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Neal Miller and Hugh Nugent
Institute for Law and
Justice
Publication Date: January 2002
Correspondence can be sent to:
Institute for Law and Justice
1018 Duke Street
Alexandria, Virginia 22314
Phone: 703-684-5300, Fax: 703-739-5533
Prepared under a grant from the National Institute of Justice to the Institute for Law and Justice (ILJ), grant no. 97-WT-VX-0007 Any opinions expressed herein are solely those of the author and do not necessarily represent the views of the U.S. Department of Justice or ILJ.
In 1990, California enacted the first criminal law specifically directed at stalking. Since that time there has been considerable research on the dynamics of stalking, including, for example, who stalks and why stalkers stalk. However, little research has been conducted on the stalking laws themselves and how they have been implemented. The present research was conducted to fill that knowledge gap. The research examined state and federal anti-stalking laws, court decisions, social science and medical research on stalking and stalkers, and anti-stalking actions by law enforcement, prosecutor, and victim service agencies around the country. Although the researchers initially contemplated evaluating the effectiveness of the new stalking laws, that was deemed not feasible. Instead, developing a "best practices" catalogue became the study's second focus.
This report presents the findings of the multi-layered research. Key findings include these:
This report first presents findings from a review of the prior research on stalking and some original information gathering; this combination resulted in a reassessment of the significance of stalking as a policy issue for criminal justice. The review also examines stalking's definitions, prevalence, and impact on victims. Next comes an examination of criminal law, namely, the enactment of stalking laws and their reception in the courts. The report then discusses how stalking laws have been implemented, based on (1) surveys of law enforcement, prosecutor, and victim service agencies, and (2) field work with agencies having specialized anti-stalking units. The empirical findings from the field work together with a review of training and other materials used by these agencies combine to produce a "best practices" synthesis. The report concludes with recommendations for legislators, agency administrators, funders, and researchers.
Below is the full report, an Executive Summary is also available.
Stalking is a crime of terror. It is one part threat and one part waiting for the threat to be carried out. The victim of stalking has no way to resolve the threat and terror she feels. (Most reported cases involve male stalkers and female victims.) Stalking is also far more common than most people believe, including criminal justice professionals. Together, these two points underscore the reality that stalking is an important policy issue for the criminal justice system, for agencies providing services to victims of crime, and for advocates concerned about violence against women. Stalking has, of course, gathered considerable attention from the mass media. However, notwithstanding a sizable literature about stalking as a legal construct and as a medical issue, systematic information about this crime and what is being done about it is largely missing. Most significantly, policy analysis of what needs to be done to improve anti-stalking investigation, prosecution, and provision of services to stalking victims is totally absent. To fill those gaps in knowledge, this study of the status of stalking laws and their implementation in the United States was conducted. 1 The study:
The premise for the research was that stalking is a serious crime against persons 2 and is widely prevalent. 3 While there has been significant federal support for state and local agencies to adopt anti-stalking laws4 and implement anti-stalking initiatives,5 no comprehensive review of the status of such efforts had been done. Thus, there was no way of knowing what additional measures (such as federal assistance to state and local enforcement agencies, or new initiatives by state and local agencies themselves) might be needed to enhance local anti-stalking efforts. This study of stalking was designed to clarify the status of stalking laws and their implementation needs. Although the original study design included an assessment of the effectiveness of the new laws, that assessment proved to be impractical.6 Instead, a review of "best practices" was substituted as a prelude to later process and impact evaluations. The major research tasks included the following:
In general, the examination of the status of stalking laws and their implementation in the 50 states found the following:
A key qualitative finding of the study was how arduous these cases can be to investigate and prosecute. The relative newness of the laws (first enacted in California in 1990) is only part of the explanation. Stalking cases are unique in many ways, and their investigation and prosecution often require new techniques. Stalking investigators and prosecutors must approach these cases from a problem-solving perspective. Each case can present idiosyncratic challenges requiring problem-solving approaches for identifying who the stalker is, gathering evidence to prove both the identity of the stalker and that a stalking has occurred, and proving those facts to a jury. Methods used with other types of crimes are often inadequate for stalking cases, and new approaches must be developed.
This report explains how the conclusions above were reached and expands on them. Part I of the report introduces the legal definition of stalking. Part II reviews prior research on the prevalence of stalking and its impact on victims. Part III details research findings on the degree to which stalking laws have been enacted and implemented. Those findings are based on a 50-state legislative analysis and a review of related court decisions; a report on two national surveys of law enforcement and prosecutor agencies asking about anti-stalking initiatives; and a review of federal funding of anti-stalking initiatives. Part IV provides a qualitative assessment of how law enforcement and prosecutor agencies are implementing anti-stalking programs. This assessment is based on both field observations and a review of prior research on stalking that has been used by practitioners to shape their activities, including stalker typology and threat assessment studies. In essence, it provides a research-distilled problem-solving-based "how-to" for managers and practitioners, as well as suggestions for trainers. Part V discusses the policy implications of the research findings for legislators, agency administrators, and other supervisory practitioners responsible for day-to-day investigations and prosecutions.
