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Tools to fight online harassment

Virginia: Statutory Criminal Law

Contents

  1. Harassment
  2. Hate Crimes
  3. Eavesdropping
  4. Stalking
  5. Menacing
  6. Trespass
  7. Computer-related Crimes
  8. Voyeurism
  9. Cyberbullying
  10. Criminal Nonconsensual Porn

  1. Harassment

    1. Introduction

      Virginia criminalizes harassment by computer and harassment by telephone. In situations in which a victim is harassed electronically through computer, the State may charge a defendant with a computer-related crime. In situations in which a victim is harassed electronically through the telephone or public airway, the State may charge a defendant with a telephone or public airway-related crime.

    2. Text of Statute(s)

      Va. Code Ann. § 18.2-152.7:1 − Harassment by computer; penalty.

      If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.

      Va. Code Ann. § 18.2-427 − Use of profane, threatening, or indecent language over public airways or by other methods.

      Any person who uses obscene, vulgar, profane, lewd, lascivious, or indecent language, or makes any suggestion or proposal of an obscene nature, or threatens any illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, is guilty of a Class 1 misdemeanor.” Over any telephone” includes, for purposes of this section, any electronically transmitted communication producing a visual or electronic message that is received or transmitted by cellular telephone or other wireless telecommunications device.

      Va. Code Ann. § 18.2-372 − “Obscene” defined.

      The word “obscene” where it appears in this article shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.

    3. Cases

      1. Rives v. Com., 726 S.E.2d 248 (Va. Sup. Ct. 2012).
        • Procedural Posture: Defendant was convicted at the trial level of misdemeanor use of profane, threatening or indecent language over public airways, and was sentenced to 12 months in jail. A single judge, and then a three-judge panel, of the Virginia Court of Appeals affirmed. The Virginia Supreme Court affirmed.
        • Law: Harassment by telephone.
        • Facts: The defendant was married but engaged in an adulterous affair with another woman. The defendant broke off the relationship, angering the other woman, who responded by calling the defendant’s wife. That call caused “a great deal of animosity.” The defendant then called the other woman and left a series of telephone messages for her, using angry, vulgar, and threatening language. In an agreed statement of facts, the parties agreed to the accuracy of Virginia’s evidence of the language employed, and agreed that the only issue before the court was a legal one: whether Defendant’s language was both obscene and harassing, such as would violate Section 18.2–427, which prohibits use of profane, threatening, or indecent language over public airways or by other methods.
          • The transcripts introduced by the government showed that the defendant made ten telephone calls to the other woman, and that he left four messages on her voicemail during that period. All were similar in tone and in the language used and it the court quoted only two of them:
          • “Hey bitch! You want to wonder why you don't have any friends? Bitch! I'm going to fuck you in the worst fucking way. You understand me?. .. . Hope you're having a good time with this shit. And what's going to happen is not going to be pretty.”
        • Outcome: The Virginia Supreme Court held that language amounting to threat of physical injury in the form of a sexual offense, employed in telephonic communications with obvious intent to intimidate and harass, and violated the statute proscribing use of profane, threatening, or indecent language over public airways. The court reasoned that the defendant’s language, quoted above, was clearly sufficient to enable a rational fact-finder to conclude that he was threatening the other with physical injury in the form of a sexual offense, with the obvious intent to intimidate and harass her. The court noted that threatening speech of that kind falls outside the protection of the First Amendment.
      2. Moter v. Com., 61 Va. App. 471 (2013).
        • Procedural Posture: The defendant was convicted in the trial court of three counts of computer harassment, and his suspended sentence for a previous stalking conviction was revoked. Defendant appealed to the Virginia Court of Appeals.
        • Law: Harassment by computer.
        • Facts: The defendant was convicted of stalking the victim, who was 18 years his junior. The defendant claimed that he and the victim dated and had a sexual relationship, which the victim denied. Among other things, the defendant scratched the victim’s car with a sexually explicit message, persistently called and sent letters and emails to the victim, including a letter describing his ex-girlfriends who had been raped and forty Facebook messages. The Facebook messages include sexually explicit threats and challenges to her veracity about their relationship.
        • Outcome: The Court of Appeals affirmed the defendant’s conviction.
      3. Airhart v. Com., No. 1219-05-2, 2007 WL 88747 (Va. Ct. App. Jan. 16, 2007).
        • Procedural Posture: The defendant was convicted of harassment by computer in the trial court, and he appealed his conviction.
        • Law: Harassment by computer.
        • Facts: The defendant and the victim were college students who met as transfer students. They lived in the same dormitory and corresponded by instant messaging on their computers. After some time passed, the victim requested a study guide from appellant who responded: “If you fuck me, I'll give you your study guide.” The victim and her roommate testified that she was upset and frightened by the incident. The victim reported the incident, but she was too frightened to go to the station. A few months later, the defendant and the victim exchanged an instant message in which the defendant told the victim to leave his roommate alone and called her an “Italian whore.” The defendant also repeatedly wrote “fuck you” in the message. The victim asked the defendant to “stop talking” to her via an instant message. The defendant then wrote, “I'm going upstairs.” The defendant lived on the first floor of the dormitory, and the victim lived on the third floor. The victim stated that she “was upset [. . .] offended [. . .] scared” by the defendant’s instant messages and notified the police who later arrested the defendant. On cross-examination, the victim admitted that she had used the word “fuck” in prior instant message communications with the defendant. The August 2004 communication was the basis for the charge.
        • Outcome: The court reversed the defendant’s conviction. The court reasoned: “although the words ‘whore’ and ‘fuck’ are sexually explicit, [the defendant’s] usage of the words was not erotic and did not have the purpose to appeal to a prurient interest in sex, but was used in a communication where he told the victim to leave his roommate alone. [The defendant’s] use of these words, while offensive and coarse, was a method to show his anger, contempt, or disgust with the victim and to direct her away from his roommate. Thus, the words failed to meet the definition of obscene as required by Allman1 and Code § 18.2–372.”
      4. Woolfolk v. Com., 18 Va. App. 840 (1994).
        • Procedural Posture: The trial court convicted the defendant of three counts of computer harassment. The Virginia Court of Appeals held that the evidence was sufficient to support a conviction.
        • Law: Harassment by computer.
        • Facts: The defendant claimed to be having a sexual relationship with a woman who testified that she never dated him or had sex with him. For a period of time, he stalked her. During that time, he scratched her car with a sexually explicit message. He later wrote her name and address on a stop sign near her home, using a similar vulgarity to describe her to her neighborhood. A court forbade him from having further contact with the victim. Even after his initial conviction, he continued to make unwanted contact with her. He called her at all hours of the night and sent letters in the mail and by email. In the letters, the defendant used vulgar sexual references. The defendant continued this pattern of harassment over time, sending her various forms of communication.
        • Outcome: The Virginia Court of Appeals held that the evidence was sufficient to support a conviction for harassment by computer. The court rejected the defendant’s argument that the harassment by computer statute is unconstitutionally vague and overbroad.
    1. According to the Airhart court, in Allman v. Commonwealth, 43 Va. App. 104 (2004), the defendant telephoned an attorney who had represented a party in a civil suit against him and repeatedly referred to the attorney as a “pussy.” The Court of Appeals reversed and dismissed the conviction, finding that the language used by the defendant was not obscene. Id. at 111–12. The Allman court noted that Section 18.2–427 did not define obscenity, but reasoned the Code s one body of law, and other sections may be referenced to where the same phraseology is used, and adopted the definition of obscenity found in Section 18.2–372. Id. at 109. ↩
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  2. Hate Crimes

