As explained fully in this related blog post and the video below, I have been trolled, stalked and harassed by a defendant in a harassment case that I filed in December 2009. She ultimately made death threats against me and was convicted in 2015 of harassing communications and violating a restraining order.
The presence of serial harassers is a relatively recent phenomenon and a result of the dawn of social media. Social media, however, has “weaponized” defamation and harassment. In the case of Kachadurian, at one point she averaged approximately 100 tweets per month and yesterday alone sent 23 harassing and defamatory tweets in a three hour period. This problem requires some changes in the law.
Civil Penalties for Serial Defamers
A serial cyber stalker who harms multiple people may escape any consequences if the monetary damages caused by their actions are not great enough or the cost of litigation too great for any single plaintiff to step forward. This does not mean, however, that these people are not causing serious harm to the greater society. As a result, creating an incentive to hold these people accountable is in the public interest.
New Proposed California Civil Code § 48b
In any action for libel or slander, if the defendant has engaged in (i) a pattern of defamatory conduct directed at plaintiff and/or multiple parties that include plaintiff; (ii) where such defamatory conduct includes multiple per se defamatory statements as defined by Civil Code § 46; and (iii) is not otherwise privileged, then the defendant shall be deemed to have acted with malice and the Court shall award the greater of plaintiff’s actual damages or a civil penalty of $1,000 per defamatory statement; punitive damages as may be necessary to punish and/or deter defendant; and plaintiff’s reasonable attorneys’ fees and cost of bringing the action.
Penal Code Changes
Amendments to Penal Code § 136.1
To address harassment of victims post-trial, a new clause should be added to Penal Code Section 136.1(a):
(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:
(1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(3) Knowingly and maliciously takes any steps to retaliate against and/or harass any witness or victim who gave testimony at any trial, proceeding, or inquiry authorized by law or the legal counsel appears in connection with any such proceeding.
(4) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.
Amendments to Penal Code § 1203.4
Finally, while I had exercised my rights under Marsy’s Law (aka the California Victim’s Bill of Rights) throughout the criminal proceedings against Kachadurian, I was not notified when Kachadurian sought to expunge her conviction following the end of her probation as that is not included in the Marsy’s Law notification requirements. This needs to be changed, especially where, as is the case here, Kachadurian denies she was ever convicted.
(e) (1) Relief shall not be granted under this section unless the prosecuting attorney (and any victim who had exercised their rights under California Constitution Article I, § 28(b)), has been given 15 days’ notice of the petition for relief. The probation officer shall provide such notice when a petition is filed, pursuant to this section.
(2) It shall be presumed that the prosecuting attorney (and any victim who had exercised their rights under California Constitution Article I, § 28(b)) has received notice if proof of service is filed with the court.