Stalking is a crime. It is defined by statutes and by court decisions interpreting those statutes. 7 Nonetheless, because the term "stalking" has other meanings that predate the creation of the crime of stalking, it is necessary to distinguish between stalking as a crime and stalking as other non-criminal activity (with which stalking crime is often confused). Failures to distinguish between the two can have significant consequences for how stalking laws are enforced.
When asked about "stalking,"
None of these four statements accurately describes the crime of stalking. They do, however, illustrate common beliefs about what constitutes stalking. As the statements suggest, stalking in common parlance (and even among criminal justice professionals) is predatory behavior.8 For example, the lion stalks its prey or the hunter stalks the lion. However, stalking in criminal law requires more than simple hunting or trailing of another person as one might stalk an animal.9 One key difference between "stalking" as used in hunting and as used in criminal law is the victim's awareness of the stalking behavior. From this perspective, behavioral scientists and mental health professionals have focused on stalking as behavior that inflicts unwanted intrusions and communications on another. 10 The concern of mental health professionals with stalking is that stalking often reflects serious psychological problems that require treatment. 11 However, a treatment perspective would not necessarily require victim awareness to be part of a stalking diagnosis, since the need for treatment comes from the behavior of the stalker alone. Thus, Meloy and Gothard use the phrase "obsessional following" as interchangeable with stalking, with the implication that although such following suggests a need for treatment, that need exists regardless of any overt intrusions on the victim. 12 Of course, it may be that the degree of need for treatment is generally correlated with the degree of victim awareness of the stalking, or that the mental health system is unlikely to know about the stalking behavior without a victim complaint. (Stalkers who are obsessed with another person are not likely to refer themselves to treatment.) But victim awareness does not necessarily elevate obsessional following to the level of a criminal act. Simple unwanted intrusions upon another may or may not constitute harassment, depending on the applicable state law, and in most states such intrusions do not constitute criminal stalking. It is also true that not all stalking can be considered obsessional behavior.
The crime of stalking involves much more than predatory behavior, although that is typically one element of criminal stalking. The motivations for the stalking, including obsessional causes, are not at all relevant to defining the crime of stalking. Instead, most state penal codes define stalking as involving the following three elements:
This lengthy definition may be simplified to the three key prosecutorial elements that present the greatest difficulties of proof:
State stalking laws in all jurisdictions require the prosecution to show that the stalking behavior was intentional. That is, the stalker meant to perform the acts that constituted the stalking.14 In most states, the prosecution must also prove that the stalker intended to threaten the victim and to cause fear. 15 Court decisions in several states have reduced the prosecutorial burden of proving intent to threaten and cause fear by holding that the defendant's actions were such that he "knew or should have known" that his actions would provoke perceptions of a threat and fear. 16
A threat under most states' stalking laws 17 may be either explicit or implicit. 18 In either instance, stalking threats do not require any immediacy; the execution of the threats can lie in the indefinite future. Implicit threats differ from explicit threats in not conveying a threat by their very words. Instead, the threat is inferred by the victim based on what the stalker says and does, taking into account any special knowledge that the victim has of the stalker, such as a prior history of violence. Threats must also meet a "reasonable person" standard to exclude oversensitive reactions from the law's reach.
Stalker threat and victim fear in response to that threat are easy to separate where the stalking threat is explicit. 19 But most stalking cases do not involve explicit threats. In cases where the threat is implicit in the stalker's actions, threat and fear can be difficult to separate. Proof of one often also means proving the other, per the reasonable person standard. In these cases, it is the context in which the harassing or stalking behavior occurs that provides the link between that behavior and victim fear. For example, sending flowers as a gift may be stalking behavior, depending on what actions have preceded the gift. In some cases, the threat against the victim may be obvious even where only implicit (as where the stalker places a nylon sex doll with a rope tied around its neck in the victim's bed). In other cases, more background information is needed, e.g., where the stalker uses the phrase "love forever" and in the same letter refers to his prowess as a rifle sharpshooter. The requirement in most jurisdictions for actual fear means that unless the victim is aware of being followed, simple predatory behavior does not constitute the crime of stalking.
There is no typical stalking case. Suspect behaviors vary widely. The only constant is that multiple acts form a pattern of behaviors that together constitute stalking. Some examples of stalking cases follow.20
A woman was dating a man who was a fellow student at a university in San Diego. After three months together, she felt he was trying to isolate her from her friends and family, and he seemed controlling and demanding (common in domestic violence cases). Soon after she told him their relationship was over, she found her car tires slashed and a brick thrown through the windshield. The vandalism was followed by threatening phone calls and messages on her pager citing the California penal code section for murder-187. The woman went into hiding from him. A couple of months later, she was asleep in bed with her daughter when she was awakened by a loud popping noise-the man striking her in the mouth with a ball peen hammer. He fled the scene but was arrested days later. While awaiting trial, he asked a cellmate to hire a "hit man" to kill the woman. Upon being told of this by an informant, the prosecutor's investigators staged a "murder." A makeup artist was hired to prepare the woman to appear as if she had been shot in the head. Polaroid photos were then taken of her, apparently assassinated. An undercover investigator went to the jail and visited the stalker, who after seeing the photo, acknowledged that the murder was what he wanted. The prosecutors filed charges in San Diego, and the man was convicted of stalking, burglary, assault with a deadly weapon, torture, and soliciting for murder. He received a prison sentence of 13 years to life.
