The US Supreme Court’s Elonis Decision Could Jeopardize Stalking Victims

SCOTUS public domainThe US Supreme Court’s recent ruling will make it more difficult to convict someone of stalking when threats are made on social media. In Elonis v. U.S., the Court ruled on the kind of jury instructions that should be given, but failed to give any clear guidance by setting the necessary standard for such instructions.

The decision just creates additional confusion and questions that will have to be worked out by lower courts wrestling with stalking laws across the country.

“The internet is the crime scene of the 21st century. The laws governing social media require swift interpretation to keep pace with the ever-advancing criminal activity in this space. The Justices today missed the opportunity to define the law and left the victims of this case and others in jeopardy,” said Mai Fernandez, Executive Director of the National Center for Victims of Crime.

The Supreme Court overturned the conviction of Anthony Elonis who had been tried, convicted, and was serving a prison sentence for Facebook posts that threatened his ex-wife and others. His Facebook posts included comments like, “Fold up your PFA [protection-from-abuse order] and put it in your pocket[.] Is it thick enough to stop a bullet?”

In other Facebook postings, Elonis suggested that his son dress as “Matricide” for Halloween, using his ex-wife’s “head on a stick” as a prop. He mused about shooting up an elementary school with the comment, “hell hath no fury like a crazy man in a kindergarten class.” He described how easy it would be to slit the throat of the female FBI agent who interviewed him.

The Supreme Court held that the jury instructions at Elonis’s were defective because they only required that a “reasonable person” would foresee that statements made by Elonis would be interpreted as a threat. The Court refused, however, to explain what standard should apply. If it is not enough that a “reasonable person” interpret such Facebook posts as a threat, what is the standard? Does a Psychiatrist have to recognize them as a threat? An FBI agent? Does there have to be an action in addition to the words posted on Facebook?

Those are issues that the lower courts, and maybe state legislatures, will have to work out. In the meantime, victims of cyber-stalking are left with the fear and uncertainty that their persecutors will be criminally prosecuted of convicted.

“This decision fails to recognize that victims of stalking experience fear regardless of the offender’s intent. If what constitutes a threat is not clearly defined, our concern is that this ruling provides enormous space for stalkers and abusers to act. Offenders can simply claim they never intended harm and as a result will not be held accountable,” commented Michelle M. Garcia, Director of the Stalking Resource Center.

Stalking is a serious threat that often escalates to more serious crime, including assault and even murder. According to the National Center for Victims of Crime, over three-quarters (76%) of women murdered by a current or former intimate partner were stalked in the 12 months prior to their deaths.

The Supreme Court’s narrow decision in the Elonis case may be technically correct on First Amendment grounds, but it gives little guidance to lower courts and no comfort to stalking victims.

Dumas and Vaughn Attorneys at Law has law offices in Portland, Oregon and serves clients in Oregon, Washington, Idaho, and other states.

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