Official recognition of stalking prevalence lags far behind that indicated by victimization studies. The victimization studies also present a clearer picture of who is being stalked than was previously available from anecdotal reports.

Recent research in the United States and Great Britain shows an incidence of stalking far beyond that previously thought, with as many as 2 million cases annually in the U.S. alone. The National Violence Against Women Survey, based on telephone interviews in 1995 with 8,000 men and 8,000 women, estimated that over 1 million women and 370,000 men had been stalked in the previous year. The study also estimated that over 10 million men and women had been stalked at least once in their lifetime. ^[3] Other studies suggest an even higher number of stalking victims. A study by the Louisiana Office of Public Health found that 15 percent of Louisiana women interviewed had been stalked at least once in their lifetime, nearly twice the rate found in the national survey. ^[4] A study of stalking of college women found that 13.1 percent of the women interviewed perceived that they had been stalked during the school year in which the survey was conducted. ^[5] Most significantly, using computer technology to reduce victim embarrassment at reporting crime, the 1998 British Crime Survey found between 550,000 and 900,000 persons stalked in the preceding year, or 2.9 percent of the British population. ^[6] Application of a lesser, "no victim fear" definition of stalking (in which the stalker nevertheless seeks to instill fear) also used by both the U.S. and British surveys expands the number of estimated stalking cases to 6 million annually.

Official statistics do not match these estimates, suggesting a significant undercounting problem. Most states do not report stalking crimes at all or limit their statistics to stalking as a variant of domestic violence. A few states tally civil protection orders against stalking. Extrapolating from even the highest of these official data sources does not come close to the victimization survey estimates.

Research also shows that stalking victims and perpetrators come from all populations-all races, ages, and socioeconomic classes. One population unusually subject to stalking is battered women separated from their batterers. Indeed, it is homicide and stalking against that group that led to many states' stalking laws.

Prior research, anecdotal reports from practitioners, and court opinions in stalking cases suggest that relationships between stalkers and victims can be categorized as follows:

A rough estimate suggests that stalking involving prior spouses and dating relationships makes up slightly more than two-thirds of all stalking. Acquaintance stalking constitutes 20 percent of stalking; stranger stalking is relatively uncommon, making up less than 5 percent of all stalking cases. The remainder of the cases involve unknown relationships or false allegations of stalking.

Not surprisingly, the impact of stalking on its victims varies according to the type and duration of stalking behavior. Respondents to the National Violence Against Women Survey identified several stalking behaviors:

Two examples of stalking behavior follow.

One-third of the National Violence Against Women Survey respondents said they were stalked for a year, 10 percent for more than five years. Victims who had been intimate partners with their stalkers were far more likely to have been victims of domestic violence than women in the general population. This survey also found evidence of significant impacts on the mental health of victims. One-third of the female victims and one-fifth of the male victims sought psychological counseling. These victims were far more concerned than other victims about their personal safety (42 percent vs. 24 percent) and more likely to carry something with which to defend themselves (45 percent vs. 29 percent). Over a quarter of stalking victims reported time lost from work due to the stalking (average time lost was 11 days); 7 percent said they had never returned to work. Other self-protection measures taken by stalking victims included purchasing a gun (17 percent), changing address (11 percent), moving out of town (11 percent), and varying their driving habits (5 percent).

All 50 states and the District of Columbia have enacted criminal laws directed at stalking, the last being New York in 1999. Federal law also makes interstate stalking a crime; this is especially important for cyberstalking, which necessarily involves an interstate commerce instrument, the Internet. Stalking laws in several states lack "teeth." In only 12 states is stalking always a felony. In 25 states, stalking may be a felony, depending upon circumstances. In the other 13 states, only a repeat stalking offense is a felony. The problem of insufficient penalties is compounded in most states by a failure to coordinate stalking laws with related laws such as harassment, terroristic threats, and invasion of privacy. A further problem is many laws' absence of explicit language specifying that stalking can be committed while the stalker is incarcerated.

Exhibit 1. Criminal Stalking Laws: Felony* or Misdemeanor Penalties

As used in the Model Penal Code and federal law, "felony" here means any offense for which the authorized sentence includes a term of incarceration of at least one year and a day.

