Stalking and cyberstalking in the United States and rural South Dakota: twenty-four years after the first legislation.

• Author: Knight, Melissa A.

Stalking and cyberstalking are frightening crimes that terrorize victims. These crimes disrupt the victims' lives, in some instances, to such great lengths that victims are forced to rearrange their lives. This comment includes the historical and psychological background of stalking to provide a foundational understanding of this complex crime. Stalking has evolved and continues to be ever-changing since the explosion of technology, which introduced new avenues for stalking through cyberstalking. Stalking statutes should cover all potential stalking means, including those over electronic or cyber connections, in order to protect victims from living in fear. Legislators should design state stalking statutes that provide protection for all types of stalking. This comment will analyze the nation's statutes, South Dakota's statute, and the tribal codes in South Dakota, and it will provide direction on how to improve the stalking statutes in the context of the revisited Model Stalking Code guidelines.

1. INTRODUCTION

   "Stalking is an act of terror that builds a prison of fear around its victims."

   --Former U.S. Attorney General Janet Reno (1)

   1. JESSICA'S STORY

   Jessica's story starts with an undergraduate class. (2) She meets her class partner, Megan, in the summer of 2009. Jessica would describe Megan as an acquaintance. The class includes a trip to Central America, and while abroad, Jessica and Megan room together. After returning to the United States, Jessica starts receiving an excessive number of phone calls from Megan, sometimes twenty to thirty times in a row, or until Jessica would answer the phone. Megan would also continuously text Jessica, up to forty times in a day, in an effort to solicit a single response. The following excerpt is an example of an online conversation, in which Jessica finally responds:

   5:33 PM Megan: knew id see ya

   5:35 PM Jessica: when did you see me?

   5:36 PM Megan: online silly

   5:37 PM Jessica: Do I have a stalker ...

   5:38 PM Megan: oh you know it baby[.]

   Jessica soon decides to cut off all contact with Megan, and subsequently, Megan's behavior quickly escalates. Megan starts calling her cellphone continuously up to eighty-six times in one day, frequently causing Jessica's cellphone battery to lose power. Every time Jessica opens her computer or phone, she meets a barrage of Facebook messages, voice-mails, and text messages. These messages become increasingly aggressive in nature, containing expletives and derogatory names aimed at Jessica. However, because Jessica never responds, Megan starts showing up at her house unexpectedly. On approximately twelve occasions, Jessica comes home to find Megan waiting for her inside her house. Jessica considers these actions extremely alarming and continues to tell Megan to leave her premises; nonetheless, Megan continues to appear. (3)

   In an effort to avoid Megan's stalking, Jessica completely rearranges her work, school, and social life. Jessica eliminates any cyber and electronic avenues in which Megan can contact her, substantially altering her social media, and changing her e-mail address and phone number. She drives a new route to work and school, and parks in a new location every day. She rarely spends time at home, because she doesn't feel safe there.

   Jessica moves to a different city at the peak of this behavior. Currently, Jessica is still cautious about her personal security; she only gives her location and phone number to a small number of people. Recently, Jessica has learned that Megan, again, lives in the same city as she does, which compels Jessica constantly to take personal security measures to ensure she will be safe from Megan.

   Jessica's experience is a real, on-going story. Although Jessica is fearful of Megan and continues to significantly change her life to avoid her, Jessica has never gone to the police. Waiting so long to document the stalking has caused a significant amount of evidence to perish. Jessica is not alone; approximately sixty percent of all stalking victims do not report this crime to the police. (4) Unfortunately, even when victims report stalking, some states' statutes do not provide adequate protection for all stalking victims. (5)

   The ultimate goal of this comment is to change the legal landscape of stalking laws in a way that will provide the most protection to stalking victims and promote early intervention in stalking cases before they escalate. (6) This comment will begin by tracking the history of stalking and the psychological developments in stalking to create a basic framework for understanding this crime. (7) Additionally, this comment will include a discussion of how technology provides tools for stalking and explain why laws must encompass the many forms of cyberstalking. (8) Next, this comment will analyze the current inadequacies of state statutes over various types of stalking and advocate for state legislation that covers a wide range of stalking behavior in order to prevent further perpetuation of this crime. (9) The comment will provide detailed information about South Dakota's stalking statute, the nine tribal codes, and the resources available in rural environments. (10) Finally, this article will provide a thorough analysis of the stalking and cyberstalking statutes for state and tribal codes and will provide recommendations. (11)