The victim, an 18-year-old female, sang in her church choir. She was seen performing with the choir by a total stranger, who began to stalk her. Among other things, he sent pornographic pictures and videos to her home. With the pornography, he would add a message saying, "This is you and this is me." He also called her at home, making threats and playing the soundtrack from a pornographic movie. When he was arrested, he explained his actions as motivated by his being a "student of human nature." He said he simply wanted to see how she would react to his presents, and he would sit in the back of the church to see how she was holding up to his actions. The defendant was convicted of stalking and sentenced to 16 months in prison.
A man became fixated on a woman who refused to engage in a romantic relationship with him. After several years, the man began to impersonate the woman on the Internet. He placed several sexually graphic want ads on Internet bulletin boards and began to correspond with men, while still pretending to be the woman. He then solicited the men to rape the woman, claiming to enjoy rough sex and rape fantasies. As part of the solicitation, he provided the men with the woman's address, phone number, and other personal information. When the woman learned of these events from one of the men so solicited, she went to local police and was told there was nothing they could do. Eventually, the Federal Bureau of Investigation (FBI) referred her to the Los Angeles District Attorney's Stalking and Threat Assessment Team (STAT). After extensive investigation by STAT that included issuance of search warrants to Internet service providers to track the source of the Web postings, a felony stalking complaint was issued. The man eventually pled guilty and received a six-year sentence to state prison.
For years a woman had been the subject of domestic violence. When the violence escalated, she called 911; the police responded but did not arrest the batterer. When the batterer began to threaten her children, the victim obtained an order of protection that required the batterer to leave the household. The issuance of the order seemed to incense the batterer, who began a campaign of harassment against the victim, including following her for four weeks. At trial, he was quoted as saying to her by telephone, "I am across the street watching you, and I'm going to kill you." No calls to the police were ever made. One day, while she was driving home from work, a car tried to run her off the road in the mountains. She stopped and began talking to witnesses of the incident. The batterer approached her in disguise and attacked and killed her. A copy of the protection order was found in his car. The batterer was convicted of first degree murder and sentenced by the jury to death, partly on the basis that he had been lying in wait, a statutory aggravating factor. 21
The term "stalking" is used in a variety of ways, many of which have little to do with the criminal law's use of the term. The resultant potential for confusion is rarely recognized. Even professionals in the field of stalking do not always distinguish between the term "stalking" in common usage and as a criminal law term. For example, the threat assessment literature often uses the phrase "celebrity stalking," while at the same time noting that such "stalkers" do not usually provide the victim with advance notice of a planned attack.22
In the criminal law context, however, the term "stalking" refers to
Not every state's laws fit this tri-part definition. Further, states vary in their specification of what each crime element requires. Nonetheless, there is general agreement nationally that this definition of stalking is appropriate and useful as a research construct.23
The significance of stalking 24 lies in how often it occurs and in its deep impact on victims. Given its recent addition to the criminal codes, it is not surprising that research has just begun to address these issues. As the review below suggests, the number of such studies is growing.
Anecdotal and convenience or limited sample estimates of the incidence of stalking 25 have now been replaced by more systematic surveys directed at stalking frequencies in the population. The most important of these is the National Violence Against Women Survey, which conducted telephone interviews with a randomly selected sample of 8,000 women and 8,000 men. The study estimated that over 1 million women and 370,000 men were stalked in the year prior to the interviews. Put another way, about 1 percent of all women and 0.4 percent of all men had been stalked in the 12-month period under examination. Although no estimates of statistical sampling error were provided by the study itself, application of statistical tests for "rare" events to the survey findings results in an estimate that 750,000 to 1.25 million women and 200,000 to 600,000 men are stalked annually. The study estimated that over 10 million men and women had been stalked at least once in their lifetime. Using a broad definition of stalking that includes cases where victim fear was not as great, estimates of the number of persons stalked annually increase to 6 million women and 1.4 million men; lifetime stalking incidence rises to 12.1 million women and 3.7 million men. 26
The National Survey estimates, although subject to caveats based on response rate and questionnaire issues,27 are probably low. A more recent study using a similar methodology was conducted by the Louisiana Office of Public Health. The study found that 15 percent of Louisiana women interviewed reported being stalked at least once in their lifetime, or nearly twice the numbers reported by the National Survey, using a similarly high "fear" criterion. 28Even that estimate may be low since women aged 18-24 were underrepresented in the sample surveyed, and another study of stalking of college women suggests that may bias results to minimize the actual incidence of stalking. 29 That third survey used telephone interviewing to gather data on six campuses. The survey found that 13.1 percent of the female college students perceived that they had been stalked during the school year in which the survey was conducted. 