Civil Stalking Laws

A significant number of states have no civil law protections to complement state criminal laws that make stalking a crime.are absent in a significant number of states While all states provide civil protection orders against domestic violence, only 29 states now authorize protective orders against stalking. In 24 of those states, violating a protective order is a crime (a felony in 9nine states), and in two2 states it constitutes criminal contempt of court. Repeat stalking in violation of a protective court order may increase the offense level of the criminal offense to aggravated stalking (a felony) or may itself be a felony (as is the case in five states). Other civil law protections provided by only a few states include authorizing civil commitment upon completion of a prison sentence where stalking results from serious mental illness. Another civil stalking law requires statewide registration of stalking orders, often using the same mechanism as that used by the state registry used for of domestic violence orders.

Related Criminal Laws

Other criminal laws supplement the stalking laws in cases that do not fit the statutory definition of stalking but in which victims' privacy and safety is are still threatened. Related crimes include harassment, terroristic threats, and invasion of privacy. Stalking is not the same as a terroristic threat. In stalking, both the threat and victim fear result from a series of acts, and the threat is for a future act. With a terroristic threat, a single act can constitute the threat, the threat must be one of imminent behavior, and the perpetrator, in most states, must have the capacity to act on the threat. Harassment laws include simple harassment (25 states) and telephone harassment or threats (43 states). Letter threat laws have been enacted in 20 states. The federal government has also enacted laws criminalizing interstate threats or harassment using the mail or electronic communications (including telephone).

Criminal Procedure Laws

Only a few states' laws provide criminal procedure provisions that enhance the enforcement of the state for stalking laws to the degree that such laws exist with respect to comparable to those for domestic violence. In only 10 states where stalking can be a misdemeanor does state law authorize warrantless arrest for stalking, similar to that authorized for misdemeanor domestic violence (50 states). In the 11 states where stalking is always a felony, warrantless arrest is, of course, authorized where probable cause exists. State laws also fail to provide for mandatory training on stalking for law enforcement officers except in two states. In contrast, 30 states have laws requiring law enforcement training on domestic violence.

In the few instances where state stalking or related laws have been struck down as unconstitutional, the statute typically did not require specific intent, either to create fear or to perform the acts that resulted in victim fear. Double jeopardy (in the law's application) was another common challenge, most often where there had been a previous finding of contempt of court. Harassment laws that lack any "fighting words" restriction were most vulnerable to constitutional challenge. Telephone harassment and threat laws (directed at invasions of privacy) were not required to have such a limitation because such laws commonly focus on the caller's intent to harass or threaten, rather than on the victim's response to those messages. Harassment and threat laws also apply to situations where a third-party intermediary to the communication is the one who informs the victim of the threat or harassing communication.

In interpreting the scope of stalking laws, courts commonly must (1) deal with defining the type of criminal intent needed to commit stalking and (2) address cyberstalking. Statutory interpretation of threat laws has led some courts to equate victim's reasonable fear with reckless behavior of the offender. Hence, specific intent to create fear is not required under this interpretation, merely a general intent to do acts constituting reckless behavior, such that intent can be legally imputed ("should have known" analysis). By and large, most stalking statutes are written sufficiently broadly (e.g., "pattern of behavior") to cover cyberstalking. In a few instances, however, the language so specifically describes stalking that a court cannot under the generally accepted rules of statutory construction add cyberstalking to the statutory definition.

The primary issue for investigation of stalking cases is understanding how those cases differ from other types of personal crimes. That understanding begins with examining the key factors that underlie stalking cases: stalker-victim relationship, stalker motivation, psychiatric issues, and how those factors combine to threaten the victim. Victim behavior in stalking cases may seem inconsistent to a naive investigator, but understanding why victims act as they do is critical to an investigation.

Typologies of Stalking . Practitioners have worked with academic researchers to develop shorthand typologies for understanding stalking dynamics. The factors that most typologies consider are summarized in the following table.

Case investigation may use these typologies in a number of ways. For example, informal intervention without arrest or evidence collection may be most successful with stalkers characterized as "incompetents," i.e., acquaintances or strangers who do not know how to engage in dating behaviors. ^[12] Incompetents are also least likely to engage in extended stalking, to abuse drugs or alcohol, or to have prior criminal records. They also typically engage in relatively simple stalking (compared to "past intimate" stalkers, who engage in many more types of stalking behavior). Hence, informal intervention may be successful with many incompetent stalkers. By contrast, while predator stalkers have background characteristics similar to incompetents, predators are three times more likely to have a prior criminal record. For those stalkers, formal criminal law intervention is imperative.

