Stalking

AuthorRichard Leiter
Pages699-721

Page 699

Stalking is a relatively new crime now on the books in every state. It is generally defined as the intentional, repeated following of a person for the purpose of harassing the person with express or implied threats of violence or death. The definitions vary only slightly from state to state with some states adding things like lying in wait, surveillance, or warnings from police officers. Stalking statutes have become very important legal devices that, with protective orders, can help shield people from the threatening or harassing behavior of others in a variety of circumstances.

Most notably, celebrities have been the victims of stalking activity, when fans become obsessed with the object of their attention. Stalking may also occur when a jilted lover becomes obsessed with his or her ex-lover or spouse, or even when a person becomes obsessed with a complete stranger or co-worker. The crime can turn every day life into a nightmare for the victim of this crime. Consequently states have been quick to enact laws that specifically protect victims from harassing or stalking activity, even if the victim has not yet actually been physically injured by the defendant.

Several states have particular requirements in order for enhanced penalties to apply. The enhanced stalking crimes are usually distinguished by their designations as either first and second degree, or felony and misdemeanor stalking. Most often, enhancements are if the victim is below a certain age, or if the defendant has violated a court order or protective order, or if a deadly weapon was used.

Certain notorious cases have given rise in some states to specific legislation aimed at protecting particular persons. This may be the case in Illinois and New Jersey, each of which have provisions that state that incarcerated persons in penal institutions who transmit threats are not barred from prosecution under their stalking legislation.

Minnesota has a very broad stalker statute that exemplifies the variety of situations in which the law is used. Under this law, a person can be found guilty of stalking by harassment, or by intent to injure person, property or rights of another. A stalker may stalk using telephone calls, letters, telegraphs, delivery of packages or engaging in any conduct which interferes or intrudes on another’s privacy or liberty. These acts are considered “gross misdemeanors.” They are various situations where the crime of stalking in Minnesota is increased to a felony if the harassing activity is based on race, color, religion, sex, sexual orientation, disability or national origin, if stalking is accomplished by falsely impersonating another or using a dangerous weapon, if the victim is under 18 or if stalker is more than 36 months older than the victim. Although Minnesota’s state is unusual in terms of the breadth and detailed listing of activities covered, nearly every element contained in it can be found in some form in the provisions of some other state. A few states have added to the stalker’s penalties liability for the victim’s counseling for emotional trauma caused by the stress of the stalking experience.

In what may be perceived as a very new trend, three states have enacted amendments to their stalking laws that include “cyberstalking.” Two states, Illinois and Florida, actually use the term in their statutes, while Rhode Island simply adds special penalties to their existing laws if the crime is committed using computers “to engage in harassment.” It is expected that in the coming years, “cyberstalking” will increasingly become the subject of new stalking laws.

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Table 43: Stalking
State/Code Section Defined As Punishment/Classification Repeat Offense Arrest or Restraining Order Specifically Authorized by Statute? Constitutionally Protected Activities Exempted?
ALABAMA 13A-6-90, et seq. A person who intentionally and repeatedly follows or harasses another and who makes a credible threat, express or implied, with intent to place person in reasonable fear of death or serious bodily harm; Aggravated stalking if stalking and also violates any court order or injunction The crime of stalking is a Class C felony. Aggravated stalking is a Class B felony Yes
ALASKA 11.41.260 & .270 Knowingly engage in course of conduct that recklessly places another in fear of death or physical injury or in fear of death or physical injury of a family member Stalking in the 1st degree (Class C felony) requires stalking plus violation of an order, probation, parole; victim under 16 years old, use of a deadly weapon, or previous conviction. Stalking in the 2nd degree is a Class A misdemeanor
ARIZONA 13-2923 Intentionally or knowingly engages in course of conduct that is directed toward another and causes fear of personal safety or safety of immediate family members Class 5 felony unless fear of death of that person or that person’s immediate family member then Class 3 felony

