What Qualifies as Harassment in GA?

Georgia’s stalking law is unusually broad. Most states define stalking as a series of communications designed to harass or intimidate a person. Georgia’s anti-stalking law also criminalizes one-time and third-party contact. However, these two charges often don’t hold up in court. More on that below.

Usually, stalking is a family “violence” crime. We put “violence” in quotation marks because stalking isn’t technically a violent crime, at least according to most people. Stalking victims usually have a different opinion on the matter. Since it’s a family violence crime, stalking usually has criminal and civil implications. More on that below as well.

Because the stalking law is so complex, as are the issues involved, a Marietta criminal defense lawyer must dig deep to successfully resolve stalking charges. The normal strategy of aggressively challenging the state’s evidence normally isn’t effective. The state’s key witness is often a distraught woman. Nevertheless, successful resolutions are available. More on that below as well.

Breaking Down the Law

For several reasons, stalking charges almost never make it to court. Many stalking cases are pretext stalking cases (ostensibly reaching about one issue, such as the kids, when the true intent is to annoy or harass) which are difficult to prove. Furth more, some stalking is socially acceptable. Despite the awful-sounding name, many stalkers simply aren’t bad people, at least to many jurors.

If the case somehow does make it to court, Cobb County prosecutors usually levy one of three different charges.

Single Contact

Subsection 2 applies if the defendant “threatens bodily harm via telecommunication, e-mail, text messaging, or any other form of electronic communication.” As mentioned, most states don’t have such a law. But a state appeals court upheld this provision in 2009.

Idle threats usually aren’t illegal, at least in this context. On The Honeymooners, Ralph often comically threatened to knock Alice “to the moon.” So, the state must prove, beyond any reasonable doubt, that the defendant truly intended to carry out the threat, and that s/he had the means to carry out that threat.

In that 2009 case, the defendant and his ex-girlfriend intensely argued over the phone before he said the victim was “going to die, bitch, and . . . that . . . there was going to be a car accident, and he was not going to have anything to do with it.” That threat seems legitimate and credible.

Incidentally, single-contact harassment could also be contempt of court, assuming a judge issues a restraining order or other such command.

Officers often ignore single-contact stalking calls, mostly because the defendant rarely sticks around to talk with the cops. However, officers often immediately answer contempt of court calls. To many officers, ignoring a court order is a serious matter. Furthermore, the investigation involves no he-said, she-said back-and forth. Instead, it’s you were in a prohibited place and you’re under arrest.

Multiple Contact

Subsection 1 applies if the defendant “contacts another person repeatedly via telecommunication, e-mail, text messaging, or any other form of electronic communication for the purpose of harassing, molesting, threatening, or intimidating such person or the family of such person.” Courts have never pinned down the “repeatedly” requirement, except that the state must prove more than one communication.

We mentioned pretext stalking above. Furthermore, the statute doesn’t apply to letters, cards, and other such communications. Nor does it apply to sending gifts. It also doesn’t apply to pretext stalking activities, like gathering information.

Courts are split as to whether the multiple contact stalking law is objective or subjective. If Joe calls his ex-wife a few times and hangs up, he might have criminal intent, or he might be too scared to talk to her. Additional circumstantial evidence may come into play. If Joe calls his ex-wife at three in the morning, his intent seems nefarious.

Third-Party Contact

Subsection 4 applies if the defendant “knowingly permits any device used for telecommunication, e-mail, text messaging, or any other form of electronic communication under such person’s control to be used for any purpose prohibited by this subsection.”

This provision closes a common loophole. Joe gives his phone to Sarah, who then repeatedly calls Joe’s ex-wife. More than likely, Sarah had no criminal intent and Joe rightly argues that he never called his ex-wife. Conspiracy or gang activity charges might apply in such cases, but as mentioned, authorities usually aren’t very motivated to bring stalking charges to court.

Much like Subsection 1, Subsection 4 also has some gaping holes. If Joe asks Sarah to repeatedly call and hang up on his ex-wife, that’s technically legal.

We should point out that these activities are technically legal in court. The standard of evidence for an arrest is only probable cause. So, these defendants are subject to arrest and prosecution. Courts have consistently held that police officers can file charges even if they know those charges won’t hold up in court.

Stalking Procedure

An arrest is just the beginning of the criminal law process in Cobb County. Usually, this process also includes pretrial hearings and plea negotiations.

As mentioned, stalking is a pseudo-violent crime. Therefore, OR (own recognizance) jail release, which is usually limited to nonviolent crimes, may or may not be available. Usually, a Marietta criminal defense lawyer must work with a bonding company. The conditions of bail, like monthly supervision check-ins, are usually more relaxed if the defendant has a lawyer. The bonding company knows these defendants are serious about facing the charges against them in court.

The stalking law is also pseudo-constitutional. It criminalizes everyday activities, like making calls and sending emails. For this reason, unless the facts are extreme, a Marietta criminal defense lawyer can sometimes get these charges thrown out of court.

However, don’t count on that. Many jurors have a relaxed attitude about mild stalking, but many judges don’t see things the same way.

Therefore, if they make it to court, most stalking charges reach the plea-bargaining phase. A plea to disorderly conduct is usually an option. Disorderly conduct is also a misdemeanor. But this offense doesn’t have the same collateral effects as stalking. It also doesn’t have the same social stigma.

Stalking laws in Georgia are very complex. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Convenient payment plans are available.