    1. Introduction

      Virginia does not have a specific statute criminalizing hate crimes. It does, however, provide for enhanced penalties for assault and battery where “a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, color or national origin.” Moreover, Virginia requires certain law enforcement agencies to maintain statistics on reported incidents of hate crime.

    2. Text of Statute(s)

      Va. Code Ann. § 18.2-57 − Assault and battery; penalty.

      A. Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

      B. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, color or national origin, the person is guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

      Va. Code Ann. § 52-8.5 − Reporting hate crimes.

      A. The Superintendent shall establish and maintain within the Department of State Police a central repository for the collection and analysis of information regarding hate crimes and groups and individuals carrying out such acts.

      B. State, county and municipal law-enforcement agencies shall report to the Department all hate crimes occurring in their jurisdictions in a form, time and manner prescribed by the Superintendent. Such reports shall not be open to public inspection except insofar as the Superintendent shall permit.

      C. For purposes of this section, “hate crime” means (i) a criminal act committed against a person or his property with the specific intent of instilling fear or intimidation in the individual against whom the act is perpetrated because of race, religion or ethnic origin or that is committed for the purpose of restraining that person from exercising his rights under the Constitution or laws of this Commonwealth or of the United States, (ii) any illegal act directed against any persons or their property because of those persons' race, religion or national origin, and (iii) all other incidents, as determined by law-enforcement authorities, intended to intimidate or harass any individual or group because of race, religion or national origin.

