Legal experts: Social networking counts as ‘contact’

Today, when a judge orders someone not to have contact with another person, it means a lot more than don’t knock on their door, call their phone or send them a text message.

Contact, in today’s tech-savvy society, also covers the virtual realm, meaning messages, comments and even photos directed at a person on social networking websites like Facebook and Twitter.

Consider this week’s arrest in Iowa City of Derek Paul Stoneking, 27, for a comment that he’s accused of posting on one of his own Facebook photos.

A judge on June 28 ordered Stoneking not to contact a woman – meaning he can’t communicate with her through any means, including third persons, according to a criminal complaint. But Stoneking on Tuesday admitted to commenting on old photos of the two of them on his Facebook profile, explaining that he didn’t realize the victim would be notified of his comments “because she is no longer ‘tagged’ in the photos,” according to the complaint.

Depending on a person’s Facebook settings, the social networking site emails users when they’re mentioned in a comment, tagged in photos and any time someone comments on those pictures. Stoneking told police that he didn’t intend to contact the victim and said he “was just commenting on the past good times,” according to the complaint.

In addition to last week’s no contact order, Stoneking was ordered not to have contact with the victim on June 19 as part of his bond conditions in a felony willful injury causing bodily injury case that’s set for trial in October.

Iowa City police didn’t disclose details about what Stoneking is accused of writing under the Facebook photo, although Sgt. Denise Brotherton said the comments involved the woman. And, she said, it doesn’t matter if the comments were threatening or non-confrontational.

“When there is a no contact order issued, it’s absolutely no contact,” she said. “She got the notification, that’s why it wasn’t just him doing his own personal posts.”

Law enforcement officials in Iowa have reported seeing more cases like Stoneking’s as the Internet – and rampant use of social media websites – are changing the way people commit crimes and thus impacting the way officers investigate and enforce crimes.

Some prosecutors say parts of the Iowa Code have not been updated to reflect electronic communication, making enforcement difficult at times. Johnson County District Attorney Janet Lyness said it can be hard to prove a person violated a no contact order unless a judge specifically included electronic communication in the order.

It also can be difficult to prove that someone intended another person to see an online post, Lyness said. Still, she said, electronic communication is a growing concern among victims and prosecutors trying to enforce violations. She said victims are making reports claiming offenders are posting things or sending them messages via Facebook.

“It’s probably something that’s going to need to be addressed legislatively in the near future,” she said.

Robert Rigg, director of the Criminal Defense Program and law professor at Drake University in Des Moines, said the law might need some tweaking, but it’s clear enough right now for him to advise any clients with no contact orders to cut all ties – including virtual connections.

“As a lawyer, I would tell them not to say a word about this person under any circumstances and to pull down whatever they have of that person and get rid of it,” he said. “When a no contact order is issued, it means no contact. It doesn’t mean kind of, maybe, a little bit.”

It means no face-to-face contact with that person and no social networking with that person, he said.

Rigg said people convicted of domestic violence often try to skirt no contact orders, and social media has provided another avenue to do just that. But, he said, prosecutions of virtual violators are becoming more common and judges are becoming impatient with offender excuses that they didn’t intend to contact a person.

“They always try to skirt the order and find a way around it and say it was just social media and it was not directed at that other person,” Rigg said. “But that argument wears thin on judges.”

Mark Sandon, assistant attorney in Polk County, said his office has seen more violations of no contact orders through social media websites, and within the last six months they addressed the issue in their county by changing the wording of their no contact orders.

Now, when judges instruct offenders not to contact someone, they include specific references to Facebook or Twitter or any social networking website.

“They’re trying to do something that will circumvent the no contact order and will send a message to the victim in a cloaked way,” Sandon said. “That’s why we changed the no contact orders.”

Sandon said the change has helped, to some degree.

“But some people are going to violate a no contact order, no matter what,” he said.


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