Telephone Harassment, Electronic Harassment & Cyberstalking Defense Attorneys in Chicago

According to a recent national survey, around four-out-of-every-ten Americans has personally experienced online harassment and 62% of people consider it to be a major problem. As a result, there has been an ever-growing demand for lawmakers to increase penalties for those charged with such crimes and to expand the range of potential crimes that can be charged as harassment under Illinois law. As crimes involving harassment are typically charged as either jailable misdemeanors or felonies, the assistance of an experienced harassment attorney is vital to protecting the criminal record and future of anyone charged with such an offense.

What is Harassment?

The laws that govern harassment in Chicago and across the state of Illinois are located in our state statutes at 720 ILCS 5/26.5. In our laws, they basically define harassment as conduct which is “knowing” and is done for a purpose that under the circumstances is not reasonable. This conduct must be such that it would cause (and in fact does cause) a reasonable person emotional distress.

What is “Knowing” Conduct?

Under our American system of laws, people are usually not punished for things that they do unintentionally, by accident, by mistake, or for some other innocent reason. That’s because accidents happen, and no one is perfect. It’s the same reason why when a car accident happens, even if someone is killed or seriously injured, the person responsible typically won’t be in that much trouble and won’t go to jail if it truly was just an accident. The exception to that of course, is when someone conducts themselves “recklessly” and they put themselves into a situation where they should have known something bad might happen, like driving drunk, shouting fire in a crowded theatre, or shooting a gun up into the air.

Similarly, in the context of our harassment laws, a person must also knowingly do something that is considered harassing to be considered in violation. For instance, if a person calls a phone number a dozen times mistakenly thinking that the number belongs to their friend or relative, this won’t likely be considered a crime, even if the other person feels very harassed. In the same way, if a person with Tourette Syndrome repeatedly yells out offensive words at another person who is highly disturbed as a result, this would not be a crime either. Ultimately, it will be up to a Judge to make the decision about whether a person’s conduct that led to another person feeling harassed was truly “knowing” in this way.

What is Considered “Unreasonable Conduct”?

Assuming that the conduct was intentional or knowing, the next question would be whether that conduct was necessary to accomplish a purpose that was “reasonable under the circumstances”. Whether this language in the Illinois Statute is referring to the conduct as being reasonable, the purpose being reasonable, or both, is not entirely clear. So, for that reason, we will address both here as this distinction may be valuable for anyone charged with this crime in the event of a trial situation:

Unreasonable Conduct to Accomplish a Reasonable Purpose

Say that someone wants their neighbor to open the front door so they can ask to borrow a cup of sugar. That’s a reasonable request. So, they ring the neighbor’s doorbell, but the neighbor doesn’t answer because they don’t like to share their baking ingredients. No crime has obviously been committed. What if the person started banging on the door with a measuring cup? This might be considered disorderly conduct. But what if the person then called or texted the neighbor 5 times or 10 times? At some point, what was reasonable behavior can turn into unreasonable conduct in violation of the laws that govern Chicago and all of Illinois. At what point this happens is up to a Judge to decide whether the conduct violates our harassment laws.

Reasonable Conduct to Accomplish an Unreasonable Purpose

Now say that someone wants their neighbor to do something unreasonable, like sell them a baby, give them a piggy-back ride or eat a bug, but the person only calls or texts once or twice with this odd request. It’s clearly a strange thing to ask of someone, but is the conduct reasonable? Perhaps. That would also be up to a Judge to decide whether that conduct meets the definition of unreasonable under Illinois law.

Conduct Must be Something That Would Cause a Reasonable Person Emotional Distress

In order to be a violation under Chicago and Illinois law, the harassing conduct must also be something that would cause a hypothetical “reasonable person” emotional distress. But before this can be decided, a Judge or jury would first need to consider what exactly was the nature of the harassment that occurred. Remember that for something to be harassing, it must involve conduct that wasn’t reasonable under the circumstances to accomplish a purpose. So, let’s say that the harassing conduct was this:

Alyssa is an 18-year-old high school Junior who really wants a better grade in her math class. She asks her teacher if there’s anything she can do to raise up her grade, but she’s told that there really isn’t. Unwilling to take no for an answer, she texts her teacher an apple emoji every day for a week while complimenting Mrs. Miranda on how lovely her hair is.

Is this conduct that is reasonable under the circumstances to accomplish the goal of getting a better grade? No. But is it something that would cause a “reasonable person” emotional distress? It depends on the circumstances, but here, probably not. So therefore, it doesn’t meet the requirements for the crime of harassment, because annoying is not the same as harassing.

But now let’s say that the person complimenting the teacher’s hair and texting her every day for a week is a 59-year-old man named Spike who she has never met before in her life. Would this cause a “reasonable person” to be disturbed? Almost certainly! So, as you can see, the facts of the case potentially make a big difference as they relate to what would cause a “reasonable person” to suffer emotional distress.