    3. Cases

      1. Carfagno v. Com., 39 Va. App. 718 (2003).
        • Procedural Posture: The defendant was convicted of felonious and unlawful assault and battery on victims selected because of their race in the trial court. The defendant appealed.
        • Law: Assault and battery.
        • Facts: Two women, a mother and daughter, stopped at a free-standing phone booth to make a phone call. The defendant initially passed the two women, then backed up and began to speak to them. He asked, “You know why I'm backing the wheelchair up?” When one of the women responded, “No,” the defendant replied, “I'm backing it up so you all black bitches can see what I got.” The defendant continued to make statements to the two women, calling them “black bitches and niggers,” and stating “I don't like you all black bitches no way.” The defendant started hitting both women at the same time, eventually pushing the mother to the ground. After the defendant pushed her mother to the ground, the daughter began to hit him around his shoulder, face, and chest. The fight ended when the defendant pushed the daughter to the ground. A witness to the incident heard the defendant use the racial epithet.
        • Outcome: The court affirmed the conviction. Among other things, the court held that racial epithets used by defendant before and during assault supported a finding that he selected victims because of their race. Specifically, the court reasoned that the finding that defendant assaulted victims because of their race was supported by evidence that defendant used the terms “black bitches,” “niggers,” and “black nigger bitch” in addressing the two victims, with whom he had no prior relationship, that he used a racial epithet to initiate a conversation with the victims and proceeded to assault them, and that he continued to hurl racial epithets at the victims during unprovoked assault.

    4. Practice Pointers

      Unlike many other states, Virginia's identification of intent does not include crimes based on sexual orientation or gender identity.

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  3. Eavesdropping

    1. Introduction

      Virginia’s wiretapping law is a “one-party consent” law. That is, Virginia makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. The wiretapping law covers oral communications when the speakers have an expectation that such communication is not subject to interception under circumstances justifying such expectations.

    2. Text of Statute(s)

      Va. Code Ann. § 19.2-62 − Interception, disclosure, etc., of wire, electronic or oral communications unlawful; penalties; exceptions.

      Va. Code Ann. § 19.2-61 − Definitions.

      Va. Code Ann. § 8.01-420.2 − Limitation on use of recorded conversations as evidence.

      Va. Code Ann. § 19.2-67 − Disclosure of information obtained by authorized means.

    3. Cases

      1. Carpenter v. Com., 51 Va. App. 84 (2007)
        • Procedural Posture: Appeal from a conviction for rape and forcible sodomy.
        • Law: Rape; sodomy; wiretapping.
        • Facts: Defendant was convicted of rape and forcible sodomy. At his trial, the prosecution introduced into evidence testimony of defendant’s spouse and a tape recording of a conversation between appellant and his spouse. The admission of both pieces of evidence violated the provisions of the evidentiary privilege preventing the disclosure of certain confidential marital communications under the wiretapping statute.
        • Outcome: Defendant’s conviction was upheld.
        • Special Notes: A husband and wife do not constitute a single legal entity to Virginia’s wiretap statutes.
      2. Glob. Policy Partners, LLC v. Yessin, 686 F. Supp. 2d 631 (E.D. Va. 2009).
        • Procedural Posture: The federal district court considered claims by a limited liability company (LLC) and purported manager, as wife of one of other two managers, against other manager husband for violation of federal computer crimes law and Virginia’s statute against interception and disclosure of communications. The district court considered husband’s Motion to Dismiss for failure to state a claim.
        • Law: Wiretapping; Computer Fraud and Abuse Act; Electronic Communications Privacy Act; Stored Communications Act.
        • Facts: A dispute arose between feuding business partners who were also feuding marriage partners in the process of dissolving their marriage, as well as their business relationship. According to the wife, the husband accessed and intercepted his wife's business e-mail, without authorization, in order to review messages between the wife and her attorney related to the pending contested divorce proceeding. Among other federal and state claims, the wife asserted that the husband violated Section 19.2-62. The wife asserted inconsistent facts with respect to her husband’s alleged interception of her emails.
        • Outcome: The court dismissed all of the wife’s claims. The court concluded that the complaint's factual allegations did not support a plausible inference that the defendant “intercepted ” communications intended for plaintiffs within the meaning of the Electronic Communications Privacy Act or the Virginia Code.

