Domestic violence is a common crime among family members or persons in an intimate relationship. There are various ways you can carry out domestic violence, with one being posting harmful information on the internet. This causes the other party distress when they receive harassment from other people who don't even know them online. The statute that prohibits this act in California is PEN 653.2. Although the offense is charged as a misdemeanor, the legal punishments and other repercussions are severe.
If you are accused of violating PEN 653.2, you need to fight the charges by hiring a lawyer from The Los Angeles Criminal Defense Attorney to represent you. Our lawyers are experienced in criminal law and know how to defend you for desirable results.
Overview of PEN 653.2 – Posting Harmful Information on the Internet
As earlier stated, this crime is a form of Domestic violence. In this case, the violence is not physical but psychological, which the law recognizes as equally damaging. This offense is also referred to as indirect electronic harassment. The advancement of technology and the internet has made people engage in various online crimes without understanding the repercussions or knowledge.
Various laws have been enacted in California to fight different internet crimes, with PEN 653.2 being one. You can face allegations for violating this law against a family member, a current or ex intimate partner when you share information that would embarrass them or cause other people to harass them.
The best way to define this offense is by understanding the various elements a prosecutor must prove to have you convicted of it. These elements include:
- You are related to the alleged victim or are involved or were involved in a relationship with them. Not everyone can file charges for this offense under domestic violence. The alleged victim must be a current or ex-spouse, a registered domestic partner, a person you share a child with, a brother, sister, parent, or grandparent
- You made use of an electronic gadget to distribute, publish, email, hyperlink, or create downloadable content that would cause other people to harass the alleged victim
- You did this without the victim's knowledge or permission
- To place the victim in fear of their safety or that of their loved ones
- Imminently resulting in undesired communication, harassment, and damage to the alleged victim
- The intended audience noticed the information posted and got them incited, and as a result, injured, harassed, or made unwanted contact with the alleged victim
If the prosecutor can prove these elements beyond a reasonable doubt, you will receive punishment for the offense. However, an experienced criminal attorney can challenge these elements and the evidence produced by the prosecution. This will create doubt in the jury's minds and possibly result in the dismissal of the charges against you, or a fairer outcome.
Understanding how this statute can be violated is critical to understand the various parts described as the offense elements. These include:
Use of Electronic Media to Hyperlink, Email, or Post Harmful or Harassing Information
This element brings two aspects of the offense into the light. These aspects include using an electronic gadget or device and harassing the victim via electronic communication. Electronic devices considered under this statute include but not limited to:
- Cell phones
- Websites or pages on the internet
- Fax machines
- Personal data assistant
- Video recorders
The other aspect of this element is harassment. According to the law, the definition of harassment is the purposeful behavior towards another person considered serious to alarm, torment, terrorize, or annoy them for no reason. Electronic media harassment is considered under various circumstances that include:
- Sharing and sending – Distributing or sharing another individual's information without their consent is illegal. This can be done through emails, social media posts, or posting on websites, among others.
- Probable effect – This is considered when the sharing or distribution is likely to cause incitement and frustrate or harass another person.
- Your intention of sharing – Here, the prosecution must show that you intended to place the alleged victim in reasonable fear of their safety.
The definition of consent is, having someone else’s permission. Based on this statute, sharing or distributing harmful information without the owner's permission is a violation of their rights. This makes the act illegal and punishable according to the law.
Your Intentions as the Sender or Distributor
According to the law, for you to be guilty of this offense, your intentions must be clear. The prosecutor must prove that you intended to hurt your relative or intimate partner by posting and sharing it. However, if this was not your intention, the act is not considered as harmful.
Achieved the Intent of Instilling Fear
The other critical element a prosecutor must determine for you to be found guilty of violating PEN 653.2 is if you achieved your intention. If your purpose for posting the harmful information was to create reasonable fear for the alleged victim, you must have achieved it. The prosecutor can establish this through the alleged victim's testimony that your actions caused them to be fearful.
The Relationship Between Domestic Violence and PEN 653.2
The law considers indirect harassment through the internet as an aspect of domestic violence. According to PEN 1203.097, any crime you commit against another person listed under section 6211 of the Family Code is domestic violence. The persons listed under this include children, current or ex-spouses or partners, former or current cohabitant, a person you are currently in or formally were in a relationship with, and parents.
If you are in the above category and post harmful information about them on the internet, it is a form of domestic violence and is guilty of violating PEN 653.2. For instance, your wife tells you that she once had an abortion in confidence. However, she was able to overcome the experience and is an advocate against abortion.