Conduct Must Actually Cause a Reasonable Person Emotional Distress

In order for a person to be convicted of a harassment charge, there is one final requirement under the Illinois statute; that the person must actually suffer emotional distress. So even if the conduct is considered unnecessary to accomplish its purpose, and even if the conduct were something that would cause a hypothetical “reasonable person” emotional distress, if the person isn’t really distressed by the conduct, then it’s just not a crime. So, let’s say that the harassing conduct was this:

A linebacker for the Chicago Bears parks his Ferrari outside the Jewel Food Store and begins to walk in to buy some bean dip. But before he can proceed through the front door, a 12-year-old Girl Scout named Sydney rises from her chair behind her folding table and asks him if he’d like to buy some Girl Scout cookies. “No thanks”, he says as he continues to walk. “What’s your problem dude?” she shouts! “I’m sick of sitting here all day! If you don’t buy at least 2 boxes of Thin Mints, I will personally break your kneecaps!”. Then she somehow finds his cell phone number and further texts him a few times demanding the purchase of her cookies.

Under these circumstances, is it likely that the Bears linebacker was actually emotionally distressed? Maybe, but probably not. He might have even laughed at the situation. But what if the person was a very timid person or an elderly person? That would probably be an entirely different matter and a judge might easily decide that the person was legitimately disturbed by such conduct. In this way also, every case is different.

Harassment by Telephone

In Illinois, if the harassment involves the use of a telephone (whether it’s a cell phone or a landline), it’s a crime called “Harassment by Telephone” when it’s done for any of these purposes:

• With the intention of harassing the other person, makes repeated phone calls and speaks to the other person on the phone
• Intending to harass the other person, makes the other person’s phone ring repeatedly even though they never speak
• Makes a phone call, whether or not any conversation is had, with the intention to threaten, harass or abuse the other party
• With the intention of offending the other person, makes a call which is filthy, lewd, obscene, lascivious or obscene
• When the caller is at least 16 years old, calls (or induces another person to call) someone who is under the age of 13 (regardless of whether that minor consents to the call) intending to harass that minor
• Allows another person to use their phone for any of these described prohibited purposes

Harassment by telephone is a very common misdemeanor charge not only in Chicago and in suburbs like Arlington Heights, but across Illinois, because people are constantly talking on their phones. Although most conversations are friendly in nature, many turn out to be arguments and disagreements. Is it considered harassment simply because one person yells or screams at another? Certainly not. People are entitled to their own opinions and everyone also has a 1^st Amendment right to free speech.

But as with most things, there’s sometimes a line that is crossed that separates legal conduct from criminal conduct. When the police or prosecutor believe that this line has been crossed and a person is then charged with a criminal case of this type, it’s the job of the criminal attorney to convince the judge that the conduct was not a violation of the Illinois Criminal Statutes.

Transmission of Obscene Messages

There’s another criminal law in Illinois called “Transmission of Obscene Messages” that covers much of the same ground as the other crimes for Harassment by Telephone and Harassment through Electronic Communications.

This crime is committed if a person:

• Either sends a message or uses terms or language
• Which is considered lewd, obscene or immoral
• Intending to offend another person
• While using a telegraph(!) or telephone
• Or the wires (transmission lines) of any firm, person or corporation that sends messages or news between states or within the state of Illinois

Most people charged with obscene communications tend to be charged under one of those other criminal laws described previously, but since Transmission of Obscene Messages is also a crime in Illinois, we’ve briefly discussed it here.

Harassment Through Electronic Communications

Although people still continue to talk on the phone a great deal of the time, texting has overtaken speech as the preferred manner of communication for many, especially young people. But before cell phones and texting became as popular as they are today, the Illinois Statutes contained a red tape / loophole that allowed many people who engaged in harassment to be found not guilty and escape a conviction. This was that the laws in Illinois only made harassment against the law when done by phone. Because “texting” hadn’t really even been invented yet, there was no law that prohibited it. The legislature soon fixed that and passed the law titled “Harassment Through Electronic Communications” which remains in effect today.

Under this law, which can be found at 720 ILCS 5/26.5-3 in our Criminal Code, it states that a person commits this crime when he or she uses electronic communication to do one of the following things:

• Interrupts the electronic communication service (usually a cell phone provider) or telephone service of another person with the intent to harass that person
• Makes any obscene suggestion, request, proposal or comment intending to harass the other person
• Threatens an injury to another person or their property (or related to that person’s household member / family)
• When a defendant who is at least 16 years old, sends an electronic communication (or induces another person to) harass another person who is under the age of 13, even if that minor victim agrees to receive the communication
• Sends to someone any type of communication, file, document, or email that prevent the recipient from using his or her electronics communication device or telephone service (regardless of whether the file is opened or read)
• Knowingly allowing their communication device to be used for any of these purposes

What is an Electronic Communication?

According to the law in Illinois, for someone to be found guilty of Harassment under this section, the harassment must occur by means of an Electronic Communication. The law in part defines this as any transfer of images, writings, signs, signals or data sent by wire, electromagnetic or radio system, including computers, pages and cell phones. It includes such things as text messaging, voice mail, instant messaging and email.

What is Evidence Inference?

