Weird Cyberstalking Case

I’m again indebted to Magistrate Marcia Linsky of the Allen County (Indiana) Superior Court – she sent me a link to a news story on what is a pretty weird cyberstalking case.

You can find the story in text and video here. One thing that’s interesting about it is that it identifies the victims, but not the perpetrator (maybe for his safety????).

What’s also interesting – and a little weird – is what he did that’s being prosecuted as stalking and harassment. It’s really not either, but those are probably the only charges that would fit.

Here’s what I can find about the facts: Mr. X (as we’ll call the perpetrator) is a 23-year-old man who worked at a church in Wabash, Indiana. (I don’t know in what capacity.) He apparently decided to assume the identities of two young women – one of them is 28 and the other is 16 – whose family attended the church. Mr. X created Facebook pages under their names and then pretended to be them, online. On the respective Facebook pages he created for each of them he posted photos of each girl, listed their addresses and phone numbers and described their after-school activities and work places in detail. This went on for two years.

Why did he do this, you ask? Well, if this was really stalking or harassment, he would have done this to torment the two young women. He would have done things like post false information about them (to wreck their reputations) or use the Facebook pages to do other things that would unnerve, even terrify them. As Wikipedia notes, stalking is “a form of mental assault, in which the perpetrator repeatedly, unwontedly and disruptively breaks into the life-world of the victim, with whom he has no relationship.” Stalkers and harassers focus their efforts on their victims, whether they carry out the activity in the real world or in the virtual world of cyberspace.

Mr. X did none of that. The victims didn’t even know about the fake Facebook pages until recently, after they’d been up for two years. So he wasn’t interested in them; he didn’t target them in any way, whether for a “mental assault” or threats or anything else we’re familiar with (or, more accurately, the criminal law is familiar with).

Nope. He was doing this for his very own benefit. He used the identities of these young women, and the Facebook pages he created in their names, to “have virtual sex with men around the world”, as the story cited above explains. The story also notes that the language used in these encounters was so graphic they couldn’t describe it on air or in print, but that’s standard for online sex, nothing new there.

(I don’t know what Mr. X’s agenda was, but I wonder if he knew about Second Life; as you may know, a lot of males use female avatars – to have sex, among other things – on Second Life. So it seems to me he could have accomplished pretty much the same thing by creating a female avatar in Second Life and gone trolling for sex partners.)

I don’t see what Mr. X did as stalking or harassment. I see this as a case of online imposture, something I’ve written about before. Mr. X simply used the identities of these two women to have a good time, in his own way. I’m sure he, like all imposters, had no desire for them to discover what he was doing, because it would then come to an end.

How did they discover it? Well, they didn’t. It seems the pastor of their church found the Facebook sites when he was “compiling an Internet list of his congregation” he could take with him when he left Wabash for a new post.

Let’s analyze what Mr. X did to see if it fits within Indiana’s definitions of harassment and/or stalking. Indiana Code § 35-45-2-2(a) defines harassment as follows:

A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate communication:
(1) makes a telephone call, whether or not a conversation ensues;
(2) communicates with a person by . . . mail, or other . . . written communication;
(3) transmits an obscene message . . . on a Citizens Radio Service channel; or
(4) uses a computer network . . . to: (A) communicate with a person; or (B) transmit an obscene message or indecent or profane words to a person;
commits harassment, a Class B misdemeanor.

I assume this is the statute Mr. X has been charged under because the news story says he’s charged with misdemeanor harassment. I’m not sure this statue applies: He didn’t make a phone call (at least that’s not at issue in the charge); he didn’t send any written communications to either of the victims; he didn’t’ send anything on Citizen’s Radio. He did use a computer to communicate with a person and/or transmit an obscene message or indecent words to a person, but he didn’t do any of that to the two women who are his ostensible victims.

