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Electronic Cyberstalking And Colorado’s Domestic Violence “Stalking” Crimes – 18-3-602 CRS

By H. Michael Steinberg Colorado Domestic Violence Criminal Defense Attorney – Lawyer

Electronic Cyberstalking And Colorado’s Domestic Violence “Stalking” Crimes – 18-3-602 CRS – Conduct that constitutes “stalking” under Colorado law – is changing. Clarifying the state of the law in this area requires understanding a new effort to criminally punish the employment of new technologies that are used to track alleged victims of the Colorado Crime of Stalking under 18-3-602 CRS.

Technology And Stalking Laws In Colorado

Unfortunately stalking is real. Under Colorado law, stalking is a felony punishable by a sentence to prison. The use of the target victim’s computer to track that target – such as viewing the website history of that person, by the installation of spyware (at times installed through email or the viewing of emails sent and received – all fit this category.

The National Center for Victims of Crime report that more than a million women and 370,000 men are stalked annually in the U.S. and about 80 percent of cases involve women stalked by ex-boyfriends and former husbands.

Here is the relevant section of the Colorado law – Vonnie’s Law – that defines the prohibition of this conduct in Colorado:

§ 18-3-602. Stalking – Vonnie’s law

(1) A person commits stalking if directly, or indirectly through another person, the person knowingly:

(a) Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship; or

(b) Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or

(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.

Acts Of Cyberstalking That Are Frequently Charged

The phrase in Colorado’s Stalking Law – “places under surveillance” – might include:

contacting or posting things about the victim on message boards or in discussion forums.
verbally attacking or threatening victims in chat rooms.
posting threatening or personal information about the victim on the net.
repeatedly e-mailing the victim.
filling a victim’s in-box with spam.
sending viruses or other harmful programs to a victims’ computer.

The Use of Cell Phones

Cellular phones can be also used in this area by:

changing Caller ID to show a certain recipient’s number on Caller ID display.
wiretapping the cell phone using an app.
installing a cellphone that doesn’t ring, but still picks up when he called allowing for overhearing every conversation in the vehicle.

The Use of Global Positioning Systems (GPS)

Global Positioning System (GPS) technology can be used to track or follow individuals.

Proving An Act Of Colorado Stalking – Not Always That Easy

Questions at trial as to whether the alleged “victim” of stalking was actually “stalked” include:

1. Was this a real threat – or just exaggerated conduct?

2. Did the alleged victim suffer serious emotional distress or would someone in her position just view the charged conduct as silly and harmless.

3. Was this actually “repeated” conduct?

4. Was there a really “credible threat” or are there other reasons (such as divorce settlement) for raising these allegations?

A Recent Colorado Case – People v. Sullivan – Sheds Light In This Area

Robert Sullivan was the Respondent in a divorce proceeding filed by his then wife. Because he burned her clothes in the backyard of their home, he obtained a “no contact” civil restraining order against him.

Sullivan put a global positioning system (GPS) device in his wife’s car. The “GPS” device was used by Sullivan to track and record the location of the car and that information was regularly retrieved by Sullivan.

At his trial, Sullivan argued he only installed the device to check on her whereabouts because of his concerns about the divorce proceedings and custody issues, but removed it as soon as he was notified of the restraining order.

Sullivan was convicted. He argued, on appeal, that the evidence is insufficient to support his conviction for “harassment by stalking.” He lost the appeal.

Sullivan’s attack on appeal turned on the definition of “under surveillance.” While Colorado’s law does not define “surveillance” – the Colorado Court Appeals used the following reasoning:

The common meaning of “surveillance” is to keep a watch over someone or something. Webster’s Third New International Dictionary 2302 (1968). “Surveillance” is also defined as the close observation of a person or place in the hope of gathering evidence. Black’s Law Dictionary 1459 (7th ed.1999). Electronic devices such as the GPS device allow for precisely this kind of conduct.

…the phrase “under surveillance” includes electronic surveillance that records a person’s whereabouts as that person moves from one location to another and allows the stalker to access that information either simultaneously or shortly thereafter. Such an interpretation furthers the General Assembly’s intent that stalking behavior be stopped Before it escalates into more serious conduct.

The Violation Of A Protection Order Enhancement

If a jury convicts a person of the Colorado Felony Crime of Stalking – the sentence is enhanced if the commission of the crime included the violation of a restraining order.

