New era domestic violence: A contextualized legal overview of cyberstalking and harassment

July 27, 2021

By Dr. Ruth Schneider, Land of Lincoln Legal Aid

We would like to thank Dr. Ruth Schneider and the ISBA for granting CARPLS permission to republish this article, which originally appeared in a longer format in the April 2019 ISBA Privacy & Information Security Law Section newsletter.  The pandemic has brought more anecdotal stories to light and as technology advances, so do the ways abusers find to use it. This story will be one of a series in looking at various issues of domestic violence.

Like being trapped in a Black Mirror episode, a domestic violence victim who is cyber stalked and harassed exists in a virtual reality. The abuser seems omnipresent. Nonetheless, these surreal nightmares cause real hurt, real harm, and real damages. While the victim suffers severe emotional and financial harm, the law provides little to no justice. For an attorney representing this victim, a comprehensive response must be utilized that pieces together various areas of law, knowledge of technology, and an understanding of domestic violence.

Real People, Real Stories

Although faceless online interactions may seem virtual and simulated, the victims of cyber-attacks are real people.

After receiving unwanted emails and texts from strangers seeking sex with her, Dr. Holly Jacobs searched herself online and found over 300 websites containing nude photos of her. The photos originated from her long-distance relationship with a former boyfriend during which they shared with each other nude pictures of themselves with the understanding that the photos were for their eyes only. However, when the relationship ended, the online harassment began and even permeated her workplace. The harassment included anonymous calls to her Dean of Students that accused her of sleeping with her students, and even her part-time employer received an email with the nude photos. Her efforts to remove the photos from the sites were futile and most of the photos stayed online.

The Methods of Abusers

The intersection of domestic violence and technology exacerbates an already serious societal domestic violence problem because technology increases the ease by which an abuser attacks and the scope of the resulting harm.

The myriad ways and means that abusers use technology to bully, harass, and stalk evolves as quickly as the technology itself, taking many forms. For example, abusers can capitalize on programs that cost less than one hundred dollars and provide the capability to monitor their partner’s every keystroke—thereby accessing her private documents, communications, and browsing habits. Other online services allow the abuser to “get revenge” by sending anonymous texts, calls, and emails to their victims, send offensive packages, and create harmful websites—designed to hurt and humiliate the victim. Social media provides another medium by which the abuser attacks the victim for free and in front of a large audience. These platforms easily and cheaply allow the abuser to spread rumors, share private information, or even impersonate the victim.

With visual or physical proximity to the victim no longer necessary, an abuser may now “keep constant tabs” on a partner from the comfort of home by tracking where he or she has been or been with through posted pictures, status updates, and location “check ins.” Because the abuser knowingly uses methods that specifically target the victim and thereby only terrify the victim, websites may refuse to remove the material because the behavior seems “innocuous and random” to them. Technological advances have armed abusers with a “super power” that causes real harm.

The Prevalence of Cyber Stalking and Harassment

Because domestic violence victims often suffer in silence, many people do not realize its prevalence. We often go about daily routines not realizing that the person sitting next to us on the bus, the co-worker in the adjacent office, or even the person living next door, is being terrorized by an abuser. Unawareness, however, does not change the reality.

Research on cyber-stalking and online harassment, particularly as a tool of domestic violence, is lacking. Nonetheless, the available evidence illuminates the pervasive presence of domestic violence cyber-attacks in our communities. In 2016, a study of internet users aged 15 and over found that 4% of participants (1 in 25 people), had someone post and/or threaten to post sexually-explicit images of them without their consent and with the “intent to harm or embarrass.” A following 2017 survey by the Cyber Civil Rights Initiative found that as high as 12.8% (1 in 8) of social media users had been targets of NCP (Nonconsensual Pornography)—and when only accounting for women, that number climbed to 15.8% (4 in 25). Additionally, NCP victims reported significantly worse physical and mental health than non-victims.