30 Lifetime estimates of stalking exposure were not derived, perhaps in part because of the relatively young age of the respondents. Another estimate of stalking prevalence comes from the British Crime Survey conducted in 1998 using face-to-face interviews combined with a computer-assisted, self-administered procedure (the interviewer hands a laptop computer to the interviewee, who then fills out the form). The survey found that between 550,000 and 900,000 persons were stalked in the year preceding the survey. This amounted to 2.9 percent of the British population, a figure more than double that of the National Violence Against Women Survey in the United States. Limiting the definition of stalking to behavior inducing fear of violence reduces the proportion of stalking victims to 1.9 percent of the British population,31 still nearly 50 percent greater than the National Survey estimate for the United States. While it is possible that the differing estimates are due to differing populations, the more likely explanation is that the differing methodologies are the cause. The use of laptops was introduced by the British Crime Survey to reduce interviewee embarrassment at having to discuss highly personal questions, especially sexual assault and domestic violence. Moreover, the computer program requires that the interviewee complete all questions before the program can be terminated. Both factors lead to increased reporting. The British Crime Survey, the Louisiana health study, and the campus stalking survey all indicate that the National Violence Against Women Survey may understate stalking's incidence by as much as a factor of two. However surprising that survey's estimate (over 1 million stalking cases annually) may have been, the true figure is probably over 2 million felony-level stalking cases annually. The higher figure takes into account both the wide range in the survey's estimates (1.4 to 7.4 million victims, depending on the definition of stalking used) and the findings of the three other studies. It does not, however, include "lesser" stalking cases where victim fear does not result, nor does it include stalking against juveniles.32
The research also shows that stalking occurs among all populations, rather than being largely limited to specific subgroups. Thus, the National Survey found no difference between white and minority women in their prevalence of stalking victimization, nor was there a statistically significant difference between Hispanic and non-Hispanic women. 33 Hall adds to these findings in her report on 145 stalking victims who volunteered to answer questions about their experiences. Her findings show that persons of all ages and employment may be victims of stalking. Five of the victims were under age 18, while two were over age 70; 20 percent were age 41-50, while nearly one-fourth were ages 18-25. These stalking victims also varied widely in their jobs; they were professionals (31 percent), managers (20 percent), technical workers (17 percent), sales workers (16 percent), students (12 percent), retired persons (3 percent), and homemakers (3 percent).34 Pathe and Mullen's study of Australian stalking victims found a similar pattern of diversity. Among their sample of 100 victims, the age of the stalking victims ranged from nine to 66 years, with most being in their mid to late 30s. At the outset of the stalking, 36 percent of the victims were employed as professionals, in such fields as medicine, law, or education.35
One population is, however, unusually subject to being stalked: battered women who have separated from their batterer. Indeed, as noted elsewhere, it is homicide and stalking against that group that motivated many states' stalking laws. One of the few studies to examine the incidence of stalking among these women, conducted by Mechanic and colleagues, found that 13 to 29 percent (depending on the definition of stalking used) of their sample of 144 battered women reported being stalked in the six months immediately following separation.36 Another study, by Tjaden and Thoennes, found that 16.5 percent of all domestic violence calls involved allegations of stalking. 37 The more important question, however, is what proportion of stalking involves domestic violence. The National Violence Against Women Survey found that slightly more than half (54 percent) of all stalking is done by current or former intimates or dating partners. That cluster included 59 percent of female stalking victims and 32 percent of male stalking victims. If, however, dating partners who had not cohabited are excluded, the proportion of stalking cases involving domestic violence is reduced to 40-45 percent.38
Official statistics do not in any way match these estimates, even though both the national and Louisiana surveys reported that stalking complaints are typically made to law enforcement.39 The state reporting the most stalking criminal cases is Florida, which in 1999 reported 704 stalking cases, a drop from 920 in 1998. 40 Most states either do not report stalking crimes at all or exclude them from their annual crime statistics reporting, although some stalking crimes are captured in domestic violence crime statistics. 41An example of the latter is New Jersey, which in 1997 reported 345 domestic violence-related stalking offense.42 In 1997, North Dakota reported the greatest number (per capita) of stalking cases of any state. 43 Even so, its rate, if applied nationally, would equate to only 22,805 stalking cases. One of the few states to report civil stalking filings (for orders of protection) is Oregon. That state's Judicial Department reported that in 1999 there were 1,404 filings for stalking orders of protection.44 Extrapolating from that number to the U.S. population as a whole translates into 115,409 stalking cases nationwide. However one counts, the official statistics for stalking fall far below the actual number of such cases.
To understand how victims react to stalking, it is necessary to understand the variety, persistence, and repetition of stalking behaviors. Understanding those factors also permits inferences about victims' responses to be drawn, based on the reasonable person standard used in many state stalking laws.
The illustrations of stalking previously presented exemplify, but do not delimit, the range of behaviors that a stalking victim may be exposed to. Anecdotal reports of stalking cases are widespread, and few studies provide statistical summaries of the frequency with which different stalking behaviors occur.
Anecdotal reports come from a variety of sources. One excellent but rarely used source is published court decisions in stalking cases. Personal accounts of stalking are also available and provide an additional, important perspective.
The examples below are taken from court opinions affirming convictions in stalking cases.45 Because the nature of a relationship can affect the specific stalking behaviors engaged in, the examples are listed according to the type of prior relationship between the stalker and the victim.
