Cyberstalking, Domestic Abuse and the Issue of First Impression

This post examines a recent opinion from the Court of Appeals of Louisiana - Fourth Circuit: Shaw v. Young, 2016 WL 4395045 (2016). The court begins the opinion by explaining that

[t]his case presents an issue of first impression as it relates to whether the crime of cyberstalking constitutes domestic abuse for the purpose of obtaining a protective order under the Louisiana Domestic Abuse Assistance Law, Louisiana Statutes Annotated 46:2131 et seq. 

Shaw v. Young, supra.

And as appellate courts usually do, the court went on to explain how the case arose:

Mr. Young and Ms. Shaw married in January 2013. At that time, Ms. Shaw moved permanently from Australia to New Orleans, Louisiana, where the parties established their matrimonial domicile.

On February 13, 2014, Ms. Shaw filed a Petition for Protection from Abuse pursuant to the Louisiana Domestic Abuse Assistance Law, Louisiana Revised Statutes § 46:2131, et. seq. In the Petition, Ms. Shaw alleged that, on or about February 8, 2014, Mr. Young punched her, shoved her, and threatened her with bodily harm.

Based on the verified allegations in the Petition, on February 13, 2014, the trial court entered an ex parte Order of Protection against Mr. Young, effective through March 10, 2014 (`Temporary Restraining Order’ or `TRO’). The Temporary Restraining Order prohibited Mr. Young from: (1) abusing, harassing, stalking, following, or threatening Ms. Shaw; (2) contacting Ms. Shaw personally, electronically, by phone, in writing, or through a third party, without the express written permission of the court; (3) going within 100 yards of Ms. Shaw without court permission; and (4) going within 100 yards of Ms. Shaw's residence.

Shaw v. Young, supra.

The opinion goes on to explain that

[o]n or about May 9, 2014, Mr. Young filed a Petition for Divorce based on fault pursuant to Louisiana Civil Code article 103,  and requested a permanent injunction on the grounds of spousal abuse. Ms. Shaw filed an Answer and Reconventional Demand for Divorce and Permanent Injunction.

On October 14, 2014 and April 27, 2015, the district court held a two-day trial on Mr. Young's Rule for Preliminary Injunction, Interim Spousal Support and Final Spousal Support; and Ms. Shaw's Answer and Reconventional Demand for Divorce and Permanent Injunction.

At the conclusion of the trial on April 27, 2015, the district court issued a permanent Protective Order, which stated that Mr. Young was not to abuse, harass, stalk, follow, or threaten Ms. Shaw in any manner. The Protective Order further stated that `[f]or the purpose of this order, harassment includes, but is not limited to, defendant's written, verbal or electronic communication to 3rd parties disparaging petitioner.’ The Protective Order also prohibited Mr. Young from contacting Ms. Shaw personally, electronically, by phone, in writing or through a third party. Mr. Young was also barred from going within 100 yards of Ms. Shaw or her residence, and he was ordered to stay away from Ms. Shaw's place of employment/school and to not interfere with Ms. Shaw in any manner at her place of employment/school.

On May 6, 2015, the trial court signed a written judgment: (1) granting Ms. Shaw's rule for divorce based on the parties having lived separate and apart continuously for 180 days; (2) granting Ms. Shaw a permanent protective order against Mr. Young, to be registered with the Louisiana Protective Order Registry; (3) denying Mr. Young's rule for interim spousal support; (4) denying Mr. Young's rule for final/permanent spousal support; and (5) granting Mr. Young a five year civil injunction against Ms. Shaw, prohibiting Ms. Shaw from `any and all harassments, including electronic means.’

Mr. Young timely appealed.

Shaw v. Young, supra.

The Court of Appeal went on to address the substantive issues in the case, beginning with the issue of a “permanent protective order under the Louisiana domestic abuse assistance law”.  Shaw v. Young, supra.  It began by explaining that a

trial court's decision denying a protective order under the Domestic Abuse Assistance Law, Louisiana Revised Statutes 46:2131, et seq. is reversible only upon a showing of an abuse of discretion. Alfonso v. Cooper, 14-0145, p.13 (Court of Appeal of Louisiana 4^th Circuit 07/16/14), 146 So.3d 796, 805. The trial court's findings of fact, including its assessment of the weight of the evidence and the credibility of the witnesses, may not be set aside in the absence of manifest error or unless they are clearly wrong.  Sander v. Brousseau, 00-0098, p. 3 (Louisiana Court of Appeal 4^th Circuit 10/4/00), 772. So.2d 709, 710-711.

