Vol. 5, No. 5, Pg. 13. The South Carolina Anti-Stalking Statute: A Study in Bad Drafting.

• Author: By Thomas R. Haggard

South Carolina Lawyer

1994.

Vol. 5, No. 5, Pg. 13.

The South Carolina Anti-Stalking Statute: A Study in Bad Drafting

13The South Carolina Anti-Stalking Statute: A Study in Bad DraftingBy Thomas R. HaggardWomen--and men too, occasionally--who have been subjected to years of psychological, sexual and physical abuse from their spouses and who finally get a divorce often discover that the real nightmare has only begun. Angry, hurt and unwilling to accept the reality and finality of the divorce, the abusive ex-spouse often engages in something colloquially referred to as "stalking."

14Stalking DescribedStalking is a form of anti-social behavior, practiced by persons with a variety of psychological disorders, and encompasses a wide range of different forms of conduct. Stalking may include actually following or trailing the victim; loitering outside the victim's home or place of work; peeping in windows; persistently phoning the victim, often "anonymously" and late at night (usually accompanied by obscene or sexually suggestive comments); showering the victim with expensive gifts and tearful pleas for reconciliation; writing notes and letters that range from the goofy romantic prose of a lovesick teenager to the cruel and demented threats of a sociopath; physical attacks and threats of attack on the victim or on the victim's children, current spouse, parents and friends; threats of suicide; vandalism and destruction of property; killing beloved pets; and ultimately even murder or attempted murder.

The survivors of an abusive marriage are not the only persons victimized by stalkers. Jilted lovers often engage in the same sort of conduct. Indeed, a mere acquaintance or even a total stranger may become obsessively attracted to the victim and, finding no encouragement, may resort to stalking. Celebrities are also common victims.

Whatever the circumstances, the victim of stalking lives under a cloud of fear, anger, uncertainty and frustration.

Traditional Remedies for StalkingSome forms of stalking have been prohibited by criminal law for many years. Other forms of stalking are torts, for which civil damages may be awarded. Equitable relief, in the form of restraining orders and injunctions, may also be available in certain situations.

The general consensus, however, is that these traditional remedies are ineffective in combating stalking. Many law enforcement officers regard stalking as merely a "domestic problem" and believe that their limited resources should be focused elsewhere. Civil litigation is slow, damages are often unrecoverable, and the stalker is rarely deterred from continuing the misconduct. The effectiveness of restraining orders and injunctions is, of course, totally dependent on the willingness and ability of the police and the courts to enforce them. Victims often tire of repeatedly hauling the stalker back into court, only to have the stalking begin again sometime later.

Anti-stalking Statutes as a SolutionThe gravity of the problem and the apparent inadequacy of the legal system to deal with it on a piecemeal basis has led many states to adopt statutes that focus directly and specifically on the phenomenon of stalking itself.

Drafting a statute that is broad enough to be effective yet narrow enough to be constitutional has proved to be difficult. Moreover, stalking is an inherently vague concept and encompasses a wide range of different kinds of conduct, the offensiveness of which often depends on the background and circumstances.

Defining the offense with the degree of precision required in a criminal statute involves drafting skills of the highest order. Indeed, under some circumstances, what has been described as "stalking" may be constitutionally protected. For example, everyone enjoys freedom of movement in public places. Stalking statutes have thus been challenged on the grounds of both vagueness and overbreadth. Beyond that, the broader tradition of freedom from excessive government coercion suggests that certain forms of obnoxious behavior must simply be tolerated as one of the costs of living in a free society. In sum, determining the point at which stalking conduct can and should be prohibited has not been an easy task

The effectiveness of anti-stalking statutes has also been questioned. Although the existence of a separate stalking statute may impress law enforcement officials with both the reality and the gravity of this offense, a lack of vigorous enforcement has still proved to be a stumbling block in several states that have experimented with this solution to the problem.

The South Carolina StatuteIn 1992 South Carolina enacted an anti-stalking statute, contained in S.C. Code Ann. § 16-3-1070 (reprinted in full on page 18). Like many other states, South Carolina modeled its anti-stalking statute after a California statute. Unfortunately, the California statute and its South Carolina counterpart are seriously flawed, in both form and substance. The statute will require extensive interpretation by the courts.

What follows is a summary and critique of the South Carolina statute.

DefinitionsThe statute appropriately begins with a definitions section. Section (A)(1) provides a definition for "harasses" (lines 3-7), presumably referring to the term "harass" (line 17), which is what the statute prohibits in part.

"Harasses" is defined in terms of both "knowing' and "wilful" (line 3), with neither term being further defined. This, however, is only the first of several obscure mental states that must be proved in order for a violation to exist. The statute also requires disproof of one kind of "purpose" (line 5) and proof of another (lines 9-10), proof of two distinct "intents" (lines

15 12-14 and 17-18), proof that the stalker acted "maliciously" (line 16), and also proof that the action was done "wilfully" (line...