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Tools to fight online harassment

Washington: Statutory Criminal Law

Contents

  1. RCW 9A.36.078, .080, .083 – Malicious harassment (“Hate crimes statute”)
  2. RCW 9A.52.110, .120, .130 – Computer trespass
  3. RCW 9A.44.115 – Voyeurism
  4. RCW 9A.72.110 – Intimidating a witness
  5. RCW 9A.56.110, .120, .130 – Extortion
  6. RCW 9A.36.070 – Coercion
  7. RCW Chapter 9A.46 – Criminal Harassment
  8. RCW 28A.300.285 – Cyberbullying
  9. RCW 9A.46.110 – Criminal Stalking
  10. Rev. Code Wash. (ARCW) § 9A.86.010 – Disclosing intimate images (“revenge porn”)

  1. RCW 9A.36.078, .080, .083 – Malicious harassment (“Hate crimes statute”)

    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 relief. It has mostly been used in religious or race-related crimes.

    2. Text of the Statute(s)

      • RCW 9A.36.078 – Malicious harassment – Definition and criminal penalty

      • RCW 9A.36.080 – Malicious harassment – Definition and criminal penalty

      • RCW 9A.36.083 – Malicious harassment – Civil action

    3. Cases

      1. State v. Pollard, 80 Wn. App. 60, 906 P.2d 976 (Wash. Ct. App. 1995)

        • Procedural Posture: On appeal by defendant for conviction of malicious harassment based on his encounter with an African American victim.

        • Law: 9A.36.080 (Washington “hate crimes statute”)

        • Relevant Facts: Defendant Pollard was drunk and walking down the street. Two young African American boys were giggling, and he yelled at them, threatened them and hurled racial epithets at them.  When they called the police and one of their mothers confronted defendant, he went on a racially discriminatory and highly offensive rant against the mother and her child.

        • Outcome: Upholding conviction, and determining that the State put forth sufficient evidence to uphold determination that defendant had targeted the boys because of their race. The court rejected defendant’s argument that he had to have “pre-selected” his victim(s) and “pre-planned” the encounter to trigger the statute, because without such planning, there was no proof that he’d chosen the victims “because of” their race.1 The court also rejected defendant’s claim that the statute is unconstitutionally vague without a substantial factor requirement given that the use of the words “because of” in the statute sufficiently notify the average citizen of what the law prohibits, and need not be further clarified.

      2. State v. Talley, 122 Wn.2d 192, 858 P.2d 217 (1993)

        • Procedural Posture: On consolidated appeal, Washington Supreme Court considered the constitutionality of sections (1) and (2) of the Washington “hate crimes statute”

        • Law: 9A.36.080 (Washington “hate crimes statute”)

        • Relevant Facts: Two cases, which were consolidated on appeal. In the first, defendant Talley was prosecuted under the hate crimes statute after he burned a cross on his own line in protest when he saw potential new neighbors, who were African American. They did not purchase the house, and the State charged Talley with violations of the statute. In the second, the State prosecuted defendants, a group of teenage boys, for burning a cross on the lawn of a classmate, who was African American when they felt that he was being “too cool at school.” The boys were confronted by the classmate’s mother when they were in the midst of setting fire to the cross.

        • Outcome: Although the court determined that RCW 9A.36.080(1) was constitutional, the court determined that RCW 9A.36.080(2) was unconstitutionally overbroad because it inhibits free speech on the basis of its content. Subsection (1) was deemed constitutional because regardless of a defendant’s motives for picking a victim, the key to triggering the statute is the selection of the victim. Accordingly, the statute does not, on its face, regulate speech. Subsection (2), however, was deemed unconstitutional because it regulates protected symbolic speech based on content, and any affect it has on regulating conduct is incidental. The statute was deemed unconstitutional because “symbolic hate speech, however offensive, is protected.2 Accordingly, the Court determined that Talley’s actions did not violate 9A.36.080(1) since he burned the cross on his own lawn.  However, the Court determined that the teenagers’ cross-burning on their classmates’ lawn violated 9A.36.080(1) because they “actually damaged the victims’ property” or because they “placed the victim in reasonable fear for their person.”3

    4. Practice Pointers

      Because the Washington hate crimes laws relate only to the harassment or mistreatment of certain groups of minorities, a WMC victim may bring a claim under the hate crimes statute alongside various other claims, for example, stalking.

    1. See Pollard, 80 Wn. App. at 69-70. ↩
    2. Talley, 122 Wn.2d at 200-01. ↩
    3. Id. at 213. ↩
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  2. RCW 9A.52.110, .120, .130 – Computer trespass

    1. Introduction

      Under Washington law, it is a crime for a person to access another’s computer or computer network without permission; copy, take or delete data from another’s computer; or to use another’s computer services without permission. A WMC victim may be a victim of computer crime under the law if the perpetrator takes the intimate material in question from the victim’s computer without her permission or if he uses her email account, without her permission, to send the intimate images.

    2. Text of the Statute(s)

      • RCW 9A.52.110 – Computer trespass in the first degree

        (1) A person is guilty of computer trespass in the first degree if the person, without authorization, intentionally gains access to a computer system or electronic database of another; and

        (a) The access is made with the intent to commit another crime; or

        (b) The violation involves a computer or database maintained by a government agency.

        (2) Computer trespass in the first degree is a class C felony.

      • RCW 9A.52.120 – Computer trespass in the second degree

        (1) A person is guilty of computer trespass in the second degree if the person, without authorization, intentionally gains access to a computer system or electronic database of another under circumstances not constituting the offense in the first degree.

        (2) Computer trespass in the second degree is a gross misdemeanor.

      • RCA 9A.52.130 – Computer trespass – Commission of other crime

        A person who, in the commission of a computer trespass, commits any other crime may be punished for that other crime as well as for the computer trespass and may be prosecuted for each crime separately.