Here is the jury instruction of law that helps to explain this finding:

Stalking – Interrogatory (Violation of Order or Condition)

If … you find the defendant guilty of stalking, you should sign the verdict form to indicate your finding of guilt, and answer the following verdict question:

Was the stalking in violation of an existing order? (Answer “Yes” or “No”)

The stalking was in violation of an existing order only if:

1. a temporary or permanent protection order, injunction, or condition of bond, probation, or parole, or any other court order had issued against the defendant, and

2. that temporary or permanent protection order, injunction, or condition of bond, probation, or parole, or any other court order was in effect at the time the defendant committed the stalking offense of which you found him [her] guilty, and

3. that temporary or permanent protection order, injunction, or condition of bond, probation, or parole, or any other court order prohibited [insert description of behavior constituting stalking].

A finding of a contemporaneous violation of a restraining order in this context – enhances the felony from a class 5 to a class 4 felony (see below).

Here is a complete reprint of Colorado’s Stalking Law as of 2016

§ 18-3-602. Stalking – penalty – definitions – Vonnie’s law

(1) A person commits stalking if directly, or indirectly through another person, the person knowingly:

(a) Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship; or

(b) Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or

(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.

(2) For the purposes of this part 6:

(a) Conduct “in connection with” a credible threat means acts that further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat.

(b) “Credible threat“ means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person’s safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. The threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.

(c) “Immediate family” includes the person’s spouse and the person’s parent, grandparent, sibling, or child.

(d) “Repeated” or “repeatedly” means on more than one occasion.

(3) A person who commits stalking:

(a) Commits a class 5 felony for a first offense except as otherwise provided in subsection (5) of this section; or

(b) Commits a class 4 felony for a second or subsequent offense, if the offense occurs within seven years after the date of a prior offense for which the person was convicted.

(4) Stalking is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401(10).

(5) If, at the time of the offense, there was a temporary or permanent protection order, injunction, or condition of bond, probation, or parole or any other court order in effect against the person, prohibiting the behavior described in this section, the person commits a class 4 felony.

(6) Nothing in this section shall be construed to alter or diminish the inherent authority of the court to enforce its orders through civil or criminal contempt proceedings; however, before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the judicial district of the court where the proceedings are to be heard and the district attorney for the judicial district in which the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions.

(7) A peace officer shall have a duty to respond as soon as reasonably possible to a report of stalking and to cooperate with the alleged victim in investigating the report.

(8) (a) When a person is arrested for an alleged violation of this section, the fixing of bail for the crime of stalking shall be done in accordance with section 16-4-105(4), C.R.S., and a protection order shall issue in accordance with section 18-1-1001(5).

(b) This subsection (8) shall be known and may be cited as “Vonnie’s law”.

(9) When a violation under this section is committed in connection with a violation of a court order, including but not limited to any protection order or any order that sets forth the conditions of a bond, any sentences imposed pursuant to this section and pursuant to section 18-6-803.5 or any sentence imposed in a contempt proceeding for violation of the court order shall be served consecutively and not concurrently.

The Possible Penalties For Colorado’s Stalking Law – Vonnie’s Law 18-3-602, C.R.S.

Stalking is a felony and is punishable as an “extraordinary risk” crime in Colorado.

Click on Chart To Enlarge Chart:

The First Conviction for Stalking is a class 5 Felony:

1-5 years in Colorado prison (with mandatory 2-year parole), and/or a fine of $1,000-$100,000.

If the Conviction is a Second Conviction or is in violation of a protective order it is enhanced to a Class 4 Felony:

2-10 years in Colorado prison (with mandatory 3-year parole), and/or a fine of $2,000-$500,000.

Electronic Cyberstalking And Colorado’s Domestic Violence “Stalking” Crimes – 18-3-602 CRS

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Electronic Cyberstalking And Colorado’s Domestic Violence “Stalking” Crimes – 18-3-602 CRS.

Summary

Article Name

Electronic Cyberstalking And Colorado’s Domestic Violence

Description

Conduct that constitutes "stalking" under Colorado law - is changing. Clarifying the state of the law in this area requires understanding a new effort to criminally punish the employment of new technologies that are used to track the alleged victims of the Colorado Crime of Stalking under 18-3-602 CRS.

Author

H. Michael Steinberg