Purifoy v. Mafa, (Tenn.Ct.App., filed September 28, 2017)
After a lengthy hearing, the trial court granted an order of protection to Ms. Purifoy based upon its finding that Mr. Mafa was stalking and harassing her. The trial court denied
Mr. Mafa’s counter-petition for an order of protection. Mr. Mafa raised ten issues on appeal. Among those, Mr. Mafa argued that the Facebook videos he posted on his own
Facebook page do not constitute “contact” within the meaning of the statutory definition of stalking. He argued that his videos or postings cannot constitute contact because they
were never posted on Ms. Purifoy’s Facebook page. Mrr. Mafa also argued this his Facebook postings were merely “ranting” and that they are constitutionally protected free speech. The Court of Appeal disagreed with Mr. Mafa and wrote as follows:
Pursuant to the relevant statutes, a “‘[s]talking victim’ means any person, regardless of the relationship with the perpetrator, who has been subjected to, threatened with, or placed in fear of the offense of stalking, as defined in § 39-17-315[.]” Tenn. Code Ann. § 36-3-601(11). In turn, the offense of “stalking” is defined as “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” Tenn. Code Ann. § 39-17-315(a)(4).16
At the time of the acts and proceedings below, the statute defined a “course of conduct” as “a pattern of conduct composed of a series of two (2) or more separate noncontinuous acts evidencing a continuity of purpose.” Tenn. Code Ann. § 39-17-315(a)(1) (2014).17 “‘Harassment’ means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable person to suffer emotional distress, and that actually causes the victim to suffer emotional distress.” Tenn. Code Ann. § 39-17-315(a)(3) (emphasis added). At the time of the acts and proceedings below, the statute further defined “unconsented contact” as: any contact with another person that is initiated or continued without that person’s consent, or in disregard of that person’s expressed desire that the contact be avoided or discontinued. Unconsented contact includes, but is not limited to, any of the following:
(A) Following or appearing within the sight of that person;
(B) Approaching or confronting that person in a public place or on private
property;
(C) Appearing at that person’s workplace or residence;
(D) Entering onto or remaining on property owned, leased, or occupied by
that person;
(E) Contacting that person by telephone;
(F) Sending mail or electronic communications to that person;
18 or
(G) Placing an object on, or delivering an object to, property owned, leased,
or occupied by that person[.] Tenn. Code Ann. § 39-17-315(a)(3).We conclude that Dr. Mafa’s Facebook “rants” to Ms. Purifoy fall within the definition of “unconsented contact,” in the form of “electronic communications” to her that were initiated without her consent and continued in disregard of her expressed desire that the contact be discontinued. In his video posts, Dr. Mafa spoke directly to Ms. Purifoy, stating things like, For you as a black woman, you should know better. You should have your mind checked out. You should know that you don’t do that. . . . [Y]ou are a shame. Shayla Nicole, you are a shame. You should be ashamed of yourself. Anyway, I had to rant to you a little bit . . . .. . . . You should be ashamed of yourself, Shayla Nicole. I didn’t know your name then. I know it now.
In another instance, he spoke about seeing Ms. Purifoy at a bar and said “I saw you.” In another, he mentioned, “you’ll be held responsible.” Dr. Mafa’s posts were publicly available, and Ms. Purifoy viewed them, as Dr. Mafa intended. It does not matter that Dr. Mafa posted the messages publicly to his own page rather than on Ms. Purifoy’s page. The fact remains that it was “unconsented contact” within the meaning of the statute. Although the statutory definition of “stalking” varies from state to state, electronic communication like that occurring in this case has been held to qualify as contact or communication. See, e.g., Commonwealth v. C.M.D., 91 Mass. App. Ct. 1111, 2017 WL 958462, at *1 (Mar. 13, 2017) (concluding that “postings on the defendant’s own Facebook page” were “electronic communication” within the meaning of the stalking statute); Shaw v. Young, 199 So. 3d 1180, 1189 (La. Ct. App. 2016) (finding that postings to the defendant’s own public Facebook page were “electronic communications” within the meaning of the cyberstalking statute and also observing that there was no reason for such posts “other than to communicate them to [the victim] or to other Facebook users, who then might convey the messages to [the victim]”); State v. Craig, 112 A.3d 559, 566 (N.H. 2015) (affirming conviction for stalking based on a series of messages posted on the defendant’s own Facebook profile that were directed to the victim and specifically rejecting the defendant’s argument that “his Facebook posts cannot constitute contact because he merely posted publicly online without sending the posts directly to the victim”); see also Ashley N. B. Beagle, Modern Stalking Laws: A Survey of State AntiStalking Statutes Considering Modern Mediums and Constitutional Challenges, 14 Chap. L. Rev. 457, 458 (2011) (observing that “technology continues to increase and expand the ways in which stalkers can stalk and harass their victims”).
Here, Dr. Mafa’s repeated video and written postings to and about Ms. Purifoy were part of his course of conduct of stalking. His repeated posts were clearly meant to harass, degrade, intimidate, threaten, and humiliate Ms. Purifoy, and they had the desired effect of causing her fear and emotional distress. This was not protected free speech that was exempt from the stalking statute’s definition of harassment.