Not a week goes by that I don’t receive a phone call or email regarding some form of abuse or harassment. The perpetrator most often is a family member, former family member, love interest of a former romantic partner, or a former romantic partner. However, occasionally complete strangers will choose to embark on a personal campaign of terror, directed at some bewildered recipient. At the end of the day, it all boils down to various forms of bullying, control, manipulation and embarrassment. The means to conduct the activity and the opportunity to do so are available to most people, the motive to actually embark on it, distinguishes these kinds of perpetrators from the rest of the normal population. In this era of electronic communication, in what is increasingly a virtual world, almost anyone could find themselves the victim of some form of antagonism. Indeed, bullying is a hot button topic these days, and the avenues of communication in general have never been more available. When I deal with these things professionally, I use a case by case approach in deciding what responsive action is best to take, and tailor my approach to the circumstances. Not every such case requires a lawyer to intervene in it. Generally, I counsel a firm one time communication towards to perpetrator to cease contact, and then block each and every avenue of communication they have available. But what if that doesn’t work?
In years past, victims found themselves without much recourse. As time went on, the need for protection spawned legislative action, and now there exist a whole host of laws that are designed to address and protect an individual from such behavior. Most of these laws are criminal in nature, which means that in order to be enforceable, police involvement is required. However, Tennessee has a general Order of Protection statute, which allows an individual to seek a protective order without necessarily involving the police, and without necessarily involving criminal charges. Sometimes, a client will find this preferable, as it allows the client to dictate and steer the prosecution of the matter, as opposed to the State. An Order of Protection is a civil proceeding, and while a lawyer is not required to obtain and prosecute one, most find it helpful. Typically, to prosecute an Order of Protection against an unrelated person, or one not a former roommate or domestic partner, the Stalking Statute must be utilized. With this in mind, I am going to highlight and paraphrase the basic legal elements of the Tennessee stalking statute, and then some related statutes that I feel might be implicated in a stalking case, that are themselves also separate criminal offenses. At the bottom, I will add some commentary. In doing so, it is my hope that the average citizen will be better informed as to what constitutes such an offense, how to recognize such an offense, and perhaps how to conform one’s behavior such that no offense is committed. One has no constitutional right to harass or stalk another person, and indeed, such conduct is not one that should be tolerated in today’s society. As always, this article is intended to be educational in nature, but is not intended constitute legal advice to any person or specific person. The law discussed is my interpretation and paraphrasing of the statutes involved, as legalese is cumbersome for the lay person. Only the official version of the statute should be relied upon as authority. Law is a fact driven enterprise, no one case is exactly the same, and the facts impact the outcome. Thus, generalizations here should not be taken for use in interpreting any specific outcome.
TCA 39-17-315 Stalking, Aggravated Stalking and Especially Aggravated Stalking:
- Course of Conduct is a pattern of conduct composed of two or more separate, non continuous acts evidencing a continuity of purpose (Doing something more than once on more than one occasion for the same reason). Includes direct contact, indirect contact, and contact using third partiers. Action can include any method, device, or means to follow, monitor, observe, surveil, threaten or communicate with a person and includes interference with property.
- Emotional Distress is significant mental suffering or distress with or without need for medical care.
- Harassment means conduct that includes repeated unconsented contact which is not legally (or constitutionally) protected and which reasonably causes emotional distress.
- Stalking means a willful course of conduct involving repeated or continuing harassment of another that reasonably and actually causes a victim to feel terror, fright, intimidated, threatened, harassed and/or molested.
- Unconsented Contact means any contact that is initiated or continued without the other person’s consent, or in disregard of being told to stop, and includes:
- Following or appearing within sight of that person.
- Approaching or confronting a person on private or public property.
- Appearing at a person’s work or residence.
- Entering or remaining on property controlled or occupied by the victim.
- Contacting the person via phone.
- Contacting the person via email or other electronic communication (including texts, websites and social media).
- Placing or delivering an object of some kind to property controlled or occupied by a victim.
- Victim means an individual who is the target of a willful course of conduct involving repeated or continuing harassment.
(b)(1) A person commits stalking when they engage in stalking as defined above, which is (2) a Class A Misdemeanor, unless the offender is a registered sex offender, at which time it becomes an E Felony.
- Aggravated Stalking is a Class E Felony and becomes Aggravated when
- A weapon is displayed during the course of the activity.
- Victim is under 18 and perpetrator is five or more years older.
- Perpetrator has a previous conviction for stalking.
- Perpetrator makes a credible threat to the victim, victim’s family member with intent to place such person in reasonable fear of death or injury.