When a conflict in the testimony exists, reasonable evaluations of credibility and reasonable inferences of fact made by the trial court are not to be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are just as reasonable. Melerine v. O’Connor, 1301073, p. 3 (Louisiana Court of Appeal 4^th Circuit 2/26/24), 135 So.3d 1198, 1202.  As long as the trier of fact's findings are reasonable in light of the record as a whole, the appellate court will affirm.  Mazzini v. Strathman, 13-0555, p. 4 (Louisiana Court of Appeal 4^th Circuit 4/16/14), 140 So.3d 253, 256.   

Under the Domestic Abuse Assistance Law, the trial court may grant a protective order directing the defendant to refrain from abusing, harassing, or interfering with the person on whose behalf a Petition for Protection from Abuse has been filed. Louisiana Revised Statutes 46:2136(A)(1); Louisiana Revised Statutes 46:2135(A)(1). To obtain a protective order under this statute, the petitioner must prove his or her allegations of domestic abuse by a preponderance of the evidence. Louisiana Revised Statutes 46:2135(B). (‘Proof is sufficient to constitute a preponderance of the evidence when the entirety of the evidence[,] both direct and circumstantial, shows that the fact sought to be proved is more probable than not.’) Joseph v. Williams, 12-0675, p. 23 (Louisiana Court of Appeal 4^th Circuit, 11/14/12), 105 So.3d 207, 222 (quoting Hanks v. Energy Corp., 06477, p. 19 (Louisiana Court of Appeal 4^th Circuit, 12/18/06), 944 So.2d 564, 578.

On appeal, Mr. Young's third assignment of error is that Ms. Shaw did not produce sufficient evidence to warrant a permanent protective order pursuant to Louisiana Revised Statutes 46:2136. Ms. Shaw argues that the evidence from the prior protective order proceedings, along with the evidence presented at the protective order proceedings at issue in this appeal, are sufficient to satisfy her burden of proof. Ms. Shaw is correct that evidence from prior protective order proceedings is admissible.

Shaw v. Young, supra.

Notwithstanding the last comment in the paragraph above, the Court of Appeal went on to explain that

[u]nder the Domestic Abuse Assistance Law, upon good cause shown in an ex parte proceeding, the court may issue a temporary restraining order to protect a person who shows immediate and present danger of abuse. Louisiana Revised Statutes 46: 2135(A).  According to the statute, the court shall consider any and all past history of abuse, or threats thereof, in determining the existence of an immediate and present danger of abuse. Louisiana Revised Statutes 46:2135(A).    

The February 13, 2014 Temporary Restraining Order was issued based solely on Ms. Shaw's sworn allegations in her Petition for Protection From Abuse that, on or about February 8, 2014, Mr. Young punched her, shoved her, and threatened her with bodily harm. In the Petition, Ms. Shaw alleged that when she tried to pack her belongings and move out of their residence, Mr. Young restrained her arm and leg in a painful hold, and then threatened to break her arm. Ms. Shaw stated that, as a result of the attack, she could not fully extend her arm for more than a week. Ms. Shaw claimed that in past incidents, Mr. Young had physically thrown her out of the house naked in the middle of the night, causing extreme bruising. She also alleged that he punched her in the mouth and nose.

The Domestic Abuse Assistance Law further provides that if the temporary restraining order is granted without a hearing, the matter shall be set for a rule to show cause why the protective order should not be issued, at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence. Louisiana Revised Statutes 46:2135(B).

Shaw v. Young, supra.

