Billy Raymond Counterman sent hundreds of thousands of Facebook messages years to local country singer Coles Whalen over the course of about five years. Whalen was finally unnerved enough to file stalking charges against Counterman. The mountains of comments left Whalen feeling frightened enough that she ultimately felt she had to leave her Colorado home in order to keep herself and her family safe. Counterman was eventually convicted of stalking and sent to prison, which is something that a 7-2 majority of Supreme Court Justices found to be a miscarriage of justice.
The Messages Counterman Left
What was so disturbing about Counterman’s Facebook messaging? The comments ranged from wholly innocuous to a bit disturbing and, later, to plainly mean. Friendly (but maybe a little unusual and questionable) were pledges from Counterman to bring Whalen fresh garden tomatoes for her to enjoy, as well as comments about how stunning she looked during a recent performance he had attended. Ultimately that turned into expletive-filled outbursts accusing Whalen of being no good for human relations, and ending with, “Die, don’t need you.”
What Constitutes a Threat?
Whalen’s attorney contended that when the volume, frequency, and tone of the messages she received were viewed in total, it became clear that the comments were a precursor to violence. The best way to ensure Whalen’s safety would be to put Counterman for a good, long time. That argument worked in court. Even so, Whalen’s sense of security was darkened, affecting family life, her ability to perform, and her overall sense of contentment.
On the other hand, Counterman’s attorney argued that his client had no intention of harming Whalen, and he most certainly did not comprehend the negative implications of his messages because he suffered from mental illness. His interpretation of the messages was that they were harmless, and therefore silencing him would be an attack on his First Amendment Right to free speech. The law required intent, reasoned the attorney, and should not require one to foresee the reaction of others prior to sending a message.
One D.C.-based attorney, John Elwood, summed it up by saying that if someone’s words are not intended as threats, there is no intent to harm, and therefore a conviction cannot be warranted. The Supreme Court agreed.
California’s Stalking Law
Under California law, stalking becomes a criminal offense once the threats or harassment gets to the point that the victim feels their safety is at risk. That leaves many wondering if the recent Supreme Court decision will have an impact on stalking charges here in the state, as they did in Colorado, or if the impact will be only on federal stalking charges.
An initial charge of stalking could lead to a year in jail and a fine of $1,000. If felony stalking is charged based on a threat of significant harm or death, a defendant could face up to three years behind bars and $10,000 in fines. If the charges are part of a three strikes conviction, it jumps to a mandatory 25-year prison sentence.
The Defense You Deserve
If you have been charged with stalking, a conviction could mean permanent damage to your reputation, family, livelihood, and more. At Boertje & Associates, our proficient criminal defense attorneys will fight for you. To discuss this, schedule a confidential consultation in our San Diego office today.