Information about stalkers also comes from personal reports published by or about stalking victims. For example, one well-known story is that of Kathleen Baty. In 1982, her stalking began with a phone call from a high school classmate whom she had not seen in years. The phone calls continued, and she soon noticed a pickup truck circling the house. Police were called and found a loaded rifle in the truck. Defendant was held for 48-hour psychiatric evaluation and released. The calls resumed, and defendant was soon rearrested outside victim's parents' home, again carrying a rifle. On this occasion, defendant was sent to a mental facility for six months and received three years' probation. After he completed probation, defendant was arrested again, this time for trying to break into victim's home. He received a 60-day jail sentence and three more years on probation. In summer 1989, victim met the defendant again by chance; she ordered a pizza and he was the deliveryman. In November of that year the stalking resumed. The next spring, victim got married and defendant went missing. Soon, he appeared in victim's kitchen, holding a knife and planning to take her to a mountain cabin for a couple of weeks until she began to love him. Fortunately, the phone rang and the victim was able to communicate to her mother what was happening. Police were summoned and arrested defendant. Defendant was sentenced to eight years in prison.55
In general, the research supports these anecdotes as illustrating both the scope of stalking behaviors and their duration and frequency. The National Violence Against Women Survey, for example, found that 82 percent of the women stalked reported that their stalkers followed them, spied on them, or stood outside her house. Sixty-one percent said they had received unwanted phone calls, 33 percent received unwanted letters or gifts, and 29 percent had property vandalized. The survey also found that 9 percent of the stalked women reported threats to kill the family pet, 56 a finding not seen in the stories above. The survey respondents were also unlikely to experience extended stalking, lasting more than one year; only one-third of those stalked were stalked for a period greater than one year. Only 10 percent of those stalked were stalked for more than five years. 57 Finally, the survey found that stalking victims who had previously been intimate partners with their stalker were significantly more likely to have been victims of domestic violence than were women in the general population; 81 percent of intimate stalking victims had been assaulted by their spouse in the past compared to a 20 percent lifetime experience of domestic violence among all women who have been married or lived with a man. 58 The Louisiana survey also found a high level of prior assaults against stalking victims, 32 percent. 59
Other research on stalking supports both the National Survey's findings and the stories above. Nicastro, Cousins, and Spitzberg, for example, in summarizing eight studies on stalking list the following behaviors as characteristic of stalking: frequent telephone calls, personal contact at home or work, driving by home, repeated following or watching, appearing at work or school, sending or leaving letters or objects, contacting third parties, damaging property, breaking and entering, and threatening violence to the victim or others. 60 In a review of criminal case files in the San Diego City Attorney's Office, these researchers also found that 45 percent of the stalking cases involved physical assaults of one sort or another. 61 Hall also found a high incidence of assaultive behaviors among other stalking actions. She found that 38 percent of her victim sample reported being hit or beaten and 22 percent reported a sexual assault. The most common stalking behaviors reported by these victims included making unwanted telephone calls (87 percent), surveillance at home (84 percent), following (80 percent), driving by home (77 percent), appearing at workplace (54 percent), and sending letters (50 percent). Some unusual activities included spreading gossip (48 percent) and sending packages with materials such as urine, blood, or dead animals (3 percent). One victim also reported an arson. 62
A number of researchers have developed typologies of stalking behavior. One especially interesting study is Dunn's review of stalking case files and interviews of stalking victims in a major California jurisdiction. She classifies stalking behaviors as falling into four categories:
In sum, both the anecdotal reports drawn from court decisions and personal stories agree on the scope of stalking behaviors and their duration.
Relatively little research has focused on the impact stalking has on its victims, although homicidethe most serious impact of stalkingled to policy attention to stalking. But non-homicide-stalking victims are also often dramatically impacted. Information about such impacts comes from a variety of sources. These include information from the victims themselves, especially victim interviews, their courtroom testimony, and victim surveys asking about impacts.
A statutory element of the crime of stalking in most states is victim fear. Hence, it is not surprising that many court rulings in stalking cases cite reports of victim fear. But the term "fear" does not really convey the complexities of how victims respond to stalkers. Thus, we need to know more about other internalized reactions and about victim responses that involve lifestyle changes.
In all the court cases cited above, victims reported being physically frightened. In the last of these cases, Jackson, the victim stated,
Well, it's affected my life...tremendously. It's like living in a prison. I mean, these things continue. The willfulness of it all. The continued lying-in-wait. Everywhere I gothere would beI have incidents of phone calls, letters, letters to neighborsI mean, it's just awful. I mean none of itI mean, I've done nothing wrong. Here I am as a doctor trying to help a patient and this is...what occurred. And it is horrible. I live every day still in fear that something's going to happen to me. Fear that...my children are going to be left alone if someday you know I'd drive up and meet her and sheor she's just there and...does bodily harm to me. I mean it's just awful. Nothing is changed. We still do the alarm, we still do the binoculars. At night...you hear sounds andnormal sounds of the neighborhood and here I am running to the window...trying to look out or going out and seeing...what's occurring. It's just horrible. It's a horrible way to live in fear of your life...every day I wake up I'm in fear of my safety.64
Dunn quotes another stalking victim, who told her,
There's no advice I can give a person on how to deal with the fear. How do you, you know, there's nothing I could say that's gonna make sense, especially when you have a child. I mean I, the nights I had to put the knife under her bed, the nights, when what am I going to do? Cause if he was coming in, he had to get through me, to get to her. I mean, totally, I bet you, 70 to 80 nights like that, when he was coming over. And there's nothing, there's no advice I could ever give a person to deal with, there's no way to deal with it. It's the most powerful fear there is...I'd never felt that kind of fear before. The only fear I'd ever felt before was the kind you feel when a person jumps out in front of you and you almost like, hit him, that roller coaster kind of fear, but walking around with that feeling that you get right at that moment, if you can imagine that feeling again, where you almost hit someone, never leaving...if you could imagine walking around that way, for months after months after months and it never leaving, the fear, whatever the thing that has made you afraid doesn't leave....
