing judge that a hate crime was a primary factor in the commission of the crime by the defendant may be utilized by the Parole Board in delaying or denying parole to a defendant.

   3. Cases

      Research is ongoing.

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3. Eavesdropping

   1. Introduction

      The law prohibits the use of recordings obtained through eavesdropping in litigation where those recordings were “intercepted” without the consent of the victim.

   2. Text of the Statute(s)

      1. KY. REV. STAT. § 526.010 (Definition)

         The following definition applies in this chapter, unless the context otherwise requires:

         “Eavesdrop” means to overhear, record, amplify or transmit any part of a wire or oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device.

      2. KY. REV. STAT. § 526.020 (Eavesdropping)

         (1) A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop, whether or not he is present at the time.

         (2) Eavesdropping is a class D felony.

      3. KY. REV. STAT. § 526.030 (Installing eavesdropping device)

         (1) A person is guilty of installing an eavesdropping device when he intentionally installs or places such a device in any place with the knowledge that it is to be used for eavesdropping.

         (2) Installing an eavesdropping device is a Class D felony.

      4. KY. REV. STAT. § 526.040 (Possession of eavesdropping device)

         (1) A person is guilty of possession of an eavesdropping device when he possesses any electronic, mechanical or other device designed or commonly used for eavesdropping with the intent to use that device to eavesdrop or knowing that another intends to use that device to eavesdrop.

         (2) Possession of an eavesdropping device is a Class A misdemeanor.

      5. KY. REV. STAT. § 526.050 (Tampering with private communications)

         (1) A person is guilty of tampering with private communications when knowing that he does not have the consent of the sender or receiver, he unlawfully:

         (a) Opens or reads a sealed letter or other sealed private communication; or

         (b) Obtains in any manner from an employee, officer, or representative of a communications common carrier information with respect to the contents or nature of a communication.

         (2) The provisions of this section do not apply to the censoring of sealed letters or sealed communications for security purposes in official detention or penal facilities.

         (3) Tampering with private communications is a Class A misdemeanor.

      6. KY. REV. STAT. § 526.060 (Divulging illegally obtained information)

         (1) A person is guilty of divulging illegally obtained information when he knowingly uses or divulges information obtained through eavesdropping or tampering with private communications or learned in the course of employment with a communications common carrier engaged in transmitting the message.

         (2) Divulging illegally obtained information is a Class A misdemeanor.

   3. Cases

      1. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781 (Ky. 2005)

         • Procedural Posture: Petition for review of lower court ruling reversing trial court decision failing to take a directed verdict in favor of Wal-Mart and co-defendant, a store supervisor.

         • Law:  IIED; eavesdropping; defamation

         • Relevant Facts:  Plaintiffs, employees who were terminated for unauthorized removal of company property and violating company policy—specifically for eating candy from open or torn bags removed from store shelves that had been taken to store’s “claims area” to be processed and then either discarded or returned—sued their former employer Wal-Mart, and a store supervisor, alleging IIED, defamation and invasion of privacy.  Among other things, plaintiffs produced evidence that the supervisor had engaged in approximately 40 hours of audio and video surveillance in the claims area of the store without the employees’ knowledge.  Plaintiffs also argued that they were defamed when their supervisor made “slanderous” comments about them to other Wal-Mart employees following their terminations.  The camcorder being used to surreptitiously record the employees had audio and video capabilities. Notably, defendants showed that the Wal-Mart employee handbook specifically addressed eating claims candy, and provides that it amounted to dishonesty that would result in immediate termination.  The trial court entered judgment for the employees, and the court of appeals reversed, finding that the trial court had erred by failing to direct a verdict in favor of the defendants.

