The proliferation of the internet network and technological developments have increased internet-related offenses, which carry harsh legal penalties. One of these crimes is posting harmful information on the internet, as codified under PEN 653.2. The crime is a modern era of domestic violence (DV) that finds many individuals unaware.

At The California Criminal Lawyer Group in Bakersfield, we understand many people face the charges unknowingly, so we have explained below the overview of the violation, its relationship to DV, crime elements, penalties, viable defenses, and related offenses to assist you in understanding what to expect and obtain a favorable ruling.

Understanding Posting or Circulating Harmful Material on the Web or Internet

California’s DV statutes criminalize the act of harming or threatening to harm a family member or romantic partner through coercion or controlling conduct. The victim of the DV can be your spouse, lover, or someone you are living in the same household with.

Several crimes are categorized as domestic violence. The DV type the prosecutor will charge you with hinges on the nature of your abusive conduct toward the alleged victim. A modern-age domestic violence form that the prosecutor can file against you is sharing harmful material about an intimate partner or close family member with the intent of inciting internet users to harm or threaten them. The crime is also called indirect cyber or electronic harassment.

Electronic or indirect cyber harassment is not the same as direct cyber harassment codified under PEN 646.9, otherwise known as cyberstalking, because here, the accused directly harasses or stalks the victim. However, with PC 653.2, direct cyber harassment, accused persons only circulate information in cyberspace to encourage internet users to stalk, abuse, or threaten the victim. 

The fact that the defendant is not involved in the abuse, threats, or stalking has made electronic harassment a modern way for people in romantic relationships or living in the same household to seek revenge.

For purposes of PC 653.2, harassment refers to the deliberate course of behavior towards another party that a sober party would deem severely terrorizing, alarming, or tormenting and one that lacks genuine or sincere purpose. A violation of this statute is a misdemeanor that attracts jail incarceration and hefty court fines. Therefore, when you face the charges, do not hesitate to contact a criminal lawyer to explain your rights and defend your freedom.

How Electronic Harassment and Domestic Violence Relate

Today, many close family members or romantic partners have fallen victim to indirect cyber or electronic harassment due to the growth of the internet network. Many people committing this crime seek to settle scores after a disagreement or argument.

Per PEN 13700, domestic violence happens when you threaten a domestic or intimate partner. The harassment can be direct or indirect. Therefore, DV does not only occur in cases where there is physical violence or abuse. Emotional abuse also counts as violence, which is why a PC 653.2 violation where you indirectly cause abuse or harm to a domestic partner by circulating harmful information about them on the net counts as domestic violence. The online threats and abuses cause emotional damage to the victim.

PC 653.2 Violation Elements

The prosecutor will secure a guilty verdict if they can demonstrate these elements of indirect harassment using an electronic device:

You Made Use of an Electronic Gadget to Post Harmful Information

The prosecutor should prove to the court that you used an electronic gadget to commit an indirect cyber-harassment crime. An electronic communication device must have circulated the harmful information for you to be convicted. These communication devices include, but are not limited to, the following:

  • Cellphones
  • Internet websites
  • Text messages
  • Computers
  • Telephones
  • Fax machines
  • Internet phones
  • Video recorders

You, the accused, can use any of these electronic gadgets to communicate, publish, hyperlink, or pass on harmful information about an immediate family or intimate companion.

Harassment is any deliberate conduct directed at a person to torment, annoy, or terrorize. You harass others through electronic communication gadgets by:

  • Willfully sharing or sending someone’s annoying or alarming details to abuse or threaten them
  • Publishing or distributing one's information without permission
  • Distributing or sending another party’s harassing information, resulting in harassment from internet users

The District Attorney (DA) must elaborate on the information you sent online and show that it could harm the alleged victim by inviting spite and harassment from internet users. For instance, you can distribute information about a spouse’s opinion on a controversial subject to trigger emotions among the public. Posting the details can compromise their safety, as angry public members can attempt to harm or threaten them, endangering their lives.

The Other party Did not Consent or Authorize your Actions

Consent refers to a formal agreement between individuals to undertake a particular action. You obtain approval or authorization from an individual when they agree to your request. When you post harassing details of a person on cyberspace or the internet without obtaining their permission, you violate their constitutional right, and the court will convict you of a PC 653.2 violation.

You Acted Intending to make the Victim Reasonably Feel Unsafe

Your motive for distributing harmful details about an individual online must have been to cause reasonable fear. Any details that the court does not deem toxic or capable of causing anxiety will not be sufficient to prove intent; hence, the jury will find you innocent.

The prosecutor can demonstrate intent by asserting that you threatened the victim first before posting their material online. It qualifies as a threat if you preempt your intentions by clarifying that internet users will terrorize or threaten the target when you post their material. Threats in DV stem from malicious intent or failure by the victim to follow the perpetrator’s directions or demands.

The DA can also spring from your words in the post. They obtain the evidence to prove your choice of words by retrieving the post. For example, if you posted the alleged victim’s phone number, physical address, or car registration, it shows you intended for the victim or their family to feel unsafe. The prosecutor can use the material as proof that you meant to create rational fear.