    4. Practice Pointers

      • The marital communications evidentiary “privilege may not be asserted in any proceeding in which the spouses are adverse parties, or in which either spouse is charged with a crime or tort against the person or property of the other or against the minor child of either spouse.”1
      • The Supreme Court of Virginia has stated that Virginia’s eavesdropping statute “is Virginia's version” of the federal Electronic Communications Privacy Act.2
      • While a lawyer's recording of a telephone conversation with the knowledge and consent of one, but not all, parties to the conversation is not a crime in Virginia, it is “conduct involving dishonesty, fraud, deceit or misrepresentation” in violation of the ethical rule.3
    1. Va. Code Ann. § 8.01-398. ↩
    2. Glob. Policy Partners, LLC v. Yessin, 686 F. Supp. 2d 631, 637 (E.D. Va. 2009). ↩
    3. Va. Code Ann. § 19.2-62(B)(2); Va. Rules of Prof. Conduct, Rule 8.4. ↩
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  4. Stalking

    1. Introduction

      In Virginia, stalking is defined as repeated conduct which places a person, or his or her family, in reasonable fear of death, sexual assault, or bodily injury.

    2. Text of Statute(s)

      Va. Code Ann. § 18.2-60.3 − Stalking; penalty.

      Va. Code Ann. § 18.2-60.4 − Violation of protective orders; penalty.

    3. Cases

      1. Stephens v. Rose, 762 S.E.2d 758 (Va. Sup. Ct. 2014).
        • Procedural Posture: Former girlfriend filed petition for a protection order against former boyfriend. The district court granted the petition, and the boyfriend appealed.
        • Law: Stalking.
        • Facts: In 2007, Defendant and victim were engaged to be married and had dated for approximately four years when they decided to end their relationship. From 2009 through 2012, Defendant periodically tried to contact victim through email, instant messaging and social media. Beginning in January 2013, Defendant’s efforts to contact victim escalated suddenly.
        • Outcome: Sufficient evidence that Defendant directed his conduct at victim on at least two occasions supported finding that Defendant committed “stalking,” so as to entitle victim to protective order; Defendant persistently tried to contact victim online through social media and e-mail over a period of several years, and Defendant then contacted victim’s parents in an effort to locate her, called her workplace, sent her flowers at work, and visited her home.
        • Special Notes: The Court of Appeals has identified three elements necessary to prove stalking under this statute: (1) the defendant directed his or her conduct toward the victim on at least two occasions; (2) the defendant intended to cause fear or knew or should have known that his or her conduct would cause fear; and (3) the defendant's conduct caused the victim “to experience reasonable fear of death, criminal sexual assault, or bodily injury.”
      2. Jordan v. Com., No. 2689-09-2, 2011 WL 1543027, at *1 (Va. Ct. App. Apr. 26, 2011).
        • Procedural Posture: Following a jury trial, the defendant was convicted of stalking. The defendant appealed, contending that the trial court erred by instructing the jury that the facts and circumstances relating to a prior charge, which ultimately resulted in a favorable disposition for the defendant, could be considered as evidence of a common scheme or plan in the prosecution of the present charge.
        • Law: Stalking.
        • Facts: The victim filed a complaint against appellant alleging that he was stalking her in violation of a protective order. In December 2008, the defendant was charged with stalking, third or subsequent offense, in violation of Section 18.2–60.3, and violation of a protective order, in violation of Section 18.2–60.4. The victim testified to several instances in which the defendant came to her home, called her at work, and otherwise contacted her.
        • Outcome: The Virginia Court of Appeals affirmed the conviction, finding that the State fulfilled its duty of proving beyond a reasonable doubt that the defendant knew, or reasonably should have known, that his conduct placed the victim in “reasonable fear of death, criminal sexual assault, or bodily injury” to either herself or a member of her family.
      3. Frazier v. Com., No. 0725-06-2, 2007 WL 2174905, at *1 (Va. Ct. App. July 31, 2007).
        • Procedural Posture: The defendant was convicted of stalking in a bench trial, and appealed to the Virginia Court of Appeals, arguing that the evidence was insufficient to sustain his conviction.
        • Law: Stalking.
        • Facts: The victim moved apartments and did not publish her new address or list her phone number. While the victim was unloading groceries at her new apartment, the defendant stopped her, addressed her by name, and said he used to be her neighbor on Park Avenue. The victim, who did not know the defendant, told him she had “gotten married and moved.” The defendant stated, “I'm sorry,” then remarked, “I always thought you were a nice person.” The victim was frightened because she did not know the defendant and he knew where she had moved. Later, the victim was getting into her vehicle that was parked around the block from her apartment when the defendant drove by, stopped abruptly in the middle of the street, exited his vehicle, approached the victim's car, and asked whether she was still married. When the victim responded “yes,” the defendant stated he “wanted to share his life” with her. Later, the victim moved again and again did not publish her new address and did not tell anyone her new address. She changed her phone number and kept it unlisted. The defendant continued to appear outside of her new home with frequency.
        • Outcome: The court affirmed the defendant’s conviction, reasoning that a rational fact finder could reasonably conclude the defendant, a complete stranger to the victim, engaged in conduct directed at the victim on more than one occasion that he reasonably should have known would place the victim in reasonable fear of death, criminal sexual assault, or bodily injury.