    3. Cases

      1. State v. Olson, 47 Wn. App. 514, 735 P.2d 1362 (Wash. Ct. App. 1987)

        • Procedural Posture: Defendant appealed conviction for computer trespass

        • Law: RCW 9A.52.110

        • Relevant Facts: Defendant was a university police officer who had an access code and permission to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of university computers. He was found retrieving computer printouts of college coeds that were unrelated to any ongoing police investigation. His actions violated the university departmental procedures manual, which prohibited the use of the university computer for non-official business. He was convicted of computer trespass. He appealed his conviction.

        • Outcome: The court overturned the conviction because the defendant was authorized to access the computer system. Because the gravamen of a violation of the computer trespass statute is accessing a computer “without authorization,” defendant’s actions did not violate the statute.

      2. State v. Riley, 121 Wash.2d 22, 846 P.2d 1365 (1993) (en banc)

        • Procedural Posture: On appeal by defendant from conviction of three counts of computer trespass and four counts of possession of a stolen access device after he used his home computer to obtain long distance telephone access codes from telephone company computers to obtain free long distance service.

        • Law: RCW 9A.52.110

        • Relevant Facts: Defendant repeatedly hacked into telephone companies’ computers to steal long distance access codes. Police search warrant permitted seizure of broad categories of material and was not limited by reference to any specific criminal activity. Defendant then confessed but argued that his confessions should be excluded because they arose from the improper seizure of evidence obtained with an overly broad warrant. He also argues that his conduct of repeatedly dialing a general access number and entering random 6-digit codes to try to discover access codes belonging to others did not constitute statutory definition of computer trespass under the law because the telephone company’s long-distance switch is not a “computer” under the statute.

        • Outcome: Although the court determined that the warrant issued was overly broad, it held that the defendant’s confessions were properly admitted, and that, in conjunction with the other evidence of defendant’s actions, they sufficed to support the conviction. Also, the court upheld the trial court’s determination (based on expert testimony) that the telephone company’s long-distance switch constitutes a “computer” under the statute. The court explained that defendant’s actions were not equivalent to placing a telephone call. Rather, the defendant used his home computer to dial Telco’s general access number and enter random 6-digit numbers representing customer access codes every 40 seconds for several hours at a time, which is criminalized “unauthorized, intentional access”1 under the statute.

        • Special Notes: The court upheld defendant’s sentence prohibiting defendant from owning a computer, and from associating with other computer hackers. Although the prohibition is punitive, it was not an unconstitutional restriction on the defendant’s freedom of association because it is a reasonable limitation, which the court imposed “sensitively,” that would assist in discouraging his communication with other hackers.

    4. Practice Pointers

      The statute appears to be the state law equivalent of the federal Computer Fraud and Abuse Act (18 U.S.C. § 1030).

    1. Riley, 121 Wash.2d at 35. ↩
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  3. RCW 9A.44.115 – Voyeurism

    1. Introduction

      A person may be charged voyeurism if he or she invades the privacy of another by recording the victim without the victim’s knowledge or consent for “the purpose of arousing or gratifying the sexual desire of any person.”1 A WMC who’s rights are violated in this manner should report the incident to the authorities, who will be able to charge the perpetrator accordingly.

    2. Text of the Statute(s)

      (1) As used in this section:

      (a) “Intimate areas” means any portion of a person’s body or undergarments that is covered by clothing and intended to be protected from public view;

      (b) “Photographs” or “films” means the making of a photograph, motion picture film, videotape, digital image, or any other recording or transmission of the image of a person;

      (c) “Place where he or she would have a reasonable expectation of privacy” means:

      (i) A place where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another; or


      (ii) A place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance;

      (d) “Surveillance” means secret observation of the activities of another person for the purpose of spying upon and invading the privacy of the person;

      (e) “Views” means the intentional looking upon of another person for more than a brief period of time, in other than a casual or cursory manner, with the unaided eye or with a device designed or intended to improve visual acuity.

      (2) A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films:

      (a) Another person without that person’s knowledge and consent while the person being viewed, photographed, or filmed is in a place where he or she would have a reasonable expectation of privacy; or

      (b) The intimate areas of another person without that person’s knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place.

      (3) Voyeurism is a class C felony.


      (4) This section does not apply to viewing, photographing, or filming by personnel of the department of corrections or of a local jail or correctional facility for security purposes or during investigation of alleged misconduct by a person in the custody of the department of corrections or the local jail or correctional facility.


      (5) If a person is convicted of a violation of this section, the court may order the destruction of any photograph, motion picture film, digital image, videotape, or any other recording of an image that was made by the person in violation of this section.

    3. Cases

      1. State v. Boyd, 137 Wn. App. 910, 155 P.3d 188 (Wash. Ct. App. 2007)

        • Procedural Posture: Defendant appealed conviction following jury trial for voyeurism and attempted voyeurism.

        • Law: RCW 9A.44.115

        • Relevant Facts: Defendant, a school a high school janitor, rumored to be taking “upskirt”2 photographs of female students without their knowledge and permission. The principal found out, and he admitted his actions and showed the principal photographs. On appeal, the defendant argued that the statute was void for vagueness because the photos did not constitute photos of “intimate areas,” where they were covered by clothing—he argued that “an area of the body or underclothing constitutes an ‘intimate area’ only if the victim covers that area with the intent to protect it from the public view,” and that the short skirts insufficiently gave him notice of what was prohibited.3

        • Outcome: The court affirmed the conviction and affirmed the constitutionality of the statute. The court rejected defendant’s position, asserting that “the ‘intimate areas’ provision is well defined, sufficiently putting the public and law enforcement on notice of the prohibited conduct. Read in a sensible and practical manner, the statute prohibits viewing, photographing or filming the parts of a person’s body that are covered by clothing, under circumstances where the person can reasonably be expected to be free from intrusion into those covered areas. Its terms are not subjective or discretionary because any ordinary viewer can ascertain the scope of the protected area.”4

      2. State v. Cervantes, No. 31716-8-II, 2005 WL 1307856 (Wash. Ct. App. May 24, 2005)

        • Procedural Posture: Defendant appealed conviction following jury trial for voyeurism, claiming that the jury instructions were defective and that the trial court had erred by admitting extrinsic impeachment evidence.