Page 701

State/Code Section Defined As Punishment/Classification Repeat Offense Arrest or Restraining Order Specifically Authorized by Statute? Constitutionally Protected Activities Exempted?
ARKANSAS 5-71-229 Stalking in 1st degree: purposely engages in course of conduct that harasses another person and makes a terroristic threat with intent of placing in imminent fear of death or serious bodily injury or fear of death or serious bodily injury of immediate family member and (A) violates protective order or a no contact order or (B) has been convicted in previous 10 years of stalking or (C) is armed with a deadly weapon or represents that they are so armed. 2nd degree stalking: purposely engages in course of conduct that harasses another person and makes a terroristic threat with intent of placing in imminent fear of death or serious bodily injury or fear of death or serious bodily injury of immediate family members Stalking in 1st degree: Class B felony; Stalking in 2nd degree: Class C felony If within 10 years: Stalking in 1st degree: Class B felony Yes Yes

Page 702

State/Code Section Defined As Punishment/Classification Repeat Offense Arrest or Restraining Order Specifically Authorized by Statute? Constitutionally Protected Activities Exempted?
CALIFORNIA Penal 646.9 Willfully, maliciously, and repeatedly follows or harasses another and makes credible threat with intent to place another in reasonable fear for own safety or safety of his/her immediate family 646.9(a) 1 year in county jail and/or $1,000; if probation granted or sentenced suspended, counseling required. However, court, upon showing of good cause, may find that counseling shall not be imposed. 646.9(j); if convicted of spouse or child abuse felony (273.5) or violation of protection order (273.6) or making terroristic threats (422), subject to 1 yr. or $1000 or both or 2, 3, or 5 yrs. in state prison If stalks when there is a temporary restraining order, injunction, court order against the same party, is punishable by imprisonment in the state prison for 2, 3, or 4 yrs. 646.9(b) Every person who, having been convicted of a felony under this section commits second/subsequent violation of section shall be punished by imprisonment in state prison for 2, 3 or 5 yrs. 646.9(c)(2) Restraining order may be valid for up to 10 years. 646.9(k) Constitutionally protected activity is not included within the meaning of “course of conduct” 646.9 (f). Section does not apply to labor picketing. 646.9(i)

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State/Code Section Defined As Punishment/Classification Repeat Offense Arrest or Restraining Order Specifically Authorized by Statute? Constitutionally Protected Activities Exempted?
COLORADO 18-9-111 If directly or indirectly through another person knowingly (1) makes a credible threat to another person and, in connection with such threat, repeatedly follows person or person’s immediate family or someone with whom that person has or has had a continuing relationship or (2) makes credible threat to another person and, in connection with such threat, repeatedly makes any form of communication with that person or person’s immediate family, that would cause a reasonable person to suffer serious emotional distress and does cause that distress (18-9-111(b)) whether or not a conversation ensues or (3) repeatedly follows, approaches, contacts, places under surveillance or makes any form of communication with another person or person’s family First offense is a Class 5 Felony. (18-9-111(5)(a)); if at time of first offense there is a temporary or permanent restraining order, injunction, or other court order: Class 4 Felony If within 7 years of date of prior offense for which person was convicted: Class 4 Felony (18-9-111(5)(a.5)) No

Page 704

State/Code Section Defined As Punishment/Classification Repeat Offense Arrest or Restraining Order Specifically Authorized by Statute? Constitutionally Protected Activities Exempted?
CONNECTICUT 53a-181c to 181e Stalking in 1st degree (53a-181c): Commission of stalking in the 2nd degree and (1) has been previously convicted of this section or 53a-181d or (2) such conduct violates a court order in effect at the time of the offense or (3) person is under 16 Stalking in the 2nd degree (53a-181d): When, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for person and causes person to reasonably fear for physical safety Stalking in the 3rd degree (53a-181e): When recklessly causes another person to reasonably fear for physical safety by wilfully and repeatedly following or lying in wait for such person Stalking 1st degree: Class D felony; Stalking 2nd degree: Class A misdemeanor; Stalking 3rd degree: Class B misdemeanor Stalking 1st degree: Class D felony No

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State/Code Section Defined As Punishment/Classification Repeat Offense Arrest or Restraining Order Specifically Authorized by Statute? Constitutionally Protected Activities Exempted?
DELAWARE Tit. 11 §1312A Any
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