You Achieved Your Intent to Harm, Harass or Threaten the Victim

Another aspect of the violation the DA must demonstrate for you to be guilty is that the target party acknowledged receiving threats, abuse, or suffering physical injuries because of your action to distribute harmful information about them online. The DA should show the judge that your intent to create fear was attained after you put the victim’s harassing details on the net.

Electronic Harassment Penalties

If the DA successfully proves all the case’s elements before the jury and secures a guilty verdict, you risk electronic harassment penalties. The penalties you will attract for the offense hinge on your criminal record and the crime’s severity. Electronic harassment in California is a misdemeanor punishable as follows:

     1. Misdemeanor or Informal Probation

One of the penalties you will attract for indirect cyber or electronic harassment is informal probation, also called misdemeanor or summary probation. Instead of spending time in jail, the court can opt to sentence you to probation for twelve to thirty-six months under supervision. The requirements for probation are:

  • Completion of community hours or labor
  • Compulsory engagement in individual or group counseling
  • Be present for scheduled court dates
  • Obey the protective or restraining order issued against you to protect the victim
  • Pay court costs
  • Victim restitution

The court will extend the probationary period to sixty months if you violate any of these conditions while serving informal probation. Alternatively, they could revoke the probation and send you to jail to serve the initially imposed jail sentence.

     2. Court Fines and Jail Incarceration

Another penalty for electronic harassment is jail incarceration for no more than twelve months. Also, the court can impose a monetary fine of $1,000 in place or alongside the jail incarceration based on your case’s nature.

Legal Defenses

Not everyone who faces a PC 653.2 violation charge is guilty. You could send humorous information online about a person, but then it is blown out of context, attracting electronic harassment charges. If you are not lawyered up, you could end up with a wrongful sentence for an offense you never committed. Therefore, you should partner with a competent lawyer immediately after you learn of an active investigation or are arrested. Your lawyer will protect your interests and prevent or reduce the harsh consequences of a conviction.

At the California Criminal Lawyer Group in Bakersfield, we will work tirelessly to prevent a guilty verdict in court. If a conviction is inevitable based on the evidence against you, we will negotiate with the prosecutor for a charge or sentence reduction. We will do this by poking holes in the DA’s evidence to put doubt in the jury’s minds that you committed the offense.

The defense strategies your lawyer will use in your defense are:

You Lacked Intent to Threaten or Inflict Harm on the Said Victim

The DA obtains a guilty verdict by showing that you posted the harmful materials with the intent or motive to harm someone else or cause rational fear for their safety. Also, it must be clear that you intended to cause the third party harm or unwanted bodily contact. However, the internet is flooded with humor, stories, and remarks. At times, these electronic communications could be misunderstood as harming another person. Therefore, if you posted the details with no plans of causing harm, the court should not convict you of electronic harassment.

You Withdrew the Harmful Material or Post

Also, your lawyer can defend you by accepting that you posted harmful details about a third party online. Nevertheless, you withdrew or deleted the post immediately after realizing the information was harassing and could harm the victim.

Many defendants find themselves in these situations when they post information in defense or out of anger. However, once they go through the post again, they realize the material could harm the other person and, therefore, pull down or delete the post. If this is your situation, the statement's withdrawal after posting demonstrates that you lacked bad intentions. This does not make you innocent. The prosecutor will charge you with a lesser crime with more lenient penalties.

False Accusations

False allegations are common in criminal cases. When the alleged victim falsely accuses you of electronic harassment, your lawyer can assert that you are innocent by entirely denying you were involved in the crime in any manner. Your legal representative can claim that another party posted the harmful material to implicate you. The court will drop the charges if you have proof of the innocence assertion. For example, when you are unaware of the electronic device used to disseminate the information online, whether through social media, hyperlinks, or email, your lawyer can assert that you were unaware of the post.

Arguing that you are falsely accused is insufficient to prevent a guilty verdict. Your lawyer must conduct an independent investigation and show the court that you could not have posted the material or another party did it to set you up. The lawyer can argue that your social media or email account was hacked, and another party utilized it to post the details. Again, you can claim that the alleged victim created a fake email address in your name and posted harmful material to frame you. With proof to back up the false accusations, the court will dismiss the case.

Lack of Sufficient or Ample Proof

The DA has the burden of proof in criminal cases and must demonstrate beyond a moral certainty that you are guilty. In electronic harassment cases, the prosecutor should convince the jury that you posted harassing information on the net. However, when the investigating officers rush the investigations and fail to gather sufficient proof linking you to indirect cyber or electronic harassment, the court will drop the charges because the case does not meet the evidentiary standard provided in the law.

For instance, a victim can accuse you of sharing harassing details in cyberspace, claiming that no one else had access to the materials. If the officer handling the case does not do due diligence and investigate the claim, they can arrest you without the necessary proof for a guilty verdict. In these circumstances, your lawyer will contest the charges, asserting a lack of ample evidence to accuse you of the crime and that the charges should be dropped.