    4. Practice Pointers

      Anyone may request an Emergency Stalking Protective Order from a judge or magistrate. The stalking victim may then petition the General District Court for a Preliminary and/or Stalking Protective Order. If the victim is related or married to, living together in the last 12 months or has children in common with the stalker, the victim may also be able to apply for the family abuse protective order, in which case a warrant would not be a pre-requisite for the protective order. See Assistance with Protective Orders, Virginia’s Judicial System, http://www.courts.state.va.us/courtadmin/aoc/judpln/programs/afapo/home.html.

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  5. Menacing

    1. Introduction

      Virginia has no statute that criminalizes menacing.

    2. Practice Pointers

      Individuals who believe that they have been the victim of menacing, including the displaying a weapon or a course of conduct that intentionally places another person in reasonable fear of physical injury or death, may look instead to Virginia’s assault and battery law.1

    1. See, e.g., Carter v. Com., 41 Va. App. 448, 450 (2003), on reh’g, 42 Va. App. 681 (2004), aff’d, 269 Va. 44 (2005) (explaining that assault is defined at common law as “an attempt or offer, with force and violence, to do some bodily harm to another, whether from wantonness or malice, by means calculated to produce the end if carried into execution; as by striking at him with a stick or other weapon, or without a weapon, though he be not struck, or even by raising up the arm or a cane in a menacing manner, by throwing a bottle of glass with an intent to strike, by leveling a gun at another within a distance from which, supposing it to be loaded, the contents might injure, or any similar act accompanied with circumstances denoting an intention coupled with a present ability, of using actual violence against the person of another”). ↩
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  6. Trespass

    1. Introduction

      Virginia observes a cause of action for criminal trespass. This could be relevant if the perpetrator trespassed or installed technology in the victim’s home or workplace that was tantamount to trespass in procuring images.

    2. Text of Statute(s)

      Va. Code Ann. § 18.2-119 − Trespass after having been forbidden to do so; penalties.

      Va. Code Ann. § 18.2-119.1 − Validity of signs forbidding trespass; penalty.

    3. Cases

      1. Jaynes v. Com., 276 Va. 443 (2008).
        • Procedural Posture: Defendant was convicted of three of counts of violating the unsolicited bulk electronic mail (“spam” e-mail) provision of the Virginia Computer Crimes Act. The Virginia Court of Appeals affirmed.
        • Law: Computer crimes; trespass.
        • Facts: The defendant sent tens of thousands of emails to AOL subscribers and through AOL’s proprietary network on four separate occasions. The defendant was arrested and charged with a computer crime.
        • Outcome: The Supreme Court of Virginia held that the defendant’s computer offense was not governed by trespass law. Because trespass requires the use of another’s property to be unauthorized, the court reasoned that unsolicited bulk electronic mail (“spam” e-mail) provision of the Virginia Computer Crimes Act is not a trespass statute, as a sender could be prosecuted under the statute even if an Internet service provider specifically allowed persons using false Internet Protocol addresses and domain names to use its server.
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  7. Voyeurism

    1. Introduction

      A victim could press charges for voyeurism if another person enters their property and secretly or furtively peeps, spies, or attempts to peep or spy into or through a window, door or other aperture under circumstances that would violate the victim’s reasonable expectation of privacy. A victim could also press charges for voyeurism when another uses a peephole or other aperture to secretly or furtively peep, spy, or attempt to peep or spy into one of several enumerated public places for the purpose of viewing any nonconsenting person who is nude or undressing.

    2. Text of Statute(s)

      Va. Code Ann. § 18.2-130 – Peeping or spying into dwelling or enclosure.

      A. It shall be unlawful for any person to enter upon the property of another and secretly or furtively peep, spy or attempt to peep or spy into or through a window, door or other aperture of any building, structure, or other enclosure of any nature occupied or intended for occupancy as a dwelling, whether or not such building, structure or enclosure is permanently situated or transportable and whether or not such occupancy is permanent or temporary, or to do the same, without just cause, upon property owned by him and leased or rented to another under circumstances that would violate the occupant's reasonable expectation of privacy.

      B. It shall be unlawful for any person to use a peephole or other aperture to secretly or furtively peep, spy or attempt to peep or spy into a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location or enclosure for the purpose of viewing any nonconsenting person who is totally nude, clad in undergarments, or in a state of undress exposing the genitals, pubic area, buttocks or female breast and the circumstances are such that the person would otherwise have a reasonable expectation of privacy.