        • Law: RCW 9A.44.115

        • Relevant Facts: Defendant, the victim’s stepfather, continually videotaped her in the shower without her consent or knowledge, and officers also found marijuana at defendant’s home. On appeal, defendant argued that the charge of voyeurism was invalid because there was no identification of the specific victim, but the court rejected the argument, noting that identification of the victim was not an “essential element.”5

        • Outcome: The court affirmed the conviction. The court found that voyeurism does not require the specific identification of a victim and properly admitted girl’s “impeachment” evidence.6

      3. State v. Glas, 147 Wn.2d 410, 54 P.3d 147 (2002) (en banc)

        • Procedural Posture: On consolidated appeal, defendants appealed convictions for voyeurism for taking “upskirt” photos of women in public places, e.g. shopping mall

        • Law: RCW 9A.44.115

        • Relevant Facts: Two defendants were convicted of voyeurism, and their appeals were consolidated. The first defendant took photos up the skirts of two women working at the mall, and the second defendant videotaped beneath adults and young girls’ dresses while in line at the Seattle Center. After juries convicted the first defendant, and the court of appeals affirmed the conviction, the second defendant moved to dismiss his case contending that the voyeurism statute did not apply to photographs or video taken in a public place. When the trial court found the second defendant guilty, he appealed directly to the Washington Supreme Court who accepted review and consolidated the two related case.

        • Outcome: The Court reversed the convictions because it found that the statute, as written, “does not render unlawful upskirt photography in public places.”7 The Court explained that the victims could not have a “reasonable expectation of privacy” in “public places.” The Court explained that places where another would have a reasonable expectation of privacy were more limited to places like dressing room, tanning salons, bedrooms, bathrooms, and other places where people are expected to, and frequently do, disrobe. However, the Court did not find that the statute, taken as a whole, was unconstitutional. The Court explained that the statute was not overly broad because although there were potential problems of overbreadth, the court can place a “sufficiently limiting construction on a standardless sweep of legislation,” and chose to interpret the plain language of the law to render it constitutional. The Court also explained that the statute was not overly vague because the statute does not encompass a place where a person “would not expect either a casual or a hostile intrusion, including a living room in a private domicile or an enclosed office, but not a public place.”8

        • Special notes:

          • The Court explained that the California legislature had had the same problem with the state’s voyeurism statute, Cal. Penal Code § 647(k)(1): “Any person who looks through a hole or opening into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, or camcorder, the interior of a bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or the persons inside.” California courts determined that a perpetrator was not guilty of “voyeurism” under the statute when he followed several dozen women while attempting to position a gym bag containing a hidden video camera between the women’s legs while they stood in line or shopped in crowded stores.9

          • Accordingly, the California legislature then amended the statute to add a subsection focusing on the nature of the invasion itself rather than on the place where the crime was committed: “Any person who uses a concealed camcorder motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy.”10

          • The Court also mentions in a footnote that Louisiana’s voyeurism statute focuses on the “unreasonable and offensive nature of the conduct committed, rather than on the reasonable expectation of the victim or the location where the crime occurred.”11

      4. State v. Reep, 161 Wn.2d 808, 167 P.3d 1156 (2007) (en banc)

        • Procedural Posture: On transfer from the court of appeals after defendant appealed conviction for voyeurism, arguing that the officers’ warrants did not have the requisite particularity under the Fourth Amendment, and that, therefore, the seizure of his items was invalid and unconstitutional.

        • Law: RCW 9A.44.115

        • Relevant Facts: Defendant R lived with his parents. An explosion occurred at his parents’ home while Mr. R was absent, and the police began to investigate a possible methamphetamine laboratory in the Rs’ home. The defendant’s parents gave officers permission to enter his room. Officers in the defendant’s room noticed some questionable photographs exhibiting suggestive pictures of children, and officer called a judge to obtain a second oral warrant to investigate defendant’s room for possible evidence relating to “child sex crimes.” Officer then found on defendant’s computer, several photographs of neighborhood children taken without their knowledge or consent, and seized the photographs, charging R with voyeurism.

        • Outcome: The court reversed the conviction based on the determination that the warrant was invalid. The court explained that the photographs at issue (though lewd) were protected by the First Amendment such that the degree of particularity demanded is greater than that required in non-First Amendment case. The warrant used the term “child sex,” and the Court deemed this term too ambiguous to satisfy the strictures of the Fourth Amendment; thus, seizure of photographs was invalid, and the conviction (which was based in relevant part on the seizure of the items), was also invalid, and had to be reversed.

    4. Practice Pointers

      Washington is one of several states with a state equivalent of the Video Voyeurism Prevention Act, 18 U.S.C. § 1801. Under the federal law, when an individual has “the intent to capture an image of a private area of an individual without their consent, and does so under circumstances in which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.”12 The statute explicitly states that a person has a “reasonable expectation of privacy” in “(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the individual was being captured; or (B) circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.”13

    1. RCW 9A.44.115(2). ↩
    2. An “upskirt” photograph is, quite literally, a photograph taken from below to capture an image under a woman’s skirt. ↩
    3. Boyd, 137 Wn. App. at 918. ↩
    4. Id. at 920. ↩
    5. Cervantes, 2005 WL 1307856 at *2. ↩
    6. Id. at *3. ↩
    7. Glas, 147 Wn.2d at 420. ↩
    8. Id. at 422-23. ↩
    9. Id. at 417. ↩
    10. Cal. Penal Code § 647(k)(2). ↩
    11. Glas, 147 Wn.2d at 418 n.1 (citing La. Rev. Stat. Ann. § 14:283(A)). ↩
    12. 18 U.S.C. § 1801(a). ↩
    13. Id. at § 1801(b)(A) & (B). ↩
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  4. RCW 9A.72.110 – Intimidating a witness

    1. Introduction

      A person who published intimate photographs or videos of another person with the intention to prevent or dissuade the subject of the material from testifying in court may be charged with intimidation of a witness under Washington law.

