Recently, a Fairfax County Circuit Judge ruled that the Virginia Computer Crimes Act, §18.2-152.7:1, does not provide for the recovery of punitive damages.  Employees alleging harassment often include violations of this statute in cases where the alleged harassment occurs through emails or text messages.  Under Virginia law, a party may seek up to $350,000 in punitive damages.

The Virginia Computer Crimes Act prohibits anyone from using a computer or computer network to “communicate obscene, vulgar, profane, lewd, lascivious or indecent language, or make any suggestion or proposal of an obscene nature . . .”   Any alleged sexual harassment involving computers, blackberries, or text messages likely fall within the prohibitions of this statute.

Va. Code §18.2-152.12 allows a plaintiff to seek civil relief for any violation of §18.2-152.7:1 and authorizes the recovery of any “damages sustained and the costs of suit.” The statute expressly states that “‘damages’ shall include lost profits.”

In this particular case, I represented an individual (a former supervisor of the plaintiff) who was sued under the Virginia computer harassment statute.  In addition to seeking to recovery attorneys’ fees, the plaintiff asked the court for punitive damages, claiming that Virginia generally allows for the recovery of punitive damages in the case of intentional torts.  We demurred to the punitive damages claim on the basis that the statute only provided for “damages sustained” and attorneys’ fees and that the Virginia General Assembly would have included language expressly authorizing an award of attorneys’ fees if it intended to allow for the recovery of punitive damages.  There was little case law on this subject, but there was one Virginia Circuit Court, McGladrey & Pullen, L.L.P., et al. v. Shrader, 62 Va. Cir. 401, 411 (Rockingham County 2003), which previously held that punitive damages could not be recovered under §18.2-152.12.

The judge agreed with my argument that punitive damages were not authorized under §18.2-152.12.  The unpublished Circuit Court decision is not binding upon other courts in the Commonwealth.  But the decision, if followed, may reduce the number of claims filed under the Virginia Computer Crimes statute because a plaintiff’s recovery would be limited to the plaintiff’s actual damage and attorneys’ fees rather than hope for a jury to be angry enough to award punitive damages.