Kasting, who reports on extensive interviews with stalking victims, points out that the impact of stalking by a former intimate partner can be affected by continuing emotional ties between the stalker and the victim, as well as by social pressures to make the former relationship "work." For example, one of her interviews was with a woman whose family supported the stalker's efforts since their religious beliefs favored the sanctity of marriage. These external forces may worsen stalking's impact by undercutting social support and understanding for the victims, increasing their isolation from society. 65 Kasting's interviews also underscore how the justice system's response to stalking can ameliorate or exacerbate the negative effects of stalking on the victim's mental health and well-being.
Considerable research has also been done on victim responses to stalking. For example, the National Violence Against Women Survey found evidence of significant mental health impacts. Thirty percent of the women and 20 percent of the men victims said they had sought psychological counseling due to being stalked. These victims were also more likely than others to be concerned about personal safety (42 versus 24 percent) and to carry something on their person to defend themselves (45 versus 29 percent). Over a quarter of the stalking victims reported loss of time 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 driving habits (5 percent).66 The Louisiana stalking survey reported similar findings. Thirty-six percent of the stalking victims said they had moved their household as a result of the stalking, and 11 percent purchased a gun. Fifty-five percent said that they had experienced stress that interfered with their regular activities for a period of at least one month.67 With their survey of college students, Mustaine and Tewksbury found that stalking victims also reported significant changes in behavior to lessen their vulnerability, including carrying mace and carrying a pocketknife. 68
Mullen and colleagues have done extensive research on stalking impact in Australia. Their 1997 survey of 100 stalking victims found that stalking resulted in significant activity changes for its victims, including the following:
The researchers also found important psychological problems resulting from the stalking, including these:
The researchers' analysis of these findings suggested that most of the stalking victims experienced at least one major symptom associated with Post-Traumatic Stress Disorder (PTSD). The authors explain that this is not surprising because "stalking possesses many of the features that may produce chronic stress reactions and related psychological sequelae."71 Those features include persistent, repetitive trauma; loss of control; state of persistent threat with associated symptoms that may far outlive the actual duration of the harassment; and loss of social supports normally available for crime victims because of mistrust and fear generated by the stalking itself. While many factors affected the specifics of the stalking impact on the victims, there was not one victim who did not experience some level of harm "that in some cases amounted to profound deterioration in functioning."
These findings were replicated by Nicastro and her colleagues and by Hall. Nicastro's sample of 55 prosecution cases in San Diego showed that the most common impacts from the stalking were fear (80 percent), feeling threatened (43 percent), nervous reaction (33 percent), and anger (29 percent). A smaller number reported physical illness (11 percent), depression (9 percent), and a sense of helplessness (7 percent).72 Similarly, Hall found that 87 percent of her sample of 145 victims said their personalities had changed as a result of the stalking, a figure greater for the female than the male victims. Specifically, 41 percent felt paranoid, 52 percent easily frightened, and 27 percent more aggressive. The percentages of those saying they had been generally friendly (89%) and outgoing (78%) before the stalking dropped significantly, to 53 percent (friendly) and 41 percent (outgoing).73
Finally, Blaauw and colleagues studied stalking's impact on victims in the Netherlands and found that even a year or more after the cessation of stalking, there was no significant reduction in the psychiatric symptoms associated with the stalking. 74
Although the anecdotal reports provide a powerful, if limited, descriptive view of stalking's impact on the victims, the research cited above provides a much clearer view of the variety of impacts caused by stalking.
There have been only a handful of studies of the incidence of stalking. Taking into account methodological differences among these studies, a best-guess estimate of the incidence of stalking is probably about two million victimizations annually. If one uses a looser definition of stalking to include cases where victim fear is relatively minor, the number of stalking cases occurring annually grows by another 2 to 4 million. While these numbers far exceed estimates based on official records, the difference is simply a matter of failure of victim reporting and poor agency record keeping.
Whether one reviews the prior research or the anecdotal reports found in court decisions, or simply talks to victims of stalking, the inescapable conclusion is that stalking has a devastating impact on victims. This might not matter if stalking were a rare occurrence, but it is not. Literally millions of Americans have been victims of stalking, and millions more will be stalked unless something is done to prevent such acts. Stalking is important to its victims and should be important for policymakers.
State lawmakers have responded to the problem of stalking by enacting anti-stalking laws. Questions arise, however, about the scope of those laws and how well they are being implemented. The research sought answers to both these questions by reviewing
Part IV of this report continues the research examination of local anti-stalking initiatives by examining the effectiveness of the new stalking laws from a best practices perspective.