      C. The provisions of this section shall not apply to a lawful criminal investigation or a correctional official or local or regional jail official conducting surveillance for security purposes or during an investigation of alleged misconduct involving a person committed to the Department of Corrections or to a local or regional jail.

      D. As used in this section, “peephole” means any hole, crack or other similar opening through which a person can see.

      E. A violation of this section is a Class 1 misdemeanor.

    3. Cases

      1. Coates v. Commonwealth, No. 140376, 2014 WL 11398627 (Va. Sup. Ct. Dec. 5, 2014).
        • Procedural Posture: The defendant was convicted in the trial court of misdemeanor peeping. The Virginia Court of Appeals denied the defendant’s petition for an appeal. Thereafter, a three-judge panel also denied his appeal. On appeal to this Court, the defendant argues that the evidence was insufficient to establish that he acted “secretly or furtively” as required by Section 18.2-130(B) because he announced his presence to the victim prior to peeping beneath a partition that separated stalls in a public restroom.
        • Law: Peeping.
        • Facts: The defendant entered a public restroom stall adjacent to a stall where the victim sat on a toilet with his pants and underwear pulled down. After closing the stall's door, the defendant sat down on the toilet, unbuckled his pants, reached his arm underneath the partition separating the stalls, and rubbed the victim's bare leg. The victim kicked the defendant’s hand away, but the defendant again touched the victim's leg. The victim once again kicked the defendant’s hand away. The defendant then got on the floor, extended his head under the partition, peered into the victim's stall, and stated that he wanted to engage in a particular sexual activity with the victim.
        • Outcome: The Virginia Supreme Court affirmed the conviction, finding the evidence sufficient to establish beyond a reasonable doubt that his peeping was done “furtively” and thus violated Section18.2-130(B).
      2. Stearn v. Com., No. 2064-12-2, 2014 WL 545719 (Va. Ct. App. Feb. 11, 2014).
        • Procedural Posture: The defendant was convicted in a jury trial of felony third or subsequent offense peeping into an occupied dwelling in violation of Sections 18.2–130 and 18.2–67.5:1. On appeal to the Virginia Court of Appeals, the defendant contended that the evidence was insufficient to support his conviction.
        • Law: Peeping.
        • Facts: The victim saw the forehead, hairline, and head of a white male with “messy and curly” light-colored hair peering at her from outside through the open bedroom window of her basement apartment. The victim said the man had the complexion of someone who had been working outside in the sun. She yelled, the man ran away, and she called the police. A couple weeks later, the same woman was dressing in her bedroom when she again saw a man looking at her through her bedroom window. When she yelled, the man got up and ran. She observed the shoulders, arms, legs, and back of a man she estimated to be in his “late twenties or early thirties,” because he “got up really fast and ran away.” The man's shoulders were facing the window, and he wore a light colored t-shirt and blue jeans. The woman’s roommate called the police. The defendant was identified through fingerprint evidence and was identified in a lineup.
        • Outcome: The court affirmed, finding the evidence sufficient to support a conviction.
      3. Copeland v. Com., 31 Va. App. 512 (2000).
        • Procedural Posture: The trial court convicted the defendant of indecent exposure and peeping into a dwelling. The defendant appealed to the Virginia Court of Appeals.
        • Law: Peeping.
        • Facts: The victim was sitting in her home when, through a glass door, she saw the defendant in her backyard looking at her. His pants were unzipped, his penis was exposed and erect, and he was masturbating. She called the police. As an officer approached the woman’s fenced backyard, he looked over the fence and saw the defendant in the yard. The defendant’s pants were disarrayed, and he admitted he was trespassing.
        • Outcome: The court affirmed the defendant’s conviction for window peeping.
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  8. Cyberbullying

    1. Introduction

      In addition to Virginia’s statutes criminating harassment by computer and stalking, Virginia criminalizes oral or written threats— including an electronically transmitted communication—to kill or bodily injure a person or member of his or her family.

    2. Text of Statute(s)

      Va. Code Ann. § 18.2-60 – Threats of death or bodily injury to a person or member of his family; threats to commit serious bodily harm to persons on school property; penalty.

      A. 1. Any person who knowingly communicates, in a writing, including an electronically transmitted communication producing a visual or electronic message, a threat to kill or do bodily injury to a person, regarding that person or any member of his family, and the threat places such person in reasonable apprehension of death or bodily injury to himself or his family member, is guilty of a Class 6 felony. However, any person who violates this subsection with the intent to commit an act of terrorism as defined in § 18.2-46.4 is guilty of a Class 5 felony.

