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Jul 20 2015

Email Address Does Not Constitute “Place of Employment” For Stalking Law

A NY Judge has decided in a case of first impression that a section of the NY Stalking Law requiring that the stalking conduct occurs at the complainant’s “place of business or employment” is not satisfied by the sending of repeated emails at the complainant’s business email address. 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.

One count was based on Penal 120.45(3) which reads:

A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct . . .(3) is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person’s place of employment or business, and the actor was previously clearly informed to cease that conduct.

lady justiceThe court held that in interpreting other laws with the same phrase, NY courts have held that “place of employment” means the physical location where a person works. “Thus, given New York courts’ consistent view that the phrases ‘place of employment’ and ‘place of business’ refer only to a physical location, this court will apply that same definition here,” Judge Steven Statsinger said.

I guess it came down to the distinction that telephoning a person at work requires them to be at the physical location when they pick up their work phone but email technically does not end up in the physical workplace. The statute is also meant to broaden stalking so that fear of physical injury is not necessary – you just need to be scared that someone’s behavior may cause you to lose your employment or business. It would be unusual for repetitive emails to threaten your career in the same way that showing up at the office or constantly calling the office could.

Furthermore, repetitive or harassing emails are covered under Penal Law 120.45(1), a more general statute that defines conduct “likely to cause reasonable fear of material harm to the physical health, safety or property” of a victim as stalking. In addition, the defendant was also charged under 120.45(2) which hinges on a defendant exhibiting a course of conduct by contacting a complainant repeatedly after being asked to stop — behavior that is not dependent on contacts with the victim at the physical workplace. The defendant here will still have to face those charges.

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.

Read the judge’s decision here

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