         • Outcome:  The court affirmed in part, reversed in part, and vacated/remanded in part.  The court held that plaintiffs failed to make out a viable claim of IIED because they were at-will employees, and their allegations that their supervisor had manufactured an excuse to fire them to save his own job did not amount to “outrageous” conduct.  The court also upheld the jury’s verdict finding that plaintiffs had a viable claim for defamation because it found that the supervisor’s statement that “there was more to” plaintiffs’ termination than the theft of claims candy could be reasonably interpreted as an assertion that plaintiffs had stolen items in addition to claims candy.¹  However, the court found that the plaintiffs’ eavesdropping claim failed because they could not prove damages stemming from any illegal surveillance on the part of the defendant supervisor. Although the plaintiffs had structured their eavesdropping claim as one for “invasion of privacy,” the court interpreted it under KRS 526.060.²

   1. Stringer, 151 S.W.3d at 798. ↩
   2. Id. at 799-800. ↩

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4. Stalking

   1. Introduction

      In situations in which a WMC victim is repeatedly harassed, the State may charge a defendant with stalking. This law may apply to situations of cyberstalking and cybercrime, both of which are becoming increasingly common.

   2. Text of the Statute(s)

      1. KY. REV. STAT. § 508.130 (Definitions for KRS 508.130 to 508.150)

         As used in KRS 508.130 to 508.150, unless the context requires otherwise:

         (1)

         (a) To “stalk” means to engage in an intentional course of conduct:

         1. Directed at a specific person or persons;

         2. Which seriously alarms, annoys, intimidates, or harasses the person or persons; and

         3. Which serves no legitimate purpose.

         (b) The course of conduct shall be that which would cause a reasonable person to suffer substantial mental distress.

         (2) “Course of conduct” means a pattern of conduct composed of two (2) or more acts, evidencing a continuity of purpose. One (1) or more of these acts may include the use of any equipment, instrument, machine, or other device by which communication or information is transmitted, including computers, the internet or other electronic network, cameras, or other recording devices, telephones or other personal communications devices, scanners or other copying devices, and any device that enables the use of a transmitting device. Constitutionally protected acidity is not included within the meaning of “course of conduct.” If the defendant claims that he was engaged in constitutionally protected activity, the court shall determine the validity of that claim as a matter of law and, if found valid, shall exclude that activity from evidence.

         (3) “Protective order” means:

         (a) An emergency protective order or domestic violence order issued under KRS 403.715 to 403.785;

         (b) A foreign protective order, as defined in KRS 403.7521(1);

         (c) An order issued under KRS 431.064;

         (d) A restraining order issued in accordance with KRS 508.155; and

         (e) Any condition of a bond, conditional release, probation, parole, or pretrial diversion order designed to protect the victim from the offender.

      2. KY. REV. STAT. § 508.140 (Stalking in the first degree)

         (1) A person is guilty of stalking in the first degree,

         (a) When he intentionally:

         1. Stalks another person; and

         2. Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:

         a. Sexual contact as defined in KRS 510.010;

         b. Serious physical injury; or

         c. Death; and

         (b)

         1. A protective order has been issued by the court to protect the same victim or victims and the defendant has been served with the summons or order or has been given actual notice; or

         2. A criminal complaint is currently pending with a court, law enforcement agency, or prosecutor by the same victim or victims and the defendant has been served with a summons or warrant or has been given actual notice; or

         3. The defendant has been convicted of or pled guilty within the previous five (5) years to a felony or to a Class A misdemeanor against the same victim or victims; or

         4. The act or acts were committed while the defendant had a deadly weapon on or about his person.

         (2) Stalking in the first degree is a Class D felony.

      3. KY. REV. STAT. § 508.150 (Stalking in the second degree)

         (1) A person is guilty of stalking in the second degree when he intentionally:

         (a) Stalks another person; and

         (b) Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:

         1. Sexual contact as defined in KRS 510.010;

         2. Physical injury; or

         3. Death.

         (2) Stalking in the second degree is a Class A misdemeanor.¹

   3. Cases

      Research is ongoing.

   4. Practice Pointers

      In a 2009 stalking case a victim brought against her former boyfriend, a Kentucky appeals court excluded evidence of a defendant’s prior bad acts against prior girlfriends based on its conclusion that the events had occurred too long ago, and that any similarities—unwanted phone calls and visits—were not “so strikingly similar” among the prior girlfriends and the victim “as to warrant admission” under Kentucky Rule of Evidence 404(b).² This suggests that if a victim wants to bring in evidence of their abuser’s prior bad acts in a stalking/harassment case, those facts need to be relatively recent, and bear a striking resemblance to the behavior that was exhibited as to the victim.