The court went on to explain that the record in the case

shows that in the February 13, 2014 TRO, the trial court ordered Mr. Young to show cause on March 10, 2014 (the date the TRO expired) why the TRO should not be made a protective order. Mr. Young states in his appellate brief that on or about April 14, 2014, the trial court held a hearing on Ms. Shaw's allegations of physical domestic abuse, and entered a protective order against Mr. Young and in favor of Ms. Shaw. Ms. Shaw states in her brief that the trial court granted her an 18–month protective order against Mr. Young. The transcript of this April 2014 evidentiary hearing is not in the appellate record, nor is any written April 2014 protective order.

We cannot consider any testimony or other evidence from the prior domestic abuse proceeding because this evidence is not in the record on appeal. Miccol Enters., Inc. v. City of New Orleans, 12-0864, p.7 (Louisiana Court of Appeal 4^th Circuit 12/19/12), 106 So.3d 746, 750. The trial court took judicial notice of the prior protective order proceedings, instead of allowing Ms. Shaw to repeat her prior testimony regarding physical domestic abuse. This, however, does not relieve Ms. Shaw of her obligation to designate in writing those portions of the record that she considers necessary to constitute the record on appeal in order to consider her argument.  La. Code Civil Procedure art. 2128; Uniform Rules, Court of Appeal, Rule 2-1.17.  

Shaw v. Young, supra.

The court then took up the issue as to whether the evidence introduced at the

October 15, 2014 and April 27, 2015 trial was sufficient to satisfy Ms. Shaw's burden of proving domestic abuse. At the April 27, 2015 hearing, Ms. Shaw did not testify about any acts of physical abuse by Mr. Young. The only testimony regarding physical abuse came from Ms. Cinara Cobb, a friend of Ms. Shaw who testified at the trial. Ms. Cobb stated that she first met Ms. Shaw on the night that Ms. Shaw `escaped from her home,’ and that she saw bruises on Ms. Shaw's arms and shoulder. Ms. Cobb admitted, however, that she did not see Mr. Young strike Ms. Shaw.

Ms. Shaw testified that, since the prior protective order was issued, Mr. Young had repeatedly harassed and threatened her and her friends. Ms. Shaw stated that she had only seen Mr. Young once, when she met Mr. Young on the street in the French Quarter. Ms. Shaw said that Mr. Young started screaming at her and her male companion, yelling that she was his wife and that `he was going to get the guy that [she] was out with if he ever saw him out with [her] again.’

Ms. Shaw also testified that Mr. Young had stolen money from her bank account using an old account number that she had given him. She stated that Mr. Young had sent threatening voice mail messages to her friends. She also testified that Mr. Young sent messages to her threatening to release private photographs of her to her friends and co-workers.

Shaw v. Young, supra.

The opinion goes on to explain that

[a]ccording to Ms. Shaw, Mr. Young posted messages on his personal Facebook page that Ms. Shaw had broken into his house and was `illegally using the immigration system.’ She stated that Mr. Young constantly sought out information about her from her friends. Ms. Shaw said that Mr. Young had posted photos on his Facebook page of people that she had been `out with,’ and asked those people `who is this man she's out with.’ She testified that Mr. Young sent messages to everyone she used to know saying `bad things’ about her, as well as saying `happy anniversary of you causing my marriage to break down.’ She also stated that, on the day of the April 27, 2015 hearing, Mr. Young was still taunting her about a man she had formerly dated, and was `still obsessed by [her].’ Ms. Shaw testified that she was forced to move from her home because she was told by her friends that Mr. Young had been driving up and down her street. None of Ms. Shaw's friends testified at trial other than Ms. Cobb. According to Ms. Shaw, her friends were too afraid to testify on her behalf.

Cinara Cobb testified that when she and Ms. Shaw went out together in the French Quarter, they would have to leave places because of Ms. Shaw's fear of Mr. Young. According to Ms. Cobb, Ms. Shaw told her, `We need to leave,’ and `I don't feel safe here now,’ and `I'm afraid that he might show up.’ Ms. Cobb also testified that Mr. Young posted her photographs on his Facebook page, even though she had never met him. She identified those photographs at trial when Ms. Shaw's attorney pulled up Mr. Young's public Facebook page on a cell phone. She also stated that Mr. Young had sent her Facebook messages, but she refused to `friend’ him. Ms. Cobb testified that she “absolutely” did not believe that Ms. Shaw was safe in New Orleans, and that Ms. Shaw's friends told her to move because they feared for her life.

