When does electronic surveillance of another person constitute a violation of the New Jersey Prevention of Domestic Violence Act?  That was the question recently tackled by the Appellate Division in its unpublished decision, Kebea v. David.  The unmarried couple at issue was living together when, one evening, they got into a heated argument and Kebea told David to leave the apartment.  Kebea obtained a Temporary Restraining Order after David returned to the apartment and removed a few items he had purchased.  She ultimately voluntarily dismissed the TRO against David, who then purchased a software program by which he could learn about the contents of her emails to determine if she would lie to him about an ex-boyfriend so that he could end the relationship if he felt necessary.

kebea unknowingly activated the software on her computer by opening an attachment to an email David sent to her.  He disguised his true intent by sending the email as a poem.  Later that week, David learned of an email from Kebea’s ex-boyfriend to Kebea.  David confronted Kebea about communicating with the ex-boyfriend and she became “startled and alarmed” as a result.  It was not until later that night that she discovered what David had done to her email.  David ultimately confessed to Kebea, who threatened to have him arrested.  David then agreed to try to remove the spy program from her computer, which occurred soon thereafter.

The following day, Kebea obtained a TRO against David based on harassment, criminal trespass and criminal mischief, all stemming from his spying on her computer and emails.  David also obtained a TRO against Kebea based on her own conduct against him.  The trial court entered Final Restraining Orders against each party.  David then filed a notice of appeal.

The Appellate Division ultimately remanded the matter to the trial court to clarify its conclusions and statutory basis for finding a violation of the harassment statute based on David’s spying misconduct.  As part of its analysis, the Appellate Division quoted the harassment statute, N.J.S.A. 2C:33-4 in relevant part:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a.  Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b.  Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c.  Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Examining David’s misconduct, the Appellate Division found difficulty in categorizing it within subsection (a) or (c) of the harassment definition.  As only one incident was at issue, however, the Appellate Division eliminated subsection (c) from consideration.  Kebea relied in part on the New Jersey Supreme Court’s decision in H.E.S. v. J.C.S., 175 N.J. 309 (2003).  There, the Supreme Court concluded that the husband’s stealth electronic surveillance of the wife’s bedroom, deemed to have occurred over several weeks/months, could constitute a violation of the harassment statute and stalking statute.  The Court there added, however, that such a violation could only be found in conjunction with the husband’s repeated conduct of making the wife aware that he was spying on her.  Specifically, he expressed knowledge to her of her telephone calls, appeared where she would be although she did not expect him to know her plans, and she also suspected that he was stealing his papers and checks hidden in her bedroom.

The Appellate Division in Kebea distinguished H.E.S. by noting that David’s conduct was a singular incident, which was quickly revealed to Kebea and ended immediately.  Without rendering a finding, the Appellate Division held that the trial court would have to determine whether David’s act violated subsection (c) or if his informing Kebea of what he had done violated subsection (a) – required to be made “anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm.”