This refers to evidence presented that shows a defendant continued to either make phone calls or send additional electronic communications after the other person (or a member of their household or family) asked the defendant to stop. It means that if this evidence is presented at trial, the Judge will be allowed to infer (which means assume) that the defendant intended to harass the victim, unless the defendant can disprove this evidence to the contrary (show that it’s not true).

Sentencing and Punishment for Harassing and Obscene Communications

When a defendant has violated the Illinois law regarding either 1) Transmission of an obscene message, 2) Harassment by telephone, or 3) Harassment through electronic communications, the sentence is generally a Class B misdemeanor. If it’s not a first offense though, the statute presently makes such a violation a Class A misdemeanor with a mandatory minimum punishment of 14 days jail or 30 days community service. In some circumstances though, these harassment offenses can actually be upgraded to a felony crime, when one the following has occurred:

• If in the last ten years, the defendant has had three or more violations for harassment by electronic communications, harassment by phone, or similar offense.
• If when the crime occurred, the defendant was under any court conditions (in this or another state) for mandatory supervised release (parole), conditional discharge, bail, probation, or an order of protection that prohibited the defendant from having contact with either the victim or any member of that person’s household or family.
• If the defendant has previously been found to have committed the crime of harassment by telephone or electronic communications ( or a similar offense in another state) involving the same victim or member of the victim’s household or family.
• If during the course of the crime, the defendant threatened to kill the victim or a member of the victim’s household or family.
• If in the last ten years, the defendant was convicted of a “forcible felony” as set forth in Section 2.8 of the Illinois Criminal Code.
• If a defendant (who is at least 16 years old) sends (or induces another person to) send an electronic communication intending to harass someone who is under the age of 13, whether or not the victim accepts that communication willingly.
• If the defendant was 18 years old or older when the crime occurred and the victim under 18 years old at the time.

Cyberstalking

Most people know that “Stalking” is a crime in Chicago and all of Illinois and basically involves criminal actions that place another person in fear for their safety and involve an invasion of their personal security. On the other hand, the laws regarding “Cyberstalking” are much newer in age. That’s obviously because the word “Cyber” wasn’t even used before the 1990’s, and cell phones, internet, social media and such are relatively recent technological developments.

With the advent of these new technologies though, people who wanted to stalk or harass others no longer needed to follow them physically on the street, leave notes on their cars, slash their tires, or such. The internet and cellular technology now allowed them to negatively impact others remotely, without ever leaving the safety of their home. In response to these new offenses, the Illinois legislature drafted a law prohibiting Cyberstalking which can be found at 720 ILCS 5/12-7.5.

According to this new law, the crime of cyberstalking involves one of four basic scenarios:

Basic Cyberstalking

When a defendant, using electronic communications, engages in a course of conduct that’s directed at a particular person, when he or she knew or should have known that it would cause a reasonable person to either suffer emotional distress, fear for their safety, or fear for the safety of another person, then the crime of cyberstalking has been committed.

Harassment Cyberstalking

When a defendant, without lawful justification and knowingly, uses electronic communication to harass another individual on at least two separate occasions and does at least one of the following:

• Transmits or sends a threat involving future or immediate bodily harm, confinement, restraint or sexual assault and that threat is directed either towards that person or that person’s family member.
• Puts that person or their family member in reasonable apprehension that either a future or immediate sexual assault, bodily harm, restraint or confinement will happen to them.
• Knowingly solicits or directs the commission of any act towards that person or their family member that would be in violation of this law.

Spyware Cyberstalking

When a defendant secretly, without lawful justification and knowingly either places or installs electronic spyware or monitoring software on any electronics device intending to harass another person and does at least one of the following:

• Transmits or sends a threat, whether of future or immediate confinement, sexual assault, bodily harm, or restraint directed towards a person or their family member.
• Puts that person or a member of their family in reasonable apprehension that future or immediate restraint, confinement, sexual assault or bodily harm may occur to them.
• Solicits or enlists another to commit any act in violation of this Illinois law towards a person or their family member.

Website Cyberstalking

When a defendant without lawful justification and knowingly maintains and creates an internet webpage or website which can be accessed by at least one other third party for a period of at least 24 hours, this is considered cyberstalking if it contains harassing statements to another person and also at least one of the following:

• Communicates a threat of either future or immediate confinement, sexual assault, bodily harm or restraint towards that person or a member of their family.
• Puts that person or their family member in reasonable apprehension that they may be subject of either immediate or future restraint, confinement, sexual assault or bodily harm.
• Solicits or directs another knowingly to commit any act towards another person or a member of their family that would be in violation of this law.

A violation of the cyberstalking act is punishable as a Class 4 felony, although if it involves a second or subsequent conviction, then it would be punishable as a Class 3 felony.

Contact an Experienced Chicago Attorney Today

If you are charged with online, electronic or telephone harassment, you should call an experienced attorney to secure the proper legal protection that you’ll need to defend a serious offense such as this. The legal team at Mitchell S. Sexner & Associates LLC will fight aggressively to protect your rights. We offer a free, no-obligation initial consultation to determine how to best proceed with your case. Your first meeting can be arranged at one of our convenient office locations including Arlington Heights or Chicago. So, call us at (312) 644-0444 or fill out an online form to get started right away.