End of aggravated harassment law worries domestic violence advocates

By Joleen Ferris

(WKTV) - The New York State Court of Appeals last week struck down the crime of aggravated harassment as unconstitutional for being overbroad and too vague.

The state's highest court found that the average citizen looking at the law wouldn't know that what they're saying is a crime.

As a result of the ruling, Oneida County District Attorney Scott McNamara has directed local police departments to stop arresting people for aggravated harassment, and his office is in the process of dismissing all pending aggravated harassment cases. 

"Just two weeks ago, if somebody called on the telephone and said, 'I'm gonna get you,'  'you're a walking dead person,'  'as soon as I see you' or 'it's over,' or calling and texting somebody -- just harassing them endlessly -- that would have been considered aggravated harassment and we would prosecute that.  And now it's not," said McNamara.

Advocates who work with victims of domestic violence say this removes a valuable tool from their arsenal when it comes to protecting those victims.

"What our advocates told me is that most of our orders that come in, our clients that we're working with, that's what's happening. They have been stalked electronically, harassed electronically," said YWCA Executive Director Natalie Brown.

Brown says victims have told the Y's advocates that they're upset about the ruling. Brown isn't happy, either.

"Well, I think anytime you don't hold people accountable, they just keep going further and further, and I think that's really disappointing, which is the reason it's so important for us as a society, us as a community, to say this is not acceptable behavior, and it frankly defies logic."

The question that's weighing heavily upon the minds of prosecutors and victim advocates is -- what happens to all of the orders of protection that were issued based on aggravated harassment charges?

"I think right now that's to be seen, to be honest with you.  I think we're going to probably have -- we'll start to see -- a lot of litigation, because I suspect at this point, defense attorneys are now going to come back and try to get these orders of protection that were put in place because of an underlying aggravated harassment, to get them basically dismissed and declared null and void," said McNamara.

A local defense attorney agrees, saying he would make such an argument since the Court of Appeals has given him the tools. Some say the ruling raises more questions than answers, as it does not address retroactivity. One thing is certain: From this point forward, no orders of protection will be granted based on aggravated harassment.

McNamara said he would imagine that the legislative subcommittee of the state District Attorney's Association will discuss the ruling and how to best protect the victims who might be left vulnerable by it.

He says the state legislature could act and rewrite the law more specifically.  He also says the crime could still be charged, but it would have to be a course of conduct, or, a campaign of repeated harassment. But that, too, leaves much room for interpretation as to what constitutes a course of conduct. 

"I would say three in a day wouldn't be a course of conduct. Every day for a week? We could probably make an argument about that."

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