The Virginia Defamation Law Blog
Harassment and bullying can take place in many different forms. Sometimes the conduct is actionable in a court of law, and sometimes it isn’t. Sometimes it involves defamation of character, whereas other times the harassment takes the form of electronic stalking. Before scheduling an appointment to speak with a lawyer, you should know the difference. In a nutshell: if the bad actor’s harassing activity consists primarily of spreading false rumors about a person on social media, then we’re most likely dealing with the law of defamation. Conversely, if the harassment consists of persistent threats of sexual assault or physical bodily harm, you’re dealing with the law of criminal stalking. Defamation occurs when a person publishes an “actionable statement” with the requisite intent. Stalking occurs when a person “on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s family or household member.” (See Va. Code § 18.2-60.3). I write about defamation law all the time, so the rest of this post will focus on what stalking is and how it is different.
A defendant commits the crime of stalking when the following elements are met:
- The defendant directed his or her conduct toward the victim on at least two occasions;
- The defendant intended to cause fear or knew or should have known that his or her conduct would cause fear; and
- The defendant’s conduct caused the victim to experience reasonable fear of death, criminal sexual assault, or bodily injury.
As most people are aware, stalking is a crime that involves persistent conduct. If a creepy guy follows you home one night after work, as unsettling as the experience may be, he has not engaged in stalking–at least not until he does it a second time. On the other hand, the conduct doesn’t need to repeat itself over any extended length of time, either. If an offender commits the prohibited behavior just two times, he may be convicted of stalking if the other elements are met. Note that it’s not necessarily a crime for a person to just follow another person around all the time, or to consistently beg another person to go on a date. The behavior becomes stalking when it advances from being merely annoying to causing fear–fear of sexual assault or other physical harm.
Like defamation, stalking has become more prevalent with the dawn of the Internet and the rise of social media. Today, if someone wants to convince you that you are going to be attacked or raped in the near future, he (let’s face it; it will probably be a “he”) no longer needs to follow you around the neighborhood wearing a trenchcoat; 
he can simply get on Twitter or Facebook and start sending you lewd and threatening messages. Stalking laws apply to electronic stalking just as they do to old-fashioned physical stalking.
In Stephens v. Rose, for example, a former boyfriend persistently harassed his ex-girlfriend with constant phone calls, emails, instant messages, and social media posts. Eventually, he showed up at her father’s house at 6:20 a.m. to ask for her whereabouts. After he tracked her down and showed up at her house with flowers at 7:00 a.m., she called the police and obtained a protective order, which the ex-boyfriend appealed. He pointed out that he had never actually been violent with her, and had never threatened physical violence or abuse. That didn’t matter, the Virginia Supreme Court ultimately held, because she had good reason to be fearful for her safety.
To prove stalking, the court held, the evidence must show that “(1) the defendant directed his or her conduct toward the victim on at least two occasions; (2) the defendant intended to cause fear or knew or should have known that his or her conduct would cause fear; and (3) the defendant’s conduct caused the victim ‘to experience reasonable fear of death, criminal sexual assault, or bodily injury.’” In this particular case, the evidence was held sufficient to establish stalking, despite the absence of physical harm. The court also clarified that the fear necessary to satisfy the statute can be generalized and need not relate to a specific threatened act.
A major difference between stalking and defamation is that stalking is a crime, whereas defamation is primarily a civil claim. If you’re being defamed online, you’ll probably want to consult with a defamation lawyer, not file a police report. A successful defamation case results in money damages for you, not jail time for the offender. If, on the other hand, you’re being stalked–online or otherwise–you’re going to be more concerned about your physical safety than your reputation, so you should contact the police. Virginia law allows courts to enter a series of protective orders to prohibit contact between the offender and the victim. And if the offender is convicted, he could serve up to 12 months in jail. If he’s convicted a second time within five years, his prison sentence could increase to five years.
To petition for a protective order, visit your local General District Court. (Note: If violence is being threatened by a family or household member, there is a special type of protective order available in the Juvenile and Domestic Relations District Court – see Va. Code § 16.1-279.1). There is no cost to seek a protective order, and you don’t need a lawyer. Just visit the Clerk’s Office and complete this form, according to these instructions. You will likely be taken promptly to a judge, who will determine whether a protective order would be appropriate. In most cases, if you tell the judge (under oath) that you are being stalked, the judge will grant your request and enter a preliminary protective order that will last until a full hearing can be conducted.