   1. Note that KY. REV. STAT. § 508.155 offers a special procedure for victims of stalking to obtain a restraining order against their aggressor. See supra Section C, “Restraining Orders.” ↩
   2. Wines v. Commonwealth, No. 2008-CA-000050-MR, 2009 WL 3486390, at *5 (Ky. Ct. App. Oct. 30, 2009). ↩

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5. Menacing

   1. Introduction

      In situations in which a defendant intends to harass a WMC victim (either “electronically” or otherwise), the State may charge a defendant with menacing. It may be particularly apt in situations of cyberstalking and cybercrime, both of which are becoming increasingly common.

   2. Text of the Statute(s)

      KY. REV. STAT. § 508.050 (Menacing)

      (1) A person is guilty of menacing when he intentionally places another person in reasonable apprehension of imminent physical injury.

      (2) Menacing is a Class B misdemeanor.

   3. Cases

      Research is ongoing.

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6. Extortion

   1. Introduction

      A person who publishes or threatens to publish intimate photos or videos of another with the intention of forcing the victim into conduct the victim would not have otherwise performed may be charged with extortion.

   2. Text of the Statute(s)

      KY. REV. STAT. § 514.080 (Theft by extortion)

      (1) A person is guilty of theft by extortion when he intentionally obtains property of another by threatening to:

      (a) Inflict bodily injury on anyone or commit any other criminal offense; or

      (b) Accuse anyone of a criminal offense; or

      (c) Expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute; or

      (d) Use wrongfully his position as a public officer or servant or employee by performing some act within or related to his official duties, either expressed or implied, or by refusing or omitting to perform an official duty, either expressed or implied, in a manner affecting some person adversely; or

      (e) 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; or

      (f) Testify or provide information or withhold testimony or information with respect to another’s claim or defense.

      (2) It is a defense to prosecution based on subsection (1)(b), (c), or (d) that the property obtained by threat of accusation, exposure, lawsuit, or other invocation of official action was claimed as restitution or indemnification for harm done in the circumstances to which accusation, exposure, lawsuit, or other official action relates, or as compensation for property or lawful services.

      (3) Theft by extortion is a Class A misdemeanor unless the value of the property obtained is:

      (a) Five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony; or

      (b) Ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

   3. Cases

      Research is ongoing.

   4. Practice Pointers

      In 2006, “Theft by Extortion,” was removed from the available list of potential claims that could give rise to a claim of intimidation under KRS 524.040.¹

   1. Godby v. Commonwealth, 187 S.W.3d 857, 860 (Ky. Ct. App. 2006) (noting that the statutory language evinces an intent to restrict the meaning of “threat” to a threat of physical injury only). ↩

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7. Coercion

   1. Introduction

      In situations in which a WMC victim is threatened by another “into taking or refraining from action,” the State may charge a defendant with coercion. A WMC victim may be threatened with the possible revelation of intimate photos (either over the internet, or otherwise), or other personal information he or she would prefer to keep private.

   2. Text of the Statute(s)

      KY. REV. STAT. § 509.080 (Criminal coercion)

      (1) A person is guilty of criminal coercion when with intent to compel another person to engage in or refrain from conduct, he unlawfully threatens to:

      (a) Commit any crime; or

      (b) Accuse anyone of a crime; or

      (c) Expose any secret tending to subject any person to hatred, contempt or ridicule or to impair another’s credit or business repute; or

      (d) Take or withhold action as an official or cause an official to take or withhold action.

      (2) A defendant may prove in exculpation of criminal coercion committed under subsection (1)(b), (c), or (d) that he believed the accusation or secret to be true or the proposed official action justified and that his sole purpose was to compel or induce the victim to desist from misbehavior or to make good a wrong done by him.

      (3) Criminal coercion is a Class A misdemeanor.

   3. Cases

      Research is ongoing.