    2. Text of the Statute(s)

      (1) A person is guilty of intimidating a witness if a person, by use of a threat against a current or prospective witness, attempts to:

      (a) Influence the testimony of that person;

      (b) Induce that person to elude legal process summoning him or her to testify;

      (c) Induce that person to absent himself or herself from such proceedings; or

      (d) Induce that person not to report the information relevant to a criminal investigation or the abuse or neglect of a minor child, not to have the crime or the abuse or neglect of a minor child prosecuted, or not to give truthful or complete information relevant to a criminal investigation or the abuse or neglect of a minor child.

      (2) A person also is guilty of intimidating a witness if the person directs a threat to a former witness because of the witness’s role in an official proceeding.

      (3) As used in this section:

      (a) “Threat” means:

      (i) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or


      (ii) Threat as defined in RCW 9A.04.110(28).

      (b) “Current or prospective witness” means:

      (i) A person endorsed as a witness in an official proceeding;


      (ii) A person whom the actor believes may be called as a witness in any official proceeding; or


      (iii) A person whom the actor has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child.

      (c) “Former witness” means:

      (i) A person who testified in an official proceeding;


      (ii) A person who was endorsed as a witness in an official proceeding;


      (iii) A person whom the actor knew or believed may have been called as a witness if a hearing or trial had been held; or


      (iv) A person whom the actor knew or believed may have provided information related to a criminal investigation or an investigation into the abuse or neglect of a minor child

      (4) Intimidating a witness is a class B felony.


      (5) For purposes of this section, each instance of an attempt to intimidate a witness constitutes a separate offense.

    3. Cases

      1. State v. Meneses, 169 Wn.2d 586, 238 P.3d 495 (2010) (en banc)

        • Procedural Posture: On appeal from lower court affirmance of telephone harassment (felony and misdemeanor), and intimidating a witness

        • Law: RCW 9.61.230; RCW 9A.72.110

        • Relevant Facts: Defendant, victim’s ex-boyfriend, regularly called the victim to curse at her, threaten her, etc. in order to try to see his children. He also told her that he would hurt her if she reported his calls to the police. The victim reported defendant to the police, and he was charged with felony and misdemeanor telephone harassment counts as well as the crime of witness intimidation. He asserted that his convictions should be reversed because: (1) he did not have the intent to harass her at the outset of the calls; (2) convictions for telephone harassment and witness intimidation arising from same allegations violate double jeopardy; and (3) he cannot be guilty of witness intimidation because never uttered a “true threat,” but rather, merely ranted to her; thus should be guilty of only “witness tampering,” a lesser-included offense of witness intimidation.

        • Outcome: The court affirmed the convictions and found that: (1) defendant had the requisite intent to harass at the outset of the call; (2) there was no double jeopardy violation because the witness intimidation threats and threats regarding the relationship arose from different behavior; and (3) defendant’s statements and “threat-like” rants constituted “true threats,” which in turn, can amount to intimidation under 9A.72.110.

        • Special Notes: Witness tampering (RCW 9A.72.110(1)(c)). is a lesser-included offense of witness intimidation. Witness intimidation includes the additional element that a defendant use a threat. To be guilty of witness tampering, one must attempt to induce “. . . a person whom he or she has reason to believe may have information relevant to a criminal investigation . . . [to] [w]ithhold from a law enforcement agency [that] information.”1 To be guilty of witness intimidation, one must threaten “a current or prospective witness,” to “induce that person not to report the information relevant to a criminal investigation.”2

    4. Practice Pointers

      A situation in which a plaintiff may claim witness intimidation may involve other violations of that plaintiff’s rights relating to various other WMC-crimes.

    1. RCW 9A.72.120(1)(c). ↩
    2. RCW 9A.72.110(1)(d). ↩
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  5. RCW 9A.56.110, .120, .130 – 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 if he or she transmitted the communication to the victim via interstate commerce channels.

    2. Text of the Statute(s)

      • RCW 9A.56.110 – Extortion – Definitions

        “Extortion” means knowingly to obtain or attempt to obtain by threat property or services of the owner, and specifically includes sexual favors.

      • RCW 9A.56.120 – Extortion in the first degree

        (1) A person is guilty of extortion in the first degree if he or she commits extortion by means of a threat as defined in RCW 9A.04.110(28)(a), (b), or (c).1

        (2) Extortion in the first degree is a class B felony.

      • 9A.56.130 – Extortion in the second degree

        (1) A person is guilty of extortion in the second degree if he or she commits extortion by means of a wrongful threat as defined in RCW 9A.04.110(28) (d) through (j)

        (2) In any prosecution under this section based on a threat to accuse any person of a crime or cause criminal charges to be instituted against any person, it is a defense that the actor reasonably believed the threatened criminal charge to be true and that his or her sole purpose was to compel or induce the person threatened to take reasonable action to make good the wrong which was the subject of such threatened criminal charge.

    3. Cases

      1. State v. Pauling, 149 Wn.2d 381, 69 P.3d 331 (2003) (en banc)

        • Procedural Posture: Washington Supreme Court granted petition to consider the constitutionality of former second degree extortion statute where the defendant alleged that it violated the First Amendment by prohibiting threats that are constitutionally protected speech; following his conviction (bench trial) for second degree extortion, court of appeals reversed.