Her past is not in the public domain, and she regrets her choices before. And she does not wish to share her experiences in the past. Unfortunately, you fight, and she seeks to divorce you. Because you feel hurt by her, you post the information about her abortion to incite people against her.
Your wife starts to receive threats online from unknown persons and becomes trolled because of your action. In this case, you shared or posted the harmful information on the internet without her permission. This information aimed to incite others resulting in her harassment, and as a result, she was afraid of her safety. This case meets the various elements of violating PEN 653.2. If the prosecutor can prove the factors discussed earlier, you will receive a conviction and punishment for your actions.
Penalties for Violating PEN 653.2
When an alleged victim accuses you of posting harmful information on the internet concerning them without their permission, you will be charged with violating PEN 653.2. This offense is a misdemeanor meaning a guilty verdict will result in misdemeanor penalties.
The likely penalties if you are found guilty of the offense include:
- County jail imprisonment for a year or less
- A fine not exceeding $1,000
- Summary or misdemeanor probation ranging between three and five years
Legal Defenses Against PEN 653.2 Violations
As earlier stated, violating PEN 653.2 is a severe part of domestic violence severely punished in California. When you are faced with these allegations, a conviction is likely that would lead to the punishments listed above. However, with an experienced attorney on your side, you can prevail against the allegations.
Your lawyer will interview you and investigate the circumstances of the offense. Further, an analysis of the prosecutor's case is carried out to pick any inconsistencies used in your defense. Your lawyer will also interview the persons close to you and the alleged victim, such as family members or colleagues. From this, your attorney will know the character of the supposed victim and your character as well. This is critical to your defense, especially when proving you would not share harmful information about anyone without their permission.
With comprehensive defenses, your charges can be reduced or dismissed. Some of the arguments your lawyer may present to weaken the prosecutor's case include:
You Had no Intent
Earlier, we discussed that one crucial element of this offense is intent or purpose. If you intended to incite the recipient or audience of the message and cause them to harass the alleged victim, the prosecutor must prove this intent.
However, if you posted the information with no intention to incite others or cause the alleged victim harassment and fear, you are not guilty of violating PEN 653.2. Your lawyer can argue that the recipients misunderstood the intent, who proceeded to harass the alleged victim despite your posting the information.
For instance, with the earlier example, your sister could be the pro-life advocate. You are proud of her, and knowing her past abortion, you believe the lessons she learned have transformed her into a pro-life advocate. You post this information on the internet without asking her and thinking it will not be harmful to her, but instead, it will make people love her more. Unfortunately, some people see the post and brand her a hypocrite and even threaten her that she is afraid for herself and her family.
Because of this, she would rightfully blame you for posting or sharing her information without her consent. However, because your intentions were not to cause her harm or fear, the charges against you can be reduced or dismissed altogether.
You Pulled Down the Post
This defense is an admission that you posted the harmful information online regarding the alleged victim. However, immediately you realized your post caused the person harassment; you pulled it down immediately. This defense shows that you had no ill intentions when you distributed or shared the information. In such a case, you may be charged with a lesser offense that attracts less harsh penalties.
Coercion to Post the Information
When one is coerced to do something, they do it unwillingly because they fear the consequences of not obliging. If you were pushed to post the information against a family member or ex-partner, your lawyer could use this as a defense. However, you must provide the court with evidence of coercion to have the charges dismissed or reduced.
For instance, in the earlier example, some people may not be happy about your ex-wife's abortion campaigns. Unfortunately, they come across information that she procured an abortion before, and they have no evidence, or they fear if they share it, no one will believe them. As a result, they believe the post coming from her ex-husband will be more believable or credible. To accomplish their intentions, they coerce you to post it by threatening to harm your child.
Because of the coercion and threats against your child, you post the information to keep them safe. This, however, results in the harassment of your wife from unknown people, causing her fear. With evidence, you can use this defense and have the charges dropped or reduced.
False allegations are common in criminal cases. Sometimes, an alleged victim can falsely accuse you of posting harmful information about them to have you in trouble. If you never posted the said information, this defense with evidence can result in the dismissal of the charges against you.
For instance, if the said information was posted from a social media platform or disseminated through an email, you can claim not to be aware of it. Your lawyer can investigate and prove to the court that your social media or email account was hacked to frame you. Similarly, the alleged victim may have created a fictional account or email address in your name to share the information and frame you.
If your lawyer can prove the allegations to be false with evidence, you will be acquitted.
No Sufficient Evidence
For a conviction in a criminal case, the evidence presented must be sufficient and leave no doubt that you committed it. Sometimes, investigating officers conclude a case without gathering the necessary information for a guilty verdict. For instance, the alleged victim accuses you of the offense and insists that it has to be you because no one else had the information. The investigating officer believes this and charges you with the crime without establishing evidence that you indeed posted the information on the internet.