- At time offense committed, the perpetrator was under a restraining order or order of protection and knowingly violates it when engaging in the conduct.
- Especially Aggravated Stalking, Class C Felony, and becomes especially aggravated when:
- Commits another stalking charge against same victim and was previously convicted.
- Causes injury to victim or victim’s family member while stalking.
- If Convicted, Special Probation Requirements can include:
- Refrain from Stalking any individual.
- No contact with Victim/Victim’s Family.
- Psychiatric/Psychological or social evaluation and counseling at defendant’s expense.
- Court supervised drug testing or supervision to make sure defendant taking any medications required.
- Electronic tracking devices, with cost of same to Defendant.
- Being told to stop the activity by a victim, and the continuance of the activity in spite of the warning, is prima facia evidence (means clearly established unless rebutted by other evidence), that the conduct caused the victim to feel terrorized, frightened, intimidated, threatened, harassed or molested.
- Upon conviction, the Court can order an independent metal health assessment to assess treatment needs. Court can then monitor treatment to ensure compliance. Costs to be paid by Defendant.
- Can take out an Order of Protection for Stalking.
- Police must tell victim that perpetrator is eligible for bond and may be released pending trial.
- If the DA feels a life is in immediate danger, the DA can obtain court orders to fast track evidence processing and prosecution.
- A new offense of stalking is committed when the acts of behavior towards a victim are interrupted by:
- Arrest and charge.
- Found Guilty of violating an Order of Protection issued for stalking.
- Convicted of Stalking.
Commentary: Any person can be accused of stalking, including family members, friends, former romantic interests, and complete strangers, so long as the elements of the offense are met. In practice, I rely upon the stalking statute to prosecute private protective orders against persons who are not related by blood, marriage, or domestic arrangements. It is vital when putting such a case together, to chronologically present each instant of unwanted contact, along with any exhibits (photographs, screen prints, and the like), in order to present a clean case. I counsel to make sure that statements such as “don’t contact me again” are preserved, so that they may be made exhibits. I have even mailed cease and desist letters to perpetrators for this very reason. The most common reason these cases fail, outside of lack of proof, arises when the purported victim either engages in consensual contact in between the non-consensual contact, or otherwise engages or appears to engage in conduct that acquiesces the contact. In short, this means that a victim should clearly and unequivocally state and memorialize some form of “Please do not ever contact me further” or “Stop contacting me and do not contact me again.” A victim must then refuse and avoid any further contact with the person, and a perpetrator will tend to do things to instigate contact again. It helps to block the person, unfriend the person, or otherwise make themselves hard to contact, and a person should avoid (as best they can) places where the antagonist frequents (particularly their work and residence).
TCA 39-17-318 makes it unlawful (Class A Misdemeanor) to distribute nude images of a person. Specifically:
- distributes an image of the intimate part or parts of another identifiable person, with intent to cause emotional distress where:
- image was taken or recorded under agreement or understanding that the image would remain private; and
- the person depicted suffers emotional distress (the definition of which tracks the stalking statute).
(b)(2) defines intimate part as any portion of the primary genital area, buttock, or any portion of the female breast below the areola that is either covered or partially visible through less than fully opaque clothing.
Commentary: I see this frequently following the break up of a romantic relationship, or a divorce case, where intimate photographs or videos were made, and then distributed by a spurned former lover, sometimes to public domains, and sometimes to friends and family. The law only recently addressed this issue.
TCA 39-17-308, is a Class A Misdemeanor and is committed when:
- Communicates a threat to another person, and the person communicating the threat intends the communication to be a threat of harm to the victim and a reasonable person would perceive same to be a threat of harm.
- Communicates with another person without lawful purpose, anonymously or otherwise, with the intent that the frequency or means of communication annoy, offend, alarm, or frighten the recipient and by such conduct does so.
- Communicates with another person about a false report of injury or death of a loved one, knowing it to be false and with intent to harass that person.
- Communicate with a person or transmit or display an image without legitimate purpose with the intent that the image is viewed by the victim as a threat of harm and the person sending it maliciously intended same to be a communication of harm.
- Communicate includes phone, wire, radio, facsimile, text, email, instant messages, images, video, pictures, sound recordings, and practically anything that could be sent through and posted on social networks or websites.
- Social networking sites included (and photo-shopping or photo alteration is included)
Becomes a Class E Felony:
- When communicating with a victim of a crime (or the victim’s next of kin if the victim is dead) and the communicator is convicted and serving sentence/probation/etc for committing the crime against that person, and the communication is anonymous, threatening, offensively repetitive, made at inconvenient times, made for no legitimate purpose, and/or made knowing it will cause alarm or annoyance.