        • Law: Former RCW 9A.56.130 – “[a] person is guilty of extortion in the second degree if he or she commits extortion by means of a threat as defined in RCW 9A.04.110(25)(d) through (j)”—the amended statute added the term “wrongful threat” to the statutory text to avoid any prohibition of protected speech

        • Relevant Facts: The defendant was convicted of second degree extortion for threatening to disseminate and actually disseminating nude photographs of a former girlfriend in order to try to collect a valid $5,000 small claims court judgment he had against her. The nude photos were left in his possession after the couple broke up, but she did not give him her permission to distribute them, and she had asked him to return them.

        • Outcome: The court reversed and reinstated the judgment and sentence of the trial court; although the former statute lacked a requirement that the threat be “wrongful,” the Court imposed a “limiting construction” in the form of a “lack of nexus” requirement “such that only those threats that bear no relation to a plausible claim of right to the property or services for which the threat was made will be considered extortionate. Such threats are inherently wrongful and are not protected speech.”2 Under this construction, defendant’s conduct—threatening victim with dissemination of photographs and actually disseminating photographs, to try to force her to pay him

        • Special Notes: After Pauling, the Washington legislature revised the statute to add the term “wrongful” to the text, eliminating the possibility that it would be considered unconstitutionally prohibitive of protected speech.

    4. Practice Pointers

      After Pauling, the Washington legislature revised the statute to add the term “wrongful” to the text, which means that the Extortion statute no longer could be considered to unconstitutionally prohibit protected speech.

    1. RCW 9A.04.110(28)(a)-(j) are the definitions of “threat,” referred to in the extortion statutes. “(28) ‘Threat’ means to communicate, directly or indirectly, the intent: (a) To cause bodily injury in the future to the person threatened or to any other person; or (b) To cause physical damage to the property of a person other than the actor; or (c) To subject the person threatened or any other person to physical confinement or restraint; or (d) To accuse any person of a crime or cause criminal charges to be instituted against any person; or (e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or (f) To reveal any information sought to be concealed by the person threatened; or (g) To testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or (h) To take wrongful action as an official against anyone or anything, or wrongfully withhold official action, or cause such action or withholding, or (i) To bring about or continue a strike, boycott, or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or (j) To do any other act which is intended to harm substantially the person threatened or another with respect to his or her health, safety, business, financial condition, or personal relationships.” ↩
    2. Pauling, 149 Wn.2d at 393. ↩
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  6. RCW 9A.36.070 – Coercion

    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 coercion in certain circumstances.

    2. Text of the Statute(s)

      (1) A person is guilty of coercion if by use of a threat he or she compels or induces a person to engage in conduct which the latter has a legal right to abstain from, or to abstain from conduct which he or she has a legal right to engage in.

      (2) “Threat” as used in this section means:

      (a) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or

      (b) Threats as defined in *RCW 9A.04.110(28)(a), (b), or (c).

      (3) Coercion is a gross misdemeanor.

    3. Cases

      1. State v. Caldwell, No. 21835-0-III, 2005 WL 2739497 (Wash. Ct. App. Oct. 11, 2005)

        • Procedural Posture: On appeal from defendant’s conviction for attempted coercion and felony harassment; he argued that the convictions for both crimes violate double jeopardy.

        • Law: RCW 9A.36.070; 9A.46.020

        • Relevant Facts: Victim filed a petition for dissolution of her marriage to the defendant, and during the pendency of their divorce proceedings, the defendant threatened to kill her if she did not give up custody over their son. She reported the defendant to the police. His threats were the basis for charges of felony harassment and attempted coercion.

        • Outcome: The court affirmed the defendant’s conviction. The court determined that because the elements of the two crimes are different, there was no double jeopardy problem. To constitute a felony harassment, there must be a threat to kill as well as proof that the person threatened was placed in a reasonable fear that the defendant would carry out the threat. The requirement that the State prove that the victim feared the threat would be carried out is not required to show attempted coercion.1 By contrast, attempted coercion requires the State to prove a person for the coercion, an element that is not required to show felony harassment.2

    4. Practice Pointers

      This type of criminal action will likely arise in similar circumstances to an action for extortion.

    1. Caldwell, 2005 WL 2738487 at *3. ↩
    2. Id. ↩
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  7. RCW Chapter 9A.46 – Criminal Harassment

    1. Introduction

      In situations in which a WMC victim is harassed either online or otherwise, the State may charge a defendant with criminal harassment. It may be particularly apt in situations of cyberstalking and cybercrime, both of which are becoming increasingly common.

    2. Text of the Statute(s)

      • RCW 9A.46.010 – Legislative finding

      • RCW 9A.46.020 – Definition – Penalties

      • RCW 9A.46.030 – Place where committed

      • RCW 9A.46.060 – Crimes included in harassment

    3. Cases

      1. State v. Askham, 120 Wn. App. 872, 86 P.3d 1224 (Wash. Ct. App. 2004)

        • Procedural Posture: Appeal from convictions for felony harassment, stalking, second degree theft and libel based on assertion that court improperly denied defendant’s motion to suppress the evidence based on an invalid warrant.

        • Law: RCW 9A.46.020; stalking; second degree theft; libel

        • Relevant Facts: The defendant and his girlfriend broke up, and the defendant’s girlfriend began dating her neighbor. In a fit of jealousy, defendant began to send anonymous emails manufacturing misconduct and accusing neighbor of inappropriate use of a state computer, and sent him emails threatening to ruin his professional and social life. Defendant also mailed hard copies of manufactured inappropriate images of a man with an image of neighbor’s face receiving oral sex from a young male. After doing some investigation, police obtained a search warrant to seize defendant’s computer and search his residence for evidence relating to the manufactured photos, emails, etc. The evidence recovered included an envelope addressed to the neighbor containing the neighbor’s image as well as pornographic shots matching those on the internet sites. In a trash can, searches found numerous pictures from which the manufactured images had been obtained. A large number of entries of personal information about neighbor were also found in defendant’s handwriting, as well as documents neighbor had disposed of in his trash. Searchers also found handwritten drafts of the threatening emails that were sent later, and the computer investigation revealed that the computer had been used to alter the internet images at issue. Defendant moved to suppress the information obtained, and the court denied the motion. Defendant was convicted on all counts. He argued that the warrant was insufficiently particularized to limit the search to items connected with the defendant, and that the search limited to items relating to the neighbor was not limited to “criminal activity.” He also argued that there was insufficient evidence of stalking or theft.

