Family Law Corner: Hacker Husband

The recent case of the Michigan man who may spend time in prison for accessing his wife’s email account drew attention to a domestic event that probably takes place every day.  Leon Walker (a computer technician) was Clara Walker's third husband, and he suspected Clara of having an affair with her second husband.  He logged onto her email account and confirmed the affair with her second husband, who had once been arrested for attacking Clara in front of her small son (her son with her first husband).  Claiming concern for the boy, Leon handed over the emails to husband number one, who then quickly filed an emergency motion requesting physical custody.  Shortly thereafter, Leon was arrested and charged under a criminal hacking statute. 

Prosecutor Jessica Cooper commented in the Detroit Free Press, "The guy is a hacker.  [The computer] was password protected, he had wonderful skills, and was highly trained. Then he downloaded them and used them in a very contentious way."
California also has a criminal hacking statute, California Penal Code Section 502, which includes penalties of up to sixteen months in prison and monetary fines.  However, it does not appear that California has ever taken the position that a domestic dispute, such as Leon Walker's, would fall under the criminal statute.  California has, on the other hand, recently addressed email hacking between former spouses under the California Domestic Violence Prevention Act (DVPA).
 
Ex-husband in In Re Marriage of Nadkarni, 173 Cal.App.4th 1483 (2009) accessed ex-wife's email account and used the emails in a custody proceeding to show that ex-wife had left their teenage children home alone while she traveled to India.  Ex-wife then obtained a temporary restraining order against ex-husband under the DVPA that ordered him to "not engage in any behavior that has been or could be enjoined such as blackmail, slander, stalking, threatening, harassing, and disturbing the peace of [ex-wife] or third parties through the use of personal information accessed through [ex-wife's] email."
At the hearing on ex-wife’s request for a permanent restraining order, the trial court dismissed ex-wife's application on the ground that ex-husband's conduct was insufficient to constitute abuse within the meaning of the DVPA.   On appeal, the Sixth District Court reversed and remanded, holding that the plain meaning of "disturbing the peace" in Family Code Section 6320 may include, ex-husband "destroying the mental or emotional calm" of ex-wife by accessing, reading and publicly disclosing her confidential emails.   The California DVPA also applies to spouses who are still married and living together. 

It will be interesting to see whether cases like Leon Walker’s begin appearing in California family courts.