A lot of people do not realize that stalking over the Internet (or “cyberstalking”) is a crime under traditional stalking and harassment laws. In 2012, Arizona joined the growing list of states that have outlawed cyberstalking, and, under subsequent revisions to the law, a cyberstalking charge can now be charged as either a class 5 or class 3 felony depending on the circumstances involved.
What is Cyberstalking?
In Arizona, the crime of cyberstalking is defined in Section 13-2923 of the Arizona Revised Statutes. The law defines the crime of “stalking” generally, and then it defines the “course of conduct” necessary to commit stalking to include various forms of online communication and other Internet activity. To begin, Section A, the law defines “stalking” as follows:
“A person commits stalking if the person intentionally or knowingly engages in a course of conduct that is directed toward another person and if that conduct causes the victim to . . . [s]uffer emotional distress . . . .”
Then, under Section D.1., the term “course of conduct” is defined to include the following forms of online activity:
“Us[ing] any electronic, digital or global positioning system device to surveil a specific person or a particular person’s internet or wireless activity continuously for twelve hours or more or on two or more occasions over a period of time, however short, without authorization[; or]
“Communicat[ing], or caus[ing] to be communicated, on more than one occasion words, images or language by or through the use of electronic mail or electronic communication that is directed at a specific person without authorization and without a legitimate purpose.”
Based on this statutory language, cyberstalking can take many different forms. For example, in Arizona, it is possible to commit the crime of cyberstalking by:
- Communicating via e-mail
- Communicating via an instant messaging platform
- Using a website or app to surveil or communicate in an unlawful manner
- Communicating or otherwise engaging in stalking activity through a tablet or smartphone
- Using a global positioning system (GPS) to track someone’s whereabouts or activities
What are the Penalties for Cyberstalking in Arizona?
The penalties for cyberstalking vary depending on the effect that the defendant’s activity has on the victim. In Arizona, cyberstalking is a class 5 felony if it causes the victim to suffer emotional distress or reasonable fear that:
- The victim’s property will be damaged or destroyed; or,
- The victim, a member of the victim’s family, the victim’s pet, a prior boyfriend or girlfriend of the victim, or a current or recent member of the victim’s household will be physically injured.
In other circumstances, cyberstalking can be prosecuted as a class 3 felony. This is the case if the defendant’s conduct causes the victim to reasonably fear death or the death of a member of the victim’s family, the victim’s pet, a prior boyfriend or girlfriend of the victim, or a current or recent member of the victim’s household.
If prosecuted as a class 5 felony, cyberstalking carries a presumptive prison sentence of one and a half years, with a maximum sentence of two years (or two and a have years if an aggravated sentence is warranted). If prosecuted as a class 3 felony, the presumptive sentence increases to three and a half years, with a maximum seven-year sentence (or 8.75 years if an aggravated sentence is warranted). Factors that can justify the imposition of an aggravated sentence include (but are not limited to):
- Infliction or threatened infliction of serious physical injury
- Use or threatened use of a deadly weapon
- Involvement of an accomplice
- Especially heinous, cruel, or depraved conduct
- Paying (or accepting payment for) commission of the crime
- The victim or the victim’s family suffered physical, emotional, or financial harm
- Having a prior felony conviction within the past ten years
- Committing the crime out of malice based upon the victim’s membership in a protected class
- Committing the crime in retaliation for reporting a crime
- Impersonating a police officer
In addition, all felonies in Arizona carry the potential for up to a $150,000 fine, and the court may impose restitution, probation, community service, and various other penalties as well.
What are Potential Defenses to Cyberstalking in Arizona?
While many different types of online activity can be prosecuted as cyberstalking in Arizona, there are also many potential defenses to criminal culpability under Section 13-2923. For example, some of the possible defenses to criminal cyberstalking in Arizona include:
- Lack of Evidence – In order to obtain a conviction, not only must the prosecutor’s office prove that you engaged in a prohibited “course of conduct,” but it must also minimally prove that you caused the alleged victim to experience emotional distress or reasonable fear. If there is not sufficient evidence to prove that the alleged victim suffered these effects, then you should not be convicted.
- Unlawful Search or Seizure – If the police unlawfully searched your computer or phone (whether physically or remotely), if they arrested you without a warrant and probable cause, or if they violated your Fourth Amendment rights in any other manner, then any evidence the prosecutor’s office has against you may be inadmissible in court.
- Alibi – Did a roommate or someone else access your computer, tablet, or phone without your knowledge and consent? Did someone else log into your email account? If a crime was committed using your property or account, but you are not the guilty one, then you do not deserve to be prosecuted for cyberstalking.
Contact Criminal Defense Attorney for Cyberstalking Representation in Tempe or Phoenix, AZ
The Weingart Firm represents clients charged with cyberstalking in Tempe, Phoenix, and the surrounding areas. Criminal defense attorney and dui lawyer Mark Weingart is a board-certified criminal law specialist under the strict standards established by the Arizona Board of Legal Specialization. He has tried more than 500 cases in his 30-year career, so you know you are getting experienced representation when you choose our firm to represent you. To discuss your case in a free and confidential consultation, call 480-405-7922 or contact us online now. We are available 24/7.