        • Outcome: The court affirmed the defendant’s convictions. The court determined that the warrant was sufficiently particular to comport with Fourth Amendment requirements. Although the warrant did not specify the crimes that were under investigation, it gave a detailed description of the suspected criminal activity, including the victim’s name, details of false accusations, identification of specific websites, and descriptions of offending images and threats, adequately limiting the warrant’s scope. The court also found that the entire course of the harassing conduct, including letters to the victim’s employers accusing him of being involved in pornographic and racist websites, and threatening letters to victim, placed the victim in reasonable, actual fear of injury to his livelihood and reputation, as required to support a stalking conviction based on harassment. Finally, the record contained sufficient evidence of emotional distress where victim repeatedly testified that he felt threatened by the situation.

        • Special notes: Claim of theft based on dumpster diving was also upheld where the evidence supported the court’s finding that defendant went through victim’s garbage, obtained victim’s credit card number from old receipts, and then used that number to charge the membership fee to offensive web-sites. The court deemed the circumstantial evidence sufficient to support the court’s finding of an unauthorized use of the credit card number.

      2. State v. C.G., 150 Wn.2d 604, 80 P.3d 594 (2003) (en banc)

        • Procedural Posture: Washington Supreme Court granted review of defendant juvenile’s conviction for felony harassment

        • Law: RCW 9A.46.020

        • Relevant Facts: Defendant, a juvenile student, became disruptive in class when she was questioned about a missing pencil, and she claimed that she had been “falsely accused.” The vice-principal was called and she threatened to “kill him.” He claimed that he was concerned about the threat because he believed C.G. could try to harm him or someone else in the future.

        • Outcome: The court reversed C.G.’s conviction because the State put forth no evidence that the vice principal was placed in a reasonable fear that the threat made is the one that will be carried out—e.g. that the vice-principal actually had a reasonable fear that the defendant would kill him.

        • Special notes: The Court noted that the State “could still charge one who threatens to kill someone with threatening to inflict bodily injury, in the nature of a lesser included offense, thus enabling a misdemeanor charge even if the person threatened was not placed in reasonable fear that the threat to kill would be carried out, but was placed in fear of bodily injury.”1

      3. State v. J.M., 144 Wn.2d 472, 28 P.3d 720 (2001) (en banc)

        • Procedural Posture: Washington Supreme Court granted review of juvenile’s appeal from adjudication of guilty for felony harassment.

        • Law: RCW 9A.46.020

        • Relevant Facts: Thirteen-year-old juvenile defendant amongst a group of friends repeatedly threatened to kill school principal and others after he was suspended. The threats closely followed the incident at Columbine. Other students took the threats seriously and reported them to the principal who also took them seriously, and testified that he would have taken any such threats seriously. After defendant was adjudicated guilty he appealed ruling, arguing that his statements did not qualify as a “true threat” under the relevant statute because the State had to prove that he knew that his threat would be communicated to the principal.

        • Outcome: The court affirmed adjudication of guilty and determined that felony harassment statute does not require the State to prove that a person knows his “true threat” would be communicated to the victim. The correct interpretation of the statute is that “knowingly” modifies “threaten”—the defendant must know that he or she is communicating a threat, not that the defendant actually comprehends it: “Thus, the statute as a whole requires that the perpetrator knowingly threaten to inflict bodily injury by communicating directly or indirectly the intent to inflict bodily injury; the person threatened must find out about the threat although the perpetrator need not know nor should know that the threat will be communicated to the victim; and words or conduct of the perpetrator must place the person threatened in reasonable fear that the threat will be carried out.”2

    1. C.G., 150 Wn.2d at 611. ↩
    2. J.M.,144 Wn.2d at 482. ↩
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  8. RCW 28A.300.285 – Cyberbullying

    1. Introduction

      Passed in 2010, this statute is designed to prevent cyberbullying of students against other students. The legislature found the law necessary because, “despite a recognized law prohibiting harassment, intimidation, and bullying of students in public schools and despite widespread adoption of antiharassment policies by school districts, harassment of students continues and has not declined since the law was enacted. Furthermore, students and parents continue to seek assistance against harassment, and schools need to disseminate more widely their antiharassment policies and procedures.”1 Under the statute, each school district must have its own policies and procedures regarding this issue by August 1, 2011.

    2. Text of the Statute(s)

      RCW 28A.300.285 is available here.