2. BACKGROUND

   Stalking has existed for centuries. (12) Hippocrates, known as "the founder of scientific medicine," discussed it in his ancient writings, and French psychiatrist, G.G. de Clerambault, started researching it in the twentieth century after John Lennon's death. (13) It was not until 1989 when actress Rebecca Schaeffer's murder received national attention that laws were passed to protect stalking victims. (14) One of the actress' obsessed fans continuously sent her mail, attempted to contact her multiple times through her publicity agent, and requested her home address from the Department of Motor Vehicles. (15) Once he

   had her address, he visited Schaeffer at her home, and he killed her at her doorstep. (16) In the same year, five separate fatal attacks on women occurred and all the attackers were previous partners who disregarded restraining orders. (17) The media coverage of the murders described the stalking leading up to the deaths in such detail that it shocked the nation into legislative action. (18)

   California was the first state to enact a stalking law in 1990, and the rest of the states soon followed suit. (19) After the criminalization of stalking, Congress realized the need for a Model Code to provide drafting direction for the states, and it requested that the United States Department of Justice ("DOJ") create a Model Code in 1993. (20) The National Institute of Justice and the National Criminal Justice Association worked together with other agencies to construct the model legislative language. (21) Congress passed a federal interstate stalking statute in 1996 that criminalizes stalking over state lines, special maritime jurisdiction, and Indian country. (22)

   The legal community did not anticipate easily attainable technology when creating the first stalking laws. (23) The original Model Stalking Code was revisited in 2007 to ensure it covered the readily available technology that has accelerated the means of stalking. (24) The increase in contact of victims through e-mail has caused some jurisdictions to pass "cyberstalking" laws. (25) These cyberstalking laws provide additional resources to criminalize stalking, however, the Revised Model Code encourages one stalking statute that covers all stalking including cyberstalking. (26)

   The Revised Model Code directly addresses how to draft legislation to cover a wide variety of stalking behaviors to provide protection to the greatest number of victims and to use statutes that portray the reality of stalking. (27) Currently, all fifty states, the U.S. territories, and the District of Columbia have criminal statutes against stalking. (28) However, not every tribal law and order code contains a criminal code against stalking. (29)

   1. WHAT IS STALKING?

      Stalking is not a single offense. (30) Stalking is an incredibly complex crime, because it is the accumulation of stalking behaviors. (31) It is a crime that is unpredictable, persistent, and repetitive. (32) Stalking behaviors vary greatly and can include actions such as: placing unwanted phone calls, writing unsolicited emails or letters, waiting around for the victim, visiting places where the victim frequents without a legitimate reason, following the victim, giving the victim unwanted gifts, and spreading or posting rumors about the victim. (33) These behaviors can instill distress and terror in victims without the offender directly threatening them. (34)

      When most people think of stalking, they often picture what they see in popular culture. (35) Stalking behavior has been portrayed in movies like Fatal Attraction, (36) The Body Guard, (37) Swim Fan, (38) and Safe Haven. (39) These movies depict what certainly can happen to normal Americans and celebrities, but they rarely represent all the varying types of stalking behaviors and relational-types of stalking. (40) Media portrayals can influence what society understands as the offense of stalking and how a "true victim" or "reasonable person" should act or feel, even if it is not an accurate portrayal of stalking victims. (41) The narrow aspects of media portrayals can be problematic for reporting the crime because often behavior that a victim interprets as terrifying and inappropriate can appear innocent to outside observers, and in turn, a victim's fear is frequently dismissed as unreasonable. (42) For example, gifts and phone calls can be positive for people in romantic consensual relationships, but when those gestures occur in an unwanted context it can be hard for an outsider to understand how upsetting and frightening they could be. (43) Victims are often afraid to reach...