      2. Any person who communicates a threat, in a writing, including an electronically transmitted communication producing a visual or electronic message, to kill or do bodily harm, (i) on the grounds or premises of any elementary, middle or secondary school property, (ii) at any elementary, middle or secondary school-sponsored event or (iii) on a school bus to any person or persons, regardless of whether the person who is the object of the threat actually receives the threat, and the threat would place the person who is the object of the threat in reasonable apprehension of death or bodily harm, is guilty of a Class 6 felony.

      B. Any person who orally makes a threat to any employee of any elementary, middle or secondary school, while on a school bus, on school property or at a school-sponsored activity, to kill or to do bodily injury to such person, is guilty of a Class 1 misdemeanor. A prosecution pursuant to this section may be either in the county, city or town in which the communication was made or received.

    3. Cases

      1. Holcomb v. Com., 58 Va. App. 339 (2011).
        • Procedural Posture: Defendant was convicted following a bench trial of knowingly communicating a written threat, in violation of Section 18.2-60. Defendant appealed.
        • Law: Cyberbullying.
        • Facts: Defendant and the victim were previously involved in a romantic relationship that produced a daughter. After the relationship dissolved, a custody battle ensued over their child. During this time and prior to the defendant’s arrest, he began posting incendiary messages on his MySpace profile. The posts made the victim fear for her own safety and the safety of her daughter. The defendant characterized the words as “art,” “meant to be songs” and “just clever limericks.”
        • Outcome: The Virginia Court of Appeals affirmed the defendant’s conviction. On appeal, the court established that posting a message on a MySpace profile plainly falls into the category of an “electronically transmitted communication” because it produces a “visual or electronic message” that can be viewed by anyone who has access to that person's MySpace profile. The court found it irrelevant that the defendant did not direct the victim to view his MySpace profile; rather, it was sufficient that the defendant made numerous references to his history with the victim that allowed her to identify herself and that she knew that he had a MySpace profile. The court also found that the posts were threats under Section 18.2-60, rejecting the defendant’s argument that the posts were lyrics, not threats.
      2. Saunders v. Com., 31 Va. App. 321 (2000).
        • Procedural Posture: Defendant was convicted of writing or composing and sending letter containing threat to kill or do bodily injury.
        • Law: Written threat to kill or do bodily injury.
        • Facts: The defendant was charged with writing and sending to another a letter that contained a threat to kill or do bodily injury to that person, in violation of Section 18.2–60(A). Relying analogously on the Virginia Court of Appeals’ use of the word “maliciously” in Perkins v. Commonwealth, the defendant contended malice was an element of Section 18.2–60(A). Thus, he argued, the trial court erred in refusing to instruct the jury on that element.
        • Outcome: The court affirmed defendant’s conviction. It held that malice is not an element of the crime of written threat to kill or do bodily injury.

    4. Practice Pointers

      In 1998, Virginia’s General Assembly amended Section 18.2–60 to criminalize threats contained in “electronically transmitted communication[s] producing a visual or electronic message.” Previously, the Code’s scope was limited to non-electronic transmission of threats of death or bodily injury to a person or member of his or her family.

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  9. Criminal Nonconsensual Porn

    1. Introduction

      Virginia criminalizes the unlawful creation of an image of another. In addition, as of 2014, Virginia directly criminalizes revenge porn, making it illegal for any person, with the intent to coerce, harass, or intimidate, to maliciously post or sell any video or picture that depicts another person totally nude or in a state of undress, where such person knows or has reason to know that he or she is not licensed or authorized to share such video or photo.

    2. Text of Statute(s)

      Va. Code Ann. § 18.2-386.1 − Unlawful creation of image of another; penalty.

      A. It shall be unlawful for any person to knowingly and intentionally create any videographic or still image by any means whatsoever of any nonconsenting person if (i) that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location; or (ii) the videographic or still image is created by placing the lens or image-gathering component of the recording device in a position directly beneath or between a person's legs for the purpose of capturing an image of the person's intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general public; and when the circumstances set forth in clause (i) or (ii) are otherwise such that the person being recorded would have a reasonable expectation of privacy.

      B. The provisions of this section shall not apply to any videographic or still image created by any means whatsoever by (i) law-enforcement officers pursuant to a criminal investigation which is otherwise lawful or (ii) correctional officials and local or regional jail officials for security purposes or for investigations of alleged misconduct involving a person committed to the Department of Corrections or to a local or regional jail, or to any sound recording of an oral conversation made as a result of any videotaping or filming pursuant to Chapter 6 (§ 19.2-61 et seq.) of Title 19.2.

