Tuesday, June 2, 2015

What Does Elonis Mean for Survivors of Intimate Partner Violence?

This week, the Supreme Court of the United States issued its opinion in Elonis v. United States. Mr. Elonis was convicted of making threats under 18 U.S.C. 875(c), which criminalizes threats to harm another person.  On Facebook, Mr. Elonis had posted statements interpreted as seeking to kill his estranged wife. He referenced an elementary school as well as harm to former co-workers.  Before these writings were posted, Mr. Elonis' wife had left him along with their children.  Following the postings, Mr. Elonis was fired from his job and Mrs. Elonis obtained a civil protection order.

The Supreme Court reversed Mr. Elonis' conviction.  

In an opinion which eight of the nine justices joined or concurred, discussion centered on the level of proof the government must show to demonstrate the defendant's intent.  The statute under which Mr. Elonis was charged was silent on this issue, and therein was the problem.

The Court acknowledged that absence of a standard does not invalidate the section of the statute under which Mr. Elonis was convicted; what that standard should be was a source of disagreement.  The government argued that only two elements need be proved: that the person making the statements understood the context and content of the words and that a reasonable person understood those words as a threat. 

If the reasonable person standard brings you back to first year law classes, then you remember its use in civil litigation.  The reasonable person properly belongs on the civil side of the law. Prosecutorial introduction of the reasonable person standard to determine criminal culpability is inappropriate.   Some evidence of the defendant's mental state must be proved. Just what level of proof that is remains unaddressed.

The court neither defined what the standard should be nor gave instructions to lower courts on how to divine the proper standard.  We do not know where this decision leaves Mr. Elonis and others who may be charged criminally for cyber threats, but we do have a good sense of where this leaves Mrs. Elonis and other survivors.

Mrs. Elonis was afraid when she saw references to her death in her estranged husband's postings.   Her fears were all the more understandable when he posted a diagram of her residence and discussed the best direction from which to send a mortar shell into her house.  

There are other signs that Mrs. Elonis was in danger.  Mr. Elonis newly claimed that he was a "rapper" and such status gave him license (and cover) for any words he posted.  If Mr. Elonis had a long history of rapping, the argument might be credible.  But abusive partners often claim new interests (for example, in the children) once separation occurs as a way of continuing control of the partner.  Mr. Elonis' claim of being a rap artist was a ruse. To the unfamiliar, this may not indicate danger. But to a survivor,  a partner morphing identities to adapt to circumstances that will enhance the partner's goals is alarming.

Mr. Elonis may have had no intention of killing his estranged wife, or of having another person kill her.   The emotional upheaval that perceived threats of harm cause would be sufficient satisfaction for most abusers, even if that satisfaction was temporary.  Mr. Elonis would be not guilty of a threat to do physical harm.  But what Mrs. Elonis knows is that the posted messages emotionally control her.   For her, this was a "true threat".

Mrs. Elonis sought the civil remedy of a protection order. There is no evidence that she initiated prosecution. Her husband's co-worker brought the postings to the FBI's attention. Yet she is now in the mix of those whose state protection may change following entry of the the Elonis decision.  The case ought not deter local prosecutions where state statutes are more artfully crafted in determining intent and other standards. Nonetheless, prosecution vehicles may shift. Disguised threats occurring after entry of a protection order can be prosecuted as a violation of that portion of an order prohibiting a partner from abusing the petitioner and from communicating with her.

While violation of protection order may be perceived as a safer prosecution route, what prosecution vehicle will be available should the target not wish to seek a protection order is unclear.

Even more serious difficulties for survivors will result from the interpretation that civil trial courts are likely to assign to the case.  Civil courts routinely conflate the "beyond a reasonable doubt" standard with the more common "preponderance of the evidence" standard when hearing civil domestic abuse matters. This is particularly so where collateral criminal cases exist. The Elonis decision inadvertently enhances this confusion. Civil courts are influenced by criminal findings and decisions even where the application of those findings is not relevant in the civil matter.

First amendment concerns may similarly compound civil courts' confusion.  While the Elonis court did not reach free speech arguments, survivors can expect constitutional concerns to be raised in  hearings involving internet posts. Some states are beginning to address those concerns.  No doubt an internet free speech defense to threats charges will present to the Supreme Court soon, most likely in the criminal context.  

Domestic abuse survivors can expect to be caught again in the civil/criminal crossfire.    







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