The crime of harassment is, as I’ve noted before, similar to the crime of threatening someone: Both require that the perpetrator direct words and/or acts at an individual for the purpose of harassing, annoying or alarming them. As I noted in an earlier post, one that dealt with the Indiana Supreme Court’s throwing out harassment charges based on material posted on a MySpace page, it is an integral element of harassment that the perpetrator have sent harassing communications TO the victim, not posted something on line that he or she might see and might find harassing, annoying or even alarming.

That element is specifically included in Indiana’s definition of harassment. Indiana Code § 35-45-10-2 defines harassment as “conduct directed toward a victim that . . .would cause a reasonable person to suffer emotional distress and . . . causes the victim to suffer emotional distress.” If I were representing Mr. X, I’d be using that statutory definition and the Indiana Supreme Court case to argue that harassment is not a proper charge on these facts.

What about stalking? Indiana Code § 35-45-10-1 defines it as “a knowing or an intentional course of conduct involving repeated or continuing harassment of another . . . that would cause a reasonable person to feel terrorized, frightened, . . . or threatened and . . . causes the victim to feel terrorized, frightened, . . . or threatened.” Stalking is a Class D felony, so this could be the charge against Mr. X. (It moves up to a Class B or C felony if it involved threats of death or serious bodily injury or the violation of a protective order, none of which would apply here.)

Though the stalking statute doesn’t say it requires conduct that is directed toward the victim, that is an implicit element of all stalking laws. It’s an integral element of the whole notion of stalking; as I noted above, stalking is usually defined as a kind of “mental assault”, and you can’t assault someone physically or mentally unless you direct your efforts at them.

Mr. X didn’t do that. Mr. X did something weird and crummy, but I don’t think it’s stalking or harassment . . . and I suspect the local authorities who charged him know that. The news story – the only one I can find, so far – says the family is working with state and federal legislators to “draft some stricter laws” that would apply to this kind of conduct. The immediate motivation for this effort seems to be that if M. X were to be convicted of stalking or harassment, he would not have to register as a sex offender, which they seem to think is appropriate here. I’m not sure about that – he didn’t sexually attack anyone . . . he just took two women’s identities for a ride so he could have virtual sex.

I think it would make a lot more sense for the legislators to explore whether it’s possible, and necessary, to criminalize what really happened here: Imposture, the use of another person’s identity for the perpetrator’s own, selfish ends. As I’ve noted before, that can sometimes provide the basis for a defamation suit, which might well be true here. But that’s a civil remedy. I really wonder if we should consider coming up with some kind of new crime: a imposture crime.

Indiana, like most if not all states, makes it a crime to impersonate “a public servant,” such as a law enforcement officer. Some states have a criminal impersonation statute that makes it a crime to pretend to be someone else to commit fraud or some other kind of financial crime. I haven’t gone through the impersonation statutes of all 50 states, so I can’t say whether any of them really reach the kind of impersonation we have here. I do find Colorado’s criminal impersonation statute interesting. Here’s what it says:

A person commits criminal impersonation if he knowingly assumes a false or fictitious identity or capacity, and in such identity or capacity he:
(a) Marries, or pretends to marry. . . or
(b) Becomes bail or surety for a party in an action . . ., civil or criminal . . . ;
(c) Confesses a judgment . . . ; or
(d) Does an act which if done by the person falsely impersonated, might subject such person to . ., civil or criminal . . . liability . . . ; or
(e) Does any other act with intent to unlawfully gain a benefit for himself. . . .

Colorado Revised Statutes § 18-5-113(a). That last one might apply, if we can construe “benefit” as not just a financial benefit (which I’m sure is what it is meant to be).

The crime I’m postulating would not really be about using someone’s identity to DO something (like get married) or GET something (like money). It would in a sense be a true identity theft statute: We’ve never thought of our identities as property; the identity theft statutes we have now are about stealing our “personal identifying information” – our credit cards and SSNs and birthdates and things like that – and using them to commit fraud.

But what about our identity itself? Don’t we own our identity? Don’t I lose something if someone uses my identity, even for an innocuous purpose? Don’t I have the right to control what my identity does? If we decide the answer to those questions is yes, then we should probably go about creating a criminal imposture statute that would reach what Mr. X did.