Shaw v. Young, supra.

The court went on to explain that

[a]t trial, both Mr. Young and Ms. Shaw testified that, during their marriage, Ms. Shaw was criminally convicted of domestic abuse against Mr. Young, and that a domestic abuse order was issued against Ms. Shaw, which she allegedly violated.  Ms. Shaw testified that after she was arrested, she was in jail for more than a week before getting bail, and that Mr. Young had threatened the bail bondsman, and told him that she was a flight risk and shouldn't be bailed out. She stated that Mr. Young posted `all over Facebook’ that she was in jail. Ms. Shaw testified that she was in constant fear that she would be arrested for something that she had not done and that her name would be `besmirched’ on-line.

Ms. Shaw testified that she felt she needed a permanent protective order against Mr. Young because she lived in constant fear that, because of the physical violence in the past, as soon as there was not a protective order in place, the `harassment will step up and it won't be just electronic harassment.’ Ms. Shaw testified that she was so emotionally distressed that she was losing her hair, and that she had to cut herself off from her friends because she did not want Mr. Young to know anything about her. Ms. Shaw described her life as `very small’ and `very difficult.’

Mr. Young's testimony contradicted that of Ms. Shaw. He testified that when he met Ms. Shaw on the street with a male companion, he simply said Excuse me sir, that's my wife.’ He admitted that he posted several messages about Ms. Shaw on his Facebook page, but said they were just `general statements.’ Mr. Young stated that the only time he contacted Ms. Shaw's friends about getting in touch with her was to try to get her to collect her belongings. Mr. Young denied withdrawing money from Ms. Shaw's bank account. Although Mr. Young admitted that he sent her a text message stating that he had `cleared out the account,’ he stated that it was his account, not hers.

Shaw v. Young, supra.

The court then took up the legal issues the facts outlined above raised, noting, initially, that

[t]he language of Louisiana Revised Statutes 46:2136, in effect at the time of the October 2014 and April 2015 trial, stated that `the court may grant any protective order or consent agreement to bring about cessation of abuse of a party.’ Louisiana Revised Statutes 46:2136(A). At the time of the trial, `domestic abuse’ was defined as `including, but not limited to, physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family or household member against another.’  Louisiana Revised Statutes 46:2132(3) (emphasis added).

The Criminal Code's `offenses against the person’ are found in Part II of Title 14, beginning with Louisiana Revised Statutes 14:29 (homicide), and ending with Louisiana Revised Statutes 14:50.2 (crimes of violence against victims 65 years old or older).

Under the Domestic Abuse Assistance Law, both before and after the August 2015 revisions, the standard of abuse includes `any offense against the person’ as defined by the Louisiana Criminal Code. Under this standard, `Family arguments that do not rise to the threshold of physical or sexual abuse or violations of the criminal code are not in the ambit of the Domestic Abuse Assistance Statute.’ Harper v. Harper, 537 So.2d 282, 285 (Louisiana Court of Appeal 4^th Circuit 1088).   Each case must be reviewed individually. Harper v. Harper, supra.

Shaw v. Young, supra (emphasis in the original).

The Court of Appeal went on to find that, among other “offense[s] against the person” set out in the Louisiana Criminal Code, “is the crime of cyberstalking, which is set forth in” Louisiana Revised Statutes 14:40.3:

(B) Cyberstalking is action of any person to accomplish any of the following: . . .

(2) Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of threatening, terrifying or harassing any person.

Louisiana Revised Statutes 14:40.3(B)(2).

Shaw v. Young, supra.

The court went on to explain that the

cyberstalking statute defines `electronic communication’ as `any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature, transmitted in whole or in part by wire, radio, computer, electromagnetic, photoelectric, or photo-optical system.’  Louisiana Revised Statutes 14:40.3(A)(1). The statute also defines `electronic mail’ as the `transmission of information or communication by use of the Internet, a computer, a facsimile machine, a pager, a cellular telephone, a video recorder, or other electronic means sent to a person identified by a unique address or address number and received by that person.’ Louisiana Revised Statutes 14:40.3(A)(2).  As with the stalking statute, any harassing e-mails and text messages from Mr. Young would constitute cyberstalking.