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8. Trespass

   1. Introduction

      A WMC victim could bring a claim for criminal trespass if a defendant intrudes on his or her dwelling perhaps in an effort to stalk the victim.

   2. Text of the Statute(s)

      1. KY. REV. STAT. § 511.060 (Criminal trespass in the first degree)

         (1) A person is guilty of criminal trespass in the first degree when he knowingly enters or remains unlawfully in a dwelling.

         (2) Criminal trespass in the first degree is a Class A misdemeanor.

      2. KY. REV. STAT. § 511.070 (Criminal trespass in the second degree)

         (1) A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a building or upon premises as to which notice against trespass is given by fencing or other enclosure.

         (2) Criminal trespass in the second degree is a Class B misdemeanor.

      3. KY. REV. STAT. § 511.080 (Criminal trespass in the third degree)

         (1) A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.

         (2) Criminal trespass in the third degree is a violation.

   3. Cases

      Research is ongoing.

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9. Computer-related Crimes

   1. Introduction

      In situations in which a WMC victim is harassed electronically through computer hacking, etc., the State may charge a defendant with a computer-related crime. This statute may be particularly appropriate in situations of cyberstalking and cybercrime, where the defendant co-opts a victim’s personal email or social networking account.

   2. Text of the Statute(s)

      1. KY. REV. STAT. § 434.080 (Definitions)

         For the purposes of KRS 434.840 to 434.860, the following words, including any form of the word, and terms shall have the following meanings:

         (1) “Access” means to approach, instruct, communicate with, manipulate, store data in, retrieve or intercept data from, or otherwise make use of any resources of, a computer, computer system, or computer network;

         (2) “Computer” means any device, equipment, or facility that uses a computer program or other instructions, stored either temporarily or permanently, to perform specific operations including but not limited to logical, arithmetic, or memory functions with or on data or a computer program that can store, retrieve, alter or communicate the results of the operations to a person, compute program, computer, computer system, or computer network;

         (3) “Computer network” means any interconnection of two (2) or more devices used for the purpose of transmitting any combination of voice, video, or data including but not limited to bridges, routers, switches, antennas, or towers connected by hardwire or wireless communications lines;

         (4) “Computer program” means a set of instructions or statements and related data that, when executed in actual or modified form, cause a computer, computer system, or computer network to perform specified functions;

         (5) “Computer software” means computer programs, procedures, or associated documentation concerned with the operation of a computer, computer system, or computer network for system control or processing of data;

         (6) “Computer system” means a set of related computer equipment, devices, data, software, or hardware that is designed to perform a specific function;

         (7) “Data” means a representation of information, knowledge, facts ,concepts or instructions which are being prepared or have been prepared in a formalized manner, and is intended to be stored or processed, or has been stored or processed, in a computer, computer system, or computer network;

         (8) “Device” includes but is not limited to an electronic, magnetic, electrochemical, biochemical, hydraulic, optical, or organic object that performs input, output, or storage functions by manipulation of electronic, magnetic, or other impulses;

         (9) “Effective consent” means consent by a person legally authorized to act for the owner. Consent is not effective if it is:

         (a) Induced by deception or coercion;

         (b) Given by a person who the actor knows is not legally authorized to act for the owner;

         (c) Given by a person who by reason of age, mental disease or defect, or intoxication is known by the actor to be unable to make responsible property or data dispositions; or

         (d) Used for a purpose other than that for which the consent is given;

         (10) “Financial instruments” includes but is not limited to any check, draft, warrant, money order, certificate of deposit, negotiable instrument, letter of credit, bill of exchange, credit or debit card, transaction authorization mechanism, marketable security, or any electronic representation thereof;

         (11) “Intellectual property” includes data, text, images, sound, codes, computer programs, software, or databases which may be in any form, including but not limited to, computer printouts, magnetic storage media, punched cards, or which may be stored internally in the memory of a computer;

         (12) “Loss or damage” means the result of accessing, attempting to access, or causing to be accessed, without effective consent, any computer software, computer program, data, computer, computer system, computer network, or any part thereof, including but not limited to theft, alteration, or destruction of data, security breaches, or disruption of services;