Commentary: This statute started as a harassing phone calls statute, prior to the explosion of electronic communication methods. Since that time, the statute has expanded to capture them, and has expanded to most all forms of communication. The general theme of the statute covers threats of harm or repetitive communications that cause annoyance or fright.
TCA 39-14-405, where a person enters or remains (after being asked to leave) any portion of a property without consent. Consent may be inferred in the case of property accessed by the general public.
- Defense where person reasonably believed had consent. Where persons conduct did not substantially interfere with owner’s use of property. Where person left immediately upon request. None are available if the property was posted against Trespassing at each major point of entry and the signs are reasonably likely to come to the attention of a person entering the property
- Class C Misdemeanor
- Becomes Aggravated Criminal Trespass, a Class B Misdemeanor, where the offender knows they do not have permission to be there (i.e. told to stay away) and (1)does so knowing (or recklessly does so with the potential that) their presence will cause fear or safety on the part of another (think domestic violence or other violence related situations) or the person damages or alters a barrier by entering.
- Becomes a Class A Misdemeanor when committed on the grounds of a school, a house, a hospital, other school facility, a railroad when with intent to harm or damage property or person, a construction site—no extra warnings required. However, an elective cooperative property where intent is to steal or harm is present AND where the property is posted properly advising against same and advising of penalties can result in a Class A Misdeanor
- Operating a motor vehicle on private property can result in a charge of trespass by motor vehicle, a Class C Misdemeanor, where the driver was told to cease or leave and did not do so. Signage posted against Trespassing is optional.
Commentary: Trespassing is a useful statute against invasive antagonists. Posting a sign is not required, though advising a person that they are to remain off of the property is typically required, and signs help with that. This is another area that, as a lawyer, I like to include in a cease and desist letter, i.e. “don’t come about the premises located at _________ or you will be charged with trespassing.” Fences and gates help convey an intent that others stay off the property. It is best to have some form of memorialized communication that a person is to stay off of the property—a text, an email, or a letter. If you have specific concerns, cameras are relatively cheap these days, and very useful in proving vandalism charges, should it come to that.
TCA 39-13-601, makes it a Class D Felony to:
- Intentionally intercept, or have someone else intercept, any wire, oral, or electronic communication.
- Use any electronic, mechanical or other device to intercept any oral communication when:
- the device is affixed to or otherwise transmits signal through a wire, cable, or such connection used for wired communication.
- The device transmits communication (re-transmitter) by radio or interferes with transmission of the communication (jammer).
- Discloses or tries to disclose information obtained in violation of this statute.
- Uses or tries to use information known to have been obtained in violation of this statute.
- Communications providers exempt as long as in the course of their business.
- Communications providers can provide assistance with provision of information where court order directs such and sets forth time period of authorization and information or assistance required.
- Communications provider conducting assistance under court order cannot tell the subject of the surveillance or data compilation about the court order absent permission from the State.
- It is lawful for a person acting under color of law to intercept a communication as long as that person is a party to the communication or one of the parties to the communication has given prior consent to the interception.
- It is lawful for a person NOT acting under color of law to intercept a communication as long as that person is a party to the communication or one of the parties to the communication has given prior consent to the interception so long as the communication is not intercepted for the purpose of committing any criminal act or tortuous act.
- It is unlawful to intercept any wire, oral or electronic communication for the purpose of committing a criminal act.
- It is lawful, unless prohibited by federal law, for any person to:
- Intercept or access electronic communication made through a system designed to provide the communication to the general public (generally accessible to the public).
- Intercept radio communication transmitted by:
- any public use station, or any station that relates to shipping, aircraft, vehicles, or persons in distress.
- Government, law enforcement, civil defense, private land mobile (CB radio), or public safety communication system readily accessible to the general public (fire and police also).
- Any citizen’s band or general mobile or amateur radio bands.
- Marine and aeronautical communications systems.
- Purposefully intercepting a harmful and illegal transmission causing interference in order to identify its origin.
- Other legitimate users of a frequency who might share it with others on the same frequency (safeguard against inadvertent collection of other transmissions on a shared frequency).
- Communications providers obligated to not intentionally disclose contents of communication to any person other than the addressee of the communication. Exceptions where permission given to disclose, disclosure necessary to forward the communication properly, or where criminal information is inadvertently discovered and disclosed to law enforcement.
- Does not apply to software installed by an individual on a computer that individual owns, if such is intended to monitor and record use of same by minors of whom such person is the parent or legal guardian.