The Investigating Officers Engaged in Misconduct

Police engage in misconduct by not reciting Miranda rights and conducting an illegal search and seizure. It is a constitutional right for the apprehending officer to read the Miranda rights. Failure to do so means all the evidence gathered after the illegal arrest will be deemed inadmissible in court.

Also, the investigating officers must have a valid search warrant before investigating your property. All evidence gathered at the scene without a proper warrant will be deemed inadmissible, even if it shows you shared harassing information online.

However, police engaging in misconduct does not mean you will be released and the case was dropped. The prosecutor will offer a plea deal where you plead guilty to a lesser offense or deliver lenient penalties.

You are a Victim of Hacking

Hackers can obtain unauthorized access to your computer or networking account. Once they do this, they can share your private or identifying info in cyberspace, risking your life. Again, they can use the details to create fictional social media accounts or email addresses to distribute harassing material about another party. When this happens, police will likely investigate you for the offense and arrest you, leading to criminal charges.

If someone hacked your accounts, fighting electronic harassment charges can prove challenging. You will need a competent criminal lawyer to prove you were hacked.

Coercion Defense

If external forces force you to share harassing details about a third party on the net, your lawyer can use coercion as a defense. The lawyer can assert that someone was blackmailing you and that you shared the harmful content online unwillingly out of fear of what would happen if you did not do it. You should prove the element of force for this defense to work.

Related Offenses

Several crimes are related to electronic harassment. Most of these offenses are charged alongside or instead of a PC 653.2 violation, and they include:

     1. PEN 646.9: Cyberstalking

Per PC 646.9, it is illegal to maliciously and deliberately harass or threaten someone else using an electronic communication gadget, and the target person reasonably feels unsafe. The threats can also be directed at the victim’s immediate family.

Cyberstalking is a wobbler, allowing the DA to charge you with a felony or a misdemeanor, depending on your case’s nature and criminal history. When the DA prefers misdemeanor charges, you risk court fines of no more than $1,000 and jail incarceration for at most twelve months. If cyberstalking is a felony, a guilty verdict will lead to hefty court fines amounting to $10,000, 60 months of prison incarceration, and a condition to enlist as a sex predator for a lifetime.

     2. Criminal Threats

Per PEN 422, it is illegal to utilize an electronic communication gadget like a cell phone to threaten to injure or kill a domestic partner or any other party, causing them to feel unsafe. Unlike electronic harassment, criminal threats made through electronic gadgets are an offense, whether you intend to act on the threats or not. Even when you cannot immediately act on the threats, the jury will still find you guilty.

A PEN 422 violation is chargeable as a felony or misdemeanor. If you obtain a misdemeanor count, a guilty verdict will result in at most twelve months in jail or no more than $1,000 in court financial fines. A guilty verdict for a felony attracts 36 months of prison incarceration and a monetary court-imposed fine of at most $10,000. Additionally, you risk a penalty enhancement of twelve months in prison if you make use of a deadly or lethal weapon to make criminal threats.

     3. Revenge Porn

PEN 647(j)(4) criminalizes the act of intentionally circulating or distributing another party’s sexual images without authorization to cause emotional suffering. The crime is related to electronic harassment because most perpetrators of the offenses are individuals seeking revenge against domestic or romantic partners after a breakup or argument. Revenge porn is a misdemeanor that attracts at most $1,000 in fines, up to half a year in jail, or summary probation in place of incarceration.

     4. Internet Trolling

It is illegal to post inflammatory remarks online about someone to provoke them into responding. If the trolling turns into harassment or bullying, the DA can charge the defendant with various criminal charges, including electronic harassment. Internet trolling on its own is not a crime, although you could receive counts for violating privacy statutes by posting inappropriate material about a person to dent their reputation.

     5. Circulating Harmful Materials to Children

PC 288.2 prohibits individuals from circulating obscene materials to children younger than 18 with the intent to generate sexual arousal or engage them in sexual activity.

When the court convicts you of a misdemeanor under PEN 288.2, you risk twelve months of jail incarceration and court fines of at most $1,000. A felony is punishable by court fines of no more than $10,000 and a prison sentence not exceeding 36 months. The court can also require you to register as a sex predator for life under PEN 290.

     6. Annoying Emails, Phone Calls and Texts

PC 653m prohibits individuals from making annoying calls, emails, or texts to harass others. The offense is related to electronic harassment in that if there is insufficient proof to convict you of a PC 653.2 violation, the prosecutor can charge you under PEN 653m.

The crime is a misdemeanor that attracts no more than half a year in jail or $1,000 in court fines. Also, the judge can sentence you to summary probation instead of jail time.

Find a Skilled Domestic Violence Lawyer Near Me

Posting or sharing harassing information or material online is a severe crime, attracting harsh penalties. You will need a skilled defense lawyer to represent you in the case and offer legal guidance. We can challenge the accusations at the California Criminal Lawyer Group in Bakersfield for a favorable result. Call us at 661-750-8230 to arrange a no-obligation consultation.