A Focal Concerns Perspective on Prosecutorial Decision Making in Cases of Intimate Partner Stalking

• DOI: 10.1177/0093854820915752
• Author: Patrick Q. Brady,Bradford W. Reyns
• Published date: 01 June 2020
• Date: 01 June 2020
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2020, Vol. 47, No. 6, June 2020, 733 –748.

DOI: https://doi.org/10.1177/0093854820915752

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© 2020 International Association for Correctional and Forensic Psychology

733

A FOCAL CONCERNS PERSPECTIVE ON

PROSECUTORIAL DECISION MAKING IN

CASES OF INTIMATE PARTNER STALKING

PATRICK Q. BRADY

University of West Georgia

BRADFORD W. REYNS

Weber State University

Despite millions of stalking victims contacting the police each year, suspects are rarely arrested or prosecuted. While pros-

ecutors are ultimately the gatekeepers to holding defendants accountable, few studies have examined the factors influencing

charging decisions in stalking cases. Using the focal concerns perspective, this study analyzed 5 years of domestic violence

and stalking case outcomes in Rhode Island. Findings indicated that prosecutors were more likely to prosecute stalking cases

when defendants evoked fear in the victim and pursued victims in public. The decision to prosecute stalking versus other

domestic violence–related charges was motivated by the location of the offense and the defendant’s history of physical abuse

toward the victim. Neither extralegal factors nor characteristics of blameworthiness or suspect culpability influenced prosecu-

torial decision making. Findings underscore the legal complexities of stalking and suggest the need for additional insight on

prosecutorial perspectives and strategies to articulate the fear standard in stalking cases.

Keywords: stalking; intimate partner violence; focal concerns; prosecutorial decision making; case processing

INTRODUCTION

Stalking is a serious form of coercive control that often co-occurs with intimate partner

violence (IPV) and sexual victimization (Logan et al., 2007; Smith et al., 2017; Spencer &

Stith, 2018; Tjaden & Thoennes, 2000). Stalking occurs when an individual repeatedly

engages in a course of conduct that results in the victim fearing for his or her safety or the

safety of others (Fisher et al., 2002; Fox et al., 2011; L. P. Sheridan et al., 2003). Although

stalking has been the subject of a substantial amount of research attention inside and outside

of the United States (e.g., Björklund et al., 2010; Reyns et al., 2016; L. Sheridan et al.,

AUTHORS’ NOTE: This manuscript was supported by Award No. 2016-MU-CX-K011, awarded by the

National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and

conclusions or recommendations expressed in this presentation are those of the authors and do not necessarily

reflect those of the Department of Justice. We are thankful to Jennifer Landhuis with the Stalking, Prevention,

Awareness, and Resource Center (https://www.stalkingawareness.org/), Jane Anderson with AEquitas (https://

aequitasresource.org), and Eryn O’Neal for their incredible insight and feedback on this topic. Correspondence

concerning this article should be addressed to Patrick Q. Brady, Department of Criminology, University of West

Georgia, 1601 Maple Street, Carrollton, GA 30118; e-mail: pbrady@westga.edu.

915752CJBXXX10.1177/0093854820915752Criminal Justice and BehaviorBrady, Reyns / Decision to Prosecute Stalking

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734 CRIMINAL JUSTICE AND BEHAVIOR

2001), there still remain a number of research questions that have yet to be addressed. In

particular, given that stalking is a risk factor for severe IPV (Brady & Hayes, 2018) and

femicide (McFarlane et al., 2002; Spencer & Stith, 2018), examining how the criminal jus-

tice system responds to stalking complaints is the next logical step to enhancing homicide

prevention initiatives. Research on this topic, however, has not only yielded more questions

than answers, but alarming concerns for suspect accountability.

Descriptive studies have revealed that unless officers receive specific training on stalk-

ing, they are less likely to understand the legal elements of the crime (Lynch & Logan,

2015), identify stalking as a form of IPV (Brady & Nobles, 2017; Scott et al., 2013; Tjaden

& Thoennes, 2000), and arrest suspects absent of physical injuries (Brady & Nobles, 2017;

Ngo, 2019). Even after an arrest, stalking arrest charges are most commonly dismissed or

reduced by prosecutors to a lower level offense (e.g., trespassing; Jordan et al., 2003). This

finding aligns with national and statewide studies in the United States that have found that

only 12% to 24.2% of stalkers are prosecuted (Baum et al., 2009; Klein et al., 2009; Tjaden

& Thoennes, 1998), with stalking convictions ranging from 12% to 41.7% (Baum et al.,

2009; Jordan et al., 2003; Klein et al., 2009). Considering that nearly half of stalking vic-

tims contact the police each year (Baum et al., 2009), additional evidence is needed to

understand case attrition in stalking cases.

One likely reason for case attrition is that stalking is a unique crime that poses many

challenges to law enforcement and prosecutors. This is largely due to the legal elements of

U.S. statutes making stalking distinct from most crimes that pass through the criminal jus-

tice system. First, stalking laws require a course of conduct, which necessitates evidence of

repeated acts directed at a specific person(s) (National Center for Victims of Crime, 2007).

Second, stalking criminalizes noncriminal behaviors. This can make it difficult to hold

stalkers accountable considering that unwanted pursuit behaviors may not, in and of them-

selves, be illegal (e.g., sending flowers, waiting at a bus stop outside of a victim’s apart-

ment). Finally, U.S. stalking laws often require victims to feel fear and/or emotional distress

(Leiter, 2007). The fear element may impact charging decisions given that previous studies

have found that fear is subjective and varies according victim demographics (Dietz &

Martin, 2007; Owens, 2016; Reyns & Englebrecht, 2013), victims’ acknowledgment of

stalking (Englebrecht & Reyns, 2011), their relationship to the suspect (Wilcox et al., 2007),

as well as the type, duration, and frequency of the unwanted pursuit behaviors (Dietz &

Martin, 2007; Owens, 2016; Reyns & Englebrecht, 2013).

Considering that stalking cases pose unique challenges to prosecutors, less is known

about the circumstances in which prosecutors do pursue stalking charges. It is important to

understand the decisions made by prosecutors, in particular, because of their central role in

advancing cases through the criminal justice system via the charging decision. Previous

work has expanded researchers’ understanding of factors impacting prosecutorial decision

making for a number of criminal offenses (Beichner & Spohn, 2005; Hartley et al., 2007;

O’Neal et al., 2015; Ulmer et al., 2007). To date, however, no empirical research has exam-

ined charging decisions in stalking cases.

This study expands the literature by identifying the legal and extralegal factors prosecu-

tors consider when pursuing stalking charges in cases of domestic violence (DV). We ana-

lyzed 5 years of arrest and case outcome data from Rhode Island to examine two common

decision points: the decision to accept a stalking case for prosecution and the decision to

prosecute a defendant for stalking versus other DV-related offenses. To do so, the focal