Commentary: This statute is very commonly violated in divorce cases, where one party is attempting to gain information about a potential adulterous spouse via their own private detective work. I have observed lawyers mess this one up where advice has been given to intercept phone calls. In one case, a person was sanctioned for secretly recording their spouse talking to someone else on the phone, and in that case the recording device was just in the room, capturing one part of the conversation. Web cams have a tendency to record things in a room that could get someone in trouble. Generally, per state law, a person is not at liberty to record any conversation that they are not a direct party to and federal law can make even that illegal, so this is indeed a slippery slope, with teeth. In such a case, the law provides for a Civil penalty for Wiretapping, found at TCA 39-13-603, that allows any victim of interception to recover actual damages caused by the interception and/or disclosure, or $100 per day for each day of violation, or $10,000 in damages—whichever is greater. One can also recover punitive damages and attorney’s fees. The cause of action has a two year statute of limitations. Defense available where interception and/or disclosure was pursuant to a court order. A victim can seek a restraining order against future conduct. Video can qualify as a wiretapping if intercepted, and secret web cams can constitute a violation. It is best to obtain legal advice prior to embarking on any such endeavor yourself.
Interception of Cellular or Cordless Phone Transmissions. Tennessee Code Annotated 39-13-604 makes it a Class A Misdemeanor to intercept and record a communication that originated from, or was between, a landline and/or a cell phone/cordless phone, or between cell phones, or between cordless phones/cell phones—regardless of whether or not the transmission was intentionally intercepted. One must have actual consent from a participant, or actual participation in the conversation, in order to avoid violating this law. The statute covers intentional and inadvertent interception via means such as via radio scanners and such, regardless of whether the frequency used is technically a public frequency. The Charge turns into a Class E Felony if the defendant knowingly publishes and/or distributes the recorded communication.
- Domestic Court can authorize, via ex parte (one sided) application, any individual, with authority to intercept transmissions, upon showing that there is probable cause to believe the health, safety and welfare of a minor are in jeopardy.
- Police Can Intercept wireless/cordless first and obtain a warrant later but is supposed to destroy the recording within 48 hours if no warrant is issued.
- Barred as Evidence if improperly obtained it cannot be used in court regardless of Rules of Evidence.
Commentary: There was a time where cell phones transmitted via public, over the air, frequencies, and were actually accessible by scanners that could be purchased over the counter. Now that the signals have digitized, and the medium is more protected, I see less of this.
Unlawful Photography, TCA 39-13-605, Illegal to photograph a person when they are in a place where one would expect a reasonable expectation of privacy, WHEN following met:
- The picture taking would offend or embarrass an ordinary person if such person appeared in the picture; and
- The picture was taken for sexual gratification or arousal of the Defendant.
- Covers video, live transmission of any individual so that the person is readily identifiable. All evidence to be destroyed after use. Class A Misdemeanor unless the image is distributed to any other person, in which case it becomes a Class E Felony.
- Judge can, depending upon the fact and circumstances, order an offender, upon conviction, to register as a sex offender.
Electronic Tracking of Motor Vehicle, TCA 39-13-606, Illegal to install, conceal or otherwise place and electronic tracking device, in or on, a vehicle without consent of all owners unless placed by a manufacturer, parent for purpose of monitoring kids, placed for purpose of tracking stolen goods/stolen vehicle, or place pursuant to direction of law enforcement. Class A Misdemeanor. Tracking devices installed by the manufacturer, or theft deterrence devices placed solely for the purpose of tracking a theft, in conjunction with a security system, are not included.
Commentary: All titled owners must consent, not just one. I see a lot of this in divorce cases, and it is often done illegally. If two names are on the title, then both titled owners must consent, and consent is one of those things that is good to have in writing. In terms of the kind of tracking system, my impression is that the propriety of such a system is dependent upon who is actually able to track the vehicle. Usually, it is pretty clear at trial which party is trying to keep tabs on another. Private Investigators sometimes run afoul of this as well, and it is safer for a PI in a divorce case to simply follow the vehicle around. This is another of those areas where I would encourage legal advice before attaching any such device. This offense used to be a Class C Misdemeanor, and the enhancement to an A Misdemeanor in the latest amendment tells me that the legislature is viewing this offense more seriously.
Observation without consent, TCA 39-13-607, One cannot spy, observe or otherwise view another person, when that person is in a place where there is a reasonable expectation of privacy (unless the viewer has prior consent of the person viewed) WHEN the following met:
- The viewing would embarrass an ordinary person if the person knew they were being viewed.
- Was for the purpose of sexual arousal or gratification of the defendant.