Sexual and relationship violence of all kinds is now regularly found online. A survey conducted in 2012 by the National Network to End Domestic Violence (NNEDV) revealed that of the 759 domestic violence agencies surveyed, nearly 90% of agencies had victims report being threatened through technology; one third of those threats occurred on social media and Facebook. The problem of abusers hacking their partners’ computers was prevalent enough in 2012 that the NNEDV created an “Internet and Computer Safety” guide.

Professional Costs

Domestic violence victims also pay steep costs as professionals due to cyberstalking and harassment. Victims, especially those of more severe attacks such as NCP, find it difficult to keep or get a job because a simple online search instantly discloses the abuse. A U.S. Department of Justice study found that 20% of survey participants reported that some type of abuse had occurred at work and half of the stalking survivors reported being stalked at work. Another study found that 74% of employed battered women were harassed at work by their partner.

Focusing on abusers, the State of Maine found 78% of abusers reported that they had used their company’s resources in connection with their abusive relationship. In addition, 48 percent of abusers reported having difficulty concentrating at work and 42 percent reported being late to work. However, survivors are often blamed for the violence against them, or for failing to control an abuser’s behavior, and suffer the consequences of discipline or termination.

Victims face extra financial burdens because the threats may cause them to take time off of work to seek Orders of Protection, pay for additional childcare while working with the judicial system, hire legal counsel, or in some cases, relocate their families for safety. These extra costs add up. Per year, female victims of intimate partner violence lose almost 8 million days of work.

Personal Costs

Notwithstanding financial costs, victims face fundamental changes and significant disruption to their lives. They move because they no longer feel safe at home and often change their names, as Ms. Jacobs was forced to do. Further, victims experience severe emotional distress, anxiety, and depression.

Nonphysical abuse in intimate partner relationships that includes threats, intimidation, and emotional abuse create pervasive effects on a victim’s emotional and mental health. According to a study conducted by the Cyber Civil Rights Initiative, over 80% of nonconsensual porn victims experience severe emotional distress and anxiety.

The accumulative effects of nonphysical abuse may cause a victim to stay with her abuser or to not seek protection from the state because she fears the consequences threatened against her, or her child(ren); these are coerced actions that have significant short-and long-term psychological consequences. For instance, psychological abuse is a greater predictor than physical abuse for Post-traumatic Stress Disorder in the victim.

Difficulties with Litigation and Inadequate Legal Recourse

The combination of inadequate laws, limited resources, and obstacles to civil litigation means that our legal system often fails the victims of cyber stalking and online harassment.

First, most victims simply lack the requisite resources to hire an attorney and fund a private lawsuit. In addition, most attorneys will not accept such cases on a contingency basis because the defendants lack the monetary means that make a win financially worthwhile. The only available defendant in a cyber harassment case is typically the abuser because the Federal Communications Decency Act grants immunity to online platforms from liability for user-generated content.

Federal Criminal laws might also provide justice for victims since the statutes include cyber stalking, cyber harassment, and threat laws. Yet, because priority is not granted to cyber harassment, federal authorities lack the resources to address most online harassment cases and these laws are under enforced. Similarly, victims may obtain relief at the state level since at least half of the states have well designed cyber stalking, harassment, and threat laws. However, law enforcement’s unfamiliarity with technology and the law is a problem and victims are often told to ignore the abuse. The harassment and stalking laws of the remaining states only cover abuse sent directly to victims, failing to cover NCP, threats, and untrue information posted on third party sites.

For attorneys who accept a case involving domestic violence and cyber harassment, help is available and resources exist. With a comprehensive approach, an attorney may help the victim escape from her surreal Black Mirror existence and return to a normal life.

Available Resources

The intersection of domestic violence and technology often creates cases requiring specialized knowledge beyond that of even the most experienced attorneys. Yet, resources are available to help attorneys navigate these cases.

Cyber Civil Rights Legal Project (CCRLP)

Safety Net Project, part of NNEDV

Without My Consent

The American Bar Association, Commission on Domestic & Sexual Violence

The National Network to End Domestic Violence (NNEDV)

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