In such a case, the prosecutor lacks sufficient evidence that you made the post. Your attorney can argue that there is no enough evidence to convict you of the crime and have you set free.
According to the law, the police are expected to uphold the law by adhering to particular codes of conduct. If the police violate the law through police misconduct, any evidence they obtained in such a manner is inadmissible in court. There are different ways the police can be accused of wrongdoing. Some of the common ones include:
- Failing to question or interrogate you
- Failing to read you your Miranda rights
- Violating the search and seizure laws
If you were accused of this offense and the police did not question you, they preferred charges; it is a form of misconduct. Equally, on receiving the accusations, the police may search your house without a search warrant for the electronic gadget you are alleged to share the information. If they find it and take it away as evidence without a warrant, it is misconduct.
In this case, it does not matter whether you committed the offense. The police's illegal behavior can result in the dismissal of your case because the evidence they obtained in this manner is inadmissible in court.
Intoxication by itself is not an acceptable defense. However, if your intoxication was unintended, the court can consider this as a defense. For instance, you were at a party, and some people intentionally drugged you. In the drugged state, they persuade you to make a harmful post about your ex-partner that you would not have posted without the drugs' influence.
If this is the case, the court can consider that the posting was unintentional or not purposeful but was influenced by drugs. Prove of intoxication is a requirement by the court to exonerate you from the charges.
Related Offenses to PEN 653.2
Some specific offenses are closely associated with PEN 653.2. These offenses can be charged alongside PEN 653.2 violations or share similar elements. Some of these crimes include:
PEN 647j4 – Revenge Porn
Under this statute, it is a criminal offense to distribute or disseminate another person's sexual material without their permission. This law also means that a person may have allowed you to record them or take sexual images of them, but they were to remain private. However, you decide to share these images or recordings on the internet to cause them pain and embarrassment.
For instance, your ex-girlfriend and yourself liked taking naked pictures of each other or videos, but just for your private use. Unfortunately, things do not work out between you, and she moves on with another man. Upon realizing this, you decide to post the harmful pictures on the internet to cause her embarrassment or harass her and make unwanted contact with her.
You can be charged with both revenge porn, according to PEN 647(j)(4) and PEN 653.2, posting harmful information on the internet. Aside from the penalties for violating PEN 653.2, the penalties for revenge porn are equally severe. PEN 647(j)(4) is a misdemeanor in California, and the likely punishments if convicted include:
- County jail imprisonment for six months or less
- A fine not exceeding $1,000
- Misdemeanor or summary probation
PEN 422 – Criminal Threats
Making criminal threats against a person is illegal, and the offense is prosecuted as a felony or misdemeanor. This offense is related to PEN 653.2 because you can make these threats against a family member or a former intimate partner through electronic communication.
If the prosecutor charges you with a misdemeanor for this offense, the penalties you are likely to receive include:
- A year of county jail time or less
- A fine of $1,000 or less
The prosecutor can decide to charge you with a felony depending on your criminal past and the offense's facts. If you become convicted on felony charges, the punishments include:
- California state imprisonment for three years or less
- A fine not above $10,000
Issuing of criminal threats can also be accompanied by aggravating factors that would result in steeper penalties. Some of these factors include:
- Using a deadly weapon as you issue a threat would earn you an extra year of state imprisonment
- Issuing repeat threats against several people with various objectives can also earn you additional punishment for every threat
PEN 646.9 – Cyberstalking
Under this law, it is an offense to follow, threaten, or harass a person until they are frightened. This law does not focus only on physical stalking but also stalking a person on cyberspace or the internet. The offense is a wobbler meaning the prosecutor can charge you with misdemeanor or felony charges.
The prosecutor looks at the offense's facts and your criminal history before deciding on how to prosecute you. Misdemeanor charges attract less severe punishment compared to felony charges. If you receive a misdemeanor conviction, the likely sentences include:
- County jail imprisonment for a year to the maximum
- Misdemeanor probation
A felony conviction attracts the following penalties:
- State imprisonment for not more than five years
- Felony probation lasting between three and five years
Find a Criminal Lawyer Near Me
Domestic violence is a serious offense in California. The offense can take many forms, including posting harmful information on the internet to hurt the victim. The legal punishments and other consequences for committing the crime are severe if found guilty. With strong defense from The Los Angeles Criminal Defense Attorney, you can have your charges reduced or dropped. Call our offices at 310-564-2605 to further discuss your case.