A West Virginia senator is working to update a law written to address bullying behavior among children to make it applicable for similar behavior in adults.
Senate Education Committee Chairwoman Patricia Rucker, R-Jefferson, said she’s been in touch with attorneys in the Senate with the goal of amending the West Virginia Computer Crime and Abuse Act to make it so adults can face criminal charges for harassing and bullying other adults through social media and other digital means.
Rucker’s comments came after a man filed a lawsuit last week claiming that a group of people bullied his wife, leading to her suicide two years ago, and as Kanawha Assistant Prosecuting Attorney Maryclaire Akers said the alleged actions of the women named in the lawsuit are “horrible.”
However, existing state law, legal precedent and other standards of evidence made it nearly impossible to bring charges against the people accused of having a hand in harassing Denise Fernatt, said Akers, who was one of the prosecutors who decided authorities couldn’t press charges in Fernatt’s case.
“As much as I wanted to make a criminal case of it, it did not fit the law, and that’s what I have to follow,” Akers said. “Sometimes that can be heartbreaking for everyone.”
Last week, Roy Fernatt filed a wrongful-death lawsuit in Kanawha Circuit Court against six people and a motorcycle club for what he said were their roles in causing his wife to end her life.
Roy Fernatt said Lesley Taylor, Amanda Holmes, Crystal Foster, Marty Blankenship, two unnamed people, and the Local 40 Fire and Iron Motorcycle Club either caused, or failed to prevent, online harassment and the posting of semi-nude photos of Denise Fernatt throughout Eastern Kanawha County in July 2017.
Roy Fernatt says in the lawsuit that the women, in particular, harassed Denise Fernatt despite knowing she suffered from depression and previously had attempted to end her life.
When Rucker first heard about Denise Fernatt’s case, she said, it was “absolutely horrifying.”
“One thinks adults have enough self-control to not let things get out of hand like this,” Rucker said. “I hate the thought of it, that anyone would take advantage of someone suffering from a mental illness.”
Rucker was one of the sponsors of the anti-cyberbullying law the West Virginia Legislature approved in 2018.
The way the law is written now, it’s illegal to harass or bully minors on the internet, but the law does not address circumstances in which an adult is the victim.
Fernatt’s case led Rucker to pursue legislation that would provide protection for adults and consequences for those who bully and harass adults online.
“It never crossed my mind that we should include adults,” Rucker said of the original law. “I know adults bully, of course. When you’re talking about adults, it’s going to be more controversial and a little more difficult.”
Rucker said there will still be protections under the First Amendment, but she said the U.S. Supreme Court has held that language that’s intended to harass or harm someone isn’t protected by the First Amendment.
“We’re not trying to keep people from expressing their opinions,” Rucker said. “That’s a First Amendment right. You can craft the law in a way that it’s a crime when there’s clear intent, not someone expressing an opinion.”
Records obtained by the Gazette-Mail indicate that the investigating officers from the Glasgow Police Department sought to charge Taylor, Holmes and Foster with a degree of conspiracy that the West Virginia Supreme Court has found unconstitutional.
That particular form of conspiracy exists when a defendant or defendants conspire to inflict injury or death on a person, and then take action to inflict said injuries or death.
In 1975, the state Supreme Court held that the first element of that law, the conspiring to cause injury or death, requires jurors to assume the defendant is guilty of conspiring, which is a violation of a person’s constitutional right of a presumption of innocence.
Akers said she and law enforcement officers also considered charging Taylor, Holmes and Foster under the state’s revenge-pornography laws, which were signed into law by Gov. Jim Justice during the weeks preceding Denise Fernatt’s death.
The Fernatt case didn’t meet the standard for revenge pornography because the law requires that “intimate parts” be depicted in the photos in question, and the photos of Denise Fernatt did not meet that requirement.
Another element of that law requires prosecutors to show that the victim didn’t intend for the photos to be distributed, and without Denise Fernatt as a witness, Akers said, it would be difficult to prove she hadn’t intended for the photos to be distributed.
“It’s a lesson,” Akers said. “It’s a case of real, live, active bullying, and they just wouldn’t let up. It just looked to me like really reprehensible, torturous behavior toward someone, and I couldn’t do anything. And, sure, on a personal level, that does bother me. I wish I could have.”