Victim Behaviors . Stalking investigators often rely on victims for information about prior relationships, third-party witnesses, detailed chronology, any past or pending legal action, etc. The most common innovation is to ask the victim to keep a log of all stalking incidents and to retain any corroborating evidence. Investigators should bear in mind that because stalking investigations are time-consuming, victims may stop reporting stalker contacts or incidents. That does not mean victims are uninterested in having stalkers arrested; they may simply be fatigued.

Investigators also must take victim behavior into account. Research has found that the stress from being stalked may lead victims to attempt to placate the stalker and thus end the stalking. This "compliance" response can include recanting, asking that the case be dismissed, visiting the stalker in jail, going places with the stalker, and continuing to have sex with the stalker. ^[13] Obviously, compliance behavior can complicate case outcomes by making it harder to prove that the victim is fearful of the stalker.

Investigative Guidelines . Investigation of a stalking complaint should first seek to determine whether the victim is in danger. Doing so requires obtaining the following types of information about the stalker:

Evidence Collection . The next step in the investigation is collection of evidence that stalking has occurred and determining or proving who the stalker is. Investigators can use techniques from other kinds of investigations, but additional steps, such as personal and mechanical or electronic surveillance, are often necessary. Physical evidence specified in search warrants goes beyond the usual targets to include such items as the following:

When it is deemed safe to do so, investigators may interview the stalker, telling him that his behaviors are unacceptable. Among other things, such an interview supports the argument that any later acts are "knowingly done," a critical element of the crime in many states. It also gives the alleged stalker an opportunity to "explain" how his actions may have been misinterpreted, thereby often providing critical admissions. Needless to say, in interviewing stalkers it is important to remember their tendency to "deny, minimize, and rationalize" their stalking behaviors." ^[14]

When a suspect is arrested and the case is referred to the prosecutor, the arresting officer should summarize key elements of the case, including these:

The law enforcement summary is especially important in bail hearings, which can occur at a point when the prosecutor usually has not had time to become familiar with the case.

Bail/Release on Recognizance . Routine bail should never be granted where the threat of violence has been the basis for arrest. In appropriate cases, preventive detention or referral to psychiatric evaluation may be requested. In other cases, intensive pretrial supervision may be needed, including electronic monitoring. The court should also be asked to issue a no-contact order, specific to the facts of the case, forbidding the suspect from engaging in any stalking behaviors. The prosecutor should also seek to ensure that if bail is denied, the victim will be notified by the jail when the stalker is later released. To support objections to release, the prosecutor may use evidence of the accused's history of violating court orders or probation, threat assessment findings, and testimony from a mental health expert or an experienced detective.

Additional Information Collection . Because the victim's story is the heart of the prosecution, it is critical that that story be as complete as possible. Law enforcement investigations may not have gone beyond what was necessary to establish probable cause for arrest. Therefore, prosecutors should re-interview the victim early in the process. Several points should guide the interview:

The initial interview is the first time prosecutors have an opportunity to become directly involved in protecting the victim's safety, which is the paramount issue. Hence, they should consider making a victim advocate or counselor available, or even having such a person present during the interview. The advocate or counselor should discuss safety planning issues and make any necessary referrals to community services. Prosecutors may also, at this point, become involved with the victim's civil court efforts to obtain a stalking protective order.

Case Filing . The prosecutor may decide to charge all stalking acts as one crime or charge multiple series of acts as separate crimes. The former approach shows the full extent of the stalking; the latter increases the defendant's sentencing exposure. The prosecutor must also decide what non-stalking charges to file, including felonies (rape, aggravated assault, residential burglary) and misdemeanors (criminal mischief, trespassing). The charges may also include violation of protection orders or probation conditions.

Proving the Case . Because stalking statutes typically include reasonable victim fear as an element, stalking is one of a very few crimes where the victim's state of mind is an element of proof. Hence, evidence will be required to prove that the victim was indeed fearful and had a reasonable basis for being afraid. Proof of reasonable fear begins with the victim's testimony, which must also be corroborated by other evidence. This can include records of the victim's calls for help, friends and coworkers' testimony of changed behavior, answering machine tapes, date- and time-stamped pictures of the defendant, and evidence obtained through search warrants.

The victim can also detail the time and effort expended in keeping safe, such as the time involved in filing for civil protection orders and the number of trips required. Such detail is intended to lead the jury to infer that the fear described was a major motivator for such extraordinary efforts. In addition, the prosecutor can call on expert witnesses to explain that stalking has occurred and that the victim was fearful. Thus, a psychiatrist, psychologist, or other treatment expert may be used to prove both the reasonableness of the victim's fear and its reality. Behavior seemingly inconsistent with being a victim can be shown to be a common adaptive response to the stress of being stalked for a long period.

