About 85 percent of women and girls globally have experienced some form of online harassment and abuse, and women are four times more likely to experience stalking than men. (perinjo via Getty Images) |
BY MICHELLE ONELLO | The Supreme Court heard oral arguments on April 19 in a case that could have a sweeping impact on the ability of victims of stalking, verbal abuse and online harassment to be protected from their abusers.
In the case, Counterman v. Colorado, the Court appeared willing to increase the threshold for identifying speech that rises to the level of a “true threat” and overturn a criminal stalking conviction as an infringement of the harasser’s constitutionally-protected First Amendment right to speech. Victim’s rights advocates and the state of Colorado warned that modifying the standard would have devastating consequences for victims of abuse and handicap prosecutors who would need to prove that an abuser intended to threaten the victim, rather than that a reasonable person would find the speech threatening.
The case is an appeal from Billy Raymond Counterman, a Colorado man who sent hundreds of thousands of unsolicited messages to a local female musician, C.W., over a period of two years. The victim repeatedly blocked him on social media, but he opened new accounts to continue sending intimate messages that made little sense, became more demanding and indicated that he might be following her movements. The messages terrified the victim, who took self-defense measures, hired security and feared public performances. Counterman was convicted of stalking and sentenced to more than four years in prison.
In his appeal, Counterman argues that determining whether speech constitutes a true threat should focus on the mental state of the speaker rather than, as in current Colorado law, whether a reasonable person would find the speech threatening. Since he never intended the messages to be threatening, Counterman asserted they should be protected by the First Amendment.
Victims’ and women’s rights advocates—including Legal Momentum, the Feminist Majority Foundation, the National Crime Victim Law Institute and AEquitas—argued in an amicus brief that considering the speaker’s subjective intent would jeopardize future stalking prosecutions, as well as civil protection orders, and create another hurdle to prosecution in such cases, which are already underreported and lead to arrests in less than 8 percent of cases.lenges of ERA passage: “As you know, things don’t come easy in Washington.”
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