Enactment of criminal laws is just the first step in using the justice system to combat stalking. Court rulings must interpret possible ambiguities in the laws and limit the law where it might impinge on First Amendment or other constitutional guarantees. Amendment of the stalking law may then occur as a result of court rulings or as experience shows that the stalking law needs modifications. This review of the status of stalking laws examined all three issues: enactment, court review, and amendment.
The legislative review examined state laws relating to both the crime of stalking and such related crimes as violation of civil protection orders against stalking, harassment, terroristic threats, and invasion of privacy. These latter code provisions are included because they also reflect the varying degrees to which state legislative bodies perceive stalking as serious. They also reflect the degree to which consideration is given to countervailing issues, such as the constitutional right of free speech and other constitutional doctrines found applicable by the courts. The legislative review covers these topics:
As of November 1999, all 50 states' legislatures, the District of Columbia, and the federal government had enacted laws making stalking a crime. The laws vary significantly in the specific behaviors outlawed and the penalties provided for violation. In brief, the 50 states' laws treat stalking as a felony offense; however, many states do not necessarily make a first stalking offense a felony. In 37 states, a conviction for a first stalking offense can be a felony; in 12 of those states, any first stalking offense is a felony. In the other 25 states with felony stalking laws, only the most serious stalking offenses and repeat stalking are felonies; simple stalking (without a weapon, for example) is a misdemeanor.75 In the 13 states (and the District of Columbia) where a first stalking offense is always a misdemeanor, repeat stalking is treated as a felony. 76The federal interstate stalking law also provides for felony penalties. 77 Exhibit 1 details the differences in stalking penalties among the states.
| State | Felony-1st Offense | Felony orMisdemeanor-1st Offense | Misdemeanor-1st Offense | Felony-2nd Offense | Felony-3rd Offense |
|---|---|---|---|---|---|
| AL | X |
|
|
|
|
| AK |
|
X |
|
|
|
| AR | X |
|
|
|
|
| AZ | X |
|
|
|
|
| CA |
|
X |
|
|
|
| CO | X |
|
|
|
|
| CT |
|
X |
|
|
|
| DE | X |
|
|
|
|
| DC |
|
|
X | X |
|
| FL |
|
X |
|
|
|
| GA |
|
X |
|
X |
|
| HI |
|
|
X | X |
|
| ID |
|
|
X | X |
|
| IL | X |
|
|
|
|
| IN | X |
|
|
|
|
| IA |
|
X |
|
|
|
| KS | X |
|
|
|
|
| KY |
|
X |
|
|
|
| LA |
|
X |
|
X |
|
| ME |
|
|
X |
|
X |
| MD | X |
|
|
|
|
| MA | X |
|
|
|
|
| MI |
|
X |
|
X |
|
| MN |
|
X |
|
|
|
| MS |
|
|
X | X |
|
| MO |
|
X |
|
X |
|
| MT |
|
|
X | X |
|
| NE |
|
|
X | X |
|
| NV |
|
X |
|
X |
|
| NH |
|
|
X | X |
|
| NJ |
|
X |
|
X |
|
| NM |
|
X |
|
X |
|
| NY |
|
X |
|
|
|
| NC |
|
|
X | X |
|
| ND |
|
X |
|
X |
|
| OH |
|
X |
|
X |
|
| OK |
|
X |
|
X |
|
| OR |
|
|
X | X |
|
| PA |
|
X |
|
X |
|
| RI |
|
|
X | X |
|
| SC |
|
X |
|
X |
|
| SD |
|
X |
|
X |
|
| TN |
|
|
X | X |
|
| TX | X |
|
|
|
|
| UT |
|
X |
|
X |
|
| VT | X |
|
|
|
|
| VA |
|
|
X |
|
X |
| WA |
|
X |
|
X |
|
| WV |
|
|
X |
|
X |
| WI |
|
X |
|
X |
|
| WY |
|
X |
|
X |
|
| US | X |
|
|
|
|
Several states have provisions that severely restrict their applicability. In North Carolina, for example, stalking refers only to instances where the stalker follows or is in the physical presence of the victim. 78 This excludes long-range stalking such as sending letters or leaving gifts. In Hawaii and Illinois, the stalking law is similarly restricted to instances where the stalker pursues or follows or conducts surveillance. 79Connecticut law forbids only stalking involving following or lying in wait.80In West Virginia, the stalking statute applies only to situations where there is or was a personal or social relationship or such a relationship is being sought. 81This definition would exclude all cases where revenge was the motive for the stalking and there had been no personal relationship between the stalker and the victim. In all these states, other provisions of state criminal law may be applicable, however, such as telephone harassment.
