A Maryland resident was recently arrested for sending an image via twitter that allegedly caused an epileptic seizure. John Rayne Rivello is accused of sending a tweet on December 15, 2016, to a Kurt Eichenwald, a Dallas-based Newsweek reporter. Mr. Eichenwald suffers from epilepsy and was publicly critical of then President-Elect Donald Trump. Mr. Rivello, a veteran who served in Iraq and Afghanistan, responded to the critical statements made by Mr. Eichenwald by tweeting an animated GIF (Graphics Interchange Format – a graphic image that moves) containing a strobe image along with a message stating, “You deserve a seizure for your posts.” Upon reviewing the flashing strobe image, Eichenwald reportedly suffered a seizure. As a result, Mr. Rivello was subsequently arrested and charged with federal cyberstalking under 18 USC 2261A.
Specifically, the law condemns the use of electronic communication to place a person in fear of death or serious bodily injury OR to cause or to use electronic communication in an attempt to cause substantial emotional distress.
Under 18 USC 2261(b), a violation of this statute carries up to 10 years imprisonment if serious bodily injury resulted from the act or the act used a dangerous weapon. For purposes of this statute, “serious bodily injury” means bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
This case presents multiple issues of interest. First, while stalking is generally an offense associated with romantic disentanglement or celebrity fixation, federal law uses the stalking statute to proscribe a much broader class of actions. Put simply, stalking under federal law occurs in any electronic communication meant to harass another, regardless of the celebrity status of the target or if the actor ever had a romantic relationship with the target.
Second, use of the statute to condemn images that are designed to exploit a person’s medical vulnerability, such as sending a strobe image to an epileptic who may have a seizure in response, represents an expansion of traditional stalking precepts. Typically, stalking is alleged when acts of property damage or threats of physical violence are involved. Here, stalking is applied in the transmission of an otherwise legal image based upon its specific intent to harm a medically vulnerable victim. This is an expansion based upon a well-settled legal axiom that an offender takes the victim as he or she finds them. Nonetheless, it is a striking expansion.
Finally, it is worth pointing out that Mr. Rivello is a veteran. Certainly, the allegations outlined in the federal complaint are egregious – yet whether or not Mr. Rivello’s status as a veteran affected his own mental state is yet to be seen. There are “veteran’s courts” created around the country to address the mental and emotional challenges that veterans face, if their criminal behavior in fact stems from mental health conditions like PTSD.
Cyberstalking is addressed by the Federal Sentencing Guidelines under USSG 2A6.2. It carries a base offense level of 18 and can be enhanced based upon the severity of injury, use of a dangerous weapon, or a pattern of harassment.
The United States Sentencing Guidelines were promulgated in the 80s to attempt to provide consistency in federal sentences around the country. The guidelines used a series of factors, combined with criminal history attributions, to create mathematical scores that convert to ranges of punishment for judges to use when assessing criminal sentences. While they used to be mandatory, they are now suggestions, which are still followed in most federal cases.
Put in some sort of perspective, a person with no criminal history that elects to plead guilty, would be facing a suggested guideline sentence of 18 to 24 months in prison. If any of the aggravating/enhancing factors described above exist, or if a person goes to trial and is convicted, or if a person has a criminal history, then the punishment recommendation under the guidelines could increase substantially.
John Rivello has also been indicted in the state system for Aggravated Assault Deadly Weapon. The indictment alleges that Rivello caused bodily injury to a disabled person by inducing a seizure with an animated strobe image. The indictment alleges the tweet, the GIF, electronic device, and Rivello’s hands were used as a deadly weapon. To learn more about what a deadly weapon is in the state system, visit our Aggravated Assault page.
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