Stalker intent may be the hardest fact to prove. Some state laws require proof of specific intent to stalk and terrorize the victim; others merely require a general intent to do acts that result in terror and fear. One common method for proving general intent is to show that the stalker was informed by the victim, a law enforcement agency, or even the court of both the victim's desire to have the stalking behaviors end and the negative impacts those behaviors have had on the victim.

Finally, although most stalkers do not testify at trial, when they do, adroit cross-examination can make the stalker the best witness for the prosecution. Cross-examination should focus on getting the stalker to acknowledge committing the various behaviors that make up the stalking. In some cases, the prosecution may simply let the stalker talk; his "explanations" may make the jury as fearful as the victim. In other cases, stalker "explanations" should be cut off, since they are often clever and manipulative, and if even one juror accepts the explanation, the result may be a hung jury. One reason defense counsel may permit the stalker to testify is to show that his claimed mental illness negates the necessary specific intent requirement of many states' stalking laws. In that case, prosecutors should press the defendant to acknowledge the length of time over which the stalking occurred and the complexities of the behavior involved (e.g., tracking the victim). The prosecution should also point out on cross-examination that the defendant was otherwise fully functional (e.g., he works, drives without accidents, etc.). This dual approach shows that the planning that went into the stalking is inconsistent with any serious mental defect that could undercut specific intent.

In many stalking cases, the threat to the victim is so great that the sentencing recommendation is self-evident: incarceration for as long as possible. Where probation is a viable option because the threat is not as great, the prosecution will want probation conditions that promote victim safety. These may include intensive supervision, electronic monitoring, and no-contact orders, violation of which will result in revocation of probation.

Prosecutor Follow-Up . Whether the stalker has been incarcerated or placed on probation, prosecutors will want to maintain periodic contact with the victim to determine whether any new incidents of stalking have occurred. One of the unique features of stalking is that incarceration does not necessarily end it. Inmates may call or send letters to the victim directly or through third parties, or they may ask released inmates to continue their stalking efforts. Furthermore, sentences eventually end. Prosecutor contacts with the victim during the incarceration period reassure the victim that there is someone to go to if the stalking resumes after the stalker's release.

Probation Specialization . Where possible, intensive probation supervision should be handled by a probation officer experienced in dealing with stalkers because stalkers are generally a "better" class of criminal, with relatively higher intelligence and education than most offenders. The very nature of stalking, moreover, is one of manipulation. Stalkers use their intelligence and often pleasing personalities to direct the probation supervision in ways that undermine its effectiveness.

Victim Safety Management . The most important question in a stalking case is, "How dangerous is the stalker to the victim?" Protecting the victim is a higher priority than a successful prosecution. Hence, both law enforcement and prosecution will try to assess the degree of danger that exists both at the initial complaint and as the case continues.

Once the threat is assessed, the question arises as to how best to protect the victim. In some cases, a simple intervention or warning interview will suffice; in others, a court injunction or protective order may be sought. However, in a few cases, obtaining a civil protection order may actually increase the victim's risk level (by further enraging the stalker). Another tactic used by law enforcement is to provide the victim with a home alarm system that triggers law enforcement action. More advanced systems ensure that the 911 dispatcher has access to descriptive information about any suspect and his vehicles.

Victims may also be advised to change their phone numbers, vary routes to work, or rent a post office box for mail. Referral to community service providers will also be made as needed. In extreme cases, victims are helped to relocate their residence, even out of the jurisdiction. In a number of states, laws now permit victims to protect their personal information on driver's licenses and even social security numbers. A number of law enforcement and prosecutor agencies provide victims with an informational booklet that details measures they should take to protect themselves.

Victim Well-Being: Other Services . For several reasons, stalking victims also require assistance that is not of a criminal justice nature. First, being stalked is stressful. Victims often need counseling and may even need medical and psychiatric or psychological treatment to deal with past or ongoing stress. Second, the criminal justice process itself is often stressful, especially when the victim must see the stalker in court ("meeting" is precisely the goal of many stalkers) and may have to hear repeated threats or references to past threats. Third, safety precautions may have other unintended consequences that need to be mitigated. For example, informing employers of the stalking may put the victim's job at risk.