Shaw v. Young, supra.

The court also noted Shaw testified that Young posted messages on his

Facebook page that Ms. Shaw had broken into his house.  She stated that he also posted Facebook messages that she was `illegally using the immigration system,’ communications that relate to Ms. Shaw's testimony regarding her immigration problems. She said he also posted photographs on his Facebook page of people she had dated and asked who they were, communications that relate to Ms. Shaw's testimony about Mr. Young's threatening confrontation with her and her male companion in the French Quarter.

At trial, Mr. Young testified that his Facebook account was private and that he didn't intend for any of his messages to reach Ms. Shaw. By default, Facebook pages are public. See State v. Craig, 167 N.W. 361, 369, 112 A.3d 559, 564 (New Hampshire Supreme Court 2015). Facebook users can restrict access to their Facebook content using Facebook's customizable privacy settings. Id. Access can be limited to the user's Facebook friends, to particular groups, or individuals, or to just the user. Id. . . . Because Ms. Cobb's photographs could be located by a stranger simply by entering Mr. Young's name in the Facebook search tool, Mr. Young's Facebook account obviously did not have privacy settings. Such public information about Ms. Shaw, therefore, was available to anyone, even to people without an account on Facebook. Id.

Shaw v. Young, supra.

The Court of Appeals went on to explain that under the state’s cyberstalking statute,

the following action is an offense: Electronically communicating `to another’ `repeatedly’ `for the purpose of threatening . . . or harassing any person.’ Louisiana Revised Statutes 14:40.3(B)(2). . . . The offense is deemed to have been committed where the electronic communication was `originally sent, originally received, or originally viewed by any person.’ Louisiana Revised Statutes 14:40.3(D). . . . Thus, the receipt or review of a threatening or harassing electronic communication by a friend of the victim is deemed to be cyberstalking. The cyberstalking statute, therefore, does not require that the electronic communication be transferred or transmitted directly to the victim.

Here, Mr. Young composed and posted messages about Ms. Shaw that everyone on Facebook could see, including Ms. Shaw and her friends. There was no reason for Mr. Young to post these messages about Ms. Shaw other than to communicate them to Ms. Shaw or to other Facebook users, who then might convey the messages to Ms. Shaw. Under these circumstances, we find that Mr. Young's postings about Ms. Shaw on his personal Facebook page are `electronic communications’ (defined by the cyberstalking statute as any `writing’ or `images’ which are `transmitted in whole or in part’ by `computer’) transmitted for the purpose of harassing Ms. Shaw. See Louisiana Revised Statutes 14:40.3(A)(1), (B)(2).8 Thus, Mr. Young's harassing Facebook postings about Ms. Shaw constitute domestic abuse under the Domestic Abuse Assistance Law.

Shaw v. Young, supra.

The court then went on to outline its ruling on this issue and in the case:

It is not necessary for this court to decide whether or not a criminal conviction for stalking or cyberstalking could have been sustained under these facts. We need only decide whether Ms. Shaw satisfied her burden of proving her allegations of domestic abuse by a preponderance of the evidence. The trial court's issuance of the Permanent Protective Order was based on a credibility determination. The trial court found the testimony of Ms. Shaw and Ms. Cobb regarding Mr. Young's threats and harassment more credible than the testimony of Mr. Young. The evidence supports a finding that Mr. Young's repeated messages and postings were for no other reason than to harass Ms. Shaw, particularly in light of the earlier Temporary Restraining Order, which prohibited Mr. Young from abusing, harassing, stalking, following, or threatening Ms. Shaw `in any manner,’ and prohibiting him from contacting Ms. Shaw `electronically.’

Mr. Young contends that, although Ms. Shaw testified about harassing and threatening text messages and Facebook postings, she did not introduce these into evidence. Even though copies of the actual messages and postings were not introduced at trial, the trial court concluded that there was sufficient evidence that Mr. Young committed acts of domestic abuse so as to justify a permanent protective order. We find no abuse of discretion.

Accordingly, we affirm the trial court's judgment granting a permanent protective order against Mr. Young and in favor of Ms. Shaw.

Shaw v. Young, supra.