      C. A violation of subsection A shall be punishable as a Class 1 misdemeanor.

      D. A violation of subsection A involving a nonconsenting person under the age of 18 shall be punishable as a Class 6 felony.

      E. Where it is alleged in the warrant, information, or indictment on which the person is convicted and found by the court or jury trying the case that the person has previously been convicted within the 10-year period immediately preceding the offense charged of two or more of the offenses specified in this section, each such offense occurring on a different date, and when such offenses were not part of a common act, transaction, or scheme, and such person has been at liberty as defined in § 53.1-151 between each conviction, he shall be guilty of a Class 6 felony.

      Va. Code Ann. § 18.2-386.2 − Unlawful dissemination or sale of images of another; penalty.

      A. Any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of a Class 1 misdemeanor. However, if a person uses services of an Internet service provider, an electronic mail service provider, or any other information service, system, or access software provider that provides or enables computer access by multiple users to a computer server in committing acts prohibited under this section, such provider shall not be held responsible for violating this section for content provided by another person.

      B. Venue for a prosecution under this section may lie in the jurisdiction where the unlawful act occurs or where any videographic or still image created by any means whatsoever is produced, reproduced, found, stored, received, or possessed in violation of this section.

      C. The provisions of this section shall not preclude prosecution under any other statute.

    3. Cases

      1. Wilson v. Com., 53 Va. App. 599 (2009).
        • Procedural Posture: Defendant was convicted after a bench trial of attempting to photograph a non-consenting twenty-year-old female's intimate parts or undergarments covering those intimate parts not visible to the general public. Defendant appealed to the Virginia Court of Appeals.
        • Law: Unlawful creation of image of another.
        • Facts: The victim, a 20-year-old female, went shopping at a clothing store, which was open to the general public, wearing a mid-thigh length dress that completely covered her undergarments. While in the store, she turned around to look at a rack of clothing behind her and discovered someone with a camera. At the time, she could see the person’s hand and arm positioned hold the camera so that it could view up her dress. Defendant was convicted of attempting to unlawfully photograph a non-consenting twenty-year-old female's “intimate parts or undergarments covering those intimate parts” not visible to the general public, in violation of Section 18.2–386.1.
        • Outcome: The court affirmed the conviction. The court rejected the defendant’s argument that because the incident occurred in a public place, the victim had no reasonable expectation of privacy under the statute, thus negating an element of crime. The court concluded that under its construction of the statute, a person may possess a reasonable expectation of privacy when being victimized in public.
        • Special notes: Because the defendant was charged with attempting to photograph the victim in violation of the Statute, it was not necessary for the government to offer proof that defendant actually photographed anything.
      2. Morehead v. Com., 66 Va. App. 241 (2016).
        • Procedural Posture: Defendant was convicted of unlawful dissemination of nude images in the trial court. Defendant appealed his conviction.
        • Law: Unlawful dissemination or sale of images of another.
        • Facts: Defendant and his wife were married but separated. Prior to 2014, the defendant’s wife shared with defendant a video and photographs of herself nude. She did not authorize the defendant to disseminate the images. The defendant sent six email messages to his wife communicating that he posted nude photographs and a video of her on the website “myex.com.” About the same time period, defendant posted a comment on the Facebook page of the restaurant where the wife was employed. The post stated, “Come see the manager after you see her here” and contained the link to the myex.com website with the text, “Naked pics of [wife]—Williamsburg—Virginia.” The manager of the restaurant read the post and wrote an apology to the customers for the offensive posting and then worked to remove the post from the Facebook page. It was evident visitors to the Facebook page saw the post based on their responses directed at defendant about his behavior. Also during this time period, defendant sent wife text messages on her cell phone. The texts repeatedly stated, “You think you are going to date.” Wife responded by telling him to leave her alone. Defendant replied, “Pick up the phone. Pick up the damn phone.” When she did not answer his calls, defendant sent the following series of texts: “dirty (profanity) about to be shown: do you want me to just post the pictures or the videos too[?];” “ok, both;” “pics are up. You don't want to answer. Ok videos going;” “So you want a link to your (profanity) shots;” “www.myex.com;” and “I'll send it to [the restaurant manager] too.”
        • Outcome: The Virginia Court of Appeals affirmed the defendant’s conviction. The court rejected the defendant’s argument that the images did not constitute dissemination in violation of the statute because it was not a widespread communication. The court also rejected the defendant’s argument that the very act of receiving the images must be in violation of the statute.
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