         (13) “Owner” means a person who has title, license, or other lawful possession of the property, a person who has the right to restrict access to the property, or a person who has a greater right to possession of the property than the actor;

         (14) “Property” includes but is not limited to intellectual property, financial instruments, data, computer programs, documentation associated with data, computers, computer systems and computer programs, all in machine-readable or human-readable form, and any tangible or intangible item of value; and

         (15) “Services” includes but is not limited to the use of a computer, a computer system, a computer network, computer software, computer program, or data to perform tasks.

      2. KY. REV. STAT. § 434.850 (Unlawful access to a computer in the second degree)

         (1) A person’s guilty of unlawful access to a computer in the second degree when he or she, without the effective consent of the owner, knowingly and willfully, directly or indirectly accesses, causes to be accessed, or attempts to access any computer software, computer program, data, computer, computer system, computer network, or any part thereof, which results in the loss or damage of three hundred dollars ($300) or more.

         (2) Unlawful access to a computer in the second degree is a Class D felony.

      3. KY. REV. STAT. § 434.860 (Venue)

         For the purpose of venue under the provisions of KRS 434.845, 434.859, 434.851, 434.853, or 434.855, any violation of KRS 434.845, 434.850, 434.851, 434.853, or 4343.855 shall be considered to have been committed: in any county in which any act was performed in furtherance of any transaction violating KRS 434.845, 434.850, 434.851, 4343.853, or 434.855; in any county in which any violator had control or possession of any proceeds of said violation or of any books, records, documents, property, financial instrument, computer software, computer program, or other material, objects, or items which were used in furtherance of said violation; and in any county from which, to which or through which any access to a computer, computer system or computer network was made whether by wires, electromagnetic waves, microwaves, or any other means of communication.

   3. Cases

      Research is ongoing.

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10. Voyeurism

    1. Introduction

       A WMC victim could press charges for voyeurism if another intentionally invades the victim’s privacy by viewing, photographing, or recording the “intimate areas” of the victim without the victim’s knowledge or consent for the purpose of sexual gratification.

    2. Text of the Statute(s)

       KY. REV. STAT. § 531.090 (Voyeurism)

       (1) A person is guilty of voyeurism when:

       (a) He or she intentionally:

       1. Uses or causes the use of any camera, videotape, photo optical, photoelectric, or other image recording device for the purpose of observing, viewing, photographing, filming, or videotaping the sexual conduct, genitals, or nipple of the female breast of another person without that person’s consent; or

       2. Uses the unaided eye or any device designed to improve visual acuity for the purpose of observing or viewing the sexual conduct, genitals or nipple of the female breast of another person without that person’s consent; or

       3. Enters or remains unlawfully in or upon the premises of another for the purpose of observing or viewing the sexual conduct, genitals or nipple of the female breast of another person without the person’s consent; and

       (b) The other person is in a place where a reasonable person would believe that his or her sexual conduct, genitals, or nipple of the female breast will not be observed, viewed, photographed, filmed, or videotaped without his or her knowledge.

       (2) The provisions of subsection (1) of this section shall not apply to:

       (a) A law enforcement officer during a lawful criminal investigation; or

       (b) An employee of the Department of Corrections, the Department of Juvenile Justice, a private prison, a local jail, or a local correctional facility whose actions have been authorized for security or investigative purposes.

       (3) Unless objected to by the victim or victims of voyeurism, the court on its own motion or motion of the Commonwealth’s attorney shall:

       (a) Order the sealing of all photographs, film, videotapes, or other images that are introduced into evidence during a prosecution under this section, or are in the possession of law enforcement, the prosecution, or the court as the result of a prosecution under this section; and

       (b) At the conclusion of a prosecution under this section, unless required for additional prosecutions, order the destruction of all the photographs, film, videotapes, or other images that are in possession of law enforcement, the prosecution, or the court.

       (4) Voyeurism is a Class A misdemeanor.

    3. Cases

       Research is ongoing.

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