State legislature tries to protect domestic victims from cyber abuse

July 30, 2013

Photo: Dan Strange/Flickr

By Lily Dayton
California Health Report

Shelly Clark attempted to log in to her email account, only to find that her password had been changed—again. She had recently left her abusive husband and fled across several states with her two young children to seek refuge at a women’s shelter in California. But when she was finally able to recover her password and access her email, she couldn’t find the emergency housing application that the shelter had sent to her. The message had been forwarded to her husband’s email address, and then deleted from her account—along with other confidential messages.

“It was like staring into an abyss whenever I got onto my email account,” says Clark, whose name has been changed to safeguard her identity. “I would look at my email and feel powerless.”

In her “sent” folder, she found messages with malicious words she didn’t write that had been delivered to her husband’s email address—as if he was the victim, and she was seeking retribution. And though she changed her cell phone number before leaving, she had added the new number to her account for password recovery. So not only did her husband know where she was headed by reading her emails, he was able to access her new phone number—which he used to harass her, threatening suicide if she didn’t come back to him.

By checking her account activity log, Clark could see that her email was being accessed by a mobile user—her husband—and she could see his general location. Her fear grew as she watched him travel from state to state, realizing he was headed toward California.

From the sanctuary of a confidential shelter run by Women’s Crisis Support – Defensa de Mujeres, she recounts, “It’s strange—there’s so much about it that’s not overtly threatening, but it makes me feel like he’s at large, there’s a plan, and I’m vulnerable to whatever he decides to orchestrate.”

In cases of domestic violence, the use of technology as a means for batterers to “track, control and harass their victims” is becoming more prevalent, says Blair Waite, domestic violence director at Walnut Avenue Women’s Center in Santa Cruz. She calls this new tactic “technological abuse,” and it includes everything from harassing victims with repeated phone calls and text messages to threatening or humiliating victims over Facebook, monitoring them with recording devices, and even stalking them with GPS technology through their cell phones or devices mounted on their vehicles.

According to the Bureau of Justice’s 2009 National Crime Victimization Survey, 3.3 million people over the age of 18 were victims of stalking in the 12-month period prior to the survey. Of these, most were women. One in four were victims of some form of cyberstalking, with the use of media such as email or instant messaging. One in 13 were electronically monitored through video cameras, listening bugs or GPS tracking devices.

By far the most common form of technological abuse is cell phone harassment, says Santa Cruz County Superior Court Judge Stephen Siegel. “A lot of the cases involving harassment involve texting, where one party is sending text messages that are unwanted and unresponded to,” he says. “Sometimes you’ll see 150 text messages in one day.”

These cases are pretty straightforward, explains Judge Siegel, who issues virtually all the civil restraining orders in the county. A “no contact” order can restrain a perpetrator from contacting the victim in person, over the phone or through any sort of electronic means.

But other forms of technological abuse are more subtle, albeit equally as harmful. For example, a growing number of batterers use social media, such as Facebook, Myspace and Twitter, to harass, shame and isolate their victims.

“We’ve seen (abusers) threaten to post naked pictures of their partners on Facebook to get them to do what they want,” says Waite. “Or they will use Facebook as a form of collusion, even portraying the victim as the abuser … [so] family and friends will start to side with the perpetrator.”

Judge Siegel explains that while directly threatening someone on social media sites is a restrainable behavior, perpetrators enter a gray area when they say unpleasant things about their partner on Facebook, or publicly reveal an ex-lover’s secrets online.

“You run into real difficulties determining inappropriate conduct,” he says. “The question [arises when a victim’s] concerns confront the First Amendment. Don’t people have the right to communicate with others and insult other people?”

Though he has issued orders restraining people from posting comments on Facebook, he says, “There’s question in my mind regarding the legality of that. It’s never been challenged, but I do question that.”

In the case of impersonating someone’s identity online—for example, by setting up a social media account in their name, or sending emails from their account, like Clark’s husband did—the behavior is illegal under criminal law. Still, it doesn’t always trigger a criminal response, says Julie Saffren, a family law attorney and domestic violence educator in Santa Clara County.

Not all law enforcement districts have people trained in technological forensics, so the police may not know how to investigate a claim. In addition, Saffren explains, “If people are harassing you, but not threatening to kill you, law enforcement officials might not take it seriously. Sometimes the form that technological abuse takes doesn’t seem threatening; sometimes it’s just embarrassing or creeps you out.”

She tells the story of a case where an abuser set up accounts in his ex-girlfriend’s name on Facebook and Myspace. He posted disparaging remarks about her friends, along with sexually explicit pictures of her. Next he hacked into her email account and sent messages to her contacts, exposing things the victim had told him in confidence. He also used caller i.d. spoofing to make her name and number appear on calls from his phone, enlisting the help of a female to impersonate the victim, calling her friends to say things that would sabotage her relationships.

Rather than the criminal prosecution system, civil courts are the typical remedy for situations like this, where victims can obtain a restraining order against their abusers, says Saffren. But because the Domestic Violence Prevention Act (DVPA) doesn’t specifically refer to online conduct in its definition of abuse, judges in the civil courts often express similar concerns as Judge Siegel’s: They struggle with the question of whether the conduct is abuse or simply free expression, and thus protected under the First Amendment.

To help provide a clear civil remedy for such situations, Assembly Speaker Pro Tempore Nora Campos (D-San Jose) recently introduced Assembly Bill 157, which would expand the legal definition of abuse under the DVPA to include online impersonation of a domestic violence victim.

“Social media is exploding, and it’s being used by batterers to further humiliate or intimidate their victims,” Assembleymember Campos commented in an email. “This legislation would allow judges to issue protective orders against abusers who use their computer or Smart phone as a weapon.”

AB 157 was approved by the Assembly 75-0, and is currently on the Senate floor, where it’s expected to be approved shortly after the legislature reconvenes following summer recess, which ends August 4.

“This bill is important not just in what it does for victims, but in how it assists bench officers,” says Saffren. “The legislation will signal very clearly that our definition of abuse includes online conduct—and judges will be able to make orders to stop this behavior.”

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