    3. Cases

      1. Sheridan v. Dep't of Corr., NO. C10-5459RBL (W.D. Wash. Mar. 3, 2011)

      2. J.B. v. Mead Sch. Dist. No. 354, NO. CV-08-223-EFS (E.D. Wash. Dec. 10, 2010)

    4. Practice Pointers

      Many other states have passed similar laws in the past few years, and the several more states are considering such legislation.2 However, Washington’s law is unique in that the legislation proposes to extend punishment for cyberbullying that occurs off-campus (rather than on school property), yet “threatens a student and/or impairs his or her capacity to learn in school.”3

    1. “Finding – intent,” Notes to RCW 28A.300.285, available at http://apps.leg.wa.gov/rcw/default.aspx?cite=28A.300.285 (last visited Jan. 25, 2012). ↩
    2. See Sameer Hinduja, Ph.D. & Justin W. Patchin, Ph.D., State Cyberbullying Laws, available at http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf (last visited Feb. 1, 2012) (listing pending state and federal legislation regarding cyberbullying and describing laws in more detail). ↩
    3. SocialSafety.org, “Laws against cyberbullying,” available at http://www.socialsafety.org/law_enforcement_cyberbullying.html (last visited Jan. 25, 2012). ↩
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  9. RCW 9A.46.110 – Criminal Stalking

    1. Introduction

      In situations in which a WMC victim is stalked either online or otherwise, the State may charge a defendant with criminal stalking. It may be particularly apt in situations of cyberstalking and cybercrime, which are becoming increasingly common. Examples of stalking include, among other things: making unwanted phone calls; sending unsolicited or unwanted letters or emails; following or spying on the victim; and posting information or spreading rumors about the victim on the internet, in a public place, or by word of mouth.

    2. Text of the Statute(s)

      RCW 9A.46.110 is available here.

    3. Cases

      1. State v. Kintz, 169 Wn.2d 537, 238 P.3d 470 (2010) (en banc)

        • Procedural Posture: Defendant appealed conviction for stalking arising from two separate incidents/complaints arguing that the lower courts had misinterpreted the term “repeatedly” in the statute

        • Law: RCW 9A.46.110

        • Relevant Facts: Defendant involved in two separate incidents with two separate victims in which he allegedly tailed the victims from his large white van and frightened them to the point at which they felt compelled to call the police. On appeal to the Washington Supreme Court, defendant argued that he could not be convicted for stalking because there were no “repeated” incidents, and were continuous occurrences.

        • Outcome: The court affirmed the conviction for stalking and rejecting defendant’s argument: “Based on the breaks in contact between these episodes, the jury could have found that the constituted two or more separate occasions of harassment.”1

        • Special notes: Dissent argued that the majority decision misinterprets “repeatedly” in a way that it has “impermissibly expand[ed] stalking incidents by criminalizing commonplace interactions,” e.g. “(1) a driver asking a stranger for directions, then (2) turning around (beyond eyeshot) and driving slowly past the stranger.” Dissent asserts that these two events were not separate courses of conduct. Moreover, “stalking by following” was not proven where there was only a “single incident” of following as to both victims involved here.2

      2. State v. Lee, 135 Wn.2d 369, 957 P.2d 741 (1998) (en banc)

        • Procedural Posture: Washington Supreme Court granted review of defendants’ appeal of two consolidated convictions under the former stalking statute.

        • Law: RCW 9A.46.110

        • Relevant Facts: First defendant convicted under former stalking statute after state put forth evidence that defendant maintained visual and physical proximity to former girlfriend and her child several months in his pursuit of unwanted contact with her, despite her protestations and despite a restraining order directing that he have no contact with her or her child. Second defendant convicted under former stalking statute after state put forth evidence that over a two-month period, he repeatedly appeared at the victim’s place of employment in a shopping mall food court and sat for hours staring at her, repeatedly rode the same public transit bus as the victim, and continued to contact her despite her requests to be left alone. Both defendants argued that the former stalking statute was overly broad and void for vagueness, and violated the constitutional requirements of due process.

        • Outcome: The court affirmed the convictions and upheld the constitutionality of the stalking statute. In rejecting the overbreadth argument, the Court determined that the statute did not intrude on constitutionally protected behavior, e.g. the right to travel or freedom of association, because “[o]ne person’s freedom of movement gives way to another person’s freedom not to be disturbed.”3 Defendants had two different arguments that the statute was unconstitutionally vague, and the Court rejected both arguments. The first defendant stated that the terms “without lawful authority” as used in the statute were too vague to be understood by persons of common intelligence, and the second defendant asserted that the term “follows” was too vague. The Court explained that “[t]he fact that some terms in a statute are not defined does not mean the enactment is unconstitutionally vague,” and the facts showed deliberate and intentional interference with victims’ rights to be left alone, acts which fell under the letter of the stalking statute.4

        • Special notes: Both the concurrence and the dissent asserted that the court misinterpreted the right to privacy. The dissent argues that the right to privacy is intended to protect citizens from actions by the government, not from actions by other citizens: “[T]his court has recognized that a ‘[v]iolation of a right of privacy under [article I, section 7 of the Washington Constitution] turns on whether the State has unreasonably intruded into a person’s private affairs. . . Thus, it is well established that state and federal constitutional actions protect citizens from state action, not private action. The majority’s analysis leads to an unprecedented result whereby private citizens could sue other private citizens for constitutional violations. To extend constitutional protections to private actions would be an unsupported and radical departure from established constitutional doctrine. I find the reasoning of the majority in this regard to be without basis in American constitutional jurisprudence and therefore, I must voice my disagreement.”5

      3. State v. Haines, 151 Wn. App. 428, 213 P.3d 602 (Wash. Ct. App. 2009)

        • Procedural Posture: Defendant appealed criminal conviction of felony harassment, misdemeanor harassment and misdemeanor stalking, claiming that the statute was unconstitutionally vague, among other things.

        • Law: RCW 9A.46.110

        • Relevant Facts: Defendant repeatedly verbally harassed store clerk, telling her he wanted to “fuck her,” and threatening to kill her, because she was an immigrant. The incidents recurred at least two times, and store clerk twice called 9-1-1 because she feared for her life. On both occasions, plaintiff had other individuals witness the incident. On appeal, defendant argued that because he had not harassed her six separate times, it did not qualify as “harassment” under the stalking statute, and he posited that the statute itself was vague in violation of his due process. The court disagreed, determining that the stalking statute was not unconstitutionally vague and that defendant’s interpretation was in direct contravention of the statute’s unambiguous language that any more than one episode of harassment could constitute stalking.

        • Outcome: The court affirmed the defendant’s stalking conviction and upheld the statute as constitutionally viable.

