A New York Judge Rules That Emailing Someone at Work Doesn’t Meet the Criterion of “Stalking”

Posted on July 22, 2015


Sending emails to someone at his or her place of employment—even a whole bunch of them—doesn’t constitute “stalking” according to a July 14 ruling by a New York judge.

The ruling was reported Monday on the blog of attorney Oscar Michelen, who successfully represented writer, legal reform advocate, and entrepreneur Matthew Chan before the Georgia Supreme Court last year in his appeal of a draconian protection order (verdict returned March 27, 2015). It also concerned digital speech. Mr. Chan’s remarks weren’t transmitted to anyone; they were merely published online. But some common ground exists between the cases, in particular the question of what substantiates an allegation of “threat.”

Mr. Michelen summarizes the New York case (People v. Marian) thus:

The defendant sent over 200 different forms of communication including many emails to her former girlfriend’s work email address. She was then arrested and charged with three stalking misdemeanors.

Significantly, the judge ruled that “a section of the NY Stalking Law requiring that the stalking conduct occur at the complainant’s ‘place of business or employment’ is not satisfied by the sending of repeated emails [to] the complainant’s business email address.”

The gist of the quibble, as Mr. Michelen explains, was that the electronic “space” occupied by email isn’t a real one; email isn’t sent to a “place,” nor must someone be at their “place of business or employment” to receive email. Email can’t be considered “stalking conduct” as defined by the referenced New York statute, because it doesn’t “occur” anywhere definite.

Also significant, as Mr. Michelen points out, is that the ruling places a check on prosecutorial encroachments that seek to broaden the definition of stalking “so that fear of physical injury is not necessary.”

The emails weren’t threatening. According to Judge Steven M. Statsinger’s ruling: “Between January and April of 2015, defendant bombarded the complainant with text messages, Instagram messages, and emails, both to the complainant’s personal and work email addresses, all asserting her desire to be with the complainant.”

The female defendant was still found guilty of two additional counts of stalking her ex-girlfriend under different sections of New York’s criminal code based on alleged conduct that was physically confrontational.

As Mr. Michelen concludes, however:

The distinction could be important to prosecutors and defense counsel in cases where there was no fear of imminent physical injury and the work emails had some stated legitimate purpose as that behavior would not meet the language of any other part of the stalking law. The case also serves as an example of how law is shaped and made by litigators fighting over the definition and application of terms and phrases in the statutes. I am sure that this was not the first time anyone was charged for similar conduct under the same statute; it was just the first time anyone challenged it.

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