Harmful Tweet Results in Charge for Aggravated Assault.

Harmful Tweet Results in Charge for Aggravated Assault.

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John Rayne Rivello was recently charged with aggravated assault with a deadly weapon after sending a tweet that triggered an epileptic seizure in its recipient.[1] While social media attacks are more often addressed from the perspective of cyberbullying, this case presents the interesting questions of whether a social media attack can constitute assault and whether a tweet can be considered a deadly weapon.[2]

On December 15, 2016, Rivello replied to a tweet by Kurt Eichenwald in which Eichenwald criticized Donald Trump.[3] Eichenwald, a journalist and author with more than 300,000 followers on Twitter, is a well-known critic of Trump.[4] Rivello’s reply contained an animated GIF image of a flashing strobe light along with the message: “You deserve a seizure for your posts.”[5] The tweet triggered an epileptic seizure for Eichenwald, causing him to become incapacitated for several days and to have difficulty speaking for several weeks.[6] Evidence shows that Rivello was aware of Eichenwald’s epilepsy before sending the tweet. Rivello’s tweets to other Twitter users contained statements such as “I know he has epilepsy” and “I hope this sends him into a seizure.”[7] One of Rivello’s digital accounts also contained screenshots from an epilepsy website with information on common seizure triggers.[8] Rivello was originally charged with the federal offense of criminal cyberstalking with the intent to kill or cause serious bodily harm.[9] Prosecutors recently added a charge for aggravated assault with a deadly weapon under Texas law.[10]

The added charge is based on evidence that Rivello knew of Eichenwald’s condition and of the likelihood that the tweet could trigger a seizure. The proposed deadly weapon consists of (1) the tweet and attached GIF image, and (2) the electronic device and the hands used to send the tweet.[11] Under Texas law, aggravated assault occurs when a person (1) commits an assault that causes serious bodily injury to another, or (2) uses a deadly weapon during the commission of the offense.[12] An assault can occur when a person intentionally, knowingly, or recklessly causes bodily injury to another; physical contact is not a necessary element of the offense.[13] A deadly weapon includes “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”[14] It is arguable that a social media attack such as Rivello’s falls within the parameters of the Texas aggravated-assault statute.

As technology continues to evolve, so ultimately will the crimes that can be committed using that technology. It can be a challenge to determine whether conduct such as social media attacks can be addressed through existing criminal statutes or whether this conduct can be addressed only through statutes specifically tailored to electronic offenses. Eichenwald’s attorney, Steven Lieberman, analogizes Rivello’s attack to anthrax sent to a recipient via mail in that both attacks are intended to cause a physical response.[15] Unlike most social media attacks, in which abusive messages are intended to cause emotional harm to recipients, Rivello’s attack appears to have sought a specific physical response—Eichenwald’s epileptic seizure. Commentators claim that this distinction makes the case unique and supports the assault charge.[16]

For more information on Texas criminal offenses, see O’Connor’s Texas Criminal Codes Plus. And for more information on federal criminal offenses, see O’Connor’s Federal Criminal Rules & Codes Plus.


[1] Lorelei Laird, Twitter User Charged with Aggravated Assault for Sending Strobe Image that Gave Journalist a Seizure, ABA Journal, Mar. 23, 2017.

[2] See Cecelia Kang, A Tweet to Kurt Eichenwald, a Strobe and a Seizure. Now, an Arrest., N.Y. Times, Mar. 17, 2017.

[3] See id.

[4] See id.

[5] See Laird, Twitter User Charged with Aggravated Assault for Sending Strobe Image that Gave Journalist a Seizure; Ralph Ellis & Madison Park, Assault Charge Filed After Tweet Sent to Journalist with Epilepsy, CNN, Mar. 20, 2017.

[6] Kang, A Tweet to Kurt Eichenwald, a Strobe and a Seizure. Now, an Arrest.

[7] Id.

[8] Id.

[9] See 18 U.S.C. §2261A; Kang, A Tweet to Kurt Eichenwald, a Strobe and a Seizure. Now, an Arrest.

[10] See Tex. Pen. Code §22.02(a); Ellis & Park, Assault Charge Filed After Tweet Sent to Journalist with Epilepsy.

[11] See Ellis & Park, Assault Charge Filed After Tweet Sent to Journalist with Epilepsy.

[12] See Tex. Pen. Code §22.02(a).

[13] See id. §22.01.

[14] Id. §1.07(a)(17)(B).

[15] Kang, A Tweet to Kurt Eichenwald, a Strobe and a Seizure. Now, an Arrest.

[16] See id.

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