      4. State v. Becklin, 163 Wn.2d 519, 182 P.3d 944 (2008) (en banc)

        • Procedural Posture: Review granted for court of appeals’ reversal of jury verdict convicting defendant of felony stalking his ex-girlfriend

        • Law: RCW 9A.46.110

        • Relevant Facts: Defendant was accused of stalking his ex-girlfriend, and the State presented substantial evidence that defendant had threatened her, and had directed several of his friends to follow her and report back to him on her activities. Specifically, the victim testified that the defendant’s friends repeatedly drove the defendant’s cars by her house, and circled her block several times. Two witnesses also testified that they filled out written reports for the defendant that recounted their sightings of the victim around time, and that the victim had been followed on errands, etc. The victim was fearful of the defendant and his friends. During the jury deliberations, the jury asked if stalking could be accomplished through a third party, and the trial court answered affirmatively. The jury then found the defendant guilty.

        • Outcome: The court reversed the appeals court and reinstated defendant’s conviction because trial court’s answer accurately communicated “that stalking encompasses the act of directing others to harass a victim.”6

        • Special notes: The Washington legislature has indicated that it intends a “broad definition of the type of conduct that could constitute stalking or harassment. When it added electronic communications to the types of communications, contact, or conduct that could be considered stalking or harassment, it included the following statement of intent: ‘It is the intent of this act to clarify that electronic communications are included in the types of conduct and actions that can constitute the crimes of harassment and stalking. It is not the intent of the legislature, by adoption of this act, to restrict in any way the types of conduct or actions that can constitute harassment or stalking.’”7

          The court referenced State v. Parmelee, 108 Wn. App. 702, 32 P.3d 1028 (Wash. Ct. App. 2001) in which the appeals court upheld the defendant’s stalking conviction upheld where he took steps to convince fellow inmates to write sexually explicit emails to his estranged wife, convincing at least some of them that she would welcome such communications. As in Parmelee, “the manipulation of third parties” can accomplish harassment and/or stalking.8

          Dissent by Justice Alexander stating that the challenged supplemental jury instruction was too late and inadequate in content because court should have referred to the crime of “complicity” rather than finding one accountable for a third party’s purported stalking/harassment. Justice Alexander took a plain reading view of the statute because it reads that “[a] person commits the crime of stalking if . . . [h]e or she intentionally and repeatedly harasses or repeatedly follows another person,” clarifying that the harassment must be committed by the defendant, rather than by third parties acting at his behest.9

    1. Kintz, 169 Wn.2d at 556. ↩
    2. Id. at 568. ↩
    3. Lee, 135 Wn.2d at 392. ↩
    4. Id. at 393. ↩
    5. Id. at 397 (Madsen, J., dissenting). ↩
    6. Becklin, 163 Wn.2d at 521. ↩
    7. Id. at 528 (emphasis added). ↩
    8. Id.at 529. ↩
    9. Id. at 534 (Alexander, J., dissenting). ↩
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  10. Rev. Code Wash. (ARCW) § 9A.86.010 – Disclosing intimate images (“revenge porn”)

    1. Introduction

      Washington has a nonconsensual porn law on its books.

    2. Text of the Statute(s)

      (1) A person commits the crime of disclosing intimate images when the person knowingly discloses an intimate image of another person and the person disclosing the image:

      (a) Obtained it under circumstances in which a reasonable person would know or understand that the image was to remain private;

      (b) Knows or should have known that the depicted person has not consented to the disclosure; and

      (c) Knows or reasonably should know that disclosure would cause harm to the depicted person.

      (2) A person who is under the age of eighteen is not guilty of the crime of disclosing intimate images unless the person:

      (a) Intentionally and maliciously disclosed an intimate image of another person;

      (b) Obtained it under circumstances in which a reasonable person would know or understand that the image was to remain private; and

      (c) Knows or should have known that the depicted person has not consented to the disclosure.

      (3) This section does not apply to:

      (a) Images involving voluntary exposure in public or commercial settings; or

      (b) Disclosures made in the public interest including, but not limited to, the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.

      4) This section does not impose liability upon the following entities solely as a result of content provided by another person:

      (a) An interactive computer service, as defined in 47 U.S.C. Sec. 230(f)(2);

      (b) A mobile telecommunications service provider, as defined in RCW 82.04.065; or

      (c) A telecommunications network or broadband provider.

      (5) It shall be an affirmative defense to a violation of this section that the defendant is a family member of a minor and did not intend any harm or harassment in disclosing the images of the minor to other family or friends of the defendant. This affirmative defense shall not apply to matters defined under RCW 9.68A.011.

      (6) For purposes of this section:

      (a) “Disclosing” includes transferring, publishing, or disseminating, as well as making a digital depiction available for distribution or downloading through the facilities of a telecommunications network or through any other means of transferring computer programs or data to a computer;

      (b) “Intimate image” means any photograph, motion picture film, videotape, digital image, or any other recording or transmission of another person who is identifiable from the image itself or from information displayed with or otherwise connected to the image, and that was taken in a private setting, is not a matter of public concern, and depicts:

      (i) Sexual activity, including sexual intercourse as defined in RCW 9A.44.010 and masturbation; or

      (ii) A person’s intimate body parts, whether nude or visible through less than opaque clothing, including the genitals, pubic area, anus, or post-pubescent female nipple.

      (7) The crime of disclosing intimate images:

      (a) Is a gross misdemeanor on the first offense; or

      (b) Is a class C felony if the defendant has one or more prior convictions for disclosing intimate images.

      (8) Nothing in this section is construed to:

      (a) Alter or negate any rights, obligations, or immunities of an interactive service provider under 47 U.S.C. Sec. 230; or

      (b) Limit or preclude a plaintiff from securing or recovering any other available remedy.

    3. Cases

      Research is ongoing.

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