- It is NOT a defense that the defendant was lawfully on the premises where the offense occurred.
- If the person viewed is a minor, consent of the parent or guardian is irrelevant.
- Class A Misdemeanor. Becomes an E Felony if the person observed is under 13 years of age.
Commentary: This is basically a “Peeping Tom” statute. It is not unusual for sex offenders to begin their criminal careers at this level, before moving on to more serious offenses. However, this activity can capture all manner of voyeurism, and in my opinion, would cover electronic surveillance depending upon camera placement and location.
Common Law Invasion of Privacy “A person who unreasonably and seriously interferes with another’s interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other” “It is only where the intrusion has gone beyond the limits of decency that liability accrues”. Martin v. Senators, Inc., 418 S.W. 2d 660 (Tenn 1967) quoting Restatement of Torts, § 867. Divides into four separate acts of the defendant: (1) Intrusion into the plaintiff’s physical solitude or seclusion; (2) Public disclosure of private facts; (3) False Light (casting the victim in a false light); and (4) Appropriation of another’s name or likeness for advertising or other business purposes. (see Scarborough v. Brown Group, Inc. 935 F.Supp. 954 (W.D. Tenn. 1995). Any one of the Four acts can give rise to a civil suit for damages. Each one has sub-factors that are relevant to proving a case.
Commentary: I included a common law provision to highlight that there are also civil remedies that can be obtained against a person who is victimized by such behavior. When I say civil remedies, I am referring to injunctions and restraining orders outside of the order of protection statute. I am also referring to monetary damages, which could give rise to punitive damages as well. Punitive damages are akin to a ‘financial punch in the nose.’ These kinds of suits generally require a showing of considerable malfeasance and harm from same, in order to prevail. They can also be rather expensive to try.
Outrageous Conduct is another tort also known as Intentional Infliction of Emotional Distress. “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” Medlin v. Allied Inv Co 398, S.W. 2d 270 (Tenn 1966), quoting Restatement (Second) of Torts, §46. Intentional and even criminal conduct may not rise to the level required. The Conduct has to be such that it shocks the conscious.
Commentary: This is another civil remedy that would have to be brought in the form of a civil suit. The standard is very, very high. The conduct literally must be so bad as to cause an average person to exclaim “that’s outrageous!” As a jury is made up of average people, the conduct must be bad enough to draw that reaction from your jurors. Punitive damages give this action enough teeth to dissuade an offender from repeating the conduct.
Malicious Prosecution is the starting or bringing about of either criminal or civil proceedings against another person, with malice and without probable cause. The proceedings must terminate in favor of the person who was prosecuted. A plaintiff is entitled to recover those damages resulting from such improper prosecution. Basically, one can’t just take out frivolous lawsuits or frivolous criminal charges against another person. The first element requires the institution of some kind of legal proceeding either with malice or without probable cause. Malice basically involves an improper purpose or improper motive, anger is not required. However, if the reason for bringing prosecution is justifiable in and of itself, malice will not matter. Probable cause usually indicates that the circumstances are sufficient to indicate that it is more probable than not, that a person engaged in the acts complained of. The last element requires that the lawsuit or criminal charges are resolved in favor of the defending party. The resolution must be favorable and final, which usually requires a trial of some kind to get there.
Commentary: Malicious Prosecution is a civil remedy, which again would require the filing of a lawsuit. Punitive damages are available here as well. I have participated in a few of these kinds of lawsuits, and I have seen six figure jury awards. Basically this offense involves the wrongful bringing of criminal charges, or the wrongful bringing of a civil action. Those charges must be successfully defended in order to preserve a cause of action for malicious prosecution, and case law makes clear that this means a hearing was had on the facts alleged, and the prosecutor lost. The State (the police for example), are immune to suit for this action typically. Private individuals are fair game. For whatever reason, some folks choose to harass other people using the legal system, and even go so far as to make up facts that support the action. It often takes a trial to unravel the deception. At least there exists a remedy to such activities.
In closing, I will note that all of these kinds of actions, both civil and criminal, carry with them certain limitations that govern how long one has to file a suit, or prosecute a criminal offense. I universally advise anyone who asks, to consult a lawyer prior to taking any action. My main purpose here is to highlight the many areas where the average person has protection, and the particular considerations relating to each one. Most people do not even know these laws exist, and therefore do not know how to address adverse behavior when they experience it. People should know that protection does exist. The legal environment is changing to encompass more and more antagonistic behavior, and changing to encompass the ever expanding methods used by others to accost people. While it is my sincere hope that none reading this article ever have need to utilize the information, I do hope it will provide enough information to obtain help, should that need arise.