Twenty-nine states authorize civil protection orders against stalking, in addition to laws in every state providing for orders against domestic violence. 82 Violation of a stalking protective order is a crime in 24 of those states and may be criminal contempt of court in two other states.83 In only nine states can a violation of the stalking order be treated as a felony; 84 in many other states, however, repeat stalking in violation of a court order increases the crime level to aggravated stalking, which is a felony. In addition, repeat violations of a stalking order can be a felony in five states. 85 Only 10 states have legislation providing for the entry of stalking protective orders into a special statewide registry. 86 However, 36 states also have registries for domestic violence protective orders; such orders typically include anti-stalking provisions or stay-away orders.87
Stalking is one of several related crimes that infringe upon a victim's privacy and safety. Related crimes include harassment, terroristic threats, and invasion of privacy. The most serious of those offenses is the terroristic threat against the victim's person; terroristic threat laws are found in 35 states and the District of Columbia.88 Stalking differs from a terroristic threat in that in stalking, both the threat and the 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; that threat must be one of imminent behavior and include the capacity to act on the threat. Harassment laws include simple harassment (25 states) 89 and telephone harassment or threats (43 states).90 Letter threat laws have been enacted in 20 states.91 The federal government has also enacted laws criminalizing interstate threats or harassment using the mail or electronic communications (including telephone).92
In only 10 states where stalking can be a misdemeanor offense does state law authorize warrantless arrest for stalking, similar to that authorized for misdemeanor domestic violence. 93 In the 11 states where stalking is always a felony, warrantless arrest is, of course, authorized where probable cause exists. In Mississippi, warrantless arrest for misdemeanor stalking is authorized where the stalking is against a spouse or ex-spouse.94
Legislation in only two states (Minnesota and Nevada) requires law enforcement training in stalking. 95 In comparison, 30 states require law enforcement training on domestic violence96; however, this requirement may be administratively interpreted to include stalking.
Although it has been only slightly more than a decade since the first stalking law was enacted, the passage of such laws in all 50 states has sparked considerable litigation over their constitutionality and scope. In ruling on stalking litigation, courts have often drawn on cases involving similar penal statutes, those criminalizing harassment, and those involving threats. 97These laws not only deal with related behavior, but they also use almost identical terms and phrases (e.g., annoy, repeatedly) that may be the subject of legal attack by defendants. Thus, analysis of stalking laws must examine all three types of criminal laws and their cousins, telephone threats and harassment. Similarly, electronic stalking, harassment, and threats must also be included; notwithstanding the relative paucity of such cases to date, their numbers are likely to increase.
This review identified 530 state cases and 18 federal cases involving stalking and related crimes.98 (See Appendix 4 for a complete listing of cases, along with a brief description of each case's holding and citation.) Among them were a total of 198 stalking cases, including three federal cases. The stalking cases predominantly involved constitutional issues (134 cases in 34 states, the United States, and the District of Columbia), typically vagueness and overbreadth challenges and a few double jeopardy challenges. The review also looked at the relationship between the stalker and his or her victim (almost all the reported cases involved male stalkers).
Among the stalking-related cases were 58 cases of harassment and 117 cases involving threats. Among these decisions were 41 harassment and 42 threat cases involving constitutional challenges. There were 44 harassment and 66 threat cases involving statutory construction issues (many harassment cases involved both types of issues).
Other types of cases covered by this review include 20 telephone threats, 85 telephone harassment cases, nine letter threat or harassment cases, and six electronic threat or harassment cases. In addition, there are 53 cases involving protection orders, many of which also involved stalking charges related to an order violation. Three cases involved civil suits for damages based on civil stalking or some other basis for claiming invasion of privacy. Among these cases there were 87 constitutional law decisions and 53 cases involving statutory decisions. Six cases involved jurisdictional or other constitutional challenges to federal laws.
The review did not include all relevant reported cases, although a significant effort was made to identify all such cases. The most significant omission is the exclusion of most threat and harassment decisions issued prior to 1970; it was assumed that the older cases are largely repetitive of more recent decisions (and these latter decisions have the further advantage of being informed by recent United States Supreme Court decisions). Also excluded from the review were reported decisions that involved solely evidentiary issues99 where no constitutional or statutory interpretation issues were decided. 100Threat and harassment cases that were totally unrepresentative of stalking concerns were excluded; these included, for example, threats and verbal abuse of police officers.101 Also excluded were cases where stalking was not the most serious charge. Finally, the review excluded cases that despite their legal nomenclature as harassment or threats really involved disorderly conduct in a public forum.102
The review first looked at the relationship between the stalker and victim. This review found that the most common type of stalking case among those reported here involved non-intimate, non-dating relationships: 67 of the 158 stalking cases for which information was available. This category included 14 cases involving stranger stalking; the other non-partner cases involved relationships such as mother, neighbors, ex-employees, psychiatrist-patient, judge-litigant, and landlord-tenant. The next most common category involved 51 couples who had had a dating relationship, including several couples who had cohabited before splitting up. In many but not all states, stalking among former dating partners can be classified as domestic violence for such purposes as obtaining a court order of protection. The last category involved victims who were separated or divorced from their spouses; this totaled 40 cases.
While a few state stalking laws have been struck down as unconstitutional, this is a small minority. Where state stalking or related statutes were struck, the law typically lacked an intent requirement, either to create fear or to do those acts that resulted in victim fear. 103
Double jeopardy claims were another common challenge, most often where there had been a previous finding of contempt of court. Rulings varied according to the factual differences among these cases as to whether the criminal offense and the contempt offense shared common facts to prove their cases.
Harassment laws that lack any "fighting words" restriction were the most vulnerable to constitutional challenge. But telephone harassment laws were not required to have such a limitation because of their focus on punishing invasions of privacy. For much the same reason, telephone harassment and threat laws commonly focus on the intent of the caller to harass or threaten, rather than the victim's response to these messages; a few states do not require actual fear to result. 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.
The review of court decisions identified two statutory interpretation issues: