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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: the interrelationship between the stalker's reckless behavior and victim's reasonable fear, and cyberstalking. Statutory interpretation of threat laws has led some courts to equate reasonable fear with reckless behavior. Hence, specific intent to create fear is not required under this interpretation, merely a general intent to do the acts constituting reckless behavior, such that intent can be legally imputed ("should have known" analysis). Since a reasonable or prudent person test is used to judge reckless behavior, any resultant fear is also reasonable.
Despite the growing popularity of electronic communication, there are very few reported cases involving these mediums. Media reports of e-mail stalking cases are, however, growing. 104 Although there are a few cases ruling that cyberstalking behavior is not covered by the state telephone harassment law, the basis of such rulings is the explicit limitation in these laws to communication by telephone. Hence, the laws do not permit judicial expansion of the specific statutory language to other forms of communication.
No case was found limiting stalking laws to non-electronic communications. In view of the broad language typically used in stalking laws, the case review did not, therefore, lead to any conclusion calling for amending stalking laws to explicitly include electronic or cyberstalking.
State legislators are constantly amending their anti-stalking laws, usually to increase the penalties for stalking, although a few states have had to change their laws as a result of court rulings. In toto, 46 state legislative bodies enacted stalking-related laws in the period 1998-2001 (only Alabama, Alaska, Missouri, Wyoming, and the District of Columbia did not enact stalking-related legislation in that period). In 1998, legislatures in 11 states passed laws amending their stalking and related criminal laws, including two states that passed new stalking injunction laws. In 1999, legislatures in 26 states passed laws relating to stalking. In the legislative year 2000, legislators in 20 states enacted 27 stalking-related laws. As of August 2001, 27 states had passed over 40 separate laws relating to stalking and related crimes. Exhibit 2 provides a state-by-state summary of new stalking laws in this four-year period by type of law. Capsule descriptions of the laws are provided in Appendix 1.
It should also be noted that many laws directed at helping victims of domestic violence may also be applicable where stalking behavior is related to domestic violence. For example, laws providing for full faith and credit to out-of-state protective orders may apply either to orders prohibiting stalking as an element of domestic violence or to anti-stalking orders themselves. Similarly, laws providing for address confidentiality for victims of domestic violence may be used by stalking victims where the stalker is a former domestic partner under the state domestic violence law. Hence, this list of new stalking legislation is not all-inclusive.
It is striking, however, that notwithstanding all this activity, only a few of the enactments are directed at the basic problem of the inadequacy of the penalties provided for stalking. Nor have most state legislators directed their attention to related laws, such as civil orders of protection and their enforcement, arrests without warrants, or training requirements for law enforcement and prosecution. Perhaps not surprisingly, since it was the first state to enact a stalking law, California has the broadest set of anti-stalking laws, including felony penalties, warrantless arrest, civil orders of protection, and stalking training availability. California has also stressed stalking laws' implementation, especially through its use of federal STOP funds under the Violence Against Women Act.
No other state has acted as extensively as California. In some states, it is possible that the failure to implementation these laws has limited even the advocates' awareness of the problems posed by the laws themselves. Where there are no significant efforts being made to implement existing laws, changes in the laws may well have a lower priority than pressing for implementation. In other states, where enactment of a stalking law was in reaction to specific incidents involving stalking, there may be a general inclination to think the problem is fixed. Advocates for legislative action may well find it difficult to convince legislators otherwise in the absence of either new horror stories or empirical data such as is presented here to show that the problem of stalking has not been fixed.
| Type of Law | State and Year of Enactment |
|---|---|
| Stalking crime definition/penalty (24 states) |
AZ (1998, 2001), CO (1999), FL (1999), GA (1998), IL (2000), IN (2001), IA (1998), KS (1999), KY (1999), LA (1999, 2001), MS (2000), NE (1998), NV (1999, 2001), NH (2000), NJ (1998, 1999), NY (1999), OH (1998, 1999, 2000), PA (1999), SC (2001), TX (2001), UT (2000), VA (1998, 2001), WA (1999), WV (2001) |
| Cyberstalking (21 states) |
CA (1998), CO (2000), GA 2000), IL (1999, 2001) LA (2001), ME (2001), MI (1999), MN (2000), NH (1999), NJ (2001), NC (1999, 2000), ND (1999), OK (2000), OR (2001), PA (1999), RI (2001), SD (2001), TN (2001), TX (2001), VT (2000), WA (1999) |
| Harassment crime (11 states) |
AZ (1998), HI (1999), IL (1999), ME (2001), MA (2000), MN (2000), MS (2001), NV (2001), OR (1999, 2001), PA (1999) SC (2001) |
| Civil injunction authority (15 states) |
AZ (1998, 2000, 2001), AR (2001), CA (1999, 2000), CO (1999, 2000), GA (2001), HI (1999), IN (2001), ME (2001), NE (1998), NV (2001), OH (1998), UT (2001), VA (1998, 1999, 2001), WA (1999, 2000, 2001), WI (2000) |
| Criminal protection order (6 states) |
CN (1998), GA (1998), IA (1998), RI (1998), SD (2000), UT (1999) |
| Criminal procedure | CA (1999), IA (1998, 1999), LA (1999), ME (2000), MD (2001), MT (2001), NE (1998), NV (1999), NH (1999), VA (1998) |
| Name/address confidentiality program (5 states) |
CA (2000), NH (2000), NJ (2001), VT (2000, 2001), WA (2001) |
| Offender treatment (2 states) |
GA (1998), LA (2001) |
| Other related crimes (10 states) |
DE (2001), ID (1999), IL (2001), IN (2001), KY (2001), OK (1999), PA (1999), SC (2001), TN (2000), TX (2001), WA (2000) |
| Other laws (11 states) |
IL (2001), KS (2001), LA (1999), ME (1999, 2000), NE (1999), NH (1998), NM (2001), RI (2001), SD (1999), UT (2000), VA (1998, 2001) |
Two sources of information were used to determine the extent of anti-stalking efforts. First, ILJ twice conducted a national survey of police and prosecution agencies. The first survey was conducted in late 1998 and early 1999. The second survey took place two years later, 2000-2001. Second, ILJ surveyed STOP-funded agencies to try to identify additional anti-stalking agencies, especially among non-justice system practitioners. Because of time limitations, state agencies disbursing funds under other federal aid programs, most conspicuously the Victims of Crime Act,105 were not surveyed.
Two national surveys on stalking were conducted. The first survey of 204 law enforcement agencies and 222 prosecution offices in jurisdictions with a population over 250,000 was conducted by mail in November 1998. The survey briefly asked what special efforts the agencies had undertaken against stalking, including special units, training, or written policies and procedures.106 The survey had about a 60 percent response rate to the first mailing. A second mailing was sent out to the non-respondents, resulting in a final response rate of over 80 percent.
The survey found the following:
The written comments provided by the respondents were very illuminating. They indicated, for example, that prosecutors in several states have significant problems with the statutory "credible threat" requirement. At the same time, other prosecutors in the same states did not report such problems. The reasons for this difference are not clear but may be related to different methods of police/prosecution coordination in stalking cases. The need for training was expressed by many respondents and is implicit in the comments of others.
Among the several comments provided, especially notable was one prosecutor's comment that his state's stalking law required a considerable degree of proof but provided only a misdemeanor penalty for stalking. This disparity between effort and reward meant that his office would rather charge the constituent elements of stalking,including protection order violations, where the aggregate sentencing would far exceed that available under the stalking law, yet the case would be far easier to prove. Many other prosecutors made similar comments. A second trend in these comments was the increased awareness among law enforcement agencies that non-intimate stalking was different than stalking directed at intimates or former intimates. This seemed to be the reason that nearly a dozen agencies shifted to shared investigative responsibilities between the domestic violence detective unit and other detective units. Conversely, many prosecutor comments suggested that experience in prosecuting intimate stalking cases was very relevant to prosecuting non-intimate stalking cases. Nonetheless, it might also be inferred that many law enforcement and prosecutor agencies do not see that these two types of stalking cases have different dynamics and may require different handling strategies. The likely reason is that the agencies see few non-intimate stalking cases, typically because they are not looking for them.
A replication of the first national survey was conducted in November 2000. The survey mailing was identical to that in 2000, except that the municipal prosecutor agencies that had reported no responsibility for handling stalking cases were dropped from the survey. One hundred sixty-nine (of 204) law enforcement and 183 (of 224) prosecutor agencies responded to the survey, for a combined response rate of 82 percent. Thirty-five agencies responding in 1998 did not do so in 2000.
In comparison to the 1998-99 findings,
The 2000 survey also asked about funding of special unit or staff operations. Twenty-two percent of the prosecutors said they had received federal funds for anti-stalking operations; only 5 percent of the law enforcement agencies reported receiving such funds. Prosecutors (27 percent) were also more likely than law enforcement agencies (13 percent) to fund special anti-stalking staff with their own funds. An unanticipated finding from this question is that the number of law enforcement agencies reporting funding special stalking units or staff is much higher than reported directly. Thus, 36 agencies said they had funded special stalking investigative staff, more than twice the number responding to the survey question about which unit handles stalking cases. Conversely, 108 prosecutor offices indicated that they had funded a stalking prosecutor position, whereas when asked about which unit handled these cases, 143 prosecutors indicated that stalking cases go to a specific unit. It is likely that this difference reflects the near absence of any stalking cases in many of the prosecutors' offices; hence, their statements about which unit handles stalking cases is more theoretical than real. It is also quite likely that some significant proportion of the 108 prosecutor and 36 law enforcement agencies that said they had funded a stalking position were not referring to dedicated staff but to staff that would handle such cases should they occur.
The written comments that the survey respondents provided often reiterated the 1998 survey complaints about the difficulty of meeting the statutory definition of stalking. However, it seemed as if increased experience with the stalking laws had broadened the prosecutors' concerns about their states' laws. Of particular concern were the statutory requirements to prove specific intent, a pattern of conduct linkage to specific intent to cause victim fear, and the level of victim fear required (serious bodily injury). Several prosecutors added their voices to the 1998 complaint that the stalking law penalties are too weak in view of the difficulties of prosecuting the cases. One law enforcement agency added that the resource demands for investigating stalking were too high to justify investigating a misdemeanor offense. Another voiced a similar complaint when referring to prosecutor practices in plea negotiations. Other comments included the need for training law enforcement, prosecution, advocates, and especially the judiciary. Law enforcement was said also to need special training on identifying stalking cases.
In sum, the 2000 survey responses did not show any great increase in either law enforcement agencies' or prosecutor agencies' concern for stalking crime. Indeed, the lack of concern for stalking can best be inferred from the report that only 58 of the 152 law enforcement agencies responding to the survey even had statistics on the incidence of stalking in their jurisdictions. But even where statistics are gathered, that is no guarantee of aggressive responses to stalking. Thus, two major jurisdictions in the same state with populations approximately equal said that the number of stalking complaints received in 2000 went from a low of 22 to a high of 200. A third jurisdiction in the same state with three times the population of the other two jurisdictions reported receiving 260 stalking complaints in 2000.
The bottom-line conclusion that comes from these surveys is twofold:
By and large, the most significant evidence available about local law enforcement actions is the negative evidence stemming from the low official statistics on stalking presented supra. 109Inferences about the lack of official responses to stalking in most jurisdictions are further reinforced by the failure of most federal, state, and local jurisdictions to collect (or require collection of) statistics on stalking, as reported in the 2000 national practitioner survey.
This inference is supported by at least one research study. Tjaden and Theonnes reviewed 1,785 domestic violence complaints taken by police in Colorado Springs, Colorado, from April to September 1998. The review found that 16.5 percent of the police reports indicated on their face that stalking was a part of the domestic violence being complained of. Nonetheless, only one of the 285 complaints alleging stalking facts resulted in the filing of a stalking charge. Instead, police typically filed charges of harassment or violation of a protective order.110
Federal jurisdiction in stalking cases arises from the Interstate Stalking Act of 1996, as amended.111 The law makes it a federal offense to cross state lines with the intent to place another person in fear of death or serious bodily injury, or to use the mail or any other method of communicating across state lines for that purpose. Until 2000, the federal law was limited to physical movement cases,112 limiting the number of possible interstate stalking cases. Since 1996 there have been 43 indictments under the act; the recent amendments to the law that took effect only nine months ago have not yet affected the filing rate.113
The STOP block grant program established by the Violence Against Women Act of 1994 explicitly provides for funding of stalking projects; stalking is one of seven legislative purpose areas specified in the act. Stalking has not been a priority for most of the state offices administering the STOP funds. A review of the financial reporting forms from the state STOP agencies identified only 18 subgrants that had possible stalking projects.
There is good reason, however, to believe that the reports significantly underestimate the number of STOP-funded projects that deal with stalking cases. The reports are based on subgrantee project proposals; project activities are likely to vary considerably once they begin operations and have to meet victim demands. Because stalking cases are, in fact, much more numerous than many subgrantees understood when submitting proposals, they are seeing many more stalking cases than originally estimated. The federal reporting program does not, however, track changes in project design or objectives.
As a supplement to the agency survey, ILJ undertook a limited telephone survey of state STOP offices in about 40 states to
All but two of the offices called were cooperative in identifying anti-stalking initiatives. Once a stalking project was identified by state officials, further telephone calls were made to verify that stalking was an important project component. Not all state STOP offices were able to identify stalking funded projects. Hence, the information reported here is not a census of STOP funded stalking projects.
The telephone survey identified a total of 38 STOP-funded projects directed at stalking in 16 states. These include seven projects to improve investigation of stalking, nine projects to improve prosecution of stalking crimes, 12 projects to help victims of stalking, and 10 projects primarily providing training or developing protocols on stalking. Only a few of these projects were already identified in the mail survey of large jurisdiction law enforcement and prosecutor agencies. See Appendix 2 for a complete list.
All 50 states and the District of Columbia have enacted anti-stalking legislation. Although there are great inconsistencies in these laws' definitions of stalking and in their sentencing provisions, the laws provide an important innovation in the criminal law. Unfortunately, many of the laws lack important components, most significantly penalties commensurate with the seriousness of the crime. Furthermore, most local jurisdictions have not established special anti-stalking units and indeed often do not even track stalking incidents to determine their frequency. Nor are law enforcement officers trained to recognize stalking cases when complaints constituting stalking are reported. Thus, in many states, the stalking laws are of little practical value for most stalking victims.
Even greater problems exist with respect to civil stalking laws, specifically those authorizing the issuance of court orders of protection against stalkers. As the Oregon statistics indicate, such orders, where available, can be widely utilized. 114 As of January 2001, 21 states did not authorize issuance of such orders.
That is not to say there are no positive developments. In the past five years, a number of agencies have established specialized anti-stalking units; these include law enforcement, prosecution, and victim advocate/service agencies. The next section of the report discusses the lessons to be learned from these units, especially as they constitute a model anti-stalking program.
This study originally intended to examine the effectiveness of the new anti-stalking laws to determine whether stalkers were being arrested and convicted and whether victims felt safer. As the study progressed, that objective was changed to one of documenting best practices among anti-stalking practitioners. This section of the report explains why the change in research focus was made and how best practices can be used to measure effectiveness at the local level.
The effectiveness of the new stalking laws has not been studied. Although a few law review articles have suggested that the laws are faulty, their conclusions are based primarily on anecdotal reports rather than empirical studies.115 Thus, it would seem that there is a significant need for such a study. Unfortunately, a study of the impact of the anti-stalking laws cannot be directly done for three reasons:
In addition, even a qualitative assessment of anti-stalking law implementation cannot be done because performance standards, such as those used in other areas of the criminal law116, do not exist. The absence of performance standards does, however, present an alternative evaluation strategy.
Evaluation of stalking laws' effectiveness is constrained by the fact that there is no nation-wide anti-stalking law. Instead, there are 52 different laws (50 states, the District of Columbia, and the federal law). Of necessity, evaluation of stalking laws must be at the state level. But conclusions about a single state's laws must be limited to that state's laws. Generalization from one state to another, even if the laws are identical, is inappropriate because laws are not self-executing. Even identical laws have very different implementation patterns that determine how the laws are used and, ultimately, how effective they are.
The same qualifications are true within any single state. No state's laws are implemented uniformly across the entire state. Some local jurisdictions enforce the law aggressively, while others hardly enforce it at all. The question, then, is which sites should be selected for an evaluation of the state law. One strategy is to select jurisdictions with aggressive enforcement. The reason is that aggressive enforcement can best inform policymakers of the maximum effectiveness of the new law; failures are to be expected and are usefully studied only when the law's effectiveness is already known and information is needed on why the law is not uniformly effective. Selection of aggressive jurisdictions also increases the probability of there being a sufficient number of cases to allow statistical conclusions to be drawn about important process factors, such as law enforcement-prosecutor coordination. This strategy does not necessarily tell what barriers need to be overcome for broad-scale implementation to occur. It does suggest whether efforts to overcome those barriers would be worthwhile. Generalization of findings from this evaluative approach would, however, require simultaneous studies in several states.
Furthermore, the practicality of cross-jurisdictional evaluation of several states' stalking laws is highly problematic. It is impossible to make before-and-after comparisons of the incidence of stalking and of the way the local justice system responded to complaints of stalking behavior before there was a stalking law. Until the stalking law was enacted, there was no "before" counting of either measure.
The most important barrier to evaluating stalking laws' effectiveness is that there are no agreed-upon measures today of agency performance in dealing with stalking cases. Conventional evaluative measures to test program success or failure include process measures such as
and outcome-related measures such as
These latter evaluative criteria may be supplemented by qualitative reports on victim perceptions of improved quality of life or increased safety.
These measures are incomplete in the stalking context, however. The most important measures, the case "outcome" measures, are difficult to interpret. Even the traditional measure of prosecutor performance, the case "win" ratio, is difficult to use because there are no similar cases that can be used as a baseline. It is impossible to know, for example, whether an 80 percent win rate represents creaming of the simplest cases, while rejecting hard cases, or is the result of in-depth investigations and dedicated prosecution. The nearest types of cases, harassment and threat, require, on average, much less pretrial investigative effort or other case preparation. Most significantly, some stalking cases are not filed, much less prosecuted, because the case was resolved informally or the danger to the victim was so great that other measures had to be taken (this alternative is especially applicable in states with low penalties for stalking).
Other statistics, such as those for stalking-homicides, are similarly difficult to interpret because these are low-probability cases. As such, variations in their numbers are just as likely to be the result of copycat crimes as of any other factor. Even victim reports on quality of life or perceptions of safety have significant threats to their validity beyond the obvious argument against using subjective indicators. The real problem with these reports is the absence of any defined universe from which a sample of victims can be selected. Obviously, stalking victims who are not known to the police or prosecutor are not available to be sampled. Furthermore, even among those who are known, follow-up to find them after their case has been completed is a major task and one that often leaves major gaps in completeness.
Most importantly, impact evaluation requires a base for comparison to understand the meaning of both the process and outcome statistics. But as already noted, time series comparisons are not possible because of the lack of "pre" statistics. 117 That leaves only comparisons across jurisdictions. Such comparisons are highly suspect since differences between jurisdictional demographics and agency policies and procedures can easily affect the validity and reliability of any differences in reporting statistics.118
Efforts to implement the new stalking laws are still few in number, and those that do exist have only a limited life span. There has been no time for practitioners even to know in any detail about what other agencies are doing. There has been no opportunity for them to reach agreement on what they should be doing. This study has, however, is able to describe for the first time what stalking practitioners are doing across the country. As such, the research is able to identify many areas of common agreement among the diverse practitioners about their practices and what they recommend that others emulate. Together, these essentially descriptive case studies can form the basis of future evaluations. In other words, the best practices identified by this research constitute a model anti-stalking initiative against which jurisdictions can be measured. Such a procedure also sets the basis for future research that matches statistical measures of performance with the degree to which the agencies match the ideal model of anti-stalking efforts. Such matching might be used to determine which elements of the model program are most important to anti-stalking efforts' success. Such research is not possible at present, however, because many agencies are still experimenting with their anti-stalking efforts; there is no clear "treatment" being used that would match up with available performance statistics.
The effectiveness evaluation was refocused on identifying best practices among jurisdictions with aggressive anti-stalking initiatives.119 Fieldwork to examine how well stalking laws are being implemented was conducted in eight sites: three prosecutor offices, three law enforcement agencies, one combined law enforcement and prosecution multi-agency unit, and one victim services agency. At each site, researchers interviewed experienced investigators, prosecutors, and advocates in the specialized unit. In addition, several specialized training sessions on stalking intervention and prosecution were visited, allowing for discussions with both the trainers and other stalking-experienced attendees. Additional telephone discussions were held with numerous practitioners during the two national surveys and in response to inquiries from practitioners who had learned about the study from other sources, such as the Internet. 120
This section of the report first summarizes the fieldwork findings and then sets out the inferential basis for them through a detailed description of what are the best practices used by the agencies studied and by other agencies from whom training materials and practice manuals were gathered. The detail with which these findings are presented can be used by agency managers, other practitioners, and especially trainers to guide improvements in how stalking cases are handled. For this reason, the findings are presented according to the way in which stalking cases progress through the justice system, from case identification to victim safety planning through correctional custody or supervision.
Research findings from these sites included the following:
The field review also showed that expertise with stalking cases is critical because such cases often present unique elements. These include the following:
A final research finding takes note of the fact that investigative and prosecutor experience in dealing with these stalking crime features is limited. Most agencies have yet to set policies or procedures for stalking cases. For law enforcement, this results in the need to make up procedures and policies for evidence collection and to adapt methods used in other crime investigations, especially homicide and sexual crimes. However, as noted above, most investigations look at past events, not future actions. Hence, investigators must often create new investigative approaches to stalking.
Stalking is often an elusive crime. It starts, stops, starts again, and ends, at least temporarily, again. Similarly, the locations where stalking occurs vary, from home, to business, to shopping mall, to simply passing in a car on the street. While in most instances the identity of the stalker may be known, proving identity, especially in cyberstalking cases, can be difficult. Stalkers' methods may change constantly, from simple following or telephone calls, to leaving "gifts," to wiretapping telephones, to yet more ominous behaviors. Finally, the reactions of the victim may also fluctuate over time, from unawareness or bemusement, to terror, to surrender, and even to aggression. All of these stalking attributes make it an especially difficult crime for criminal justice agencies.
These multiple changes in stalking behavior underscore the essential way in which stalking differs from other crimes: its persistence into the future. Most crime investigations are historical in nature; they attempt to determine what happened.122 Because of the difficulties in proving past stalking, investigation and prosecution of stalking rely on prospective evidence collection. It is far easier to collect evidence of stalking when it occurs than it is to obtain evidence that corroborates the victim's testimony about past stalking.
Further, the crime of stalking is more than prohibited behavior. As Hargreave points out, stalking is "[a]n offense that is defined not by the actions of the offender alone, but by the social and environmental context in which the behavior arises."123 Context issues exist in almost all stalking cases.
A third way in which stalking differs from other crimes is the mutual dependence of justice agencies and the victim. In virtually no other crime are the investigation and prosecution so dependent on the victim for evidence collection. Nor are there many other crimes where victim safety is so threatened over such a long period of time. Hence, victim support from justice agencies is a unique responsibility in stalking cases, at least in scope if not in kind.124
For all these reasons, criminal justice agencies must adopt a problem-solving approach. Such an approach includes the following elements:
For each area of responsibility-case identification, investigation and management, prosecution, and victim safety-old methodologies must be adapted and innovative approaches implemented. Most significantly, agency management must recognize and encourage a problem-solving approach to stalking crimes. They must recruit and work with community-based advocates who can help the agency, especially in protecting the victim and ensuring her well-being. The review below presents research findings on best practices to provide both prescriptive and descriptive information about what agencies are or should be doing. This combination of perspectives is intended to encourage and inform problem-solving behavior among anti-stalking practitioners.
Few victims complain of being "stalked," that is, being a victim of a stalking crime. Instead, they complain to law enforcement about specific behavior that may be as minor as petty vandalism or as serious as implicit death threats. The fact that there is a pattern to the complaints may not even be noted by the victim. Furthermore, few victims even know that there is a crime called stalking.
Thus, the first difficulty that criminal justice agencies face with stalking is identifying potential stalking complaints from among all complaints they receive and doing so as early as possible to minimize victim injury. The key to such identification is in the repeated behavior that constitutes stalking. Policies and procedures must be in place to allow for identification of cases where possible stalking patterns exist. Two primary approaches for this purpose exist.
In San Diego, the City Attorney's Office has developed an interview checklist for first responders to use whenever there are any indications that repeat criminal behavior may be occurring. 125
The San Diego District Attorney's Office and the Dover (NH) Police Department try to review all police reports to identify cases where there are multiple complaints filed by the same victim or from the same (or nearby) addresses. Both agencies use trained staff to review victim complaints. San Diego uses victim advocates, and Dover uses investigators.126
A supplement to "naive" case review is to identify specific cases for monitoring for multiple stalking acts where only a single act has occurred. In Dover, the department puts all cases involving orders of protection into its computerized information system containing warrant information; any officer query after a police stop will tell the officer about outstanding orders against the person stopped, the name of the order protectee, and the locations protected. In Colorado Springs, all cases that are assigned to the special domestic violence investigative team, DVERT, are similarly red-flagged by the computer system, to alert patrol officers to inform the DVERT investigators of all police contacts with the suspects or convictees.
The specific types of criminal reports that the complaint reviewers look for include these:
Some of these offenses are relatively serious in and of themselves. Others appear to be relatively minor. The more serious stalking-related offenses will, of course, be treated appropriately by law enforcement and prosecutors who are informed of them. However, unless the officer or prosecutor is thinking about the possibility of stalking, the lesser offenses may not be given due attention.
Patrol is usually the first criminal justice representative to respond to calls from stalking victims (although only a small proportion of cases are so identified by the victim). In a few jurisdictions, patrol is encouraged to identify stalking cases. In San Diego, for example, the City Attorney's Office has developed a stalking questionnaire to be used by patrol first responders.127 The questionnaire is divided into five parts: victim's background, suspect information, relationship information, suspect's conduct, and victim impact. While much of this information will be sought by detectives (or advocates), many of the questions may be used by patrol officers whenever they suspect that they may have a stalking case. For example, one important series of questions that asks about suspect behavior includes violence or threats against others.
In any case where stalking may be potentially be involved, patrol officers should document as fully as possible the nature of the complaint and file their report for future reference in case stalking is determined to be occurring. Those steps should be taken even if no arrest was made either because no suspect was named or if probable cause to arrest was lacking.128
Patrol will also be responsible for responding to 911 calls from stalking victims whose cases are being actively investigated by detectives. Agency policies and procedures should require that the patrol responders inform detectives of what occurred by providing a copy of their written report; personal notification should be encouraged, if not mandated. Copies of the patrol report should also be provided to the victim for inclusion in her own file.
Once a case is identified as a stalking case, it is usually referred to an investigator for follow-up. For several reasons, investigative responsibility is typically assigned vertically; in other words, the assigned investigator is responsible for that case and that victim. Such an approach ensures that the victim has a single point of contact for the indefinite future, an important concern where cases go on for extended periods. Similarly, patrol officers responding to any new complaints of stalking or related crimes will be told to whom to refer the case (victims are told to inform patrol of the case investigator and case number). An important corollary to this point is to require that all subsequent reports involving the stalking victim be assigned the case number assigned to the original complaint so that important paperwork is not lost.129 Concern about file completeness also leads to having a single person responsible for case file management.
The investigative follow-up presents a second opportunity to provide information to the victim about available community services. Although not yet often seen in the stalking context, a number of law enforcement agencies around the country (e.g., Sacramento County Sheriff's Department) have enlisted victim advocates in "ride-alongs" that bring domestic violence investigators and advocates into a teaming relationship. Several of these agencies (e.g., Colorado Springs, Colorado) handle significant numbers of domestic violence-based stalking cases with these teams. Anecdotal reports of the ride-alongs have been quite favorable.
Effective case identification can lead to too many cases to be handled effectively by the stalking unit or specialized investigator. Hence, case screening may be required to identify those cases most in need of the unit's expertise. Any case not assigned to the special stalking unit may nonetheless develop into a more serious stalking case. The Los Angeles Police Department Threat Management Unit requires that the officer assigned to the case monitor the case and personally contact the victim every 30 days for an update on the stalking behavior. If the stalking behavior has ceased for a two-month period, the case is closed.130 Many other special stalking units also use periodic victim call-backs to check that the seriousness of the stalking behavior and threat has not escalated.
The two most important tasks in case investigation are determining the identity of the stalker and obtaining sufficient evidence to arrest and convict. In both instances, understanding the dynamics of stalking can be critical for the investigation and can also reduce the duration of the stalking and the seriousness of its consequences. Several agencies with anti-stalking units have sought to apply research findings on stalking behaviors to such tasks as investigative strategies and threat assessment. Commercial applications of research findings are also seen. However, few agencies are able to keep abreast of the latest research findings.
One important tool for problem solving in stalking investigations is a knowledge of stalker typologies. These include the following:
One of the first typologies was developed by Zona and colleagues and was based on case files from the Los Angeles Police Department's Threat Management Unit.131 This typology focuses on the psychological underpinnings of the stalker-victim relationship. Thus, the typology distinguishes between three types of psychological motivations for stalking:
A recent addition to this typology takes note of a small number of reported stalking cases that involve false victimizations: no one is stalking the "victim." This is sometimes called "false victimization syndrome." Motivations for that behavior range from psychiatric disorders to simple seeking of attention from another person or the authorities. When stalking laws were first implemented, most false stalking reports seemed to reflect a variety of causes ranging from the "victim's" desire for attention to more serious psychological disturbances. More recently, as stalkers have become more familiar with these laws, false stalking reports have become part of the behavioral pattern of stalking itself whereby the stalker countercharges the victim with stalking him. 132
Harmon and colleagues also based their stalking classification scheme on a review of criminal case files, in this instance cases referred to the Forensic Psychiatry Clinic of the Criminal and Supreme Courts of New York City.133 This typology uses two factors: (1) prior relationship: personal, professional, employment, media, acquaintance, and none; and (2) the nature of the stalking motivation: affectionate/amorous or persecutory/angry. The researchers also noted that amorous/affectionate stalkers were also likely to victimize third parties that they viewed as barriers to the relationship between the stalker and the object of affection. They also pointed out that stalker motivations can change from seeking romance to seeking revenge when rejection occurs.
A third classification scheme was developed by Wright and colleagues at the Federal Bureau of Investigation.134 This typology uses a number of factors, including whether the stalker-victim relationship grew out of a domestic relationship (including coworkers) or some other relationship; whether the communications are delusional or non-delusional; whether the stalker is motivated by infatuation, possessiveness, anger/retaliation, or some other motive; and how aggressive the stalker's behavior is. Wright's final typology factor involving case outcomes is relevant to protecting the victim but is not relevant to case investigation issues.
Gavin de Becker, who has developed a computerized threat assessment program for law enforcement, classifies stalkers according to their differng motivations.135 These include attachment seekers, identity-seekers, rejection-based, and delusion-based. While the other categories are not unfamiliar, identity-seekers is a new term. By this, de Becker is referring to stalkers whose motivation is to gain fame or attention (e.g., Mark Chapman, who killed John Lennon in 1980). As thus described, this type of "stalker" may not be engaged in behavior covered by most states' stalking laws, which require victim fear.
Another typology is that developed by Mullen and colleagues in Australia.136 Like several of the more recent typologies, it is multi-axial. The typology focuses on the stalker's motivation and the context in which the stalking occurs. The researchers also consider the prior relationship with the victim and the psychiatric diagnosis. Their primary classifications are the rejected, intimacy seekers (reacting to loneliness), the resentful (perceived insult or injury), the predatory (seeking sexual gratification and control), and the incompetent (poor suitors or courters). Prior relationships in this typology include former intimate partners, professional contacts, work-related contacts, casual acquaintances and friends, the famous, and strangers. Psychiatric status is divided into psychotics and nonpsychotics (primarily personality disorders).
Finally, Spitzberg and Cupach have developed a typology of stalking behavior based on a meta-analysis of the stalking research literature. They categorize stalking behaviors as including these characteristics:
These researchers have also developed a typology using the dimensions of love versus hate and behavior from controlling to expressive. This leads them to posit four types of stalkers: the Intrusive Pursuer, who loves and tries to control, posing a moderate risk of violence;137 the Annoying Pursuer,who loves, uses expressive behaviors, and is low risk; the Organized Stalker, who hates, is controlling, and is high risk; and the Disorganized Stalker, who hates, uses expressive modes of behavior, and is also high risk.138
The several researchers studying stalking from a variety of perspectives (psychiatric, behavioral science, legal) have identified five critical variables:
Prior relationship includes spouses, former spouses, and dating intimates; family members; acquaintances such as coworkers, neighbors, or those with whom one has a business relationship; and strangers. To this one might add "stalker unknown," to include false victimization cases.
Motivations include two primary categories, love and hate (revenge), with a third, less common category of predation. Motivation subcategories include love-pursuit, love-regain, and love-turned-to-hate. Furthermore, these three "love" motivation categories may change over time from love-pursuit to love-hate. Relatively uncommon motivations include attention seeking for false victimization claims and "white knight" savior hopes as part of an effort to appear the hero.
Mental health status includes both clinical disorders (such as depression and schizophrenia) and personality disorders (such as narcissistic, antisocial, compulsive and histrionic).139
Behaviors may be characterized as pursuance, surveillance, intrusion, control, intimidation, threat, and violence. They also include revenge-motivated acts such as harassment and attempts to demean the victim.
Background factors are often important in the case analysis as an aid for explaining why certain behaviors occur and for threat assessment. These include stalker's substance abuse, stalking in the context of a divorce or child custody battle, prior criminal history, prior domestic violence, escalating behaviors and boundary probing.
This simple list of stalker distinctions shows how extensive data collection about stalkers can be and thus how important are sophisticated information management techniques. It also shows the reason for widespread use of threat assessment scales and programs.140 One of the most commonly mentioned programs associated with threat assessment is MOSAIC. However, MOSAIC does not claim to predict future violence; it rates cases on a scale of 1-to-10, with 10 being assigned to those situations that contain factors associated with violence escalation. As such, MOSAIC's data requirement is designed to lead the user in an information gathering process for further individualized threat assessment.141
Exhibit 3 integrates these several typologies from the perspective of an investigator with only limited case knowledge. Thus, the summary begins with the prior relationship since that is the most common bit of information known. For each of the three categories of prior relationship, the table sets forth the most common motivations and any special issues associated with that prior relationship. More detailed information such as specific psychiatric diagnosis is omitted because of the difficulty in gathering such information.
| Prior Relationship | Motivation | Psychiatric Diagnosis | Other Issues |
|---|---|---|---|
| Past Intimates | Intimacy restoration
Revenge/control (jealousy common) |
Personality disorder | Motivation changeable over time
Prior domestic violence |
| Acquaintances or Friends | Intimacy seeking
Revenge Sexual conquest |
Personality disorder
Social incompetent Psychotic predator |
Danger to third party |
| Stranger | Intimacy seeking
Identity/fame |
Psychotic/delusional
Erotomania |
Danger to third party |
| Unknown | Attention seeking
(false victimization) White knight protector Other |
No pattern reported |
|
Of course, these categories (especially the category of prior relationship) oversimplify reality. Indeed, Of all stalking relationships, stranger or casual acquaintance stalking is probably the most underreported stalking. For example, one experienced stalking prosecutor who was assigned to a government benefit fraud unit found that stalking of agency officials who were seen by the applicant as denying benefits were later stalked by the applicant in revenge for the benefit denial.142 These cases had not been identified as stalking until then. Another category of unreported stalking is stalking conducted by gang members of youth who rejected an "invitation" to join the gang.143
Case investigation may use these typologies in a number of ways.144 For example, informal intervention without arrest or evidence collection may be most successful with those characterized as "incompetents," i.e., acquaintances or strangers who do not know how to engage in dating behaviors.145 Incompetents are also among the least likely to engage in extended stalking (more than one year in duration), to abuse drugs or alcohol, or to have prior criminal records. They also typically engage in simple stalking (not creating victim fear), as compared to rejected stalkers, who engage in many more types of stalking behavior.146 In comparison, while predator stalkers have background characteristics similar to the incompetents, predators are three times more likely than the incompetents to have a prior criminal record.147 For these stalkers, criminal justice intervention is an imperative. Investigators may also find useful the research findings on predatory stalkers suggesting that voyeurism is a not uncommon early stalking behavior.148 Similarly, research shows that some stalkers file false claims against the victim, such as filing for orders of protection or alleging wrongful behavior by the victim against her employer, insurance company, etc. The former may be motivated by an intimacy seeker seeking to get close to the victim, while the latter typically is a rejected or resentful stalker seeking revenge.149
Case investigators may also find demographic data useful in determining who the stalker is. Male victims, for example, were found by Mullen and colleagues to be most likely to be stalked by another male, usually a stranger.150
Investigators must also take into account victim behaviors. One obvious reason is the need to exclude false victimization reports, which victim behavior may signal. In addition, a small proportion of stalking cases that involve former intimates may be terminated when the stalker and the victim reconcile; reconciliation is a common occurrence in domestic violence cases. 151
Most commonly, however, the investigator has to rely on victim cooperation in keeping a record of the stalking events to help in building a prosecutable case. At the same time, the victim is experiencing stress and fear as the stalking and the investigation continue. During this interim period, the victim may have to cope with ongoing stalking behavior as best she can, often without official support or advice. As a result, many victims develop coping behaviors that may, on the surface, appear to undercut the seriousness of the threat faced by the victim and her fear of the stalker. Victim behavior in coping with this stress needs to be monitored and assistance provided as needed, both to ensure evidence collection and to preempt any later defense claim that the victim invited the stalking.
Hence, research on victim reactions to being stalked is a second tool for case investigators. However, there are only a few studies of victim behavior. One study of 128 stalking cases by a researcher working with the Sacramento District Attorney's Office found that victims' responses to stalking by former intimate partners consisted of four types of behavior:152
Victim's active resistance (i.e., self-help in facing the stalker) included (in declining order of frequency):
Help seeking behavior included:
Victim coping strategies to minimize danger included:
The most important of Dunn's findings for the investigator was the degree to which victims engaged in compliance behavior in an effort to appease the stalker in order to reduce the threats. Nearly one in five victims who had been stalked by former intimates exhibited some form of compliance behavior as a survival strategy. Such behaviors included:
Compliance behavior can complicate case outcomes by making it harder to prove that the victim is fearful of the stalker. Indeed, compliance can suggest to the naive observer that the victim is encouraging the stalker or leading him on. Moreover, victims of stalking by former intimates often have conflicting emotions toward the stalker. Behavior reflecting both fear and love can muddy the image of victim innocence for a jury.
Investigative responses to stalking complaints are typically tailored to the specific facts of the case: who the victim is, what she does, what types of stalking behavior are occurring, who the stalker is, what the relationship is (or was) between the two, etc. Nonetheless, common problems among groups of cases may be resolved by using similar methods. Sometimes these methods are drawn from other types of crime investigations. For example, proving stalking is occurring may require surveillance. In some cases it may be possible to place video cameras or trained personnel outside the residence of the victim to await the appearance of the stalker. In other cases, it may be necessary to watch the stalker until he or she contacts the victim. In cases where stalking is being done without personal contact, it may be necessary to perform surveillance on a mailbox, a telephone booth, or even a computer terminal in a college laboratory. In one case where the suspect could not be found, the LAPD Threat Management Unit staked out his automobile, to which he did in fact return with evidence of the stalking.153 Other common investigative methods include obtaining security videotapes from businesses where a stalking incident occurred, using phone traps, and seizing suspect's phone records.
Search warrants are especially useful once a suspect has been identified. Anne O'Dell, a former stalking investigator with the San Diego Police Department, recommends looking for such non-obvious items of evidence such as the following:
The Metropolitan Police (Scotland Yard) reminds investigators that stalkers often are serial stalkers. Investigators should always check local records to see if there have been similar complaints or cases. Similarly, friends and relatives of the victim should be contacted to determine whether they too have been stalking targets.155 In domestic violence-related stalking, this advice should extend to past intimate partners of the suspect.
Evidence collection begins with the initial victim interview. Even the initial police report detailing the victim's complaint and her demeanor may be used in evidence to refresh the memory of a police officer witness. The investigator assigned to the case will also begin with an interview of the witness. This interview has several motivations: to gather evidence, to obtain leads for additional evidence gathering, to protect the victim from any threat (including safety planning and referral to services), and to enroll the victim as an additional aid to evidence gathering. To accomplish all these tasks, the Canadian Department of Justice advises investigators as follows:
The most common innovation in stalking investigations is to have the victim keep a log of all stalking incidents. In the log will be noted the time and date of the incident, where it occurred, the presence of any witnesses, and the details of the incident. The victim may also be asked to write how she reacted to the incident, including specific behaviors and psychological responses.157 When it is also used as a diary, the log may help to disprove counterclaims of stalking pressed by the stalker. Victims are also asked to retain any corroborative evidence they have, including audiotapes from a telephone answering machine (time and date stamped, receipts from businesses at the location where the stalking incident occurred, etc. Several jurisdictions have prepared pamphlets for victims that detail what role they are asked to play in the investigation and that contain the log books to be used.158 Victims may also be asked to take photographs of property damage caused by the stalker and immediately seal unwanted letters or gifts in plastic bags when investigators are not available.
Investigators may (when deemed safe) also ensure that the stalker is told that his behaviors (such as following, telephoning, leaving gifts, and the like) are unwanted (often called a "Knock and Talk" intervention)159. By personally informing the stalker of this fact, the officer will be able to testify that the stalker's actions were "knowingly" done, a critical element of the crime under many states' anti-stalking laws.160 The Dover Police Department recommends that investigators gather as much information as possible about the suspect (including motor vehicle and criminal record checks161) before interviewing him. Interviews with family, friends, neighbors, etc. are also part of the suspect pre-interview data gathering. All interviews should be fully documented. The types of information about the suspect sought at this time include the following:
When the suspect is finally interviewed, he should be given an opportunity to explain how his actions may have been misinterpreted by the victim (or others). Before the interview is completed, the suspect should be asked about prior similar behavior (toward other victims).163
An important consideration in interviewing stalkers is their tendency to use self-justification to explain their stalking behaviors. As Mullen et al. put it, they have a unique ability to "deny, minimize and rationalize." These medical practitioners suggest that questioning in their context be "nonjudgmental, if not collusive."164 They further found that "intimacy seekers in particular respond well to reframing stalking in terms of a quest." This allows answers that do not require justification of actions.165 As one law enforcement practitioner described it, they need to be questioned as child molesters: "Tell us how your acts were misunderstood."166
Other investigative techniques are much more sophisticated, especially where cyberstalking is involved. In these cases, it may be necessary to serve search warrants on Internet Service Providers (ISPs) to help identify who is sending the cyberstalking messages or simply to prove that the suspect was responsible (where identity is already known). In most instances, the suspect is not notified of service of a search warrant. However, where the ISP provides Internet service through a cable system used to deliver television services, federal law requires that notice be given by the ISP.167 In some California jurisdictions, the prosecutor routinely requests that the court issuing the warrant also enjoin the required notice until the investigation is complete.168 It should also be remembered that cyberstalking cases require great speed in gathering electronic evidence. Many ISPs routinely erase their service records within 12 or 24 hours of when an e-mail or web link is provided.
The state of Connecticut has developed training materials for stalking investigators. These materials provide suggestions about additional steps investigators can take to obtain evidence corroborating the victim's statements. Investigators are encouraged to do the following:
Interviews of coworkers, friends, neighbors, family members, or even persons living in the same multi-family building as the victim may provide important corroborative evidence. The interviews may also uncover additional stalking behaviors that the victim was unaware of (e.g., lurking in the area)170.
Other types of corroborative evidence may be gathered by obtaining the suspect's telephone records for calls to the victim and by using the media (where the case has unique features) to get reports of similar victimizations.171
Investigators are also reminded that because stalking investigations are time-consuming, victims may stop reporting stalker contacts or incidents. That does not mean they are uninterested in having the stalker arrested, but; they are simply fatigued.172 This problem, identified by the state trainers, identified is likely to be most acute where the victim has no single point of contact at the law enforcement or prosecutor's office to call for support.
The history of the stalker's behavior is the heart of any stalking investigation. This history is, of course, contained in the unit or investigator's case files. How those files are maintained is critical to successful investigations and prosecutions. The LAPD Threat Management Unit requires that each stalking case file be maintained in a separate, case-specific three-ring binder that is maintained chronologically.173 The Colorado Springs DVERT program has adopted a similar requirement for its investigators handling stalking cases.174 The stalking case file should typically includes the following:
Other information that may be contained in the file is as follows:
Selected data from the file is also entered into the unit's computerized database. All files are kept in a locked file cabinet in the TMU area. Computerized data about stalking cases is maintained indefinitetly. Depending on whether the case was considered "active" or simple information only, hard copies of the files are kept for three years and eitherbefore being transferred to archives or destroyed.
Agency collaboration is a necessity in many stalking cases where stalking crosses local jurisdictional areas. For example, the victim may be stalked at her home in one city, at her workplace in another town, and while shopping in a third jurisdiction. Evidence from all the stalking locations must be collected, yet no single law enforcement agency has jurisdiction over all the stalking locations. Even the county prosecutor may not have authority over all the sites involved in the stalking. To remedy this problem, a number of agencies have entered into agreements that assign control of the investigation to one agency's stalking officers. If a stalking incident occurs in another jurisdiction, the victim is told to inform the local investigators of the name of the lead agency investigator and the case number. Copies of all reports of the incident will then be sent to the lead investigator.175
A second type of agency collaboration is discussion of stalking case issues at regular meetings attended by different agency investigators and prosecutors assigned to stalking cases and by other persons interested in stalking issues. In San Diego, for example, a multi-agency Stalking Case Assessment Team (SCAT) meets monthly to discuss stalking cases that have presented problems to the investigators. These problems might call for discussing how best to identify who the stalker is or whether the case involves a false victimization claim. Attendees at these meetings include representatives from the District Attorney's Stalking Unit, the City Attorney's Domestic Violence Unit, the San Diego Police Department, other local law enforcement agencies in the county, a mental health specialist who treats stalkers, court security personnel, local university police officers, and academic researchers. Representatives from victim services agencies may also attend, often to inform the assessment team members of the services they provide to victims. Federal agency investigators may also participate. In addition to brainstorming about active cases, the SCAT meetings may be used as a forum for training participants on such topics as threat assessment.
A final agency collaboration is the assistance provided to local agencies by the federal government. The Behavioral Analysis Unit of the Federal Bureau of Investigation's National Center for the Analysis of Violent Crime will, upon request, provide local agencies with assessments of communicated threats, dangerousness assessments of known offenders, profiles of unknown offenders, crime scene analysis, and investigative and interview strategies. In addition, center staff provide training on these topics.176 For example, the center's analysis of threat stylistics may be useful in a case where the stalker's identity is unknown. Such an analysis may suggest the stalker's probable level of education, criminal sophistication, race, use of English as second language, and sex. Where a suspect is identified, comparative examination of other suspect writings may help in ascertaining whether the suspect is the person sending written threats. The Secret Service provides similar help through its National Threat Assessment Center staff. They have developed protocols for handling threat cases177 and also provide training for state and local law enforcement agency staff who have protective responsibilities, including those associated with stalking cases. The Secret Service's forensic unit also provides technical assistance to local law enforcement agencies in specific cases. The assistance includes document comparisons, handwriting analysis, and information from the Secret Service's database of celebrity stalkers and persons who have threatened public officials.178
When an arrest is made, the case is then referred to the prosecutor's office. At that point, the arresting officer should summarize the key elements of the case for the prosecution. The summary should describe the following:
Law enforcement development of a case summary would be especially useful to the prosecutor at bail hearings where there has been little time to interview the victim or gain other information about the seriousness of the case.
Stalking prosecutions are often problematic because of staff inexperience with stalking cases and the absence of agency policies and procedures that might otherwise provide guidance in lieu of personal expertise. The primary responsibility of prosecutors is, of course, to prove that the defendant committed the crimes charged. While the defendant will plead guilty to the charges in many instances, in a significant number of cases a trial will be required. It is unclear, at this point, whether stalking cases are more likely to go to trial than other types of criminal cases. There is some reason to suspect that this may be the case, at least for some types of stalkers, such as those seeking fame. In any case, prosecutors must always prepare their cases as if they will have to convince a jury that the defendant stalked the victim.
Because most law enforcement agencies do not have specially trained investigators to handle stalking complaints, stalking prosecutors may need to have their own investigative staff help gather the evidence necessary to prove stalking. Since stalking is an ongoing crime, prosecutor investigators are especially critical in the management of evidence collection, even where local law enforcement agencies have investigators available. In many jurisdictions, however, caseload pressures are such that the prosecutor's investigator may be the only person assigned to the case on a permanent basis.
Prosecutors' traditional responsibilities begin after the suspect is arrested and appears before the court at a bail or pretrial release hearing. While in many jurisdictions, bail is a routinized procedure for which there may even be a bail schedule, routine bail should never occur in a stalking case where the threat of violence is the basis of the arrest. Prosecutors will typically stress the uniqueness of these cases to the official who sets bail and release conditions, especially the dangers that may be presented to the victim by the stalker. Law enforcement experts on stalking can help educate the hearing officer about what stalking is and about its dangers for victims. In some cases, pretrial detention may be requested on the basis that it is needed to prevent witness intimidation of the victim or other witnesses. Some prosecutors will also charge the stalker with all possible crimes committed while stalking. This is intended, in part, to educate the bail hearing officer on the scope and seriousness of the stalking.
In appropriate cases, preventive detention or referral to psychiatric evaluation may be requested. In other cases, intensive pretrial supervision (including electronic monitoring) may be needed. The court should also be asked to issue a no-contact order forbidding the suspect from engaging in any stalking behaviors; this order should be specific to the facts of the case. As appropriate, a curfew may be ordered. The order should also forbid the suspect to obtain any dangerous weapons and to surrender any weapons already in his possession. When called for, substance abuse testing should be required. 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. Where available and needed, victims should be provided with a means to contact 911 wherever they are, including panic buttons to alert neighbors, passersby, etc.180
Among the types of evidence that the prosecutor may use to support objections to release are the following:
The heart of the prosecution's case is the victim's story. It is critical that this story be as complete as possible. In many instances, prosecutors should not rely on the police investigation to obtain all the facts known by the victim. Police investigations, especially where there is no specialized staff or unit, do not require a full debriefing of the victim; they only need enough information to support a probable cause determination that a crime has occurred. For this reason alone, prosecutors will have to re-interview the victim early in the process to gather evidence that the police investigation did not uncover.181 Several points should guide this interview:
The prosecutor's interview with the victim is also an opportunity to provide the victim with information about what she can do to enhance her personal safety and how public safety agencies can assist. For this reason, prosecutors may wish to have a victim advocate join the victim interview to help with safety planning and referral to community services.
Prosecutors may also at this point become involved with the victim's civil court efforts to obtain a stalking protection order. It is common for prosecutors to suggest that victims consider seeking such an order, with due consideration being given, of course, to victim safety issues. It is also becomingly increasingly common for stalkers to counteract (even preemptively) with their own filing for a court order of protection. Because they have been involved in numerous cases where the stalker tried to manipulate the court system by falsifying the facts, staff in the District Attorney's Office in Kings County (Brooklyn), New York, routinely intervene in the civil court proceedings to present the facts as they know them to the court. Doing so serves to prevent conflicting orders and removes potential confusion for jurors when the case is tried in criminal court.184
The first important tactical decision in a stalking case is the filing of formal charges. Decisions must be made about the scope of the charges to be filed. For example, prosecutors may have to choose between charging all stalking acts as one crime or charging several crimes. Charging all acts as one crime shows the full extent of the stalking behaviors, while splitting up the behaviors into two or more charges may increase the defendant's sentencing exposure.185 The prosecutor must also determine what other non-stalking charges to file. These can include serious felonies, such as aggravated assault, rape, or residential burglary; lesser misdemeanors, such as criminal mischief or trespassing; and violation of a court order of protection. Again, sentencing considerations play a significant role in this decision. In some jurisdictions (e.g., New York), charging lesser crimes may be important because lesser crime convictions may increase the penalties for stalking should there be subsequent recidivism.186 In other states (e.g., California), the law authorizes consecutive sentencing in misdemeanor cases so that the actual exposure to incarceration may be greater for multiple misdemeanors than for a stalking felony charge.187
At the same time, these filing decisions must take into account any potential double jeopardy issues relating to twin convictions for the same crimes. 188 Finally, court venue may play a role in some states where the stalking behavior occurred in several different locations. Most states, however, provide venue in both the locality where the crime occurred and the location where the crime was planned (i.e., where the intent to commit a stalking act arose). 189 Another concern may be the victim's ability to cope with an extended wait for a felony trial; misdemeanor cases can typically be closed in half the time of felony cases.190
A final filing decision regards what charges to bring where the victim says she is not in fear of the stalker, yet the applicable statute requires victim fear as an element of the crime. While there is only one court decision that directly supports charging defendants with attempted stalking,191 there are also analogous decisions holding that attempted terroristic threats may be charged where there is an intent to instill fear, but the victim was not fearful.192
Trial preparation is critical to any successful prosecution. A stalking prosecutor in Orange County, California, provides the following checklist of preparation actions:
Because the statutory elements making up the crime of stalking typically include reasonable victim fear, 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 that the victim had a reasonable fear for her safety due to the stalking begins with the victim's testimony. It, too, must be corroborated by such evidence as the following:
The crux of the prosecution's story should usually be the impact of the stalking on the victim, however bizarre the facts of the case may be. But not always. In rebuttal, the defendant may claim that there was no threat expressed or implied or that the stalking behaviors exhibited were simply acts of love. The victim may even have exhibited behaviors, as described above, seemingly inconsistent with being a victim, especially to one unfamiliar with the dynamics of domestic violence and stalking. However, the prosecutor has several potentially important tools to work with. Stalking cases are stories that grab the jury's attention. The crux of the story is the impact of the stalking on the victim. Typically the facts are not complicated, even though they may be voluminous. Thus, prosecutors as advocates have very favorable conditions in developing their opening and closing arguments.
First, the prosecutor will have corroborative evidence that backs up the victim's testimony. This includes all the evidence detailed above that makes up a prima facie case of stalking. Identity evidence may come from victim testimony, videotapes or cameras, fingerprints on gifts or letters, or paper (similar to that used for notes) found under defendant's control during a warrant search, etc.
In some cases, the facts may not be clear. One common problem is proving victim fear. Victim testimony and collaborative evidence from other witnesses can address direct factual items such as behavior changes, locks changed, etc. The victim can also detail the time and effort expended in keeping safe, such as the time involved in filing for civil orders of protection and the number of trips required.194 Such detail is intended to lead the jury to infer that the fear described must have been a major motivator for such extraordinary efforts. In addition, the proving the facts of the caseprosecutor can call expert witnesses to explain to the jury that stalking has occurred and that the victim was fearful. 195Thus, 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 stalking victim can be shown to be a common adaptive response to the stress of being a stalking victim at high risk of violence for a long period. Building a pool of expert witnesses qualified to testify on stalking may be difficult, but it probably is one of the first non-case specific tasks a special prosecution stalking unit must do.
Proving reasonableness of the victim's fear requires leading the finder of fact to understand the importance of the context in which the stalking occurred. The significance of implied threats can best be understood in light of the defendant's history, especially prior incidents of violence (including violence directed at the victim or violence against others that is known to the victim). Not all states permit entry into evidence of the defendant's prior acts, on the basis that it is likely to be more prejudicial than probative. However, many do, and where it is permitted, prosecutors must make an effort to obtain corroborative evidence to support the victim's testimony about prior history. This, of course, is another important reason for the prosecutor's office to have its own investigative staff in stalking cases.
Stalker intent may be the hardest fact to prove. Some state laws require proof of the stalker's specific intent to stalk and terrorize the victim; others merely require a general intent to do the acts that resulted in terror and fear. One common method for proving general intent is to show that the stalker was informed by the victim, the police, 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. Letters, police testimony about intervention, and court orders of protection are used to document such warnings. Where specific intent is required, the defendant's continued actions after such notification may be subject to the proposition that one is presumed to intend the natural and probable consequences of one's actions. 196
One problem in a small proportion of cases is that the victim may become uncooperative. Typically this occurs when former intimates become reconciled, although a few cases may involve a victim so terrorized that she cannot effectively cooperate with the prosecution. Depending on when in the course of investigation and prosecution this occurs, it may be impossible to proceed without victim testimony; such testimony is usually critical to proving actual victim fear, as many states' stalking laws require. Not all states have such a requirement; even though fear itself cannot be shown, proof that victim fear would have been a reasonable reaction may be all that is needed. Participants in the regional seminar series sponsored by the Bureau of Justice Assistance favored a modified no-drop policy in stalking cases where the victim is uncooperative. They pointed to the possibility of using prior victim statements under the spontaneous utterance exception to the hearsay rule, for example. The participants also suggested that prosecutors have the victim testify at bail hearings and probable cause hearings in any case where they suspect victim cooperation may become an issue. 197The participants did not discuss either how a no-drop policy might affect victim safety or what to do if the victim testifies for the defendant.
Finally, although most stalkers do not testify at trial, when they do, adroit cross-examination can make them the best witnesses 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 let the stalker talk; his "explanations" may simply make the jury as fearful as the victim. In other cases, a stalker's "explanations" should be cut off, since they are often both clever and manipulative, and if only one juror buys his answer, a hung jury may result. 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. When this occurs, 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., works, drives without accidents). This dual approach to countering any claim of debilitating mental illness will show that the planning that went into the stalking is inconsistent with any serious mental defect that could undercut specific intent.198
Unless foreclosed by a plea agreement, once a conviction has been obtained, the prosecutor will make a recommendation to the court about the most appropriate sentence. In many cases, the threat to the victim is so great that the sentencing recommendation is self-evident: incarceration for as long as possible. When the threat is not as great, the court may favor a probation sentence, or a plea agreement may specify probation. In either case, the prosecution will want conditions that help guard victim safety attached to the probation sentence.199 Just as the prosecutor argued for restrictive conditions upon pretrial release, so too will the prosecutor seek intensive supervision, electronic monitoring, and no-contact orders, violation of which will result in revocation of probation. Furthermore, where new stalking occurs in violation of the probation conditions, prosecutors will press the new criminal charges rather than simply requesting the court to resentence the stalker based on the probation revocation. These are separate proceedings, and victim safety often requires that both cases be prosecuted.
Regardless of whether a sentence of incarceration or probation has been issued, prosecutors will want to maintain periodic contact with the victim to determine whether there have been any new incidents of stalking. One of the unique features of stalking is that incarceration does not necessarily end it. Inmates may call or send letters to the victim directly200 or through third parties, or they may ask released inmates to continue their stalking efforts201. Furthermore, in almost all cases, incarceration eventually ends. Prosecutor contacts with the victim during the incarceration period reassure the victim that there is someone to go to if the stalking should resume after the stalker's release.
In cases where the stalker is sentenced to probation, assignment to an intensive supervision caseload is often found appropriate after a threat or dangerousness assessment is conducted. Typically, intensive supervision caseloads involve no more than 30 probationers per officer. That ratio allows for at least one face-to-face contact each month, plus unscheduled visits to determine whether the probationer is at work and obeying all other conditions of probation. It also allows the probation officer to meet the victim and encourage her to call the officer should stalking resume. It further enables the officer to call the victim periodically to check on how things are going and to reinforce the earlier message that probation is a resource for help. In practice, however, only the most serious cases are eligible for intensive supervision because the staff needed for this function are overworked. Priorities will need to be set; periodic victim contacts are probably the minimum task requirement to protect victim safety. Such contacts should be coordinated with the prosecutor, and procedures should be set forth so that each notifies the other when information about a potential danger to the victim is discovered.
Where possible, the intensive supervision caseload should be supervised by a probation officer experienced in dealing with stalkers because stalkers are generally a "better" class of criminal, with higher intelligence and education. 202 The very nature of stalking, moreover, is one of manipulation, using their intelligence and often pleasing personalities to direct the probation supervision in ways that undermine its effectiveness. One experienced probation officer reports that because stalkers are generally hostile to supervision, she sets firm boundaries on their behavior to emphasize the control relationship underlying intensive probation. For example, there should never be open-ended or vague requirements or promises to end supervision by a set date. Just as stalkers do not "hear" the victim's "no," so too they do not hear the probation officer's qualifications in their relationship. Another tip for handling stalkers is never to let them set times for supervision meetings, since doing so goes against the officer's authoritarian role in the relationship. A second reason for using stalking-experienced probation officers is their increased ability to monitor stalker recidivism through the victim. By helping the victim with needed services and providing a prompt and sure response to victim complaints, the strengthened relationship between the officer and the victim can be critical to effective supervision.203
In a few jurisdictions, the convicted stalker may be required to attend a stalker-treatment program.204 Because there are so few such programs known, no generalized description of them is possible. Known programs use a psychologist or psychiatrist and a group therapy approach to instill behavioral change. More intensive pharmacological services may be used for stalkers exhibiting serious mental illnesses. In addition, some stalkers may also need instruction on life skills, such as acquiring and maintaining friendships and improving social networks. Research on successful treatment of stalkers is limited.205 Hence, linking probation and stalker treatment is still a problematic exercise today.206
Victim safety and well-being are critical responsibilities for both law enforcement and prosecution. The victim is undergoing tremendous stress from the stalking. At a minimum, psychological support is critical to her well-being. Referrals for counseling, support groups, and other victim services may also be needed.
The most important question in a stalking case is, "How dangerous is the stalker likely to be to the victim?" Protecting the victim is a higher priority than a successful prosecution.207 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. Typical factors considered in threat assessment include the suspect's history of mental illness or violence; history of domestic violence; explicit threats of violence; vandalism or pet abuse; and increase in stalking activity. Much of this information can be gathered from official sources. Where there has been a prior relationship, investigators will often be able to obtain additional information from the victim about prior domestic violence, other prior violence, weapon possession, substance abuse, and mental health. Victims should also be asked about their assessment of potential violence.
As noted earlier, research on threat assessment is still rudimentary. Nonetheless, some typology studies do provide indicators or correlates of dangerousness. Zona's research found that "simple obsessional" stalkers were the most likely to present a threat of violence, especially those who had had a prior relationship with the victim.208 Other researchers have also found that erotomanics, who typically have not had any prior relationship with the victim, can be dangerous209, especially to third parties viewed as blocking successful pursuit of the stalking victim.210 Many other researchers have focused on relationship factors. Schwartz-Watts and colleagues confirmed Zona's finding that the greatest risk of violence came from stalkers who had a prior relationship with the victim.211 Similarly, Harmon and colleagues found that prior relationship was a predictor of violence against the victim. Nearly two-thirds of stalkers who had had an intimate relationship with the victim showed violence; only one-third of those who had been acquaintances showed violent behavior; and less than one-quarter of stranger stalkers were violent212. Looking at other stalker characteristics, the Harmon research team found that the greatest likelihood of violence was with stalkers diagnosed with both a personality disorder and substance abuse or mental disorder. Most significantly, they found that most stalkers who threatened the victim acted on that threat. In comparison, only 20 percent of those who did not threaten acted violently. 213 Harmon's principal findings were replicated by Kienlen and colleagues, who also found that stalker violence was most likely among those with a personality disorder or substance abuse and who had a former sexual relationship with the victim.214 In the largest of these studies, Mullen and colleagues found that one-third of 146 stalkers attacked their victims; 6 percent attacked a third party. While most of the violent episodes were minor, nearly 20 percent involved sexual assaults or attempted assaults. Following their typology, the researchers found that rejected suitors were most likely to be violent (59 percent); these stalkers were also likely to threaten their victims. Predatory stalkers were also likely to both threaten and carry out their threats. Although resentful stalkers were most likely to use threats (87 percent), they were far less likely to actually use violence (29 percent); they were, however, likely to commit property damage (50 percent). Intimacy seekers were also prone to threats (50 percent), but far less likely to commit violence (24 percent). The researchers also found that violence was associated with personality disorders and substance abuse. Prior criminal record was also highly correlated with stalking violence. Interestingly, the correlation between prior threat and violence was not present for former intimates; nonetheless, former intimates were most likely to commit violence (64 percent), and stranger stalkers were the least likely to do so (24 percent).
Mullen et al. conducted a regression analysis to determine which risk factors were the most useful in predicting violence. They found that the most important predictor was prior criminal record, followed by substance abuse and typology. Other important indicators of potential violence are prior relationship and overt threats.215 Further, substance abuse of any kind is strongly associated with violent acts. All these factors need to be assessed on a case-specific basis. As Mullen et al. point out, although strangers are the least likely stalkers to commit violence, this group includes predatory stalkers, who are among the most likely to commit sexual assaults against their victims. 216 Mullen and Pathe also cite studies of non-stalking violence that list other indicators such as suicide threats, depression, common bail risk factors such as unemployment or social isolation, and case-specific clinical issues such as having high anger levels directed at the victim, having an intense sense of entitlement, or fantasizing about an attack.217 Another, more recent study of 187 former intimate stalking victims found that for this victim subpopulation, prior violence is a moderate predictor of future violence; the author speculates that the stalker's reduced access to the victim moderates the value of this predictive factor.218 The study also supported other research findings that a stalker's use of verbal threats is the most powerful indicator of future violence.219 Other research, however, finds that verbal threats are a weak predictor of future violence compared to profile information such as a prior intimate relationship between the stalker and victim.220
In sum, threat assessment begins with characterizing the stalking according to typology, since the research clearly shows that different risk factors are associated with different types of stalkers and stalking. The next step is to particularize the threat assessment by examining the specific behaviors, as well as background factors such as prior criminal history and incidents of violence. Thus, using the studies above as a guide, it is possible to roughly divide stalkers into low, medium, and high-risk offenders. Two problems with this approach remain, however. First, even low risk does not mean no risk. False negatives are not uncommon because assessment of risk potential may change over time as new information becomes available, e.g., overt threats are issued or information about prior convictions becomes available from other jurisdictions. Risk assessment is therefore a continuing process. Second, false positives (mistaken predictions of violence) are also of concern.
Once the threat is assessed, the question arises as to how best to protect the victim. Each case must, of course, be assessed on its individual merits. In some cases, a simple intervention or warning interview will suffice221; in others, a court injunction or protection order may be sought. In yet a few other cases, obtaining a civil order of protection may have the reverse effect of increasing the level of danger to the victim.222 Other common tactics used by law enforcement include providing the victim with a home alarm system that will trigger police action. Where this is done, more advanced systems will also ensure that the 911 dispatcher has access to descriptive information about any suspect and his vehicles. Victims will also be advised to take other actions, such as changing phone numbers, varying routes to work, or renting a post office box for mail. In extreme cases, the victims will be aided in relocating 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.223
A number of law enforcement and prosecutor agencies provide victims with an informational booklet that details measures they can take to protect themselves. The LAPD Threat Management Unit handbook, for example, prefaces its recommendations with the statement that police cannot guarantee safety and thus the victim is encouraged to take steps on her own. Among other measures, the booklet advises victims to do the following:
The Dover Police Department protocol suggests additional actions regarding the family's children. For example, children need to be instructed to keep all address and telephone information confidential. The protocol also raises the question of whether the children's school should be notified, but it does not provide an answer.225
Other actions to offer victims of stalking, suggested by a victim services agency, include the following:
Stalking victims require non-criminal justice assistance for at least two reasons. First, being stalked is stressful. Victims often need support and counseling. Medical and psychiatric or psychological treatment services may also be required to help the victim deal with past or ongoing stress.227 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, the safety precautions described above 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.
Victim advocates and similar service providers can deliver some limited services themselves and refer the victim to other, more specialized service providers. Many special anti-stalking units have victim advocates assigned to help the stalking victims. For example, virtually all the special stalking prosecution units in the several California county prosecutor offices 228 with such units have a victim advocate assigned to the unit. In part, this may be due to the availability of state funding for advocate units in the prosecutor offices; such funding reduces the financial costs of the stalking unit advocates, although it does not explain why prosecutors have made that position a priority. In contrast, only a few victim service agencies direct special attention to stalking victims, even in the context of domestic violence. Again, funding issues may explain, in part, why this is so.
The types of services needed by stalking victims include these:
Since stalking victims may also be victims of other crimes, such as sexual or physical assaults, victim services that relate to those crimes should also be available. Similarly, when stalking victims have also been subjected to domestic violence, additional victim services may be appropriate. Finally, while all crime victims may be nervous about testifying in court, fears of testifying are especially large for stalking victims who have been trying to avoid face-to-face contacts with their stalker. Special attention to these fears needs to be displayed by victim advocates. 230
Victim involvement in the investigation and prosecution of stalking cases is often critical to completion of these cases. This involvement may also be beneficial to the victim since it allows the victim to feel that she is retaking control over her life. Not coincidentally, regaining control increases victim cooperation with law enforcement and prosecution. Another way agencies can help victims regain control (or not lose control) is to help them live their lives as normally as possible. The Legal Aid Service of Oregon advises victims of stalking to do the following:
Providing services for stalking victims generally requires collaboration between criminal justice agencies, victim service agencies, and such service providers as the following:
Collaborative relationships are developed and maintained differently in every community. In some jurisdictions, collaboration is more or less ad hoc. In others, formal agreements are reached. The Colorado Springs DVERT program, for example, is a joint venture involving local criminal justice agencies and both public and private service agencies, including mental health, social services, child protective services, and the local victim services agency. Each agency assigns staff to work with the other agencies' staff at the DVERT offices, which are located apart from any of the sponsor agencies.
Stalking cases are different from other types of crime cases. These differences are reflected in the organization and operation of the special anti-stalking units. The most important difference lies in the relationship between the victim and the investigator or prosecutor assigned to the victim's case. Stalking cases last a long time and rely on the victim for important evidence gathering. By themselves, those two factors lend themselves to a relationship between the agency staff and the victim. Such relationships are to the advantage of both parties: the victim knows whom to call when a problem occurs, and the agency obtains increased victim cooperation in evidence gathering and testimony.
The investigative or prosecuting agency, therefore, has a significant interest in promoting strong victim-staff relationships. One agency policy that fosters such relationships is assigning one investigator or prosecutor to handle all aspects of the case. 232Unitary or vertical case assignment of staff means, however, that the investigator or prosecutor assigned to the case must be able to respond to a stalking call from a victim at all times. While many issues may be handled by telephone, not all can be, and an on-scene presence may be needed.
An unusually high demand for staff overtime to handle victim calls for assistance or evidence collection (e.g., from stakeouts) is a second management concern.233 Nonetheless, such calls are the cost of doing business as an anti-stalking unit. They can be budgeted for to some extent, while alternatives such as compensatory time may be used where permitted.
Staff caseloads are a third management issue that must be addressed. Stalking cases are labor-intensive due to the long period during which evidence must be collected. For example, one domestic violence investigator estimates that only 1 percent of his cases involve stalking, but those cases take up 10 percent of his time. 234 While that may be an extreme case, managers should expect stalking investigators and prosecutors to have lower caseloads than more generalized staff and domestic violence unit staff.
Further compounding the staff caseload issue is that most special unit supervisors and staff are also responsible for non-case specific duties. Because stalking is not yet well understood, the demand for information about stalking is high. Hence, special unit staff are responsible for training other agency staff about stalking, training related agency staff (e.g., prosecutors training police) on stalking, and providing community education to encourage reporting of stalking. Experience suggests that as much as 10 percent of supervisor staff time and 5 percent of other unit staff time may be spent on these activities.
Managers, especially law enforcement managers, may also be expected to develop an operations manual that sets out written policies and procedures to guide staff actions. In several places in this report, references have been made to different aspects of such manuals, including case file management and case eligibility screening. A unit manual might also include agency policy on overtime, procedures for referrals to other service agencies, and guidance on victim safety planning assistance.
A substantial body of experience with anti-stalking initiatives has been gained among the few law enforcement, prosecution, probation, and victim advocate agencies sponsoring such efforts. Interestingly, this experience is consistent with the efforts of agencies in other countries, such as the United Kingdom and Australia, to implement their anti-stalking laws. Among the key managerial lessons learned is the need for specialized staff, vertical handling of cases, and multi-agency/community coordination. Lessons for practitioners include the importance of victim-gathered evidence (and the need to work better with victims and victim advocates), corroborative evidence, problem-solving approaches, and the use of research on stalking and stalkers to inform threat assessment and safety planning. The research uncovered numerous examples of how these principles are being implemented and can be emulated.
Examination of the wealth of material available on stalking confirmed in great detail that stalking is a serious crime. Stalking's toll on victims is insidious and pervasive. More importantly, the research on the incidence of stalking suggests that it is a far more common occurrence than previously recognized. The enactment of anti-stalking laws is amply supported.
The review of state anti-stalking laws and their implementation found both good and bad news. The good news is that every state has enacted an anti-stalking law, and those laws are becoming progressively more strict, even though significant gaps in state anti-stalking laws are still common. The bad news is that programs to implement the stalking laws are currently limited to relatively few jurisdictions. Where these programs exist, they are generally doing an outstanding job, especially where they use specialized staff to handle the most serious stalking cases. Special unit staff also serve as a resource for other agency personnel who handle spillover stalking cases that are not handled by the core unit staff. By and large, a problem-solving, case-specific approach to these cases is used by the best programs. However, a number of routinized procedures have been developed to ensure that records are maintained in full and that important questions do not go unasked.
Anti-stalking efforts begin with laws that make stalking a criminal offense. Such laws can deter some potential stalkers from stalking and keeping others from stalking during a period of incarceration or supervision. The great majority of these laws were adopted in a short period, 1990-1993. At that time, comparative information about the effectiveness of differing approaches to anti-stalking legislation was totally lacking; indeed, relatively little was known about the extent and seriousness of stalking itself. As a result, virtually no state's laws dealt with the myriad of issues that a comprehensive anti-stalking legislative package would include. As experience with these laws' shortcomings has come to light, a number of states have amended and added to their original anti-stalking laws. Almost every state's stalking laws need significant change, such to increase the penalties for stalking, provide civil remedies, or make other adjustments.
States should review and update their anti-stalking laws to take advantage of what has been learned in the past decade about effective legislation. This review should begin with comparisons to the Model Anti-Stalking Code developed by the National Criminal Justice Association for the National Institute of Justice. 235
Legislative review should include consideration of the following:
In addition to strengthening the civil and criminal code provisions for stalking and related offenses, other amendatory issues include the following:
Other stalking law amendments that should be considered include these:
The most significant finding relative to implementation of state stalking laws is that relatively few jurisdictions have acted to enforce the state stalking laws by assigning staff to that purpose. Hence, the immediate need is to expand the number and responsibilities of specialized units handling stalking cases.
Perhaps the greatest barrier to the establishment of new stalking units is the lack of understanding of the nature and seriousness of stalking among local policymakers who fund and manage criminal justice agencies. Specifically, those policymakers need to understand that stalking cases
Studies on the incidence of stalking indicate that there are 2 to 6 million stalking cases annually, depending on the definition of stalking used. However, convincing local policymakers that stalking cases are numerous in their jurisdictions is not simply a matter of showing a few research numbers. Because of the often widespread skepticism of research, national estimates of the number of stalking cases are not especially persuasive. Instead, policymakers must be pointed to the large number of serious stalking cases that special stalking units are presently handling in jurisdictions similar to the one where these policymakers reside. For example, DVERT, in Colorado Springs, Colorado, expects to have in 2001 up to 70 serious stalking cases involving domestic violence. The San Diego District Attorney's Office handles about 100 serious stalking cases annually, divided almost equally between domestic violence and stranger-related cases, with perhaps another 100 less serious cases handled by prosecutors outside the special unit. In Queens County, New York, Safe Haven advocates respond to between 250 and 300 stalking victims annually. In none of these jurisdictions are the justice agencies aggressively seeking out stalking cases. In Dover, however, the police department stalking unit is aggressive in looking for stalking cases and handles as many as 30 annually, in a town whose population is less than 30,000.244 The statistics from Oregon of over 1,400 stalking civil petitions filed annually are especially instructive in demonstrating how few stalking cases are recognized by law enforcement. Extrapolating from the experiences of the special anti-stalking units we have looked at and talked with, there are, at a minimum, 40,000-50,000 serious stalking cases each year. This statistic is not insignificant; it is three times the annual number of homicides and more than half of the number of forcible rapes reported in the United States. In sum, one does not need to cite victim surveys alone to prove how common stalking is; one needs merely to point to the experiences of several jurisdictions that have made an effort to deal with stalking, experiences that show that "if you build a stalking unit, they will come."
Policymakers, especially agency managers who often place responsibility for stalking cases with their domestic violence unit, need also to be made aware that less than half of all stalking cases involve intimate or former intimate partners. The National Violence Against Women Survey found that 40 to 45 percent of all stalking cases involved domestic violence.245 The review of court decisions discussed supra reached similar conclusions. Thus, any stereotype of stalking that solely links stalking with domestic violence is simply wrong in many instances.
Comparison of stalking cases to homicide and rape is not unjustified. At one level, many homicide cases, especially domestic homicides, often have a stalking component. This is the reason that stalking cases are so common among special units that are set up to deal with only the most serious threats to personal safety. At another level, the disruption in life that stalking can create for the victim can be just as serious as that from other personal injury crimes. Furthermore, because stalking is a continuous crime, its effects can continue to escalate until the victim requires extensive therapy, is forced to move from the jurisdiction, spends thousands of dollars on safety equipment, etc.
By and large, policymakers understand that stalking can be a serious crime. Indeed, it is precisely that understanding that prompted the enactment of anti-stalking laws. To the extent that more needs to be done to explain how serious stalking can be, the court decisions reported above can be usefully cited, as can the numerous stories in the daily press and first-person stories in popular or mass-market magazines.
Stalking cases are unique in their complexity, duration, and level of threat. Often they require extensive victim involvement in evidence collection and a level of agency staff-victim cooperation that is new to most practitioners. State stalking laws place new demands on investigators in gathering evidence and prosecutors in moving these cases forward. Innovation must be matched with routinization of these new methods and procedures. Experienced personnel are required. Without such personnel, many stalking cases will go unrecognized and without any justice system response. Other cases will fail for lack of adequate evidence collection or the prosecutor's inability to explain stalking to juries. Victims will go unprotected and some will either be seriously injured (or even killed), while others will lead lives of quiet desperation while their stalkers continue to haunt them. Models of how to develop staff expertise are available, however. How these specialized staff and units operate is fully documented supra. These models need to be implemented in jurisdictions around the country.
Stalking laws do not enforce themselves; investigators and prosecutors enforce them. Furthermore, the unique prospective character of stalking cases, the high resource demands they place on stalking case investigators and prosecutors, and the specialized expertise required all suggest the establishment of specialized staff or units.
In many instances, non-agency funding sources should support the new anti-stalking initiatives until they demonstrated their worth. Because of the prospective nature of these cases, investigating and prosecuting stalking cases requires low staff caseloads; estimates of how labor intensive stalking cases are range upward of 10 times the time spent on the average domestic violence case. Establishing a special stalking unit is an important commitment of agency resources. Because of the normal skepticism surrounding any new resource investment, agencies may seek first to use funds available under the Violence Against Women Act of 2000 (VAWA) to test the effectiveness of new anti-stalking initiatives.246 The act specifically includes stalking as a program focus area. A number of jurisdictions have used their STOP and other federal dollars for this purpose. In other instances, the development of STOP-funded specialized domestic violence units has resulted in the unit staff being exposed to stalking cases for the first time.
Federal funding under VAWA is likely to be critical to improved anti-stalking efforts. Although a number of anti-stalking initiatives have already been funded under the STOP program, they are small in number compared to domestic violence or even sexual assault initiatives. More needs to be done by the state STOP offices responsible for allocating these funds. For example, in 1999 the California STOP agency issued a request for proposals for special prosecution anti-stalking units, awarding three such grants.247 STOP agencies in Colorado and Oregon have also funded multiple anti-stalking initiatives, although many of these programs are directed at helping women obtain civil orders of protection rather than funding justice agency operations as such. Other state STOP agencies need to be encouraged to do more about stalking in their states. STOP funding should include, in addition to investigative and prosecution positions, support for victim advocates and the development of linkages to community-based agencies to provide stalking victims with services and safety planning.
Because stalking is a new crime and agencies have little or no experience with it, they will need help in setting up new anti-stalking initiatives. One obvious type of encouragement is offering technical assistance to both STOP agencies and their subgrantees on stalking-related topics. Technical assistance is, of course, just another way of saying information transfer. The first "next step" must be to more fully inventory existing anti-stalking efforts and then to build upon the lessons gained from these efforts, regardless of funding source. Building such a knowledge base will be critical to expansion and improvement of anti-stalking efforts. The specific areas of most concern in building the knowledge base include identification of stalking cases, case management policies and procedures, special unit staff, and victim safety policies and procedures. 248
By and large, most stalking victims are not receiving help from the justice system. Numerous stories from all over the country tell of police officers refusing to take stalking complaints, even in jurisdictions where there are special stalking units or officers. Patrol officers are simply unable to recognize stalking cases even when a complaint lays out all the elements of the crime. Looking for hidden cases of stalking is totally beyond their training. The objective should be to develop a computerized method for identifying these cases that does not depend on officers' expert response to victim complaints of stalking or less definitive victim concerns about multiple other crimes. Enough is known about how to do this that a few test sites might profitably be used to demonstrate what works and what does not work for improved case identification.
Agencies need to develop stalking-specific policies and procedures on case assignment, staff caseloads, record keeping, and investigation. The existing policies and procedures developed by a few agencies can be used as initial models for emulation and adaptation, but they are far from complete in detailing the many informal policies and procedures in use in these same agencies, much less in those without formal manuals. None of these manuals, for example, provides any guidance on threat assessment and agency collaboration to improve victim safety.
It is critical for any anti-stalking initiative to have specialized staff handle stalking cases. One important element of specialized units is vertical handling of the stalking cases, in which the person assigned to the case is responsible for its future handling. It is the ongoing relationship with the victim that vertical case handling brings that is critical to victim cooperation in collecting evidence, victim reporting of future stalking incidents (even after the case is closed), and maximization of agency efforts to protect the victim. Creation of special anti-stalking units also permits the development of special policies and procedures for stalking cases, such as the stalking case book for record keeping or overtime policies that recognize the off-hours pattern of much stalking. More importantly, the development of specialized units allows the fostering of a problem-solving approach to investigating and prosecuting stalking crimes. Special stalking units can also lead to enhanced victim safety and well-being through victim advocates assigned to the unit and through collaboration with community agencies.
The development of staff stalking expertise may have several important collateral effects. For example, law enforcement officers may be used as expert witnesses to testify about the impact of stalking on victims at both pretrial release and trials. They may also be useful at trial to explain stalker behaviors (e.g., collecting souvenirs) and victim coping behavior.249 Prosecutors in a special stalking unit are in a better position to argue for a bail schedule and related release policies that recognize the danger to victims from their stalkers. Similarly, anti-stalking prosecutors can become a powerful voice in recommending changes to strengthen existing stalking laws.
Expertise in investigating and prosecuting stalking cases cannot be developed simply through handling these cases or through technical assistance to agency managers. The personnel handling stalking cases must know from the start how difficult these cases can be and how dangerous they can be to victims. Mistakes made by stalking personnel can literally be life-threatening. The stakes are simply too high for a "sink or swim" approach to preparing staff to handle these cases. Nor should managers assume that expertise in one area of the law, such as domestic violence, is easily transferable to stalking cases. The two types of cases are different and require different means for making the case, dealing with victims, and interviewing suspects. Indeed, the extent to which stalking cases are different can best be illustrated by the difficulty many agencies have in identifying these cases. Although many domestic violence cases, especially those involving separated former intimates, have a stalking component to them, domestic violence investigation units rarely identify the stalking. This problem is even more acute with stranger stalking that has not yet reached the stage of dire threats. For reasons relating the manipulation abilities of many stalkers, specialized expertise is also needed by probation staff and other court officials, ranging from the judiciary to pretrial release agency staff.
At all levels,250 the need for training is almost totally unmet. Meeting this need begins with state legislation requiring stalking training, yet only two states have such laws. While a few other state agencies such as California's Peace Officers Standards and Training Commission (POST) have developed training programs for specialized officers, the largest need is for training patrol.251
Based on the many training program materials reviewed to date, virtually no training focuses on the problem-solving view of stalking investigation and prosecution. Instead, training for non-specialist agency staff is largely focused on what the law says.252 In view of the changes in law that occur in many states, this is not without merit, especially for patrol officers. Even with specialized staff, training is often limited to replicating the policies and procedures approach that has been used successfully with other crimes. Stalking is not completely subject to routinization of effort; stalking investigation is not limited to looking for evidence related to past crimes. Hence, techniques that work for investigating crimes committed before law enforcement involvement are not sufficient.
Not only must there be increased training on stalking, the stalking training must also focus on the problem-solving approach to investigation. Training must go back to basics: How do I find out who is the stalker? How do I prove X is the stalker? This entails a mindset that is willing and eager to innovate. Existing training must be improved. Research findings such as those discussed above must be made part of the stalking curriculum.
Training in working with victims includes important issues such as victim evidence collection, victim support, and victim safety. The close relationship between investigators or prosecutors and the victim is distinct from that in other types of investigations, especially domestic violence, where evidence-based prosecutions that do not rely on victim testimony dominate.
As already noted, law enforcement agency written policies and procedures relating to stalking investigations and case management uniformly limit discussion of victim issues. Training for these same victim issues is also limited. In part, this is because relatively little attention has been paid by either researchers or funding agencies to better understand stalking victim needs or improve the capacity of agencies to respond to these needs. Again, federal and state assistance efforts directed at improving anti-stalking efforts should do more to stress victim safety and service needs.
Little attention has been paid to the role of the judiciary in criminal stalking proceedings. Yet judges play a vital role at such important decision points as pretrial release, issuance of orders of protection, and sentencing. Unfortunately, judges are rarely provided training on stalking law, much less stalking dynamics or the impact of stalking on victims. As a result, judges may be prone to accepting arguments such as, "He hasn't hurt her," or viewing the defendant's manipulative and likable personality as proving credibility. Judges may also be inclined to order stalkers to attend domestic violence counseling or anger management on the ill-founded theory that it could not hurt.
Judges clearly need stalking training. In the absence of such training, prosecutors must make every effort to teach judges informally about stalking through pretrial briefs, use of expert witnesses at trial and at sentencing, and use of victim impact statements at sentencing. The absence of such training to date remains a critical failure and one that was highlighted in this research's two national surveys of law enforcement and prosecutor agencies.253
The largest hole in our knowledge about stalking lies in the issue of threat assessment. The discussion supra lays out the complexity of this issue, especially the multiple ways in which stalkers can be categorized, and indicates the difficulties associated with threat assessment. The most important of these is the inability of many researchers to develop methodologies that capture the complexity of the issues.254 This is largely due to the small number of cases that researchers are able today to identify as stalking cases. To capture the association between many different types of stalkers and violence outcomes requires a much larger number of cases than is typically available in most stalking research. To overcome this problem, researchers often combine otherwise heterogeneous categories of either stalkers or violence outcomes. This has not proven satisfactory, resulting, for example, in an absence of uniformity across research studies in defining violence. It also means that meta-analysis that combines studies to increase the total number of subjects studied cannot be done. This is an especially serious problem in trying to study stalking-related homicides and rapes, which despite small numbers are precisely the violent behaviors that practitioners are most fearful of. Of course, it may be that these latter occurrences are such rare events as to be statistically random, for which prediction studies are not appropriate. But it is much too early to give up on threat assessment without first trying better methods that permit examination of multiple studies' findings.
Research on monitoring stalkers, especially through probation, is virtually nonexistent. The "best practices" suggestions above should, therefore, be taken as only preliminary suggestions based on limited experience. Much more knowledge is needed about how differing probation agencies respond to the challenges posed by stalkers assigned to their supervision.
Very little is known about treating stalkers. Clearly, stalkers who are delusional need to be treated for their delusions. Presumably, treating the underlying disease will also reduce the stalking.255 However, most stalkers are not delusional. They may suffer from a variety of psychiatric diagnoses. As Mullen et al. point out, they are especially difficult to treat because of their capacity to "deny, minimize, and rationalize."256 Furthermore, in the experience of the present researchers, mental health and correctional practitioners do not believe stalkers should be sent for counseling such as that provided to domestic violence offenders. Because of their higher levels of intelligence and tendency to manipulate others, they gain little from such sessions and diminish the value of the counseling for the non-stalker participants. Thus, it is not surprising that the research identified only two stalker treatment programs in the country. More needs to be done in this field, especially in determining what works for which stalkers.257 One interesting possibility for evaluators is to validate the forthcoming protocol for stalker treatment now in preparation by a group of San Diego practitioners.258 This protocol is expected to emphasize personalized treatment using cognitive behavior approaches in preference to group counseling, which their experience showed reinforced stalking behaviors and presented logistical problems in adding new members to preexisting groups.259 The protocol will also call for periodic reassessment of the stalker for possible modification of the treatment plan, done in conjunction with probation or parole supervisors.
It is notable that there is only limited research on treating victims. One of the few exceptions is the work of Collins and Wilkas, who examined the issue of victim trauma from stalking, akin to other post-traumatic stress syndromes.260 One area for research is to survey treatment practitioners through the state victim compensation boards that may certify treatment providers for state payment. Another area for research is to examine stalking victims who are disabled.261
While prior research has demonstrated that stalking affects all societal groups, little is known about possible differences in how stalking affects victims of color. Nor do we really know with much certainty about the prevalence of stalking among smaller immigrant groups such as those of Indian-Asian backgrounds, southeast Asia, or the former Soviet bloc countries.
Victim needs for services go far beyond those provided by victim advocates. For example, victims may need medical and sometimes even psychiatric treatment. Victim advocates and service agencies do not typically provide such services themselves. Instead, they may have to identify medical specialists who have experience with stalking and domestic violence; often that expertise will initially come from training provided by the advocates or victim services agency. Ideally, medical practitioners with experience in working with traumatized patients of all sorts would be available, since they are familiar with the anxieties and stress-caused problems that typify stalking victims' needs. Although community collaboration is a priority under the VAWA, more might be done in enlisting national professional and other associations in encouraging local affiliates to join in such collaborations.
While television and the movies may vividly illustrate the dangers of stalkers, dramatizations about how the justice system handles these cases are missing. If few law enforcement officers know about stalking crimes, virtually no stalking victim understands that what is being done to her is a crime. The result is that only a small proportion of stalking cases are reported by victims. Instead, they might complain of harassment or violations of an order of protection. The stalking component is only revealed when a homicide results. In most jurisdictions, nobody, other than a few domestic violence service agencies and shelters, is telling victims to file stalking complaints. In a few jurisdictions, these agencies are very aggressive and the authorities might see dozens or even hundreds of stalking cases. But such success is the exception, not the rule. The number of justice agencies that handle a significant number of stranger stalkings is very low. Yet these cases are far more common than supposed, based on the experience of several specialized stalking units that aggressively respond to such cases. Victims need to be made aware of the stalking laws, and it is the responsibility of the justice agencies to take on the task of community education about stalking. One special area of concern here is stalking among underserved populations. As the experience of the Dover Police Department shows, size of jurisdiction is irrelevant; stalking occurs in small towns as well as big cities and their suburbs. Substantial evidence from a variety of sources indicates that black women victims of domestic violence are often stalked, although less is known about other types of stalking against blacks. Anecdotal evidence also shows that stalking occurs among immigrant populations and in rural areas. However, special efforts will need to be made to reach those populations.
Special efforts also need to be directed at educating employers about stalking. A number of states, such as California, have recently enacted legislation that permits employers to file on behalf of their employees for court orders of protection against stalking at the workplace. These laws show a growing recognition of how stalking in the workplace is a significant policy problem. Although a detailed discussion of this topic is beyond the scope of this report, Hoffman and Baron have summarized the kinds of actions employers might take to mitigate workplace stalking.262
Justice system responses to stalking were nonexistent a decade ago. Today, there are a few jurisdictions that might be cited as having exemplary responses; in others, significant efforts are underway to improve their response to stalking. Even in the "best" jurisdictions, many gaps remain, especially in providing counseling and services to stalking victims. Despite these problems, steady improvement is evident. The threshold of success in the effort to effectively help stalking victims has not yet been reached, but it is in sight.
In sum, anti-stalking efforts have come a long way since 1990. Considerable policy-relevant research now exists to help agencies start anti-stalking initiatives. While few agencies have established special stalking units, those that have can also provide important assistance and guidance to their colleagues. However, availability of information is not enough. Agency leaders need to be told about the information base and its importance to their work. One way to get the word out is for federal funding to place a greater priority on stalking issues. Finally, some limited research on practitioner needs also should be conducted, especially on better identifying stalking cases.
This chart briefly summarizes legislative enactments that involve stalking and related issues in the past four years in the 50 states. Full legislative cites may be found at www.ilj.org/dv/index.htm by scrolling down on the left side of the page to the yearly compilations of violence against women legislation. These charts provide a state-by-state listing of relevant legislation, and include both state code and session law citations.
| State | 1998 Laws | 1999 Laws | 2000 Laws | 2001 Laws |
|---|---|---|---|---|
| AZ | Creating felony crime of aggravated harassment | -- | Authorizes employers to seek stalking injunction against harassment of employees | Amends fear requirement in definition of stalking to be fear of death; eliminating "physical injury" fear |
| -- | Increased penalty for stalking; expanded types of threats covered | -- | Strengthens laws setting waiver of filing fees with petition for anti-harassment court order | Eliminates court fees for persons seeking protection order against harassment |
| -- | Expanded behaviors covered by the harassment law | -- | -- | -- |
| -- | Authorizes issuance of a harassment injunction against a juvenile | -- | -- | -- |
| AR | -- | -- | -- | Authorizes issuance of employee harassment orders of protection upon employer petition |
| CA | Amends stalking law to include threats through electronic mediums (cyberstalking). | Adds stalking to list of crimes where continuances may be granted if prosecutor has a conflict with other proceeding | Establishes procedures for victims of domestic violence to keep confidential name change | -- |
| -- | -- | Sheriff to notify prosecutor in stalking cases where defendant released on bail. Prosecutor shall give notice of bail hearing to victims Court shall issue protective order, violation of which shall result in a no-bail warrant | Provides for establishment of training of parole officers to supervise stalkers upon release from prison | |
| -- | -- | Authorizes court to issue ex parte protection order against stalking when requested by member of community college police department | -- | -- |
| CO | -- | Consolidates all civil restraining orders issued by courts into one order | Amends telephone harassment law to include harassment by computer | -- |
| -- | -- | Increases felony penalties for stalking and repeat stalking | Increases penalties for menacing for display of or representation that article is a deadly weapon | -- |
| CT | Court may issue criminal restraining order after conviction for stalking | -- | -- | -- |
| DE | -- | -- | -- | Adds new felony crime of privacy violation by secret filming of another for purposes of viewing the body or undergarments of another |
| FL | -- | Enacts Three Strike law that applies to aggravated stalking offenses | -- | -- |
| GA | Amends definition of stalking by using term "safety" for "fear of death or bodily harm," and adds requirement for a pattern of harassing or intimidating behavior | -- | Amends stalking law to include acts undertaken by electronic communications and causing a third party to harass or intimidate the victim where order of protection issued | Provides that no court fee shall assessed of victim of stalking for issuance of order of protection or filing of protective orders |
| -- | Sentencing court may order evaluation of offender, issue order of protection, and to require treatment as a condition of non-jail sentence | -- | -- | Enacts Family Violence and Stalking Protective Order Registry Act |
| HI | -- | Knowing violation of temporary restraining order against harassment is a crime | -- | -- |
| ID | -- | Creates new misdemeanor offense of trespass of privacy | -- | -- |
| IL | -- | Amends harassment by telephone and electronic harassment laws to protect persons under the age of 18 | Stalking law to includes threats against a family member; incarceration is not a bar to prosecution for stalking and that stalking threats may be implicit in part or whole | Amends law making it a crime to take unauthorized picture of another person |
| -- | -- | -- | -- | Creates new crime of cyberstalking |
| -- | -- | -- | -- | Adds stalking to list of violent crimes under Victim Compensation law; adds provision authorizing payments for temporary lodging or relocation necessary as result of crime |
| IN | -- | -- | -- | Amends law making unauthorized picture taking of a person. |
| -- | -- | -- | -- | Authorizes filling of foreign orders of protection and prohibits collection of court fees for registration of foreign stalking orders of protection or motions to enforce such an order |
| -- | -- | -- | -- | Amends definition of stalking to include violation of pretrial order of protection or of probation or of foreign order of protection |
| -- | -- | -- | -- | Creates new requirement for reporting of threat or intimidation of school employee |
| -- | -- | -- | -- | Amends threat statute to make it a Class D felony to use school or government computers or fax machines to issue a threat |
| IA | Requires local agencies to collect information about stalking incidence and report to state | Restricts availability of bond for persons appealing a felony stalking conviction | Amends telephone harassment laws to include all forms of electronic communications | |
| -- | Rewrites the offense of stalking in violation of a court order | -- | -- | -- |
| Magistrate may issue a no-contact order at stalking or harassment arraignments; reissued for five years at conviction. Mandatory arrest where offender violates order. Minimum seven day sentence unsuspended penalty. | -- | -- | -- | |
| KS | -- | Prior stalking of victim is a factor in determining whether aggravating circumstances exist for sentencing guidelines | Amends stalking law to provide for electronically communicated threats | Provides that orders of protection shall be entered into national database, and defines abuse to include stalking |
| KY | -- | -- | Amends stalking law to expand the types of protective orders, violation of which results in an increased penalty for stalking | Creates felony crime of terroristic threatening |
| -- | -- | -- | Creates civil action for stalking | -- |
| LA | -- | Authorizes court to provide notice of stalking conviction to employer | -- | Redefines the crime of stalking to delete fear requirement in place of reasonable person standard , adds cyberstalking to definition of harassment, and adds a minimum jail penalty for its commission and mandatory psychiatric evaluation. Probation may not be imposed without court-ordered counseling |
| -- | -- | Increases age where enhanced penalty for stalking of a minor applies to under age 18 from previous 12 years of age | -- | -- |
| -- | -- | Requires court at pretrial release for defendant charged with stalking to consider threat or danger to victim | -- | -- |
| ME | -- | Requires employers to provide leave for specified crime victims from work to attend court, or obtain services needed because of or stalking | Warrantless arrests in misdemeanor stalking and related crimes where the arrestee and victim are members of same family | Amends laws authorizing issuance of stalking protection orders and provides explicit criminal penalties for their violation |
| -- | -- | -- | Amend requirements that employers to grant employees leave from work to victims of stalking to obtain services to remedy a crisis caused by that crime | Amends definition of course of conduct to include cyyberstalking |
| -- | -- | -- | Victim compensation law include coverage for psychological injuries due to threats of bodily harm | Makes editorial changes to definition of stalking and increases the penalty for stalking where defendant has 2 or more prior convictions |
| -- | -- | -- | -- | Amends definition of harassment to delete requirement that convictions be within 5 years of present offense |
| -- | -- | -- | -- | Forbids appointment of referees in cases where order of protection from harassment sought |
| MD | -- | -- | -- | Reenacts criminal procedure code, including authorization for warrantless arrests in stalking cases, and exclusion of psychological injury from coverage under victim compensation law |
| MA | -- | -- | Creates crime of criminal harassment for actions that seriously alarm victim and result in substantial emotional distress | -- |
| MI | -- | Prohibits use of the Internet or a computer system to communicate for purposes of stalking a minor | -- | -- |
| MN | -- | -- | Amends harassment law to include communication by electronic means | -- |
| -- | -- | -- | Limits application of harassment law to instances where there is a substantial adverse effect on victim; petition for order must so allege | -- |
| MS | -- | -- | Expands the types of orders of protection, violation of which increases the penalty for stalking | Reduces potential penalties for telephone harassment |
| MT | -- | -- | -- | Amend law requiring notification of victim upon release of stalker upon bail |
| NE | Expands definition of stalking | Forbids persons convicted of violating a stalking protective order to obtain permit to possess explosive materials | -- | -- |
| -- | Authorizes anti-harassment protection order and warrantless arrest for violation of order. Law provides for full faith and credit to out-of-state anti-harassment orders. | -- | -- | -- |
| NV | -- | Increases felony penalties for aggravated stalking and second stalking conviction | -- | Amends laws providing for orders of protection against stalking and harassment to eliminate court fees |
| -- | -- | Requires peace officer certification training to include instruction on stalking | -- | Creates new crime of harassment in public schools |
| -- | -- | -- | -- | Authorizes employers to obtain order of protection against harassment for its employees |
| -- | -- | -- | -- | Amends definition of crime of stalking and clarifies that venue for stalking includes the place where the victim was located |
| NH | Makes confidential any communications between a stalking victim and a crime counselor | Court may impose protective detention or electronic monitoring for persons charged with stalking or order violations where danger to victim is found | Adds new situations to definition of stalking, and amends authorization for issuance of civil orders of protection | -- |
| -- | -- | Amends definition of harassment to include electronic communication generated by computers | Establishes address confidentiality program for victims of stalking and other violence against women | -- |
| NJ | Increases the penalty for staling and harassment if stalking occurred while offender was incarcerated or on probation or parole | Replaces requirement for actual fear as element of stalking crime with requirement that defendant act knowingly that actions would place reasonable person in fear of bodily injury or death | -- | Amends stalking law to include cyberstalking |
| -- | -- | -- | -- | Permits voter registration by stalking victims without any street address |
| NM | -- | -- | -- | Amends crime victim compensation act to make victims of aggravated stalking eligible for coverage, in lieu of former limitation of second stalking victimization |
| NY | -- | Creates new crime of stalking, providing for misdemeanor and felony penalties | Makes technical changes to new stalking law | -- |
| NC | -- | Adds electronic mail to law for threatening communications by telephone | Creates crime of cyberstalking | -- |
| ND | -- | Adds clarifying language that harassment may be done by electronic communication | -- | -- |
| OH | Authorizes issuance of a civil anti-stalking protection order | Deletes provision limiting second stalking conviction for felony enhancement to stalking involving same parties | Amends stalking law provisions relating to mentally ill defendants | -- |
| -- | Limits increase in penalty for second offense of stalking or telephone harassment to where crime is against same person | Authorizes felony penalties for stalking where threat of harm is made, victim is a minor, weapon possession, violation of protective order and a single repeat offense. | -- | -- |
| OK | -- | News crime of false electronic communications, that hides message origin or contains information that is false, and which injures a person | Amends stalking law to increase penalties when stalking occurs in violation of permanent order of protection and clarifies that harassing behavior under the stalking law can include harassing or obscene phone calls and makes other language changes | -- |
| -- | -- | -- | Provides authority for court to issue orders against stalking as part of domestic violence order of protection and creates crime of falsely seeking order of protection for purposes of harassment and other purposes | -- |
| OR | -- | Amends telephone harassment law to include calls made despite order from telephone owner not to make such calls | -- | Adds cyberstalking to definition of stalking and of harassment (awaiting governor's action) |
| PA | -- | Adds electronic communication to definition of terroristic threat | Authorizes warrantless arrests based on probable cause in cases involving misdemeanor harassment or stalking or terroristic threats against a family or household member | -- |
| -- | -- | Makes editorial changes in harassment law; adds to definition of a course of conduct, use of threatening or obscene words, language, or actions | -- | -- |
| -- | -- | Definition of harassment by communication includes electronic communications; increased penalties for stalking where there has been a prior incident of violence | -- | -- |
| RI | Authorizes bail commissioner to issue no-contact order against persons charged with domestic violence | -- | -- | Amends definition of stalking to include cyberstalking, and providing penalties for cyberstalking in violation of protective order |
| -- | -- | -- | -- | Adds provision for civil liability of stalkers |
| SC | -- | -- | -- | Amends definition of stalking crime, of telephone harassment, and of unlawful eavesdropping, peeping tom or voyeurism |
| SD | -- | Includes stalking in definition of violent crime under victim rights act | Restricts contact between victim and defendant arrested for stalking | Amends definition of stalking to include electronic stalking |
| TN | -- | -- | Creates crime of invasion of privacy | Adds electronic communication to definition of stalking |
| TX | -- | -- | -- | Adds electronic communication to definition of stalking crime, expands scope of protection against threats to all members of household, and increases penalties for first stalking conviction from Class A misdemeanor to Felony of third degree |
| -- | -- | -- | -- | Creates new felony crime of unconsented photographs or videotape to gratify sexual desire |
| UT | -- | Violation of a stalking injunction is stalking crime. Second stalking conviction is felony. Court may issue a permanent stalking injunction when it holds in abeyance any conviction or plea; violation of order is a third degree felony | Makes technical correction to stalking law | Expands scope of protection against threats to all members of household. |
| -- | -- | -- | -- | Creates new felony crime of unconsented photographs or videotape to gratify sexual desire |
| VT | -- | -- | Stalking victims included in new address confidentiality program | Amends address confidentiality laws to provide access to address information by law enforcement for reasons other than arrest |
| -- | -- | -- | Telephone harassment or threats includes communication by electronic means; jurisdiction where such a crime is committed includes where sent and received | -- |
| VA | Amends language of statute authorizing issuance of stalking protection order | Stalking protection order may specifically prohibit contact of any kind with victim or victim's family | -- | Authorizes electronic registration of stalking and other orders of protection by clerk of court with state criminal information network system |
| -- | Increase penalties for stalking and violation of a stalking protection order | -- | -- | Creates civil cause of action for stalking, including punitive damages |
| -- | Authorizes a arrest without a warrant of persons alleged to have violated an anti-stalking order of protection | -- | -- | Amends definition of stalking crime to include cases where defendant "knows or reasonably should know" that his actions places another person in reasonable fear. |
| Prohibits purchase or transportation of a firearm by person subject to stalking order of protection | -- | -- | Amends law authorizing anti-stalking order of protection to extend hearing date requirement | |
| WA | -- | Authorizes district court to transfer civil antiharassment cases to superior court in specified instances | Crime to knowingly use false identity to send undesired mail to another for purposes of harassment or intimidation; civil damages provided | Adds stalking to crimes for which a victim may be provided with address confidentiality. |
| -- | -- | Adds stalking and violation of court order to sentencing guidelines Category V offenses | Decreases filing fees for petitions to obtain court order against harassment | Amends laws authorizing issuance of stalking protection order at request of parents of child being harassed to include cases where harasser is under age 18. |
| -- | -- | Amends harassment and stalking laws to include acts involving electronic communication | -- | Amends authorization for antiharassment order by establishing procedure for ex parte order and further provides that final order not required to be served where final order is not materially different and respondent served with temporary order |
| WV | -- | -- | -- | Increases penalties for stalking |
| WI | -- | -- | Provides that court fees in civil harassment order proceedings are paid by respondent if convicted for violating the order | -- |
| State | Grantee | Description |
|---|---|---|
| AZ | Mt. Graham Safe House | Provides services to domestic violence victims, including those who have been stalked by their abuser; advocates attend state POST training on stalking. |
| CA | San Diego District Attorney | Stalking prosecution unit includes one attorney and one investigator assigned to vertically handle all domestic violence-related stalking cases; complements existing unit staff assigned to stranger stalking cases. |
| -- | Los Angeles District Attorney | Stalking prosecution unit includes two attorneys and one investigator assigned to vertically prosecute most serious stalking cases in county. |
| -- | Alameda County District Attorney | Stalking prosecution team vertically prosecutes stalking cases in county and coordinates state efforts to collect data about stalking protection orders. |
| -- | San Joaquin District Attorney | Part-time stalking prosecution unit and one probation officer assigned to intensive supervision of stalkers on probation. |
| -- | San Francisco District Attorney | Stalking prosecution team to vertically prosecute all stalking cases in county. |
| -- | California District Attorneys Association | Offers multidisciplinary training program, including stalking seminar and training on stalking as part of domestic violence. |
| -- | Peace Officer Standards and Training Commission | Training of law enforcement using previously developed multimedia stalking training unit as part of training for first responders (40 sessions), detectives (5 sessions) and sexual assault first responders (20 sessions). |
| CO | Ending Violence Against Women | Coalition of state prosecutors, sheriffs, and coalitions against domestic violence and sexual assault. Sponsors statewide training on violence against women issues, including stalking. |
| -- | AMEND | Statewide training. |
| -- | Project PAVE | Provides group and individual counseling to domestic violence and stalking victims. Prevention education in schools includes stalking in curriculum. |
| -- | Violence Prevention Coalition (Durango) | Developing protocols for risk assessment, victim logs, employers, and other system professionals. |
| -- | Project Safeguard (Denver) | Assists with gaining orders of protection for domestic violence victims, including stalking victims (30 percent estimate) and provides related services such as name change and safety planning. |
| -- | Douglas County Sheriff | Domestic violence investigative unit also handles all stalking cases. |
| -- | 18th Judicial District Fast Track Prosecution | Stalking included in fast track prosecution program; special emphasis on training for CJ personnel, volunteers, and community in recognizing stalking and implementing new stalking law and in tracking stalking defendants' location through pretrial release. Emergency Protection Program using beepers and mandatory call-backs. |
| CT | Sexual Assault Coalition & POST | Developing sexual assault and stalking training materials. POST delivers training. |
| DE | Wilmington Police Department | Provides advocate services to victims of violence against women, including stalking. |
| GA | Athens/Clarke County Police Department | Special investigative unit for domestic violence crimes where no arrest was made, including protective order violations and stalking. |
| -- | Richmond County Sheriff's Office | Improved investigation of stalking related to domestic violence or sexual assault offenses through enhancement in staffing of special investigative unit. |
| IA | Iowa State Police | Developed a protocol/form for victims to fill out for police or prosecutor; held series of workshops. |
| MI | Prosecuting Attorneys Association of Michigan | Multidisciplinary domestic violence training that includes stalking component. |
| -- | Council Against Domestic Assault (Ingham County) | Provides help to women seeking court protection orders against stalking and domestic violence; coordinates with prosecutor's victim witness unit and receives police reports on order violation complaints where no arrest made. |
| MS | Lamar County District Attorney | Prosecutor assigned to handle domestic violence and stalking cases; also provides technical assistance to other prosecutors. |
| NV | Elko County Sheriff's Office | Purchased surveillance camera to help in stalking investigations. |
| NY | New York City Police Department | Special units for stalking investigation established in two precincts. |
| OH | Huron County Department of Human Services | Developed protocols for investigation and prosecution of stalking and for providing assistance to stalking victims; provides training and community materials on stalking prevention. |
| -- | Southeast Inc | Provides advocate services for victims of stalking to help with evidence collection, assists in gaining protection orders, provides short-term counseling, and arranges referrals for psychiatric assessment and counseling. |
| -- | Rocky River Municipal Court | Established support group for stalking victims. |
| -- | Youngstown Police Department | Hired full-time investigator for stalking cases. |
| OK | District Attorney for District 10 | Victim advocate helps domestic violence and stalking victims with orders of protection. |
| OR | Lane County Prosecutor protective order clinic | Assists victims with applications for orders of protection against domestic violence and stalking. |
| -- | Clatsop County Women's Resource Center | Funds court advocate who assists domestic violence/stalking victims in obtaining stalking orders of protection. |
| -- | Sexual Assault Support Services | Provides legal advocacy and other services to stalking victims, presently numbering about 16 per month. Works with legal services agency and law school clinic to assist with civil protection orders and university hearing process. |
| VA | Chesterfield County District Attorney | Assigned prosecutor to domestic violence and stalking cases. |
| -- | Winchester Women's Shelter | Developed stalking kits for victims, including cell phones, tape recorders, etc. |
| -- | Roanoke County Police Department | Held workshop on stalking. |
| -- | Henrico County (Richmond) Police Department | Special domestic violence unit has one officer assigned to all stalking cases (about 20 per year). Officer also does training for own (recruit, in-service), local, and regional agencies. |
| WV | Cabell County District Attorney violence against women prosecutor | One attorney assigned to violence against women cases spends 25 percent of time on stalking; conducts training. |
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This table summarizes the status of state cases filed through mid-March 2001. For each state, the cases are listed in the following order based on the nature of the offense: stalking, threat, telephone threat, harassment, and telephone harassment. Constitutional decisions are presented before statutory construction cases. Decisions of the highest state court precede decisions of intermediate courts of appeal, which are followed by trial court decisions. Finally, the most recent decisions are listed first except if they simply cite an older leading case decision.
| State | Case | Type of Law | Citation | Issue/Holding |
|---|---|---|---|---|
| AL | Culbreath v. State | Stalking | 667 S.2d 156 (Ct. Crim. App. 1995), reh'g denied, 5/26/95, cert. denied 8/4/95 | Vagueness, overbreadth claims rejected (intent requirement ameliorates any vagueness problem; reasonable person standard is inferred from assault law antecedents). |
| -- | State v. Randall | Stalking | 669 So.2d 223 (Ct. Crim. App. 1995) | Vagueness, overbreadth claims rejected (terms "repeated" and "series" are not vague). |
| -- | Ivey v. State | Stalking | 698 So.2d 179 (Ct. Crim. App. 1995) aff'd 698 So.2d 187 (Ala. 1997) | Vagueness and overbreadth claims rejected under Culbreath. Prior conviction for contempt of court is not double jeopardy. |
| -- | Hayes v. State | Stalking | 717 So.2d 30 (Ct. Crim. App. 1997), reh'g denied, 12/19/97, cert pending 1/6/98; released for publication 10/6/98. | Intent to carry out threat is not required, but ability to carry out threat is required; substantial emotional distress standard is used, rather than fear of death or serious bodily injury. |
| -- | Morton v. State | Stalking | 651 So.2d 42 (Ct. Crim. App. 1994) | Violation of criminal order issued at bail hearing can be basis for aggravated stalking charge. Civil orders are not the only basis for increased penalties under the statute. Prior burglary is admissible to show defendant's pattern of behavior in harassing multiple victims |
| -- | Tanner v. City of Hamilton | Telephone threat | 668 So.2d 157 (Ct. Crim. App. 1995) | Harassment must include "fighting words" language. |
| -- | Ex parte N.W. | Harassment | 748 So.2d 190 (1999) | Harassment is not lesser included offense of menacing because conviction for the latter does not require fulfilling elements of crime of harassment. |
| -- | Brooks v. City of Birmingham | Harassment | 485 So.2d 385 (Ct. Crim. App. 1985) | Vagueness and overbreadth claims rejected ("fighting words" used). |
| -- | Conkle v. State | Harassment | 677 So.2d 1211 (Ct. Crim. App. 1995) | Verbal threat not constituting "fighting words" is not harassment. |
| -- | T.W. v. State | Harassment | 665 So.2d 987 (Ct. Crim. App. 1995), reh'g denied, 5/5/95 | Harassment may include obscene gestures that constitute fighting words to ordinary person. |
| -- | B.E.S. v. State | Harassment | 629 So.2d 761 (Ct. Crim. App. 1993) | Fighting words are not present to support harassment charge (no threat nor "probability of physical retaliation"). |
| -- | South v. City of Mt. Brook | Telephone harassment | 688 So.2d 292 (Ct. Crim. App. 1996) | First Amendment claim rejected (harassing communication crime does not involve face-to-face contact; "fighting words" doctrine inapposite). |
| -- | Donley v. City of Mountain Brook | Telephone harassment | 429 So.2d 603 (Ct. Crim. App. 1982), rev'd on other grounds, 429 So.2d 618 (1983) | Vagueness and overbreadth claims rejected (intentional acts of telephoning undercut vagueness and overbreadt issues). |
| AK | Petersen v. State | Stalking | 930 P.2d 414 (Ct. App. 1996) | Vagueness, overbreadth, and substantive due process claims rejected (term "repeated" means more than once, citing Konrad. "Knowing" conduct requirement defeats claim of potential for inadvertent violation; substantial core of covered cases much larger than any overbreadth potential). Statute only reaches telephone calls made solely to threaten or harass; reasonable person standard used. |
| -- | Wyatt v. State | Threat | 778 P.2d 1169 (Ct. App. 1989) | Victim's fear from threat must be reasonable; reckless behavior standard implies reasonable fear. |
| -- | Allen v. State | Telephone threat | 759 P.2d 541 (Ct. App. 1988) | Overbreadth claim rejected (defendant acts constituted reckless behavior, knowing falseness of report). Statute bars reckless acts taken with knowledge of falseness of reports; victim fear is required. |
| -- | Konrad v. State | Telephone threat | 763 P.2d 1369 (Ct. App. 1988) | Vagueness and overbreadth claims rejected (term "repeated" means more than once). |
| -- | McKillop v. State | Telephone harassment | 857 P.2d 358 (Ct. App. 1993) | Vagueness and overbreadth claims rejected (statute bars only calls having no legitimate communication purpose where only purpose is to annoy). |
| -- | Jones v. Anchorage | Telephone harassment | 754 P.2d 275 (Ct. App. 1988) | Vagueness and overbreadth claims rejected (intent test is used, rather than subjective response of victim). |
| AZ | State v. Musser | Telephone threat | 954 P.2d 1053 (Ct. App. 1997) | Overbroad (lawful threats included in statute's scope; law covers threats made during call made by victim, minimizing invasion of privacy element of crime) |
| -- | State v. Weinstein | Telephone threat | 898 P.2d 513 (Ct. App. 1995) | Overbroad (law covers common business practices) |
| -- | State v. Hagen | Telephone harassment | 558 P.2d 750 (Ct. App. 1976) reh'g denied, 5/9/76, rev. denied, 1/4/77 | Vagueness and overbreadth claims rejected (by specifying intent and nature of prohibited behavior, statute does not violate First Amendment; statute gave fair warning where conduct is clearly proscribed). |
| -- | Baker v. State | Telephone threat | 494 P.2d 68 (Ct. App. 1972) | Overbroad (use of obscene language is not evidence per se of intent to harass or threaten). |
| AR | Reeves v. State | Stalking | 5 S.W.3d 41 (1999) | Condition of probation banishing defendant from state for period of 7 years violates state constitution. |
| -- | Wesson v. State | Stalking | 896 SW2d 874 (1995) | Immediate ability to carry out threat is not required under terroristic threat and stalking laws. |
| -- | Dye v. State | Stalking evidence | 17 S.W.3d 505 (Ct. App. 2000) | Evidence of firearm and ammunition purchase is relevant to capacity to carry out threat |
| -- | Warren v. State | Threat | 613 S.W.2d 97 (1981) | Overlap with assault law (imminent injury threat versus protracted threats) is not unconstitutional. Threats need not be over long period of time. |
| -- | Webb v. State | Threat | 2000 Ark. App. LEXIS 770 (Ct. App. 2000) | Threat may be communicated by third party, but proof of victim receipt of threat is required. |
| -- | Arnold v. State | Threat | 2000 Ark. App. LEXIS 483 (Ct. App. 2000) | Victim testimony about prior criminal acts of defendant to prove victim fear is not relevant to whether threat made or with what purpose. |
| -- | Hartzog v. State | Threat | 2000 Ark. App. LEXIS 235 (Ct. App. 2000) | Evidence of intent to threaten may be inferred from victim's reasonable fear. |
| -- | Hagen v. State | Threat | 886 S.W.2d 889 (Ct. App. 1994) | Threat against fetus is necessarily threat against the woman. |
| -- | Knight v. State | Threat | 758 S.W.2d 12 (Ct. App. 1988) | Threat must be intended to instill fear; threat to third party did not do this (boasting). |
| -- | State v.Musser | Telephone harassment | 977 P.2d 131 (1999) | Overbreadth claim rejected because of lack of real and substantial danger of threat to protected speech, especially in context of law regulating, in part, conduct. |
| -- | State v. Hagen | Telephone harassment | 558 P.2d 750 (Ct. App. 1976) | Intent to harass must exist at time call is made. |
| CA | People v. Borrelli | Stalking | 91 Cal. Rptr.2d 851 (Ct. App. 2000) (rev. denied April 19, 2000) | Vagueness, overbreadth, and First amendment challenges rejected (threats are not protected speech and term "safety" is widely and commonly used, including multiple statutory uses). Nine acts over 15-month period is sufficient to show a single course of action rather than being nine isolated acts. |
| -- | People v. Ewing | Stalking | 90 Cal Rptr.2d 177 (Ct. App. 1999) | Vagueness challenge rejected (terms "alarms," "annoys," "torments," and "terrorizes" that constitute "harassment" have clear dictionary definitions. Severe and substantial emotional distress" requires evidence of degree, frequency, and duration of victim distress). |
| -- | People v. Falck | Stalking | 60 Cal. Rptr.2d 624 (Ct. App.), rev. denied, 4/16/97, 1997 Cal. LEXIS 1974 (1997) | Vagueness and overbreadth claims rejected (statute provides fair warning to offender and guidelines for police enforcement. Term "safety" in 'fear for safety' is not vague. Intent requirement refers only to intent to create fear. Intent to cause fear may be inferred from continuation of communications despite victim acts to avoid him and warnings from police and courts. |
| -- | People v. Halgren | Stalking | 61 Cal. Rptr.2d 176 (Ct. App. 1996) | Vagueness and overbreadth claims rejected (term "credible threat" is not vague, since intent to create fear is also required. No inhibition of protected speech exists). |
| -- | People v. Kelley | Stalking; Stalking order | 60 Cal. Rptr.2d 653 (Ct. App.), rev. denied, 4/23/97, 1997 Cal. LEXIS 2366 (1997) | Double jeopardy is not violated where acts in one course of conduct occur after contempt violation found. Section of law defining stalking in violation of protection order is sentencing enhancement, not element of crime. |
| -- | People v. Gams | Stalking; Stalking order | 60 Cal. Rptr.2d 423 (Ct. App.), rev. denied, 4/16/97, 1997 Cal. LEXIS 2032 (1997) | Due process claim rejected (victim can not consent to violation of order; hence, there can be no entrapment by victim). |
| -- | People v. Tran | Stalking | 54 Cal. Rptr. 2d 650 (Ct. App. 1996), rev. denied, 10/16/96 | Vagueness claim rejected (phrase "conduct serves no legitimate purpose" is not vague). |
| -- | People v. McClelland | Stalking; Stalking Order | 49 Cal. Rptr.2d 587 (Ct. App.), rev. denied, 4/17/96, 1996 Cal. LEXIS 2160 (1996) | Vagueness claim rejected (terms "harasses" and "credible threat" are sufficiently definite; terms "willfully" and 'maliciously" are defined in penal code). Felony penalty requires violation of both stalking bar and protective order. |
| -- | People v. Heilman | Stalking | 30 Cal. Rptr. 2d 422 (Ct. App. 1994), rev. denied, 8/25/94 | Vagueness claim rejected (term "repeatedly" is not vague in conjunction with intent requirement). |
| -- | People v. Norman | Stalking | 89 Cal. Rptr.2d 806 (Ct. App. 1999) | Victim fear from stalking need not occur at the same time as the stalking threats were made. |
| -- | People v. McCray | Stalking | 67 Cal. Rptr. 2d 872 (Ct. App. 1997) rev. denied, 1/14/98, 1998 Cal. LEXIS 52 (1998) | Term "repeated" refers to only following, since harassment definition requires proof of a course of conduct (there is no need to show repeated acts of harassment). |
| -- | People v. Carron | Stalking | 44 Cal. Rptr. 2d 328 (Ct. App.), rev. denied, 12/14/95, 1995 Cal. LEXIS 7521 (1995) | Intent to commit harm is irrelevant; intent is to create fear. Reasonable fear test is used for threat effect. |
| -- | People v. Butler | Stalking; Civil commitment | 88 Cal. Rptr.2d 210 (Ct. App. 1999) | Stalking is an offense subject to civil commitment as mentally disordered offender, since amended law covers crimes involving threat of force. |
| -- | People v. Gudger | Threat | 34 Cal Rptr. 2d 510 (Ct. App. 1994) | Overbreadth claim rejected (specific intent requirement limits overbreadth problem) Conditional threat is covered by statute (contra Brown). |
| -- | People v. Fisher | Threat | 15 Cal. Rptr.2d 889 (Ct. App. 1993) | Overbreadth claim rejected (there is no constitutional requirement that only intent to carry out threat can be penalized; not protected speech). |
| -- | People v. Hudson | Threat | 6 Cal. Rptr.2d 690 (Ct. App. 1992), rev. denied, 7/23/92 | Overbreadth claim rejected (intent to carry out threat is not required by constitution or by statute; third party to threat passing on threat to victim covered by law. |
| -- | In re David L. | Threat | 286 Cal. Rptr. 398 (Ct. App. 1991), rev. denied, 1/16/92 | Overbreadth claim rejected (statute does not reach substantial amount of protected speech). Threat can be communicated by third person. |
| -- | People v. Mirmirani | Threat | 636 P.2d 1130 (1981) | Statute void for vagueness (threats made with intent to terrorize defined as for political or social goals leave too much discretion as to its scope). |
| -- | People v. Butler | Threat | 102 Cal. Rptr.2d 269 (Ct. App. 2000) | Threat does not need to specify precise time or method of execution, since surrounding circumstances give meaning to words used. |
| -- | People v. Andrews | Threat | 89 Cal. Rptr.2d 683 (Ct. App. 1999) | Jury may infer that defendant intended that third party would inform victim of threat. |
| -- | People v. Bolin | Threat | 956 P.2d 374, 402 (1998) | Threat is not required to be unconditional. |
| -- | People v. Teal | Threat | 71 Cal. Rptr.2d 644 (Ct. App. 1998), rev. denied, 5/13/98 | Threat does not require that defendant saw or knew victim was home at time threat made outside home. |
| -- | People v. Brown | Threat | 25 Cal. Rptr. 2d 76 (Ct. App. 1993) (overruled by Bolin) | Conditional threat not covered by statute; construing explicit language of unconditional threat to include conditional threat raises constitutional issues. |
| -- | People v. Dias | Threat | 60 Cal. Rptr. 2d 443 (Ct. App.), rev. denied, 4/16/97, 1997 Cal. LEXIS 2152 (1997) | Conditional threat is covered by statute (contra Brown). |
| -- | People v. Mendoza | Threat | 69 Cal. Rptr. 2d 728 (Ct. App. 1997) | Ambiguous words may constitute threat when context taken into account, such as history of gang involvement. |
| -- | People v. Martinez | Threat | 62 Cal. Rptr.2d 303 (Ct. App. 1997), rev. denied, 6/25/97 | Threat meaning of ambiguous words is gained from surrounding circumstances. |
| -- | People v. Stanfield | Threat | 38 Cal. Rptr.2d 328 (Ct. App. 1995), rev. denied, 6/1/95 | Conditional threat is covered by statute (apparent condition, but condition is illusory). |
| -- | People v. Allen | Threat | 40 Cal. Rptr.2d 7 (Ct. App. 1995) | "Sustained fear" element of threat statute met (sustained means more than momentary; 15 minutes until police arrived sufficient). |
| -- | People v. Brooks | Threat | 31 Cal. Rptr.2d 283 (Ct. App. 1994), rev. denied, 9/29/94 | Conditional threat is covered by statute (contra Brown). |
| -- | People v. Garrett | Threat | 36 Cal. Rptr. 2d 33 (Ct. App. 1994) | Evidence of prior abuse is relevant to questions of intent to threaten and victims "sustained fear." |
| -- | People v. Melhado | Threat | 70 Cal. Rptr.2d 878 (Ct. App. 1998) | The term "immediate" modifying threat refers to the immediacy of the victim's response in understanding the prospect that a threat will be carried out in the future. |
| -- | People v. Toledo | Attempted threat | 96 Cal. Rptr.2d 640 (Ct. App. 2000) | Attempted threat can occur where threat made but not communicated to victim or victim not fearful where reasonable person would be. Overbreadth challenge rejected (an attempt requires threat which is not protected speech). |
| -- | People v. Benitez | Attempted threat | 105 Cal Rptr.2d 242 (2001) | Attempted threat occurs when victim is not in fear, although defendant intended to create fear. |
| -- | People v. Lopez | Threat; Civil commitment | 88 Cal. Rptr.2d 252 (Ct. App. 1999) | Threat of future violence is predicate offense under mentally disordered offender law authorizing civil commitment. |
| -- | People v. Hernandez | Telephone harassment | 283 Cal. Rptr. 81 (Ct. App. 1991), rev. denied, 10/3/91 | Vagueness and overbreadth claims rejected (there is no real danger of compromising First Amendment protections). |
| CO | People v. Baer | Stalking | 973 P.2d 1225 (1999) | Vagueness and overbreadth claims rejected (statutory language is interpreted to means that credible threat can occur before, during or after stalking behavior; as interpreted overbreadth claim is inapposite, since protected speech is not reached. Reasonable person test of threat undercuts vagueness. |
| -- | People v. Bastian | Stalking | 981 P.2d 203 (Ct. App. 1998) | Ex post facto objection rejected (although one element of crime occurred before law change increased penalty, crime was only completed after act became effective). |
| -- | People v. Hines | Threat | 780 P.2d 556 (1989) (en banc) | Conditional threat is covered by statute where contingency is controlled by defendant. |
| -- | People v. Smith | Harassment | 862 P.2d 939 (1993) (en banc) | Overbroad (law lacks "fighting words" limitation, nor is it limited in application to privacy protection). |
| -- | Aguilar v. People | Disorderly conduct | 886 P.2d 725 (1994) (en banc) | Overbroad (law lacks "fighting words" limitation). |
| -- | People v. Norman | Harassment | 703 P.2d 1261 (1985) (en banc) | Void for vagueness ("annoy or alarm" bar goes to core of law, but terms are undefined and without limiting standards). |
| -- | Van Meveren v. County Court | Harassment | 551 P.2d 716 (1976) | Vagueness and overbreadth claims rejected ("repeatedly" is not vague due to common usage; fighting words limitation restricts law's application). |
| -- | Bolles v. People | Harassment | 541 P.2d 80 (1975) (en banc) | Overbroad (anti-abortion mailing is protected speech; adding phrase "without legitimate purpose: would be void for vagueness). |
| -- | People v. Weeks | Telephone harassment | 591 P.2d 91 (1979) (en banc) | Vagueness and overbreadth claims rejected (statutory bar against use of "obscene" speech does not require Miller three-part instruction, since content is not core of crime, but invasion of privacy is; court can only speculate on whether other persons deterred from protected speech). |
| -- | People v. McBurney | Telephone harassment | 750 P.2d 916 (1988) (en banc) | Overbreadth claim rejected (terms "annoy" and "alarm" must be read in context with intent requirement and law's limitation to telephone messages). |
| CT | State v. Jackson | Stalking | 742 A.2d 812 (App. Ct. 2000) | Vagueness and overbreadth claims rejected (citing Marsala and Culmo). |
| -- | State v. Marsala | Stalking | 688 A.2d 336 (App. Ct.), cert. denied, 690 A.2d 400 (1997) | Vagueness and overbreadth claims rejected (statute on its face implicates speech, quoting Culmo. Facts of case permit stalking law application). |
| -- | State v. Cummings | Stalking; Harassment | 701 A.2d 663 (App. Ct.), cert. denied, 702 A.2d. 645 (1997) | Vagueness claim against stalking law rejected (citing Marsala) Vagueness claim against harassment law rejected (citing Snyder). |
| -- | State v. Culmo | Stalking | 642 A.2d 90 (Super. Ct. 1993) | Right to travel, vagueness and overbreadth claims rejected (statute in its entirety gives sufficient warning. Claims that terms "physical safety," "willful," "repeatedly," "following," and "lying in wait" are vague are vitiated by intent requirement). Law's reasonable man standard has both objective and subjective elements. No First Amendment rights are implicated, since speech used to prove crime, not as crime itself. There is no infringement on right to travel, since intent requirement limits application of law. |
| -- | Champagne v. Gintick | Stalking order | 871 F. Supp. 1527 (D. Conn. 1994) | Overbreadth claim rejected in denying injunction (right to associate with friends does not reach substantial amount of protected conduct under statute.). |
| -- | State v. Murphy | Mail harassment | 757 A.2d 1125 (2000) | First Amendment challenge overruled (content of letters admissible to prove intent to harass, even where content of letters is not admissible to prove harassment itself). |
| -- | State v. Snyder | Mail harassment | 717 A.2d 240 (App. Ct. 1998) | Vagueness and overbreadth claims rejected (statute proscribes abusive conduct not speech; prior judicial interpretation saves law from vagueness in "annoyance" language). |
| -- | State v. Snyder | Mail harassment | 672 A.2d 535 (App. Ct.) , cert. denied, 676 A.2d 1375 (1996) | Scope of law includes third party communications. Direct communication is not required where intent to harass exists. |
| -- | State v. Marsala | Telephone harassment | 684 A.2d 1199 (1996), cert. denied, 688 A.2d 329 (1997) | Vagueness claim rejected on procedural grounds. |
| -- | Gormley v. Director | Telephone harassment | 632 F.2d 938 (2d Cir.), cert. denied, 449 U.S. 1023 (1980) | Overbreadth claim rejected (risk of chilling Free Speech is remote and minor compared to evil addressed by statute). |
| -- | State v. Anonymous | Telephone harassment | 389 A.2d 1270 (App. Sess. Conn. Super. 1978) | Overbreadth claim rejected (law regulates conduct not speech; there is no need to limit terms "annoy" and "alarm" to fighting words as was required for disorderly conduct statute in same case). |
| -- | State v. Martino | Telephone harassment | 762 A.2d 6 (App. Ct. 2000) | Double jeopardy contention rejected where contempt of court conviction based on other acts distinct from telephone harassment calls. |
| -- | State v. Lewtan | Telephone harassment | 497 A.2d 60 (App. Ct. 1985) | Evidence from victim's tape of phone calls properly admitted. |
| DE | Snowden v. State | Stalking | 677 A.2d 33 (1996) | Vagueness claim rejected (term "repeatedly" refers to one series of acts, not two or more series for "harassment") Following on public roads is not constitutionally protected activity. |
| -- | Williams v. State | Stalking | 756 A.2d 349 (2000) | Enactment of new stalking law includes implied saving clause, maintaining old criminal charge. |
| -- | State v. Knight | Stalking | 1994 WL 19938 (Super. Ct. 1994) | Victim feeling of hopelessness from continued harassment meets requirement of "substantial emotional distress." No expert testimony required to prove this. Claim that act of "love" cannot be "malicious" act reflects an inability to separate fantasy from reality. |
| -- | Burnham v. State | Stalking Harassment | 761 A.2d 830 | Harassment is lesser included offense of stalking. |
| -- | Bilinski v. State | Threat | 462 A.2d 409 (1983) | Terroristic threat is lesser offense under extortion. |
| DC | United States v. Smith | Stalking | 685 A.2d 380 (1996), cert. denied, 118 S. Ct. 152 (1997) | Vagueness, overbreadth claims rejected (intent requirement in conjunction with "repeatedly" and "emotional distress" are constitutionally sufficient.) Objective "reasonable" fear test is required. Terms "repeatedly" and "course of conduct" do not require two series of acts, merely one. |
| -- | Washington v. United States | Stalking | 760 A.2d 187 (1999) | Evidence of prior order of protection properly admitted as relevant to stalking charge. "Unanimity" instruction not required because jury not asked to convict if either following or harassing occurred, only the latter component of stalking was charged. |
| -- | Postell v. United States | Threat | 282 A.2d 551 (1971) | Conditional threat is covered by statute. |
| -- | U.S. v. Baish | Telephone threat | 460 A.2d 38 (1983) | Jurisdiction lies in District where recipient of threatening call received call. |
| FL | Bouters v. State | Stalking | 659 So.2d 235, cert. denied, 516 US 894 (1995) | Vagueness and overbreadth claims rejected (conduct described by statute is not protected, clearly criminal. Reasonable person standard avoids vagueness fault). |
| -- | State v. Kahles | Stalking | 657 So.2d 897 (1995), aff'g, 644 So.2d 512 (Ct. App. 1994) | Vagueness, overbreadth claims rejected (citing Bouters). |
| -- | Folsom v. State | Stalking | 654 So.2d 128 (1995), aff'g, 638 So.2d 591 (Ct. App. 1994) | Overbreadth claim rejected (citing Bouters). |
| -- | Gilbert v. State | Stalking | 659 So.2d 233 (1995), aff'g, 639 So.2d 191 (Ct. App. 1994) | Vagueness and overbreadth claims rejected (citing Bouters). |
| -- | Huffine v. State | Stalking | 655 So.2d 103 (1995), aff'g, 648 So.2d 783 (Ct. App. 1994) | Vagueness and overbreadth claims rejected (citing Bouters). |
| -- | Pallas v. State | Stalking | 654 So.2d 127 (1995), aff'g, 636 So.2d 1358 (Ct. App. 1994) | Vagueness and overbreadth claims rejected (citing Bouters). |
| -- | Williams v. State | Stalking; Domestic violence order | 658 So.2d 665 (Ct. App. 1995), aff'd, 673 So.2d 486 (1996) (citing Johnson) | Vagueness and overbreadth claims rejected (citing Bouters). |
| -- | Perez v. State | Stalking | 656 So.2d 484 (1995), aff'g, 648 So.2d 784 (Ct. App. 1994) | Overbreadth claim rejected (citing Bouters). |
| -- | Salatino v. State | Stalking | 660 So.2d 627 (1995), aff'g, 644 So.2d 1035 (Ct. App. 1994) | Vagueness, overbreadth claims rejected (citing Bouters). |
| -- | State v. Barron | Stalking | 637 So.2d 384 (Ct. App. 1994) | Vagueness and overbreadth claims rejected (citing Bouters). |
| -- | State v. Baugher | Stalking | 637 So.2d 384 (Ct. App. 1994) | Vagueness, overbreadth claims rejected (citing Bouters). |
| -- | State v. Tremmel | Stalking | 644 So.2d 102 (Ct. App. 1994) | Overbreadth claim rejected (citing Kahles). |
| -- | Varney v. State | Stalking | 659 So.2d 234 (1995), aff'g, 638 So.2d 1063 (Ct. App. 1994) | Vagueness, overbreadth claims rejected (citing Bouters). |
| -- | Altingeyik v. State | Stalking | 659 So.2d 692 (1995), aff'g, 649 So.2d 943 (Ct. App. 1994) | Vagueness, overbreadth claims rejected (citing Kahles). |
| -- | Daniels v. State | Stalking | 658 So.2d 927 (1995), aff'g, 639 So.2d 624 (Ct. App. 1994) | Overbreadth claim rejected (citing Bouters). |
| -- | Koshel v. State | Stalking | 659 So.2d 232, cert. denied, 1116 S. Ct. 245 (1995), aff'd on other grounds, 689 So.2d 1229 (Ct. App. 1997) | Overbreadth claim rejected (citing Bouters). |
| -- | Morrison v. State | Stalking | 658 So.2d 1038 (Ct. App. 1995) | Vagueness, overbreadth claims rejected (citing Kahles). |
| -- | Polson v. State | Stalking | 654 So.2d 127 (1995), aff'g, 636 So.2d 695 (Ct. App. 1994) | Overbreadth claim rejected (citing Bouters). |
| -- | Ratcliffe v. State | Stalking | 660 So.2d 1384 (1995), aff'g, 651 So.2d 1205 (Ct. App. 1995) | Overbreadth claim rejected (citing Bouters). |
| -- | State v. Gonzalez | Stalking | 651 So.2d 185 (Ct. App. 1995) | Vagueness, overbreadth claims rejected (citing Kahles, Bouters). |
| -- | State v. Foster | Stalking | 661 So.2d 58 (Ct. App. 1995) | Overbreadth claim rejected (citing Bouters). |
| -- | Blount v. State | Stalking | 654 So.2d 126 (1995), cert. denied, 516 US 849 (1995) | Overbreadth claim rejected (citing Bouters). |
| -- | Saiya v. State | Stalking | 654 So.2d 128 (1995) | Overbreadth claim rejected (citing Bouters). |
| -- | Rosen v. State | Stalking | 644 So.2d 531 (Ct. App. 1994), cert. denied, 1648 So.2d 724 (1994) | Vagueness, overbreadth claims rejected (citing Kahles). |
| -- | Higgins v. State | Stalking | 656 So.2d 483 (Ct. App. 1995) | Vagueness claim rejected (citing Bouters). |
| -- | Marinelli v. State | Stalking | 706 So.2d 1374 (Ct. App. 1998) | Double jeopardy for two convictions for stalking exists where there was one course of action. |
| -- | State v. Jones | Stalking | 678 So.2d 1336 (Ct. App. 1996) | Acquittal of stalking in one case does not constitute double jeopardy for second charge of stalking based on first case post-arrest behavior; the two cases involve diferent events. |
| -- | State v. Johnson | Stalking protective order | 676 So.2d 408 (1996) reh'g denied, corrected, 21 Fla. L. Weekly S311 (Fla. 1996) | Double jeopardy following contempt of court order claims rejected (separate crime elements for both crimes). |
| -- | McKinnon v. State | Stalking | 712 So.2d 1259 (Ct. App. 1998) | State need not prove intent to cause fear, only that fear occurred as result of intentional acts. |
| -- | Goosen v. Walker | Stalking | 714 So.2d 1149 (Ct. App. 1998) | Repeated videotaping of neighbors is not conduct within constitutionally protected activity exception of statute. |
| -- | Butler v. State | Stalking | 715 So.2d 339 (Ct. App. 1998) | Reconciliation between harassing events goes against "continuity of purpose" element of stalking definition |
| -- | Waldowski v. State | Stalking | 708 So.2d 1015 (Ct. App. 1998) | Jury is not permitted to speculate that defendant was the unknown source of false complaints of child abuse as part of stalking pattern of conduct |
| -- | Gilbreath v. State | Telephone harassment | 650 So.2d 10, cert. denied, 514 U.S. 1112 (1995) | Vagueness claim rejected (terms "offend" and "annoy" are deleted from law as too vague; terms "abuse," "threaten," and "harass" are not vague). |
| -- | State v. Elder | Telephone harassment | 382 So.2d 687 (1980) | Overbreadth claim rejected (law is aimed at conduct, not content of speech). |
| -- | State v. Keaton | Telephone harassment | 371 So.2d 86 (1979) | Overbroad (statute's bar against obscene calls is not limited to calls where intent is to harass). |
| GA | Johnson v. State | Stalking | 449 S.E.2d 94 (1994) | Vagueness and overbreadth claims rejected (intent requirement overcomes any potential vagueness in non-consensual contact language. Constitution does not require that threat produce substantial emotional distress, merely fear). |
| -- | Fly v. State | Stalking | 494 S.E.2d 95 (Ct. App.), cert. denied, 1998 Ga. LEXIS 329, cert. denied, 119 S. Ct. 125 (1998) | Vagueness and overbreadth claims rejected (citing Johnson for holding that conduct is not protected by First Amendment). |
| -- | Kinney v. State | Stalking | 477 S.E.2d 843 (Ct. App. 1996), cert. denied, 1997 Ga. LEXIS 205 (1997), aff'd, 506 S.E.2d 441 (Ct. App. 1998) | Vagueness claim rejected (phrase "to contact" is well understood and in conjunction with intent requirement law passes muster). Double jeopardy is violated when state charges stalking after conviction for violation of protective order involving same acts. |
| -- | State v. Rooks | Stalking | 468 S.E.2d 354 (1996) | Stalking is not the same as common law assault; attempted stalking can be a crime although attempted assault can not. |
| -- | Crenshaw v. State | Stalking evidence | 515 S.E.2d 642 (Ct. App. 1999) | Showing similar course of conduct is valid basis for witness testimony about prior similar harassment by defendant |
| -- | Robinson v. State | Stalking | 456 S.E.2d 68 (Ct. App. 1995, cert. denied, 1995 Ga. LEXIS 619 (1995)) | Phrase "to contact" is readily understood. |
| -- | Adkins v. State | Stalking | 471 S.E.2d 896 (Ct. App. 1996) | Otherwise innocuous act such as delivery of letter in public place may nonetheless be part of pattern of conduct constituting stalking. |
| -- | Jagat v. State | Stalking | 525 S.E.2d 388 (Ct. App. 1999) | Aggravated stalking law does not require victim awareness of surveillance where defendant knowingly violated pretrial release order based on simple stalking be conducting surveillance of victim. |
| -- | Todd v. State | Stalking Threat | 498 S.E.2d 142 (Ct. App. 1998) | Telephone harassment may be lesser included offense of terroristic threat except where there is no evidence raising lesser charge. Evidence of prior rape is admissible as showing intent and victim fear reasons, and as part of course of conduct |
| -- | Scott v. State | Threat | 484 S.E.2d 780 (Ct. App. 1997) | Corroboration needed to support victim's testimony of threat is provided by actions that followed threat, including wounding |
| -- | Lanthrip v. State | Threat | 218 S.E.2d 771 (1975) | Vagueness and overbreadth claims rejected (term "threat" is commonly understood; threats are never protected speech) |
| -- | Boone v. State | Threat | 274 S.E.2d 49 (Ct. App. 1980) | Victim terror is not required, focus is on conduct of making threat; conditional threats that are not covered by law are those "made merely to preserve the status quo." |
| -- | Masson v. Slaton | Threat | 320 F. Supp. 669 (N.D. Ga. 1970) | Vagueness and overbreadth claims rejected (threats are not protected speech). |
| -- | Constantino v. State | Telephone harassment | 255 S.E.2d 710, cert. denied, 444 U.S. 940 (1979) | Vagueness claim rejected (intent to harass is crux of law; hence, no vagueness in subjective response of victim as showing harassment). |
| -- | Harris v. State | Telephone harassment | 380 S.E.2d 345 (Ct. App. 1989) | Message left on machine is sufficient to constitute harassment, since law bars intent to harass plus calls. |
| -- | Troncalli v. Jones | Civil stalking suit | 513 S.E.2d 478 (Ct. App. 1999) | Civil suit for stalking is not authorized by criminal law |
| HI | State v. Snell | Stalking | 2000 Haw. App. LEXIS 222 (Ct. App. 2000) | Police officer may testify as expert that stalkers typically take "trophies" from their victims |
| -- | State v. Chung | Threat | 862 P.2d 1063 (1993) | Threats are not protected by First Amendment. Actual communication of threat is not required where threats made "in reckless disregard" if likelihood exists that communication through third party will occur. |
| -- | State v. Klinge | Threat | 994 P.2d 509 (2000) | Due process claim that statute defines two separate crimes, both independently requiring unanimous verdicts rather than a single verdict rejected (citing Schad v. Arizona, 501 U.S. 624). |
| -- | State v. Alston | Threat | 865 P.2d 157 (1994) | Threat via third party need not be communicated to victim (victim terror not required; statute merely requires that acts be made in "reckless disregard" of terror resulting). |
| -- | In re Doe | Threat | 650 P.2d 603 (Ct. App. 1982) | Threat requires proof of intent or reckless disregard, rather than likelihood of threat being carried out. |
| -- | State v. Meyers | Telephone threat | 825 P.2d 1062 (1992) | Jurisdiction lies in Hawaii where telephone call made to Hawaii resident. |
| -- | In re John Doe | Harassment | 869 P.2d 1304 (1994) | Free speech rights violated (harassment is a form of disorderly conduct, but aimed at single person. Police training precludes violent response to harassment acts in most incidents. Hence, higher standard required of police). |
| -- | Bailey v. Sanchez | Harassment injuncttion | 990 P.2d 1194 (Ct. App. 1999) | Equal protection violation claim rejected where statute provides for alternative bases for civil harassment injunction, but requires intent only where lesser degree of threat exists |
| -- | State v. Taliferro | Harassment | 881 P.2d 1264 (Ct. App. 1994) | State must show harassment acts likely to provoke violent response. |
| -- | In re Doe | Harassment | 788 P.2d 173 (Ct. App. 1990) | Objective test to be used in determining if "harassment" likely to provoke violent response. |
| ID | State v. Richards | Telephone threat Harassment | 896 P.2d 357 (Ct. App. 1995) | Vagueness and overbreadth claims rejected (law is directed at conduct not speech; use of telephone solely to inflict injury is not protected. Terms "obscene." "lewd," "lascivious," and "indecent" connote language with vulgar sexual overtones; term "profane" means abusive cursing language. Terms "harass" and "offend" are commonly used words.). |
| IL | People v. Bailey | Stalking | 657 N.E.2d 953 (1995) | Vagueness, overbreadth claims rejected (term "following" is construed to require additional intent to advance threat to victim; threat is not protected speech when part of unlawful conduct). |
| -- | People v. Nakajima | Stalking | 691 N.E.2d 153 (App. Ct. 1998), appeal denied, 699 N.E.2d 1035 (1998) | Vagueness and overbreadth challenges rejected (while Bailey is not dispositive because challenge here is to new law, defendant failed to preserve claims). Due process claim over absence of mens re is rejected (citing Cortez for implied culpability requirement). |
| -- | People v. Cortez | Stalking | 676 N.E.2d 195 (App. Ct. 1996), appeal denied, 684 N.E.2d 1338 (1997) | Vagueness and overbreadth claims rejected (statute proscribes only culpable conduct requiring intent. Terms "follows" and "surveillance" are not vague). |
| -- | People v. Rand | Stalking | 683 N.E.2d 1243. (App. Ct. 1997), appeal denied, 1998 Ill. LEXIS 1832 (1998) | Vagueness and overbreadth claims rejected (citing Cortez). |
| -- | People v. Zamudio | Stalking | 689 N.E.2d 254 (App. Ct. 1997) | Vagueness, overbreadth and due process claims rejected (citing Cortez). Stalking is nothing more than one type of common law assault. Requirement for two separate acts inhibits discriminatory enforcement. |
| -- | People v. Holt | Stalking | 649 N.E.2d 571 (App. Ct. 1995) | Vagueness, overbreadth claims rejected (explicit objective standards in law include reasonableness and intent components of stalking; there is no substantial infringement of protected rights). Statutory prohibition of stalking outside a building does not foreclose stalking within the same building. |
| -- | People v. Daniel | Stalking | 670 N.E.2d 861 (App. Ct. 1996), appeal denied, 677 N.E.2d 967 (1997) | Surveillance under law was shown although building that is in 2 parts separated the two individuals. |
| -- | People v. Sowewimon | Stalking | 657 N.E.2d 1047 (App. Ct. 1995) | Confinement of victim by defendant can be basis for finding "enforced surveillance" where surveillance occurs within a separate portion of a larger structure. |
| -- | People v. Soto | Stalking | 660 N.E.2d 990 (App. Ct. 1995) | Prior protective order issuance can not by itself prove earlier threats because higher level of proof required in criminal case. |
| -- | People v. Krawiec | Stalking | 634 N.E.2d 1173 (App. Ct. 1994) | Acts in furtherance of a threat do not require violence or even intent to commit violence. "Under surveillance" requires only that there be remaining in the vicinity, regardless of whether victim is present (e.g., "lying in wait"). |
| -- | People v. Young | Telephone threat | 727.E.2d 386 (App. Ct. 2000) | Proof of location to determine court's jurisdiction uses reasonable doubt standard |
| -- | People v. Peterson | Letter threat (intimidation) | 715 N.E.2d 1221 (App. Ct. 1999) | First amendment challenge rejected (threats are not protected speech). Testimony about victims' response to letter threats is admissible since it tends to show reasonableness of letters' tendency to create fear. Intent to carry out threat is not element of crime. |
| -- | People v. Parkins | Telephone harassment | 396 N.E.2d 22 (1979), appeal dismissed, 446 U.S. 901 (1980) | Overbreadth claim rejected (terms "abuse" and "harass" take restricted meaning from word "threaten" also in statute). |
| -- | People v. Klick | Telephone harassment | 362 N.E.2d 329 (1977) | Overbroad (statute applies to any call made with intent to annoy; no "unreasonable manner" limitation to save law can be inferred, since crime occurs when call made regardless of subsequent conversation content. |
| -- | People v. Karich | Telephone harassment Order violation | 687 N.E.2d 1169 (App. Ct. 1997) | Violation of protection order based on numerous telephone calls requires evidence of telephone call content intended to be harassing, notwithstanding statutory presumption that calls resulted in emotional distress. |
| -- | People v. Reynolds | Domestic violence protection order | 706 N.E.2d 49 (App. Ct. 1999) | Vagueness and overbreadth challenges to law's use of term "harassment" rejected notwithstanding that complained of acts differ from examples in statute where harassment presumed, since listing not exhaustive and defendant's intent to intimidate was not a proper purpose. |
| IN | Johnson v. State | Stalking | 648 N.E.2d 666 (Ct. App. 1995) | Vagueness claim rejected (intent requirement militates against vagueness). |
| -- | Johnson v. State | Stalking | 721 N.E.2d 327 (Ct. App. 1999) | Due Process challenge to sentencing enhancement rejected where he stalked victim while a prior stalking complaint was pending; there is no need for first charge to have resulted in conviction. Hence, there is no denial of right to jury trial on issue. Further, it was reasonable for legislature to enact enhancement; this is not an equal protection violation. Defendant's actions over a five or six hour period were sufficient to constitute a course of action under the stalking law. Jury could infer fear where no direct victim testimony given; evidence of prior acts is not double jeopardy when used to prove victim state of mind. |
| -- | Garza v. State | Stalking | 736 N.E.2d 323 (Ct App. 2000) | Jury could have inferred reasonable fear from victim statements of unease from 2 years of unwanted communications |
| -- | Landis v. State | Stalking | 704 N.E.2d 113 (1998) | Proof of prior similar acts may be admitted into case-in-chief, but prior convictions are admitted only into sentencing hearing |
| -- | Burton v. State | Stalking; Stalking order; Privacy invasion | 665 N.E.2d 924 (Ct. App. 1996) | Double jeopardy claim rejected for stalking and privacy invasion convictions (charging facts for both offenses overlapped, however). |
| -- | Waldon v. State | Stalking | 684 N.E.2d 206 (Ct. App. 1997) | Jury could infer intent to threaten and fear from victim description of six encounters in public places within one year period. |
| -- | Haynes v. State | Harassment; Intimidation | 656 N.E.2d 505 (Ct. App. 1995) | Double jeopardy claim rejected since intimidation and harassment are distinct crimes. |
| -- | Hott v. State | Telephone harassment | 400 N.E.2d 206 (Ct. App. 1980), transfer denied, 409 N.E.2d 1082, cert. denied, 449 U.S. 1132 (1981) | First Amendment claim rejected (obscene telephone calls violated victim's privacy and are not protected). |
| -- | Leuteritz v. State | Telephone harassment | 534 N.E.2d 265 (Ct. App. 1989) | Telephone harassment law is not applicable without intent of only nonlegitimate reason for call; reasonable man test of intent. |
| IA | State v. Beecher | Stalking | 616 N.W.2d 532 (2000) | Double jeopardy does not attach until trial begins; violation of protective order is not a lesser included offense of stalking, since provision in stalking statute making stalking in violation of order a felony is a sentencing enhancement, not element of crime. |
| -- | State v. Limbrecht | Stalking | 600 N.W.2d 316 (1999) | The several acts complained of constitute a threatening course of conduct even if individual acts in isolation could be seen as only harassing. |
| -- | State v. Bellows | Stalking | 596 N.W.2d 509 (1999) | Violation of out-of-state stalking protection order may be used to enhance penalties for stalking in state. This is not enforcement of order under full faith and credit clause. |
| -- | State v. Neuzil | Stalking | 589 N.W.2d 708 (1999) | Stalking is general intent crime (mean to commit act without regard to specific results). |
| -- | State v. Milner | Threat of arson | 571 N.W.2d 7 (1997) | Vagueness and overbreadth challenges rejected (threats not protected speech even when directed at public official under claim of political speech. Speech was within "hard core" of prohibited acts). |
| -- | State v. Mulvany | Harassment | 600 N.W.2d 291 (1999) | First degree harassment is not lesser included offense of stalking where stalking may be proven without harassment. |
| -- | State v. Fratzke | Letter harassment | 446 N.W.2d 781 (1989) | Overbreadth claim rejected with statutory interpretation (statutory requirement that communication have no legitimate purpose eliminates overbreadth objection. Offensive language can not however take away legitimate purpose of protesting to government action. "Fighting words" exception has especially high standard when police officers are target). |
| -- | State v. Jaeger | Telephone harassment | 249 N.W.2d 688 (1977) | Vagueness claim rejected (phrase "obscene, lewd or profane" is not vague due to specific intent element of law). |
| KS | State v. Whitesell | Stalking | 13 P.3d 887 (2000) | Vagueness and overbreadth claims rejected (citing Rucker; otherwise valid law not directed at protected speech does not violate 1st Amendment). Intent to place victim in fear may be inferred from circumstantial evidence. Defendant's prior acts may be used to prove credible threat. News articles saved by defendant about spousal murders admissible to show intent. Victim's testimony use of term stalking not legal conclusion, but representation of her fear. |
| -- | State v. Rucker | Stalking | 987 P.2d 1081 (1999) | Vagueness claim rejected where legislative amendments now provide objective standard and include statutory definition for harassment, course of conduct and credible threat. Phrase "repeated course of conduct" is not vague, but is one of common understanding. Phrases "apparent ability" and "legitimate purpose" are based on objective standard and not vague. |
| -- | State v. Bryan | Stalking | 910 P.2d 212 (1996) | Void for vagueness (undefined terms "alarms," "annoys," and "harasses" are vague without objective measure; term "following" however is sufficiently comprehensible). |
| -- | State v. Zhu | Stalking | 909 P.2d 679 (Ct. App. 1996) | Telephone calls can be both part of a campaign of "following" and acts of harassment under law providing alternate methods of stalking. |
| -- | State v. Gunzelman | Threat | 502 P.2d 705 (1972) | Vagueness claims rejected (terms "threat" and "terrorize" are adequately defined by Code and dictionary). |
| -- | State v. Miller | Threat | 629 P.2d 748 (Ct. App. 1981) | Cross burning is physical act that constitutes threat; speech not required. |
| -- | State v. Knight | Threat | 549 P.2d 1397 (1976) | Threat may be implied; third person involvement in carrying out threat permitted where intent to terrorize exists. |
| -- | State v. Thompson | Telephone harassment | 701 P.2d 694 (1985) | Overbreadth claim rejected (intent to harass is element of crime, not missing from law). |
| KY | Poindexter v. Commw. | Stalking | 1996 Ky. App. LEXIS 156 (Ct. App. 1996) | Vagueness and overbreadth claims rejected. |
| -- | Welch v. Commw. | Stalking Probation violation | 988 S.W.2d 506 (Ct. App. 1999) | Violation of no-contact provision occurs where defendant makes continued harassing hang-up calls without any conversation. |
| -- | Thomas v. Commw. | Threat | 574 S.W.2d 903 (Ct. App. 1978) | Overbreadth and vagueness claims rejected (terms "threat" and "terrorize" well understood; threats not protected speech). Threat may be conditional; victim fear of immediate harm not needed; intent to complete threat not relevant. |
| -- | Musselman v. Commw. | Harassment | 705 S.W.2d 476 (1986) | Void for vagueness and overbroad (law lacks fighting words limitation that can not be added by judicial interpretation). |
| -- | U.S. v. Sturgill | Harassment | 563 F.2d 307 (6th Cir. 1977) | Overbroad (citing Gooding v. Wilson, 405 U.S. 518 (1972) and Acker v. Texas, 430 U.S. 962 (1977)). |
| -- | Yates v. C. | Telephone harassment | 753 S.W.2d 874 (Ct. App. 1988) | Vagueness and overbreadth claims rejected ("fighting words" doctrine is inapplicable to private communications by telephone; law regulates harassing conduct, not speech). |
| LA | State v. Rico | Stalking | 741 So.2d 774 (Ct. App. 1999) | Following victim from one location to another and then to another is one continuous act, rather than a pattern of conduct involving at least two separate acts. |
| -- | State v. Meunier | Telephone harassment | 354 So.2d 535 (1978) | Vagueness and overbreadth claims rejected (terms "annoy," "harass," and "embarrass" "take color" from surrounding words, limiting their scope). |
| -- | State v. Martin | Telephone harassment | 491 So.2d 458 (Ct. App. 1986) | Specific intent to harass may be inferred from voluntary act that rationally may be expected to annoy or harass. |
| ME | State v. Porter | Threat | 384 A.2d 429 (1978) | Overbreadth claim rejected (threats not protected speech). Statute is interpreted to apply only to person who made threat or third party who adopts threat in repeating it. |
| -- | State v. Thibodeau | Threat | 686 A.2d 1063 (1996) | Objective reasonableness of victim fear is not essential element of threatening, since intent to place in fear is sufficient. |
| -- | State v. Lizotte | Threat | 256 A.2d 439 (1969) | Intent to carry out threat and actual fear are not required; the crime committed is causing fear to ordinary person. |
| -- | State v. Ilsley | Letter threat; Harassment order | 595 A.2d 421 (1991) | Letter to third party in same home violated harassment order. |
| -- | State v. Cropley | Harassment | 544 A.2d 302 (1988) | Overbreadth claim rejected (harassing conduct is not protected speech). |
| -- | State v. Hills | Harassment order | 574 A.2d 1357 (1990) | Vagueness claims rejected (term "harassment" is commonly understood). |
| MD | Streater v. State | Stalking; protective order evidence | 724 A.2d 111 (1999) | Prior criminal acts evidenced on face of protective order that was admitted into evidence is not admissible to show intent without hearing by trial judge on possible prejudice. |
| -- | Piper v. Layman | Stalking protective order | 726 A.2d 887 (Ct. Spec. App. 1999) | Validity of protective order is not moot where permanent order recorded; order may have future repercussions. |
| -- | Caldwell v. State | Harassment | 337 A.2d 476 (Ct. Spec. App. 1975) | Vagueness claims rejected (intent requirement saves statute from vagueness). |
| -- | Pall v. State | Harassment | 699 A.2d 565 (Ct. Spec. App. 1997) | Statute requires warning to cease and desist harassing conduct. |
| -- | Galloway v. State | Letter harassment | 744 A.2d 1070 (Ct. Spec. App. 2000) | Vagueness and overbreadth challenges rejected (terms "alarm" and "serious annoyance" are not vague where law requires specific intent to harass; there is less need for notice where words are in common use and defendant has been asked to stop his behavior. Law regulates conduct not speech). Evidence shows invasion of victim privacy: the objective of the law. |
| -- | Von Lusch v. State | Telephone harassment | 387 A.2d 306 (Ct. Spec. App. 1978), cert denied, 283 Md. 740 (1978) | First Amendment claim rejected (harassment is not protected speech). Harassment purpose need not be sole intent of actor. |
| MA | Commw. v. Kwiatkowski | Stalking; Stalking order | 637 N.E.2d 854 (1994) | Void for vagueness in instant case (statute could be interpreted to require more than 2 patterns of conduct). For future, only single pattern or series of events will be needed to be shown. |
| -- | Commw. v. Matsos | Stalking | 657 N.E.2d 467 (1995) | Kwiatkowski not applied retroactive to convictions before decision made where vagueness claim not raised at trial; defendant's behavior came squarely within statute's bar). |
| -- | Commw. v. Bibbo | Burglary (stalking predicate) | 20001 Mass. App. LEXIS 2 (App. Ct. 2001) | Jury in resolving burglary charge based on intent to commit stalking may consider prior acts as part of required course of conduct crime element. |
| -- | Commw. v. Delaney | Stalking protective order | 682 N.E.2d 611 (1998), cert. denied, 118 S. Ct. 714 (1998) | Intent is not required for violation of protective order. Constitutional issue was raised but not argued. |
| -- | Commw. v. Alphas | Stalking; Order violation | 762 N.E.2d 575 (1999) | Stay-away order in divorce decree is equal to order of protection for purposes of enhancement of stalking law for violation of order. |
| -- | Commw. v. Butler | Harassment order | 661 N.E.2d 666 (App. Ct. 1996) | Overbreadth claim against no-contact order rejected (term "contact" is clear) Anonymous sending of flowers violated order. |
| -- | Commw. v. Basile | Abuse prevention order | 712 N.E.2d 633 (App. Ct. 1999) | Violation of no-contact provision of court order may be violated by mere presence in vicinity of victim; jury must infer whether contact was intended. |
| -- | Commw. v. Richards | Electronic harassment | 690 N.E.2d 419 (1998) | Fax is not covered by law against annoying telephone calls. |
| -- | Commw. v. Wotan | Telephone harassment | 665 N.E.2d 976 (1996) | Term "repeatedly" requires three or more harassing calls. |
| -- | Commw. v. Strahan | Telephone harassment | 570 N.E.2d 1041 (App. Ct. 1991), rev. denied, 576 N.E.2d 685 (1991) | Desire to harass must be sole purpose of calls to sustain conviction, notwithstanding harassing effect. |
| MI | People v. Coones | Stalking | 550 N.W.2d 600 (Ct. App. 1996) | Double jeopardy not violated by state punishing both stalking and contempt of court for order violation. Violation of protective order and bond conditions make contact acts per se "illegitimate" notwithstanding defendant's "ends justify means" argument that acts were to preserve marriage. |
| -- | People v. White | Stalking | 536 N.W.2d 876 (Ct. App. 1995) | Vagueness claims rejected (statues provide fair notice; terms' meanings can be easily ascertained and possess common and generally accepted meaning). Statutory rebuttable presumption of stalking after being asked to discontinue contacts provides due process since connection to victim's state of mind and fear is reasonable. It is not double jeopardy for defendant to first plea to misdemeanor charge with different dates from later felony plea dates. |
| -- | People v. Ballantyne | Stalking | 538 N.W.2d 106 (Ct. App. 1995) | Vagueness and overbreadth claims rejected (Citing White). |
| -- | Staley v. Jones | Stalking | 239 F.3d 769 (6th Cir. 2000), reversing in part, district court decision, 108 F. Supp 2d. 777 (W.D. Mich. 2000) | Vagueness and overbreadth challenges rejected (state court rulings limiting law's application per statute does not limit constitutionally protected "legitimate conduct" activities to illustrative examples in law; fair notice of proscribed conduct is provided by law) |
| -- | Staley v. Jones | Stalking | 108 F. Supp. 777 (W.D. Mich. 2000) | Double jeopardy claim rejected for lack of standing (only charged with one crime). Vagueness challenged accepted in part (phrase "includes, but not limited to" is read to modify statute's concern with unconsented contact; phrases "constitutionally protected action" and "legitimate purpose," as interpreted in White, are overbroad, infringing upon both press rights and right of petition government). |
| -- | People v. Kieronski | Stalking | 542 N.W.2d 339 (Ct. App. 1995) | Stalking is not limited to face-to-face contacts. |
| -- | Haverbush v. Powelson | Harassment civil liability (emotional distress) | 551 N.W.2d 206 (Ct. App. 1996), appeal denied, 564 N.W.2d 37 (1997) | Intentional emotional distress injury award is affirmed (extreme and outrageous behavior was proven; reasonableness test for intent is same as reckless behavior). |
| -- | People v. Taravella | Telephone harassment | 350 N.W.2d 780 (Ct. App. 1984) | Vagueness and overbreadth claims rejected (statute provides clear warning; law punishes maliciously intended conduct, not speech). |
| MN | State v. Orsello | Stalking | 554 N.W.2d 70 (1996) | Vagueness claims rejected ( law is interpreted to require specific intent to harass or stalk with adverse effects). |
| -- | State v. Loewen | Stalking | 565 N.W.2d 714 (Ct. App), rev. granted, 1997 Minn. LEXIS 685 (1997) | Orsello rule retroactive. |
| -- | State v. Romans | Stalking | 1997 WL 600455 (Ct. App. 1997) | Orsello rule retroactive (citing Loewen). |
| -- | State v. Bowen | Stalking | 560 N.W.2d 709 (Ct. App. 1997) | Orsello specific intent rule is applied retroactively to require new trial to prove intent for harassment conduct. It is not double jeopardy for felony conviction based on predicate misdemeanor on different dates. |
| -- | Prell v. State | Harassment | 1998 WL 2408 (Ct. App. 1998), rev. denied, 3/26/98 | Orsello intent rule is not applicable to harassment pattern, only underlying acts. |
| -- | State v. Davisson | Stalking | 1997 WL 292159 (Ct. App. 1997), rev'd on other grounds, 1998 WL 747135 (Ct. App. 1998) | Orsello ruling requirement is met. |
| -- | State v. Davis | Stalking; Harassment | 1997 WL 259946 (Ct. App. 1997), rev. denied, 8/5/97 | Orsello requires reversal of conviction for engaging in pattern of harassment, but not stalking. |
| -- | State v. Murphy | Threat | 545 N.W.2d 909 (1996) | Threat statute is not limited to oral or written threats. Implied threats to commit future violence are covered by law. |
| -- | State v. Farzan | Threat | 2001 Minn. App. LEXIS 30 (Ct. App. 2001) | Circumstantial evidence of intent can be drawn from victim's reaction and prior relationship as evidenced by existing order of protection. |
| -- | State v. Murphy | Threat | 545 N.W.2d 909 (1996), on remand, 1997 Minn. App. LEXIS 1236 (Ct. App. 1997) | Physical acts alone may constitute threat. |
| -- | State v. Dolgalevsky | Threat | 2000 Minn. App. LEXIS 341 (Ct. App. 2000) | History of hostility and victim reaction provide circumstantial evidence of intent to create fear. |
| -- | State v. Kehren | Threat | 2000 Minn. App. LEXIS 15 (Ct. App. 2000) | Instructions on elements of crime were sufficient to allow trial judge to refuse instruction on transitory anger where arguments permitted during trial; victim fear helps show intent. |
| -- | Sykes v. State | Threat | 578 N.W.2d 807 (Ct. App. 1998), remanded, 1997 Minn. App. LEXIS 1236 (Ct. App. 1997) | Court has jurisdiction over threat originating in England where received in state. |
| -- | State v. Marchand | Threat | 410 N.W.2d 912 (Ct. App. 1987), rev. denied, October 2, 1987 | Terroristic threats include threats of future actions. A continuing tirade in face of victim's evident fear is circumstantial evidence of intent and negates any claim of transitory anger. |
| -- | State v. Schweppe | Threat | 237 N.W.2d 609 (1975) | Intent may be established through reasonable inferences from circumstances of the incident including victim reaction. Defendant may terrorize or cause extreme fear through third party where defendant knows or should know threat likely to be passed on to victim. |
| -- | State v. Tellinghuisen | Threat | 1998 Minn. App. LEXIS 558 (Ct. App.), appeal denied, July 16, 1998; 1998 Minn. LEXIS 432 (1998) | Conditional threats are covered under statute. Threat context is relevant where defendant had history of violent abuse towards victim. |
| -- | State v. Fisher | Threat | 354 N.W.2d 29 (1984) | Defendant knew or should have known that threat to third party would be communicated to victim. Evidence of prior threats is admissible to show intent and motive; transitory anger defense was rebutted by evidence of prior threats and continuing tirade for 6 hours. |
| -- | State v. Idowu | Threat | 2000 Minn. App.LEXIS 36 (Ct. App. 2000) | Direct communication of threat to victim is not required. |
| -- | State v. Spencer | Threat, harassment order | 1998 Minn. App. LEXIS 856 (Ct. App. 1998) | Evidence that victim applied for protection order after threat issued is probative of meaning of threat even if victim's reaction not an element of the crime. However admission of order itself is prejudicial since it tends to show that judge already found a threat to have been made. |
| -- | State v. Jones | Threat | 451 N.W.2d 55 (Ct. App. 1990) | Transitory anger is not covered by threat law. |
| -- | State v. Lavastida | Threat | 366 N.W.2d 677 (Ct. App. 1985) | Instruction on transitory anger defense not required when instructions submitted covered all elements of the crime. |
| -- | State v. Machholz | Harassment | 574 N.W. 2d 415 (1998) | Overbroad, (statute not limited to non-expressive conduct and offensive conduct in a public meeting not directed at any individual did not constitute fighting words). |
| -- | State v. Schmidt | HarassmentStalking | 612 N.W.2d 871 (2000), aff'ing 1999 Minn. App. LEXIS 958 (Ct. App. 1999) | Conviction voided under Machholz is not a bar to new charges under stalking section of law not affected by ruling, since there was no final decision in case on merits. |
| -- | State v.Mullen | Harassment | 577 N.W.2d 505 (1998) | Orsello intent rule does not require proving intent to commit pattern, just underlying crimes. |
| -- | State v. Anderson | Harassment | 1996 WL 722099 (Ct. App. 1996) | Double jeopardy protection violated in use of earlier plea involving same acts to prove pattern for enhanced penalty. |
| -- | Robbinsdale Clinic v. Pro-Life Action Ministries | Harassment | 515 N.W.2d 88 (Ct. App. 1994), rev. denied, 1994 Minn. LEXIS 445 (1994) | Constitutionality of underlying order may be collaterally attacked on appeal of contempt conviction. Order was overbroad because harassment injunction was not content neutral. There is no presumption that Clinic acts on behalf of patients not desiring to hear message. |
| -- | State v. Egge | Harassment protection order | 611 N.W.2d 573 (Ct. App. 2000) | Protection order of no-contact was violated when defendant instigated third-party harassment. |
| -- | Hamlin v. Barrett | Harassment protective order | 1999 Minn. App. LEXIS 733 (Ct. App. 1999) | Single instance of harassment may be basis of order issuance even without finding that conduct likely to reoccur. |
| -- | Asgian v. Schnorr | Harassment protective order | 1996 WL 557410 (Ct. App. 1996), rev. denied, 12/4/96 | First Amendment protection is not infringed by order that places narrow limits on communication and is content neutral. |
| -- | State v. Badiner | Telephone harassment | 412 N.W.2d 810 (Ct. App. 1987) | Statute does not require that intent to harass be sole purpose of call. |
| MS | Shackelford v. Shirley | Telephone threat | 948 F.2d 935 (5th Cir. 1991) | Overbreadth claim rejected (there is no realistic danger of substantial compromise of First Amendment protections). |
| MO | State v. Schleiermacher | Stalking order violation | 924 S.W.2d 269 (1996) | Vagueness challenge rejected (phrase "lingering outside" gives sufficient notice against slowing down or staying near residence of victim). |
| -- | State v. Cartwright | Stalking | 17 S.W.3d 149 (Ct. App. 2000) | Victim's delay in calling police does not nullify defendant's intent to cause fear |
| -- | State v. Dawson | Stalking | 985 S.W.2d 941 (Ct. App. 1999) | Similar transaction evidence that was not proven to be committed by defendant can not be used to prove course of conduct acts |
| -- | Wallace v. Van Pelt | Stalking protection order | 969 S.W.2d 380 (Ct. App. 1998) | The context in which vague threats were made of a reasonable conversation to workout problems belies likelihood of reasonable substantial emotional distress. |
| -- | State v. Martin | Stalking | 940 SW.2d 6 (Ct. App. 1997) | Expert medical testimony is not needed to prove substantial emotional distress; this is not akin to "substantial emotional injury" requiring such evidence. |
| -- | Alexander v. State | Harassment | 864 S.W.2d 354 (Ct. App. 1993) | Overbreadth claim rejected (threat made in civil lawsuit pleading is not protected speech; relevancy is required for privilege to attach). |
| -- | State v. Koetting (I) | Telephone harassment | 616 S.W.2d 822 (1981) (en banc) | Vagueness and overbreadth claims rejected (phrases "for the purposes of frightening or disturbing another person" and "uses coarse language offensive to one of average sensibility" use common words and are not vague. Invitation to prostitution is offensive language. Statute applies only to protect privacy interests in own home and is not overbroad). |
| -- | State v. Koetting (II) | Telephone harassment | 691 S.W.2d 328 (Ct. App. 1985) | Overbreadth claim rejected (citing Koetting I). Intent to harass need not be sole aim. |
| -- | State v. Creech | Telephone harassment | 983 S.W.2d 169 (Ct. App. 1998) | State need not prove victim asked defendant to stop calling before counting of "repeated" calls begins. |
| -- | State v. Rafaeli | Telephone harassment | 905 SW.2d 516 (Ct. App. 1995) | Specific intent to frighten or disturb is required; may be one of several purposes. |
| -- | State v. Placke | Telephone harassment | 733 S.W.2d 847 (Ct. App. 1987) | Messages left on answering machine fall within purview of law. Repeated calls means more than one. |
| -- | State v. Patterson | Telephone harassment | 534 S.W.2d 847 (Ct. App. 1976) | Statute requires that sole purpose of call be to harass victim. |
| MT | State v. Cooney | Stalking | 894 P.2d 303 (1995) | Free Speech claim rejected (telephone "love" calls inflicted injury and lacked social value; they are not protected speech). Venue lies in any county where any act occurred, including receipt of letter. |
| -- | State v. Martel | Stalking | 902 P.2d 14 (1995) | Vagueness and overbreadth claims rejected (phrases "repeatedly" "harassing," and "intimidating" are well understood; terms; "reasonable apprehension" and "substantial emotional distress" are subject to reasonable person test. Intent requirement reinforces this conclusion. Conduct, not speech, is prohibited by law; no showing of infringement here). |
| -- | State v. McCarthy | Stalking | 980 P.2d 629 (1999) | Term "repeatedly" means more than once, not more than twice. Communicating through a third party can be part of a pattern of stalking behaviors. |
| -- | State v. Kaplan | Stalking | 910 P.2d 240 (1996) | Challenge to mental illness verdict disallowed, since no conviction is being appealed. |
| -- | State v. Ross | Intimidation; Letter threat | 889 P.2d 161 (1995) | Overbreadth claims rejected (threatening speech is not protected). |
| -- | State v. Lance | Threat | 721 P.2d 1258 (1986) | Overbreadth claim rejected (threats to take a hostage are not protected speech). |
| -- | Wurtz v. Risley | Threat | 719 F.2d 1438 (9th Cir. 1983) | Overbroad (there is no requirement that threat produce victim fear; threat to"commit any criminal offense" could apply to minor victimless offenses). Threats need not be intended to be carried out; create fear is crux of crime. |
| -- | State v. Hawk | Intimidation | 948 P.2d 209 (1997) | Intimidation requires proof that threats were made to influence another's actions. |
| -- | State v. Baugatz | Order violation | 2000 Mont, LEXIS 151 (2000) | Vagueness challenge to order violation law rejected (term "knowing" has generally understood meaning when used as prerequisite for criminal enforcement of order). |
| NE | State v. Schmailzl | Threat | 502 N.W.2d 463 (1993), appeal dismissed, 534 N.W.2d 743 (1995) (lack of appellate. jurisdiction) | Vagueness and overbreadth claims rejected ("threats" and "threatens" are terms of common usage; threats to commit violent crime are not protected speech).M |
| -- | State v. Bourke | Threat | 464 N.W.2d 805 (1991) | Vagueness claim rejected (phrase "reckless disregard of the risk of causing such terror..." is defined by prior cses defining reckless). |
| -- | State v. Mayo | Threat | 464 N.W.2d 798 (1991) | Vagueness claim rejected (citing Bourke). |
| -- | State v. Hamilton | Threat | 340 N.W.2d 397 (1983) | Void for vagueness (term "threat" is undefined; Model Penal Code language requiring intent to terrorize fatally omitted). |
| -- | State v. Fisher | Threat | 343 N.W.2d 772 (1984) | Void for vagueness (citing Hamilton). |
| -- | State v. Saltzman | Threat | 458 N.W.2d 239 (1990) | There is no requirement in statute for intent to act on threat. |
| -- | State v. Kipf | Telephone threat | 450 N.W.2d 397 (1990) | Vagueness and overbreadth claims rejected (intent to harass without any communication permissible purpose is object of law. Phrase "indecent, lewd lascivious or obscene" has sexual connotation but does not require Miller v. California definition). |
| -- | Langford v. City of Omaha | Harassment | 755 F. Supp. 1460 (D. Neb. 1989), appeal dismissed without op., 978 F.2d 1263 (8th Cir. 1992) | Void for vagueness (term "annoy" is vague; providing no standard for measuring whose sensitivity to use to determine annoyance; terms "legitimate" and "obscene" communications are not defined by ordinance). Vagueness claim is rejected for subsection making unlawful repeated anonymous communications (specific intent to harass saves ordinance). |
| NV | No cases | -- | -- | -- |
| NH | No cases | -- | -- | -- |
| NJ | State v. Saunders | Stalking; Harassment | 695 A.2d 262 (App. Div. 1997), cert. denied, 700 A.2d 881 (1997) | Overbreadth and vagueness claims rejected (nonverbal expressive behavior such as "following" can be banned; law does not reach substantial amount of protected acts. Terms "annoy" and "alarm" must be construed together as prohibiting serious harassment only; term "following" is commonly understood. Specific intent requirement further clarifies law). |
| -- | State v. Cardell | Stalking | 723 A.2d 111 (Super. Ct. 2000) | Vagueness and overbreadth challenges rejected (Change in law from specific to general intent law does not significantly increase scope of law's coverage to protected conduct, nor does statute limit defendant's ability to go where he wishes where such behavior will not result in behavior creating fear of injury or death. Term "visual or physical proximity" is not vague where statute makes clear what type of conduct is prohibited). |
| -- | D.C. v. F. R. | Stalking; Domestic violence order | 670 A.2d 51 (App. Div. 1996) | Prior conduct before law's implementation date can be considered in injunction proceedings. |
| -- | Rumbauskas v. Cantor | Intrusion on seclusion tort | 649 A.2d 853 (1994) | Tort of intrusion on seclusion (as from stalking) is governed by two-year statute of limitation as action for personal injury, not injury to rights of others (emotional not economic harm). |
| -- | Grant v. Wright | Harassment | 536 A.2d 319 (App. Div.), certif. denied, 546 A.2d 493 (1988) | Single act does not meet statutory requirement for "course of alarming conduct" or "repeated acts." |
| -- | State v. Hoffman | Letter harassment; Protection order | 695 A.2d 236 (1997), rev'g, 676 A.2d 565 (App. Div. 1996) | Vagueness and overbreadth claims rejected as statute interpreted (mailing of torn up court order to estranged wife is insufficient annoyance for harassment or contempt of court using invasion of privacy test, but may constitute harassment for victim of domestic abuse. Mailing violated protective order against "contact."). |
| -- | State v. Hoffman | Letter harassment | 676 A.2d 565 (App. Div. 1996), aff'd in part, rev'd in part, 695 A.2d 236 (Sup. Ct. 1997) | Harassment law covers communication by mail. Term "annoyance" means causing alarm or serious annoyance, not merely nettlesome. |
| -- | State v. J.T. | Harassment protection order | 683 A.2d 1166 (App. Div. 1996) | Evidence of positioning self to be seen on exit from house was "contact" violating order; course of conduct may arise from single incident of remaining in a single location with intent to harass. |
| -- | Peranio v. Peranio | Harassment protection order | 654 A.2d 495 (App. Div. 1995) | Harassment protection order is not warranted where there is no intent to harass, notwithstanding alarming statements. |
| -- | Corrente v. Corrente | Harassment protection order | 657 A.2d 440 (App. Div. 1995) | Non-violent harassment is not domestic violence warranting issuance of protective order. |
| -- | Roe v. Roe | Harassment protection order | 601 A.2d 1201 (App. Div. 1992) | Preponderance of evidence standard is used for proving violations of court order. |
| NM | State v. Duran | Stalking Harassment | 966 P.2d 766 (Ct. App. 1998) | Double jeopardy occurs where same acts prove both stalking and harassment, because same social policies underlie both laws and no significant intent requirement exists. Void for vagueness challenge to harassment law is rejected (person of ordinary intelligence would know acts were unlawful). |
| -- | State v. Gattis | Telephone harassment | 730 P.2d 497 (Ct. App. 1986) | Vagueness and overbreadth claims rejected (intent requirement excludes innocent calls from law's scope; law directed at conduct, not speech. Intent requirement also negates any vagueness problems. Moreover, law uses words of common knowledge). |
| NY | People v. Starkes | Stalking | 2000 N.Y. Misc. LEXIS 311 (Crim. Ct. N.Y. City 2000) | Statute does not require victim fear for 3rd degree stalking, only that defendant intend to act in way as likely to result in fear. Information must allege all elements of stalking crime. |
| -- | People v. Payton | Stalking | 612 N.Y.S.2d 815 (Crim. Ct. N.Y. City 1994) | Course of conduct defined to mean a series of acts over a period of time, however short. Intention to place victim in fear is an element of stalking (menacing) crime. |
| -- | People v. Murray | Menacing | 635 NY.S.2d 928 (Crim. Ct. N.Y. City 1995) | Course of conduct may last for short time (6 or 8 minutes) where there is continuity of purpose in series of acts. |
| -- | People v. Munn | Harassment; Threat | 688 N.Y.S.2d 384 (Crim. Ct. N.Y. City 1999) | Harassment statute covers threats posted on Internet newsgroup. |
| -- | People v. Dietze | Harassment | 549 N.E.2d 1166 (1989) | Overbroad (law against annoying statements is not limited to "fighting words"). Outburst without more is not a serious threat covered by law. |
| -- | People v. Wood | Harassment | 464 N.Y.S.2d 738 (1983) | Course of conduct must be more than isolated act. |
| -- | People v. Viau | Harassment | 409 N.E.2d 1376 (1980) | Citizen band radio harassment is not covered by law directed at telephone or written communication harassment. |
| -- | People v. Hogan | Harassment | 664 N.Y.S.2d 204 (Crim. Ct. N.Y. City 1997) | Harassment requires course of conduct that is more than isolated acts. Protective order to avoid harassment refers to Penal Code; expanded definition would be constitutionally vague (failure to give notice). |
| -- | People v. Forman | Harassment protection order | 546 N.Y.S.2d 755 (Crim. Ct. N.Y. City 1989) | Due process claim that defendant has right to hearing before issuance of criminal no-contact order as a condition of bail release is rejected (emergency nature of order precludes pre-issuance hearing as long as prompt appeal available. Danger of intimidation or injury standard is not vague. Order to "refrain from offensive conduct" is too vague for contempt enforcement. |
| -- | People v. Lamb | Harassment | 384 N.Y.S.2d 929 (City. Ct. Rochester 1976) | Vagueness claim rejected (citing People v. Harvey, 123 N.E.2d 81 (1954). |
| -- | People v. Tralli | Harassment | 387 N.Y.S.2d 37 (App. Term 1976) | Course of conduct does not require repeated harassing acts. |
| -- | People v. Shack | Telephone harassment | 86 N.Y.2d 529 (1995) | First Amendment, overbreadth, and vagueness claims rejected (law regulates only conduct and excludes "legitimate communications;" phrase "without legitimate purpose" is commonly understood to mean without expression of ideas other than threats). |
| -- | People v. Caldwell | Telephone harassment | 661 N.Y.S.2d 436 (App. Term. 1997), appeal denied, 89 N.Y.2d 1033 (1997) | Free speech claim rejected (citing Shack). |
| -- | People v. Smith | Telephone harassment | 392 N.Y.S.2d 968 (App. Term), cert. denied, 434 U.S. 920 (1977) | Vagueness and overbreadth claims rejected (defendant's behavior fits within hard core of statute's bar; telephone harassment is a form of trespass, lacking constitutional protection). Statute construed to prohibit only acts likely to annoy or alarm done with intent to harass. |
| -- | People v. Wood | Telephone harassment; Protection order | 698 N.Y.S.2d 122 (App. Div. 1999) | Family Court civil finding of contempt provides Double Jeopardy bar to City Court criminal contempt proceeding where same actions underlie both proceedings. Charging five different acts of telephone harassment is okay even where calls made close in time. |
| -- | People v. Portnoy | Telephone harassment | 600 N.Y.S.2d 900 (Crim. Ct. N.Y. City. 1993) | A pattern of repeated calls is only means of inferring harassment intent, no pattern in instant case with only four calls in two weeks. |
| -- | People v. Zullo | Telephone harassment | 650 N.Y.S.2d 926 (Dist. Ct. Nassau Cnty. 1996) | Single isolated incident not sufficient to constitute harassment. |
| -- | People v. Miguez | Telephone harassment | 556 N.Y.S.2d 231 (Crim. Ct. N.Y. City 1990), aff'd, 590 N.Y.S.2d 156 (App. Term 1992) | Overbreadth claim rejected (law bars private not public communication; Dietz not controlling). Messages left on answering machine constitute communication under statute. |
| -- | People v. Barhan | Telephone harassment | 556 N.Y.S.2d 441 (Crim. Ct. N.Y. City 1990) | Communicating in a manner likely to cause annoyance or harm may be proven by either one or several calls over time. |
| -- | People v. Liberato | Telephone harassment | 689 N.Y.S.2d 363 (NY City Crim. Ct. 1999) | Single call can constitute harassment where there is no legitimate purpose for call, only threats and intimidating utterances. |
| -- | People v. Rusciano | Telephone harassment | 656 N.Y.S.2d 822 (Just. Ct. Westchester County 1997) | Aggravated harassment requires communication; telephone calls must be completed calls. While course of conduct is needed for simple harassment, single alarming communication can be aggravated harassment. |
| NC | State v. Ferebee | Stalking | 529 S.E.2d 686 (Ct. App. 2000) | Stalking law making warning to desist an element of crime is not complied with by erroneous entry into evidence of acts occurring before warning |
| -- | State v. Roberson | Threat | 247 S.E.2d 8 (Ct. App. 1978) | Conditional threat is covered by law where condition was without legal authority. |
| -- | Radford v. Webb | Telephone threat and harassment | 446 F. Supp. 608 (W.D.N.C. 1978), aff'd, 596 F.2d 1205 (4th Cir. 1979) | Overbroad (laws bars not only obscenity, but also merely vulgar or profane communications). |
| -- | State v. Camp | Telephone harassment | 295 S.E.2d 766 (Ct. App. 1982), appeal dismissed, 299 S.E.2d 216 (1982) | Overbreadth and vagueness claims rejected (law prohibits conduct, not speech; law adequately warns). |
| -- | In re Simmons | Telephone harassment | 210 S.E.2d 84 (Ct. App. 1974) | Vagueness and overbreadth claims rejected (appropriate and sufficiently narrowed law). |
| -- | State v. Boone | Telephone harassment | 340 S.E.2d 527 (Ct. App. 1986), cert. denied, 347 S.E.2d 442 (1986) | Term "repeatedly" does not require more than one call per day. |
| ND | Svedberg v. Stamness | Stalking protection order | 525 N.W.2d 678 (1994) | Disorderly conduct order is not First Amendment violation ("fighting words" when used to 14 year old boy). Phrase "reasonable grounds" is equated with probable cause standard for issuing order. |
| -- | State v. Olson | Threat | 552 N.W.2d 362 (1996) | Threat was made to third party in reckless disregard of possibility it would be communicated to victim. |
| -- | State v. Carlson | Threat | 559 N.W.2d 802 (1997) | Intent relates to putting fear into, rather than intending to actually carry out threat. |
| -- | State v. Touche | Threat | 549 N.W.2d 193 (1996) | Testimony about protective order may be used to show victim fear. |
| -- | State v. Hondl | Threat | 506 N.W.2d 404 (1993) | Assault is not "lesser included" offense of terrorizing. |
| -- | Wishnatsky v. Huey | Harassment protection order | 560 N.W.2d 878 (1997), aff'd, 584 N.W.2d 859 (Ct. App. 1998) | Disorderly conduct protection order fails for failure to show pattern of intimidation; two instances of meeting by happenstance is not enough. |
| -- | Cave v. Wetzel | Harassment protection order | 545 N.W.2d 149 (1996) | Phrase "reasonable grounds to believe" is equated with probable cause in determining whether injunction should issue. |
| -- | Williams v. Spilovoy | Harassment protection order | 536 N.W.2d 383 (1995) | Conclusory claims of threats or harassment without factual detail showing harassment do not support issuance of no-contact order. |
| -- | State v. Monson | Probation no-contact order | 518 N.W.2d 171 (1994) | Term "contact" is defined to exclude attendance at public forum; contact means communication or coming together. |
| OH | City of Toledo v. Emery | Stalking | 2000 Ohio App. LEXIS 2880 (Ct. App. 2000) | Free speech claim rejected (liberty rights to videotape victims are superseded by latter's right to privacy). Direct threat of harm is not required; it is enough to show series of acts likely to result in fear of harm. |
| -- | State v. Smith | Stalking | 709 N.E.2d 1245 (Ct. App. 1998) | First Amendment challenge rejected (law regulates conduct not speech). Vagueness and overbreadth claims rejected (term "pattern of conduct" is simple and easy to understand; Scienter requirement vitiates any other claim of vagueness. Whatever First Amendment protection for picketing exists, defendant crossed the line in uttering threats). Picketing activity can be acts constituting statutory "course of conduct. Explicit threats are not required. Expert testimony is not required to prove mental distress." |
| -- | State v. Schwab | Stalking | 695 N.E.2d 801 (Ct. App. 1997) | Vagueness claim rejected (phrase "mental distress" sufficiently clear). Expert testimony is not needed to prove mental distress. |
| -- | State v. Francway | Stalking | 1995 WL 491104 (Ct. App), also, 1995 Ohio App. LEXIS 3384 (1995, rev. denied, 659 N.E.2d 313 (1996) | Vagueness and overbreadth claims rejected (phrase "mental distress" is sufficient to put defendant on notice; no unconstitutional restriction on right to travel). |
| -- | State v. Dario | Stalking | 665 N.E.2d 759 (Ct. App. 1995) | Vagueness and overbreadth claims rejected (knowing or intent requirement results in defendant being aware that conduct will result in another's fear; stalking is not protected behavior) (phrase "pattern of conduct" is defined by statute while phrase "closely related in time" was sufficiently clear to ordinary persons). |
| -- | State v. Fleming | Stalking | 1996 WL 100962 (Ct. App. 1996), dismissed, appeal not allowed, 669 N.E.2d 856 (1996) | Vagueness claim rejected. (citing Francway) |
| -- | State v. Benner | Stalking | 644 N.E.2d 1130 (Ct. App. 1994) | Vagueness claim rejected (not facially void and conduct is not protected speech). |
| -- | State v. Bilder | Stalking | 651 N.E.2d 502 (Ct. App. 1994), dismissed, 649 N.E.2d 278 (1995), stay denied, 651 N.E.2d 1013 (1995), cert. denied, 516 U.S. 1009 (1995), reaff'd, 1996 Ohio App. LEXIS 4837 (1996) | Overbreadth claim rejected (stalking is not protected conduct). Two confrontations closely related in time constituted "pattern of conduct" under law. Expert testimony is not needed to prove mental distress. |
| -- | City of Dayton v. Smith | Stalking | 646 N.E.2d 917 (Mun. Ct. Dayton 1994) | Vagueness and overbreadth claims rejected (phrase "pattern of conduct" is adequately defined by statute; no substantial infringement shown). |
| -- | State v. Hart | Stalking | 2000 Ohio App. LEXIS 5796 (Ct. App. 2000) | Evidence of psychological treatment is not required to prove mental distress. |
| -- | State v. Halgrimson | Stalking | 2000 Ohio App. LEXIS 5162 (Ct. App. 2000) | Prior acts admissible to prove stalking where they "tend to show" intent, motive etc., since they show the factual background needed to understand what occurred. |
| -- | State v. Tichon | Stalking | 658 N.E.2d 16 (Ct. App.), appeal dismissed, 654 N.W.2d 986 (1995) | Mental distress may be proven without expert testimony. |
| -- | State v. Wasmire | Stalking | 94 WL 476462 (Ct. App. 1994) | Law requires awareness that conduct will cause harm and fear and that actions were directed at the victim. |
| -- | Lindsay v. Jackson | Stalking order | 2000 WL 1268810 (Ct. App. 2000) | Due process challenge to procedures used before issuance of protection order upheld (one day notice of hearing insufficient to prepare defense and failure to inform defendant of right to cross examine undermined "full hearing" requirement of statute). Preponderance of evidence standard applicable in protection order cases. |
| -- | State v. Manny | Threat | 1992 WL 113246 (Ct. App. 1992) | Threat may be made to third party where defendant "knows" that it will be communicated to victim. |
| -- | State v. Denis | Threat | 678 N.E.2d 996 (Ct. App.), aff'd, 1996 Ohio App. LEXIS 5498 (1996) | Proof of victim fear is required. |
| -- | Felton v. Felton | Harassment; protective order | 679 N.E.2d 672 (1997) | Court may issue protective order even where divorce decree already orders no harassment, since new order gains more protection from police. Preponderance of evidence standard used for issuing order. |
| -- | State v. Gibbs | Telephone harassment | 730 N.E.2d 1027 (Ct. App. 1999) | Overbreadth claim rejected on privacy grounds where statute makes criminal a telephone call made despite request not to call, regardless of any legitimate nature of call content. |
| -- | State v. Mollenkopf | Telephone harassment | 456 N.E.2d 1269 (Ct. App. 1982) | Vagueness claim rejected (statute gave sufficient notice). |
| -- | State v. Bonifas | Telephone harassment | 632 N.E.2d 531 (Ct. App. 1993) | Intent to harass, not subjective annoyance of victim; it must be proven. |
| OK | State v. Saunders | Stalking | 886 P.2d 496 (Ct. Crim. App. 1994) | Vagueness claim rejected (intent "triggers" law; rebuttable presumption of intent from victim request to discontinue behavior is rational). |
| OR | State v. Rangel | Stalking | 977 P.2d 379 (1999) | Overbreadth claim rejected (law focuses on effects achieved by speech: a threat, although not directly specified, is permitted by First Amendment where law also requires ability to carry out threat, expression of intent to carry out threat, and reasonable person standard for fear). |
| -- | State v. Maxwell | Stalking Stalking protection order | 998 P.2d 680 (Ct. App. 2000) | Vagueness challenge to terms of protection order rejected (phrase "visual or physical presence" has plain and ordinary meaning). Defendant knew when entering a room where victim was that he was capable of being seen by victim. Words are required to prove threat where simple presence results in fear. Order violation does not require evidence of threat. |
| -- | Hanzo v. deParrie | Stalking protection order | 953 P.2d 1130 (Ct. App. 1998) | Overbroad as applied (abortion protester "contacts" involved expression that do not constitute a threat and were not "unwanted" under statute that requires "threat"). |
| -- | Shook v. Ackert | Stalking protection order | 952 P.2d 1044 (Ct. App. 1998) | Overbreadth claim rejected (statute authorizing protection order is not facially overbroad in its specification of what the order contents may be, since court will determine on case-by-case basis what communication is constitutionally permitted). |
| -- | Delgado v. Souders | Stalking protection order | 934 P.2d 1132 (Ct. App. 1997), rev. granted, 943 P.2d 633 (1997) | Vagueness claim rejected (terms "contact," "alarm," and "personal safety" are not vague). Statute does not abridge right of travel. |
| -- | State v. Norris-Romine | Stalking protection order | 894 P.2d 1221 (Ct. App.), rev. denied, 900 P.2d 509 (1995) | Void for vagueness (phrase "without legitimate purpose" is not self-explanatory and lacks sufficient warning of what is barred). |
| -- | State v. Orton | Stalking protection order; Contempt | 904 P.2d 179 (Ct. App. 1995) | Void for vagueness (phrase "without legitimate purpose" for judging post-issuance behavior is vague, citing Norris-Romine). Collateral bar doctrine does not defeat claim that order provision is vague. |
| -- | Starr v. Eccles | Stalking protection order | 900 P.2d 1068 (Ct. App. 1995) | Void for vagueness (citing Norris-Romine for ruling that "legitimate purpose" phrase is vague). |
| -- | Boyd v. Essin | Stalking protection order | 12 P.3d 1003 (Ct. App. 2000) | Rangel dictum about expressive contacts raising 1st Amendment issues is not present where record shows 3 non-expressive contacts justifying order issuance. Reasonable fear shown where defendant had history of violence. |
| -- | Johnson v. McGrew | Stalking protection order | 902 P.2d 1209 (Ct. App.), rev. denied, 907 P.2d 248 (1995) | Right of counsel does not apply to appeal of protection order violation proceeding (civil, not criminal, prosecution). |
| -- | Wayt v. Goff | Stalking protection order | 956 P.2d 1063 (Ct. App. 1998) | Police officer did not indicate contacts were unwanted to meet statutory requirements for injunction. |
| -- | In re Dompeling | Menacing | 171 Or. App. 692, 2000 WL 1874106 (Ct. App. 2000) | Menacing law use of term "imminent" threat does not require actual immediacy, but may be merely "near at hand.," within next few hours. |
| -- | State v. Moyle | Telephone threat | 705 P.2d 740 (1985) (en banc) | Vagueness and overbreadth claims rejected (threats not protected speech as statute is interpretatively limited: there must be reasonable fear and intent to provoke this fear; fear of violence against family limited to felonious acts. Term "alarm" interpreted to mean fear from danger due to threat of felony violence; other terms are defined in Code. Intent implied in law.) There must be actual threat to exclude protected hyperbole, rhetorical excess, and impotent expressions of anger. |
| -- | State v. Harrington | Harassment | 680 P.2d 666 (Ct. App.), rev. denied, 685 P.21d 998 (1984) | Overbroad (statute punishes speech regardless of intent or effect on listener, it goes beyond fighting words to "likely to provoke a disorderly response." |
| -- | State v. Sanderson | Harassment | 575 P.2d 1025 (Ct. App. 1978) | Void for vagueness (terms "alarms" and "seriously annoys" are vague; latter is a "dragnet" provision not subject to judicial limiting). |
| -- | State v. Harrington | Harassment | 680 P.2d 666 (Ct. App. 1984) | Overbroad (statute punishes speech regardless of intent or effect on listener, it goes beyond fighting words that are "likely to provoke a disorderly response." |
| -- | State v. Ray | Telephone harassment | 733 P.2d 28 (1987) | Void for vagueness and overbroad (law reaches too far, even to recipient of call if he is the one using annoying language. Use of Miller-three part definition of obscenity delegates to jury to be used to determine what is forbidden). |
| -- | State v. Blair | Telephone harassment | 601 P.2d 766 (1979) (en banc) | Void for vagueness (phrase "likely to cause alarm" is too broad. Statute lacks any requirement of actual harm or fear.). |
| -- | State v. Hibbard | Telephone harassment | 823 P.2d 989 (Ct. App. 1991) | Overbreadth and vagueness claims rejected (law focuses on telephoning conduct not speech; dicta that call must have no purpose to communicate. Law is not vague (citing Lowery). |
| -- | State v. Lowery | Telephone harassment | 693 P.2d 1343 (Ct. App. 1985) (per curium) | Vagueness claim rejected (no merit to claim). |
| -- | State v. Larsen | Telephone harassment | 588 P.2d 41 (Ct. App. 1978) | Vagueness claim rejected (law is directed at specific conduct of using telephone with intent to harass). |
| -- | State v. Zeit | Telephone harassment | 539 P.2d 1130 (Ct. App. 1975) | Vagueness claim rejected (person of common intelligence would know law was violated). |
| -- | State v. Sallinger | Telephone harassment | 504 P.2d 1383 (Ct. App. 1972) | Vagueness claim rejected (statute provides adequate notice of prohibited conduct. Law is intended to cover batteries). |
| -- | State v. Norgard | Telephone harassment | (1999), 967 P.2d 499 (Ct. App. 1998) (en banc), rev. denied, 1999 Ore. LEXIS 436 (1999) | Use of answering machine to replay messages meets statutory requirement that defendant "cause" victim to answer call. |
| -- | State v. Lopez | Telephone harassment | 949 P.2d 1237 (Ct. App. 1997), rev. denied, 326 Or 465 (1998) | Husband answering telephone for victim does not meet statutory requirement "caused" victim to answer call. |
| -- | State v. Wilson | Telephone harassment | 724 P.2d 840 (Ct. App. 1986), rev. denied, 732 P.2d 915 (1987) | Law requires victim to be actually placed in fear. |
| PA | Commw. v. Schierscher | Stalking; Harassment | 668 A.2d 164 (Super. Ct. 1995), appeal denied, 688 A.2d 171 (1997) | Vagueness and overbreadth claims rejected (harassment law upheld, citing Duncan. Stalking is not protected behavior: "speech designed to coerce through fear and intimidation" is not protected). |
| -- | Commw. v. Roefaro | Stalking | 691 A.2d 472 (Super. Ct. 1997) | Double jeopardy claim rejected (evidence of prior convictions is admissible to prove course of conduct element of stalking crime since otherwise defendant would get one "free stalk" following stalking conviction). |
| -- | Commw. v. Miller | Stalking; Domestic violence order | 689 A.2d 238 (Super. Ct. 1997), appeal denied, 695 A.2d 785 (1997) | Overbreadth claim rejected (intent requirement obviates such a finding). Order does not violate constitutional right to travel (no intrastate right to travel). Intent to cause "substantial emotional distress" may be inferred from defendant's conduct. |
| -- | Commw. v. Davis | Stalking | 737 A.2d 797 (Super. Ct. 1999) | Testimony about prior attempt to hit victim with car is admissible as evidence of pattern of behavior and not excludable as "prior bad act." |
| -- | Commw. v. Leach | Stalking | 729 A.2d 608 (Super. Ct. 1999) | Each act involved in the stalking may be a separate count of stalking in an indictment even where each act is part of course of conduct making up stalking, since each new act creates a new course of conduct. |
| -- | Commw. v. Urrutia | Stalking | 653 A.2d 706 (Super. Ct. 1995), appeal denied, 661 A.2d 873 (1995) | Proof of no legitimate purpose is not required, contra harassment law. Evidence of civil protection order may be used to show intent and course of conduct. |
| -- | Commw. v. Johnson | Stalking | 2001 PA. Super. 60, 2001 Pa. Super. LEXIS 193 (Supoer. Ct. 2001) | A following that was interrupted and a separate surveillance on the same day constitute a course of action involving 2 separate acts. |
| -- | Commw. v. Reese | Stalking Harassment | 725 A.2d 191 (Super. Ct. 1999), appeal denied, July 9, 1999, 1999 Pa. LEXIS 1947 (1999) | Harassment is lesser included offense of stalking. |
| -- | Commw. v. Green | Threat | 429 A.2d 1180 (Super. Ct. 1981) | Vagueness claim rejected ("terrorize" activity is described with requisite precision. |
| -- | Commw. v. Bunting | Threat | 426 A.2d 130 (Super. Ct. 1981) | Vagueness claims rejected (statute gives fair warning). |
| -- | Commw. v. Kelley | Threat | 664 A.2d 123 (Super. Ct. 1995), appeal denied, 674 A.2d 1068 (1996) | Evidence is not needed to prove victim was actually frightened. Threat to third party was done in reckless disregard of risk of causing terror; intent to terrorize may be inferred. |
| -- | Commw. v. Tizer | Threat | 684 A.2d 597 (Super. Ct. 1996) | Neither ability to carry out threat nor victim belief that threat will be carried out is essential element of terrorizing. Spur of the moment defense for threats made in anger is not applicable where no argument in progress and victim made no threats of any sort. |
| -- | Commw. v. Cancilla | Threat | 649 A.2d 991 (Super. Ct. 1994) | Threats through third party (911 call) were done in reckless disregard of risk of causing terror. |
| -- | Commw. v. Campbell | Threat | 625 A.2d 1215 (Super. Ct. 1993) | Threat through third party was done in reckless disregard of causing terror. Intent to cause terror is controlling, not whether threat fully understood. |
| -- | Commw. v. Hudgens | Threat | 582 A.2d 1352 (Super. Ct. 1990) | Spur of moment/excited utterance defense that threat made in anger during dispute is not available where victim made no threats of any kind and weapon brandished. Ability to carry out threat is not required. |
| -- | Commw. v. Anneski | Threat | 525 A.2d 373 (Super. Ct.), appeal denied, 532 A.2d 19 (1987) | Neither ability to act nor actual victim fear is required by statute. Spur of moment threat made in transitory anger is not covered by law. |
| -- | Commw. v. Kidd | Threat | 442 A.2d 826 (Super. Ct. 1982) | Spur of moment anger leading to threat may undercut actual intent to cause fear. |
| -- | Commw. v. Hardwick | Threat | 445 A.2d 796 (Super. Ct. 1982) | Intent to carry out threat is not part of crime, only intent to terrorize is needed. |
| -- | Commw. v. Ferrer | Threat | 423 A.2d 423 (Super. Ct. 1980) | Threat to commit crime of violence may be inferred from speech. |
| -- | Commw. v. Ashford | Threat | 407 A.2d 1328 (Super. Ct. 1979) | Statute does not require that there be a present ability to carry out threat. |
| -- | Commw. v. Duncan | Harassment | 363 A.2d 803 (Super. Ct. 1976) | Vagueness and overbreadth claims rejected (no political content to speech in instant case. Statutory requirement for intent undercuts claim). Speaking can constitute course of conduct under harassment law. |
| -- | Commw. v. Townley | Harassment | 722 A.2d 1098 (Super. Ct. 1998) | Harassment is not lesser included offense within assault, where the former requires intent, but the latter crime does not. |
| -- | Commw. v. Hendrickson | Harassment by fax | 724 A.2d 315 (1999) | Vagueness and overbreadth claims rejected (statute directed at conduct, not content of speech; intent requirement limits overbreadth possibility; common meanings of statutory terms sufficient to give warning, especially where intent requirement to harass is part of law). |
| -- | Commw. v. Lewis | Telephone harassment | 30 Pa. D. & C.2d 133 (1962) | Vagueness and overbreadth claims rejected (obscenity is not protected speech). |
| RI | State v. Fonesca | Stalking | 670 A.2d 1237 (1996) | Vagueness claims rejected (phrase "repeatedly follows or harasses" is not vague and does not potentially require two series of harassing acts). |
| -- | State v. Breen | Stalking | 673 A.2d 75 (1996) | Constitutionality challenge rejected (citing Fonseca). |
| SC | State v. Prince | Stalking | 517 S.E.2d 229 Ct. App. 1999) | Acts of property damage are acts of violence for purposes of enhanced aggravated stalking charge. |
| -- | State v. Brown | Telephone harassment | 266 S.E.2d 64 (1980) | Vagueness and overbreadth claims rejected (law is interpreted to require evidence of sole intent to make obscene, threatening, or harassing calls). |
| SD | State v. McGill | Stalking | 536 N.W.2d 89 (1995) | Vagueness claim rejected (terms "willful," "maliciously," "repeatedly," "follows," and harass" are not vague because they are in common usage, citing decisions in other states). |
| -- | State v. Hoxie | Stalking | 963 S.W.2d (1998) | Rule requiring state to narrow allegations from among numerous claimed actions testimony ("election") that applies to single act charge is not applicable to stalking, which subsumes a series of acts. |
| -- | State v. Hauge | Letter harassment; Protection order | 547 N.W.2d 173 (1996) | First Amendment and overbreadth challenges rejected (protection orders serve valid purpose of protecting the vulnerable. If order were potentially overbroad, proper challenge was to seek order modification, not its violation). |
| -- | State v. Diede | Telephone harassment | 319 N.W.2d 818 (1982) | Vagueness, overbreadth claims rejected ("repeated" means more than one call; term "anonymous" is not vague). |
| TN | State v. Lakatos | Telephone harassment | 900 S.W.2d 699 (Ct. Crim. App. 1994) | Vagueness and overbreadth claims rejected (phrase "without a legitimate purpose of communication" is limited by intent and alarm requirements. Law regulates conduct not speech). |
| -- | State v. Carter | Telephone harassment | 687 S.W.2d 292 (Ct. Crim. App. 1984) | Vagueness claim rejected (words "lewd, lascivious, and obscene" are sufficient descriptions). |
| TX | Long v. State | Stalking | 931 S.W.2d 285 (Ct. Crim. App. 1996) | Void for vagueness; (statute needs reasonable fear and knowing clauses, predicate act nexus to stalking is missing). |
| -- | Clements v. State | Stalking | 19 S.W.3d 442 (Ct. App. 2000) | Vagueness and overbreadth claims rejected (law specifies what conduct is prohibited and includes intent provision. Attempt to "save" marriage is not constitutionally protected conduct requiring close scrutiny of law). Events occurring before law's enactment are admissible as showing victim state of mind; this does not constitute element of crime. |
| -- | Escobedo v. State | Stalking | 2000 WL 795307 (Ct. App. 2000) | Vagueness and state due process challenges rejected (person of ordinary intelligence knows what law means). |
| -- | Poteet v. State | Order violation; Threat | 957 S.W.2d 165 (Ct. App. 1997) | Service of order presumed where defendant in court when order issued and had waived court reporter where only record of service would come from court record. Threat intent may be inferred from actions. |
| -- | Gonzales v. State | Threat | 2000 Tex. App. LEXIS 5555 (Ct. App. 2000) | Uncertainty about when threat would be carried out does not undercut "imminent threat" language. |
| -- | Dues v. State | Threat | 634 S.W.2d 304 (Ct. Crim. App. 1982) | Present inability to carry out threat is irrelevant and victim fear irrelevant to defendant intent to terrorize. |
| -- | Gonzales v. State | Threat | 2000 Tex. App. LEXIS 5555 (Ct. App. 2000) | Victim fear is not an element of crime; only defendant intent to create fear. Victim fear may be relevant to immediacy of threat, an element of crime. |
| -- | Cook v. State | Threat | 940 S.W.2d 344 (Ct. App. 1997) | Intent is inferred from acts, words, and conduct; conditional threat is covered where there is proximity between condition and threatened harm. |
| -- | Bryant v. State | Threat | 905 S.W.2d 457 (Ct. App. 1995) | Conditional threat based on future acts is not within statute's requirement for fear of "imminent" danger. |
| -- | George v. State | Threat | 841 S.W.2d 544 (Ct. App. 1992), aff'd on discretionary review, 890 S.W.2d 73 (1994 Ct. Crim. App.) | Defendant intent can not be inferred from victim response, since actual fear is not required. Ability or intention to carry out threat is irrelevant. |
| -- | Webb v. State | Retaliation (threats) | 991 S.w.2d 408 (Ct. App. 1999) | Vagueness and overbreadth claims rejected (threat is not protected speech; conditional threat based upon position as potential witness is reasonable interpretation of statutory term "retaliate"). |
| -- | Puckett v. State | Retaliation | 801 S.W.2d 188 (Ct. App. 1990) | Claim of First Amendment protection as applied to facts of case rejected (threats are not protected speech). |
| -- | Kramer v. Price | Harassment | 712 F.2d 174 (5th Cir. 1983), on reh, 723 F.2d 1164 (5th Cir. 1984) (per curium) (vacating panel opinion on other grounds and affirming decision) | Void for vagueness (terms "annoy" and "alarm" have not been construed by state courts that would limit their scope; hence, it is unclear what standard to use to measure annoyance). |
| -- | May v. State | Telephone harassment | 765 S.W.2d 438 (Ct. Crim. App. 1989) (en banc) | Void for vagueness (crime depends upon sensitivity of victim, rather than use of reasonable person; terms "annoys" and "alarms" are not defined). |
| -- | Townsend v. State | Telephone harassment | 1999 Tex. App. LEXIS 9561 (Ct. App. 1999) | Vagueness and overbreadth claims rejected (citing DeWillis). |
| -- | DeWillis v. State | Telephone harassment | 951 S.W.2d 212 (Ct. App. 1997) (habeas denial), direct appeal aff'd, 1998 Tex. App. LEXIS 431 (Ct. App. 1998) | Vagueness claim rejected (new law specifically defines the conduct necessary to harass; reasonable person standard is implied in use of term "another." |
| -- | Bader v. State | Telephone harassment | 773 S.W.2d 769 (Ct. App. 1989) | Vagueness and overbreadth claims rejected (phrase "what alarms people" is adequately defined; use of reasonable standard provides measure for law). |
| -- | Alobaidi v. State | Telephone harassment | 433 S.W.2d 440 (Ct. Crim. App.), cert. denied, 393 U.S. 943 (1968) | Equal protection claim denied (claim that statutory exception to its application for legitimate communications discriminates by permitting one class of callers to use obscene language, but not another, misreads statute; challenged phrase refers to harassing communications only). |
| -- | Manemann v. State | Telephone harassment | 878 S.W.2d 334 (Ct. App. 1994) | Objective test to be used to measure threat. Threats may be implicit. Ability to act is not required by law. |
| -- | Kramer v. State | Letter harassment | 605 S.W.2d 861 (Ct. Crim. App. 1980) | Vagueness and overbreadth claims rejected (terms "coarse" and "offensive" are not vague since core of law is intent to harass thus preventing subjective standard of blame. Law does not deal with public communication.). |
| UT | Salt Lake City v. Lopez | Stalking | 935 P.2d 1259 (Ct. App. 1997) | Vagueness and overbreadth claims rejected (phrase "emotional distress" is defined by tort law to mean outrageous and intolerable behavior. Law is directed at threatening, not innocent associations. |
| -- | State v. Spainhower | Threat | 988 P.2d 452 (Ct. App. 1999) | Victim fear is not an element of crime, although it can be considered by jury. |
| VT | State v. Goyette | Harassment protection order | 691 A.2d 1064 (1997) | Validity of scope of protective order based on stipulations of fact may not be collaterally attacked in criminal trial. |
| -- | State v. Wilcox | Telephone harassment | 628 A.2d 924 (1993) | Intent to harass must exist when telephone call is made rather than rising during conversation, although intent to harass need not be sole purpose of call. |
| VA | Parker v. Commw. | Stalking | 485 S.E.2d 150 (Ct. App. 1997), cert. denied, 118 S.Ct. 1510 (1998) | Vagueness, overbreadth claims rejected with reasonable fear and knowing provisions (adequately inform of law's proscription). |
| -- | Woolfolk v. Commw. | Stalking | 447 S.E.2d 530 (Ct. App. (1994) | Vagueness and overbreadth claims rejected (reasonable, great distress meaning given to "emotional stress" language. Statute construed to include "having no legitimate purpose"). |
| -- | Bowen v. Commw. | Stalking | 499 S.E.2d 20 (Ct. App. 1998) | Statute requires actual knowledge of victim fear, rather than reasonably should have known. |
| -- | Perkins v. Commw. | Threat | 402 S.E.2d 229 (Ct. App. 1991) | Vagueness challenge rejected. |
| -- | Jones v. Commw. | Threat (arson) | 1999 Va. App. LEXIS 127 (Ct. App. 1999) | It is for the jury to determine credibility where victim delays report of threat to police. |
| -- | Wyatt v. Commw. | Threat (arson) | 1998 Va. App. LEXIS 167 (Ct. App. 1998) | Victim delay in reporting threat goes to credibility of testimony about fear, rather than proving unconcern. |
| -- | Henry v. Commw. | Threat (arson) | 1997 Va. App. LEXIS 404 (Ct. App. 1997) | Evidence of prior bad acts subsequent to threat is admissible to show reasonableness of victim fear. |
| -- | Saunders v. Commw. | Letter threat | 523 S.E.2d 509 (Ct. App. 2000) | Statute requires proof of mens re, not malice, for criminal intent. |
| -- | Johnson v. Marcel | Harassment | 465 S.E.2d 815 (Ct. App. 1996) | Harassment by landlord in violation of protective order is equated to common law trespass as a cause of action. |
| -- | Walker v. Dillard | Telephone harassment | 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906 (1975) | Overbroad (application of statute is not limited to caller; use of terms "vulgar" and "profane" is undefined). |
| WA | State v. Lee | Stalking | 957 P.2d 741 (1998), aff'g, 917 P.2d 159 (Ct. App 1996) | Vagueness and overbreadth claims rejected (there is no constitutionally protected right to travel under First Amendment. Term "follows" is not vague; no right to follow another: "without lawful authority" is a valid application to following). |
| -- | State v. Ainslie | Stalking | 11 P.3d 318 (Ct. App. 2000) | Void for vagueness challenge rejected (person of ordinary understanding would have known that he was stalking). |
| -- | State v. Petz | Stalking | 1999 Wash. App. LEXIS 1565 (Ct. App. 1999) | First Amendment claim of protection for posting of flyers rejected (non-traditional political conduct, not speech, is regulated; any potential overbreadth may be dealt with on case-by-cases basis). |
| -- | State v. Partowkia | Stalking | 1999 Wash. App. LEXIS 1228 (Ct. App. 1999) | Vagueness and overbreadth challenges rejected (citing Lee). |
| -- | State v. Terry | Stalking | 2000 Wash. App. LEXIS 1886 (Ct. App. 2000) | Defendant's knowledge that behavior would create fear and knowing violation of protective order constitutes stalking. |
| -- | State v. Wilson | Stalking | 99 Wa. App. 1049; 2000 Wash. App. LEXIS 352 (Ct. App. 2000) | Defendant knew or should have known of wife's fear from his erratic behavior in appearing in locations where she was despite court order. |
| -- | State v. Clemonts | Stalking | 2000 Wash. App. LEXIS 220 (Ct. App. 2000) | Evidence was sufficient to show a specific person was target of the stalking behavior. |
| -- | State v. Taylor | Stalking | 2000 Wash. App. LEXIS 643 (Ct. App. 2000) | Court is not obligated to require defendant to plead not guilty by reason of insanity. |
| -- | State v. Emery | Stalking sentencing | 1999 Wash. App. LEXIS 1654 (Ct. App. 1999) | Defendant's taking advantage of position as employee to gain information to facilitate stalking justifies enhanced sentence. |
| -- | State v. Alvarez | Threat | 904 P.2d 754 (1995) (en banc) | One act of harassment threat is sufficient without pattern of conduct required. |
| -- | State v. Maciolek | Threat | 676 P.2d 996 (1984) (en banc) | Vagueness claim rejected (definition of "weapons" and weapon "use" is understandable to average person. Even if "deadly weapon" is potentially vague in its outer limits, no such problem exists in this case). |
| -- | State v. J.M. | Threat | 6P.3d 607 (Ct. App. 2000) | State need not prove defendant knew threat said to third person would be transmitted to victim nor that victim fear would result. |
| -- | City of Seattle v. Allen | Threat | 911 P.2d 1354 (Ct. App. 1996) | Defendant charged under statute directed at threat of future injury may instead have actually committed assault by threat of immediate injury. |
| -- | State v. Davila-Mendez | Threat | 2000 Wash. App. LEXIS 2461 (Ct. App. 2000) | E-mail threats are prosecuted under general harassment law, not telephone harassment law |
| -- | City of Seattle v. Huff | Telephone threat | 767 P.2d 572 (1989) (en banc) | Vagueness and overbreadth claims rejected (non-public forum speech over telephone may be regulated even where non-fighting words involved and are viewpoint neutral. Terms "intimidate," "harass," and "torment" are narrowly defined; intent requirement makes law even less vague). |
| -- | State v. Pierce | Telephone threat | 1999 Wash. App. LEXIS 1231 (Ct. App. 1999) | State need not prove victim fear from threat. |
| -- | State v. Savaria | Telephone threat | 919 P.2d 1263 (Ct. App. 1996) | Victim fear need not be of precise threat. |
| -- | State v. Smith | Harassment | 759 P.2d 372 (1988) (en banc) | Vagueness claim rejected (phrase "without lawful authority" is valid, because one can look to readily ascertainable sources of law to test conduct). |
| -- | State v. Williams | Harassment | 991 P.2d 107 (Ct. App. 2000) | Vagueness and overbreadth challenges rejected (law does not reach substantial amount of protected speech due to intent, "malicious" acts, and "reasonable fear" provisions. Phrase"mental health" when read in context of law gives adequate notice. |
| -- | State v. Costello | Harassment | 2000 Wash. App. LEXIS 5 (Ct. App. 2000) | Evidence of offer to immediately fight does not satisfy future harm element of harassment law. |
| -- | State v. Ragin | Harassment evidence | 972 P.2d 519 (Ct. App. 1999) | Evidence of prior bad acts is relevant to proving reasonable fear element of harassment crime. |
| -- | Sate v. Klinke | Harassment | 1999 Wash. App. LEXIS 1614 (Ct. App. 1999) | Evidence of violation of protective order is admissible to prove element of crime, reasonable victim fear. |
| -- | City of Bellevue v. Lorang | Telephone harassment | 992 P.2d 496 (1999) (en banc)> | First Amendment and vagueness challenges upheld (term "profane" to describe harassing speech has religious connotation which is not content neutral. Language is no guide to law enforcement responding to complaint). |
| -- | State v. Alexander | Telephone harassment | 888 P.2d 175 (Ct. App. 1995) | Vagueness and overbreadth claims rejected (terms "embarrass and "profane" are not overbroad. Statute is not overbroad in toto because it regulates conduct not speech. Terms "anonymously" and "repeatedly" are in common usage). |
| -- | State v. Dyson | Telephone harassment | 872 P.2d 1115 (Ct. App. 1994) | Vagueness and overbreadth claims rejected (intent requirement makes any impact on speech minimal, especially so in view of its focus on "indecent" speech that is given minimal First Amendment protections. Phrase "extremely inconvenient hour" gives adequate notice.). |
| -- | City of Everett v. Moore | Telephone harassment | 683 P.2d 617 (Ct. App. 1984) | Void for vagueness and overbroad (law provides no clear line as to what is criminal and what is not; e.g., always coming late to meetings can be seriously annoying, but not criminal) (statute not limited to telephone calls; alarming behavior can have legitimate purpose: e.g., fire alarm). |
| -- | Perkins v. State | Telephone harassment | 402 S.E.2d 229 (Ct. App. 1991) | Vagueness and overbreadth challenges rejected (statute interpreted to require mens re and limited to obscene language; as such law does not reach substantial amount of protected speech. Intent requirement ensures law provides adequate notice. |
| -- | City of Redmond v. Burkhart | Telephone harassment | 991 P.2d 717 (Ct. App. 2000) | Law encompasses instances where intent to harass arises during telephone call, in addition to those calls where intent to harass was basis for making call. |
| WV | State v. Thorne | Harassment; Threat | 333 S.E.2d 817, cert. denied, 474 U.S. 996 (1985) | Overbreadth claim rejected (statute does not prohibit communicative speech). |
| -- | Thorne v. Bailey | Harassment | 846 F.2d 241 (4th Cir. 1988) | Overbreadth claim rejected (statute criminalizes conduct, not speech). |
| WI | State v. Rapey | Stalking | 581 N.W.2d 593 (Ct. App. 1998); 1998 Wisc. App. LEXIS 264 (1998) | Vagueness and overbreadth challenges rejected (Statute provides "fair notice," citing Ruesch; protected expression is not reached by law-aimed at intolerable behavior) There is no violation of right to travel, citing Ruesch. |
| -- | State v. Ruesch | Stalking | 571 N.W.2d 898 (Ct. App. 1997) | Vagueness, overbreadth, and equal protection claims rejected (overbreadth doctrine is not applicable to right of intrastate travel; intent and "reasonable person" standard defeats vagueness challenge; exclusion for labor picketing is rational). |
| -- | State v. Sveum | Stalking Harassment | 584 N.W.2d 137 (Ct. App. 1998) | Threats made prior to harassing acts may be found by jury to "accompany" harassing acts. Single act provoking fear is sufficient to prove fear from "course of conduct." |
| -- | Bachowski v. Salamone | Harassment protection order | 407 N.W.2d 533 (1987) | Vagueness and overbreadth challenges rejected (provisions of law requiring intent and absence of any legitimate purpose, as well as course of conduct element, provide specificity and ensure law does not reach to protected speech). Injunction was too broad where its order included acts not proven at trial. |
| -- | State v. Schordie | Harassment protection order | 570 N.W.2d 881 (Ct. App. 1997) | Attempt to run over victim also violated no-contact order. |
| -- | State v. Clark | Harassment protection order | Unreported (Ct. App. 1997) | Collateral attack on harassment order is not permitted in criminal violation proceeding. |
| -- | Katie T. v. Justin R | Harassment protection order | 555 N.W. 2d 651 (Ct. App. 1996) | Student harassment order against another student required appointment of guardians ad litem to be paid by county. |
| -- | Sarazin v. Hudson | Harassment protection order | 555 N.W.2d 411 (Ct. App. 1996) | Evidence of harassment is sufficient for order issuance. |
| -- | State v. Nienhardt | Harassment protection order | 537 N.W.2d 123 (Ct. App. 1995) | Travel condition of probation for violating harassment order upheld where order prohibits entry into town where victim of telephone harassment lives; remove temptation rationale. |
| -- | State v. Bouzek | Harassment protection order | 484 N.W.2d 362 (Ct. App. 1992) | Collateral attack is not permitted against underlying injunction in criminal proceeding for its violation. |
| -- | Croop v. Sweeney | Harassment injunction | 605 N.W.2d 664 (Ct. App. 1999) | Order provision against possession of firearm is not supported by evidence when there was no indication of past ownership of gun. |
| -- | Aderman v. Greenwood | Harassment injunction | 587 N.W.2d 215 (Ct. App. 1998) | One act of harassment involving force is sufficient basis for order issuance. |
| -- | State v. Greene | Harassment injunction | 573 NW2d 900 (Ct. App. 1997) (table) | Violation of no-contact bail condition is bail jumping; restitution to victim employer for costs to protect victim struck down (only victim is eligible). |
| -- | State v. Dronso | Telephone harassment | 279 N.W.2d 710 (Ct. App. 1979) | Overbroad (phrase "intent to annoy" is too encompassing, because it includes communicative speech not intended to annoy). |
| WY | Brock v. State | Stalking | 981 P.2d 465 (1999) | Vagueness and overbreadth challenges rejected (statute provides adequate standard of conduct; 2000 Tex. App. LEXIS 5555 (Ct. App. 2000) no infringement of 1st Amendment protected activities). |
| -- | Garton v. State | Stalking | 910 P.2d 1348 (1996) | Vagueness and overbreadth claims rejected (citing Luplow). It is not a denial of equal protection to increase penalties for stalking in violation of probation condition (valid public purpose in this classification). |
| -- | Luplow v. State | Stalking | 897 P.2d 463 (1995) | Vagueness and overbreadth claims rejected (law is content neutral; terms "harass" and "substantial" are adequately defined by law and term "emotional distress" is defined by prior civil cases). |
| -- | Vit v. State | Civil liability | 909 P.2d 953 (1996) | Vagueness and overbreadth claims rejected (citing Luplow). |
| US | United States v. Sweeney | Stalking | 48 MJ 117 (Ct. App. Armed Forces 1998) | Testimony of former wife of defendant's stalking is admissible to prove stalking intent against second wife. |
| -- | United States v. Young | Interstate stalking (18 U.S.C. 2261A) | 1999 U.S. App. LEXIS 32721 (4th Cir. 1999) | Tenth Amendment and vagueness challenges rejected (statute contains interstate travel requirement; defendant lacks standing to claim vagueness, since his acts fall within statute's scope of conduct prohibition). |
| -- | United States v. Vollmer | Interstate stalking (18 U.S.C. 2261A) | 2001 U.S. App. LEXIS 348 (8th Cir. 2001) (Per curium) | Threatening intent combined with acts to place victim in fear justify Congress' use of Commerce Clause; Morrison, 529 U.S. 598 (2000) inapposite. |
| -- | United States v. Alkhabaz | Electronic threat (18 U.S.C. 875 (c) | 104 F.3d 1492 (6th Cir. 1997), aff'g, United States v. Baker, 890 F. Supp. 1375 (E. D. Mich. 1995) | Interstate threats by e-mail to third party are not covered by federal threat law (statute requires intimidation element). |
| -- | United States v. Kelner | Threat (18 U.S.C. 875 (c) | 534 F.2d 1020 (2d Cir. 1976) | First Amendment challenge rejected ("threat" defined to limit constitutional objections to those which on its face are unequivocal, unconditional, immediate, and specific so to convey gravity of purpose and immediate prospect of execution). |
| -- | United States v. Spruill | Telephone threat (18 U.S.C. 844 (e) | 118 F.3d 221 (4th Cir. 1997), cert. denied, 118 S.Ct. 2347 (1998) | Federal threat law requires bomb threat be pled and proven even where threat is to an individual. |
| -- | United States v. Fulmer | Threat (18 U.S.C. 115 (a)(1)(B)) | 108 F.3d 1486 (1st Cir. 1997) | Jury may determine that ambiguous statement is true threat. Test of threat is reasonable recipient, not reasonable sender. |
| -- | United States v. Whiffen | Telephone threat (18 U.S.C. 875 (c)) | 121 F.3d 18 (1st Cir. 1997) | Test of threat, based on general intent requirement, is whether defendant's actions may reasonably be construed to be threat by recipient. |
| -- | United States v. Aman | Letter threat (18 U.S.C. 876) | 31 F.3d 550 (7th Cir. 1994), aff'd after remand, 54 F.3d 779 (7th Cir. 1995) | Subjective (by victim) measure of threatening content is to be used over showing actual intent to threaten. |
| -- | United States v. Bellrichard | Letter threat (18 U.S.C. 876) | 994 F.2d 1318 (8th Cir. 1993) | First Amendment claim rejected (conditional threats may be "true threats;" use of outrageous terms does not turn threat into political speech). |
| -- | Apollomedia Corp. v. Reno | Electronic harassment (47 U.S.C. 223 (a)(1)(A)) | 19 F. Supp.2d 1081 (1998), aff'd, 119 S.Ct. 1450 (1999) | Vagueness claim rejected (use of term "indecent" and intent requirement is redundant with use of term "obscene" to describe communications barred by statute). |
| -- | United States v. Lampley | Interstate telephone harassment and threats (18 USC 875 (c); 47 U.S.C. 223 (a)(1)(D)) | 573 F.2d 783 (3rd Cir. 1978) | Vagueness and First Amendment challenges rejected (law is not directed at mere communication because of intent requirement; there is no requirement that language used be itself harassing. Vagueness claim is vitiated by intent requirement.). |
| -- | United States v. Twine | Interstate telephone and mail threats (18 U.S.C. 875 (c), 876) | 853 F.2d 676 (9th Cir. (1988) | Specific intent to threaten is required (contra Whiffen, Fulmer). |
| -- | United States v. Francis | Interstate telephone threat (18 U.S.C. 875 (c)) | 164 F.3d 120 (2nd Cir. 1999), rev'g, 975 F. Supp. 288 (S.D. N.Y. 1997) | Call forwarding service across state lines provides jurisdiction to federal court. Government must show general intent to act; need not prove intent to be threatening. |
| -- | United States v. Freeman | Interstate telephone threat (18 U.S.C. 875 (c)) | 176 F.3d 575 (1st Cir. 1999). | Plea of guilty subsumes claim that prank calls are not within scope of threatening telephone calls law; standard is whether defendant "reasonably should have known" call would be taken as threat. |
| -- | United States v. Kammersell | Interstate threat (18 U.S.C. 875 (c)) | 196 F.3d 1137 (10th Cir. 1999), aff'g, 7 F. Supp.2d 1196, adopting, 1998 U.S. Dist. LEXIS 8712, 8719 (D. Utah 1998) | Threatening communication using the Internet to person in same state creates federal jurisdiction under Commerce Clause. |
| -- | United States v. Popa | Telephone harassment (47 U.S.C. 223) | 187 F.3d 672 (D.C. Cir. 1999) | Statute violates First Amendment as applied to defendant's calls to U.S. Attorney's Office, regardless of annoying nature. |
| -- | Baird v. Perez | Telephone harassment (42 U.S.C. 1983) | 1999 U.S. Dist. LEXIS 8814 (S.D.N.Y. 1999) | Telephone harassment by police officer is not a violation of constitutionally protected privacy rights. |
| -- | United States v. Darsey | Interstate telephone harassment (47 U.S.C. 223 (a)(1)(D)) | 342 F. Supp. 311 (E.D. Pa. 1972) | Harassing phone call law is not applicable unless harassment sole motive for calls. |
These sample surveys can be viewed here.
Overview
Under a grant from the Community Oriented Policing Services (COPS) Office, the Dover Police Department has established a special Anti-Stalking Unit. The Unit has been in existence for about one year. It is comprised of two detectives supported by a half-time victim advocate. An evaluation of the Unit's performance is being conducted by Dr. Glenda Kaufman Kantor; it is not yet completed.
History
The Dover Police Department has a relatively long history of concern with both domestic violence and stalking issues. Initially much of the department's attention was directed at improving its response to domestic violence. To that end, the department was a pioneer in requiring arrests for domestic violence when probable cause to arrest existed263 and for a victimless prosecution policy. Other domestic violence initiatives included development of a county-wide Family Violence Council, improved collaboration between the department and area hospitals and schools, and use of video taping as evidence in prosecuting these cases. Officers were also instructed to take photographs of victim injuries and the surrounding scene, and a checklist for patrol responders was instituted.
With these several initiatives implemented, stalking cases became the next logical priority. Indeed, according to a report prepared by the American Prosecutors' Research Institute, departmental concern about stalking predated the enactment of an anti-stalking law by the state legislator in July 1993.264 An interview with the prosecuting attorney handling misdemeanor prosecutions for the police department confirms that the department played a vital role in the passage of the law.
This long-standing interest in stalking issues was matched by a Request for Proposals (RFP) issued by the COPS Office of the U.S. Department of Justice that specifically mentioned stalking in the general announcement asking for proposals related to domestic violence. The proposal prepared by the department in response to the RFP asked for $229,000 in operational funds to staff the Unit with two detectives, one victim advocate, and one support staff. Additional funds were requested for a victim relocation fund, equipment, development of a computer program to identify stalking cases using police reports, mental health services for victims, use of a Global Positioning System (GPS) offender tracking system, and to hold a regional conference on stalking. In total, the funding request was for approximately $370,000.
Unit Goals
The proposal submitted by the department included a number of ambitious goals. The most significant of these included the following.
Unit Responsibilities
The department's Anti-Stalking Unit is responsible for follow-up investigations of
These three major areas of responsibility are a logical fit. Regardless of the context, threat cases all require threat assessment expertise similar to that used in stalking cases. Enforcement of protection orders through arrest of order violators is essentially a form of stalking prevention since continued violations will ultimately result in the "pattern of behavior" that is at the heart of the criminal law definition of stalking.265 Service of process orders is important because it provides an opportunity for the Unit detectives to get to know which cases are potentially likely to turn into stalking and to provide informal warnings about the consequences of order violations.
Unit Staff/Operations/Case Procedures
Staff
The Anti-Stalking Unit is supervised by a Lieutenant who also supervises the drug team, legal staff, and the Investigations Unit. While the other units have their own supervisor who reports to the Lieutenant, the Anti-Stalking Unit reports directly to him.
The two Unit detectives are experienced officers, one of whom also serves as the polygraph operator for the department. The victim advocate works part-time and has a private counseling practice.
The Unit works a Monday-Friday shift from 8 a.m. to 5 p.m. The detectives are on call, however, for emergency calls (estimated 30 such calls yearly). One detective must always be available for emergency calls, so vacations must be synchronized. As needed, the shift schedule may be adjusted (e.g., night surveillance). Overtime pay is also available.
Training for the Unit detectives includes periodic domestic violence training and attendance at the annual conference for the Association of Threat Assessment Professionals.
Operations/Case Procedures
Better Identification. Stalking cases are identified either through referral from a patrol office266 or detective or through daily review of police reports by the Unit detectives.267 The Unit also maintains a database of protective order services; this information is maintained in the department's "Wanted" file. When an officer comes to the scene of a call, the officer can quickly determine whether there is a protective order in effect so that the state stalking law can be invoked. Although the Unit staff does engage in some limited outreach efforts, community education has not yet resulted in many "walk-in" cases; the greatest number of victim self-referrals comes from the department's web site stalking page. The department is also working with a software company to develop a program that will aid in the identification of stalking cases involving repeat low-visibility crime reports to the CAD. The intent is to match calls involving nearby addresses, geographic area, names of victims, or a specific location.
Better Investigations. Cases are vertically assigned to the detectives, who are the point for future Unit contact by victims. Depending upon the perceived seriousness of the case when it reaches the Unit, initial steps may consist of a simple telephone contact or warning letter to a full-scale investigation. As needed, the detectives and the victim advocate may help victims obtain an order of protection.
Once a case is activated, it will be discussed at weekly meetings of the Unit staff, the prosecutor, probation, and mental health. These meetings are held each Tuesday in the office of the police prosecutor.268 The meetings discuss both new cases and selected old cases where there are still difficult issues remaining. All old cases are reviewed every 90 days. This is the only departmental unit that regularly meets to discuss cases.
After the case is assigned to a detective, the first responsibility of the detective is to develop a victim-offender history. Typically the Unit's victim advocate will help the victim go to court with a petition for the protection order. The detective may also send out a warning letter to the suspect, stating that continuation of the complained about behavior may result in criminal charges being filed.
All active cases are entered into the Department's "Wanted" file that is used by patrol officers to determine the status of any person they stop. If contact with the suspect is made by a police officer is made, the Unit detectives are notified. The detective may then make a follow-up call to the victim to determine if there had been any new incidents.
One common problem with domestic violence-related stalking cases is the loss of victim cooperation. While this does not occur as frequently as with domestic violence assault cases, it does occur in a significant number of cases. Victim cooperation in stalking cases is, of course, critical. The Unit protocol for stalking cases includes evidence collection based on victim cooperation. This includes letters or notes from defendant, gifts from defendant, answering machine tapes recording messages from defendant, photos of damage to victim's property, the use of phone traps, and a log that documents dates/time/location of victim's encounter with defendant. Implicit in the improved investigation objectives are the policy of strict enforcement of court orders of protection and improved prosecutions. The policy of strict enforcement of protection orders is a carryover from the Department's policies regarding mandatory arrest in domestic violence cases. However, this policy has been strengthened by requiring arresting officers to notify the Unit detectives for their follow-up.
Because the police prosecutor is a sworn police officer in the department (although his duties are limited to legal tasks), ties between the two functions are close. For example, when a victim is to testify at bail or trial, Unit staff will take the victim to the prosecutor's office to await a call from the court. This limits the ability of the defendant to intimidate the witness prior to testifying. It also allows the prosecutor and victim to meet and prepare for testifying. Thus, the victim's memory will be refreshed by examining a copy of the police report section that recounts what the victim said at the time of arrest.
Possible cross-examination questions will be reviewed, especially where financial entanglements have necessitated contacts between the two parties, notwithstanding any order of protection.
Also implicit in the improved investigation objective is improved case management. Case management begins with appropriate case documentation. Unit protocol requires that at a minimum the following documents be included in each case file:
Based upon case evaluation whether follow-up actions are required, cases are either active or inactive, or closed. All cases are periodically reviewed every 90 days for appropriate case status.
Improved Supervision in the Community. The first opportunity for supervision of a suspect is the bail hearing at which bond may be required and conditions for release can be set by the court. Before the Unit existed, the only information available to the prosecutor arguing for bail conditions was a criminal record check. Based upon a few very serious incidents, this was deemed inadequate.
Now the Unit provides the prosecutor with a threat assessment form that looks at dangerousness issues. This includes common factors such as making explicit threats against the victim or of suicide, history of violence or of order violations, mental health or substance abuse problems, and recent stress as from loss of job. A common condition of bail release is that the suspects periodically check in with the Unit detectives. Unit detectives may also make spot checks on releasees to ensure that they are in compliance with other bail release conditions, such as no use of alcohol, that are deemed necessary after Unit review of defendant's history.
In supervising suspects, the Unit takes advantage of new technologies. These include surveillance cameras as needed; digital cameras to take photographs of both the victim and the suspect; these photos are sent to all patrol officers via e-mail (officers are required to check their e-mail daily). The Anti-Stalking Unit has also experimented with the use of a Global Positioning System to track offenders.269
Two related efforts are the Unit's pre-arrest stalking prevention practice of issuing warning letters to suspects and its encouragement of victims to obtain orders of protection; the department's reputation for arresting and prosecuting violators increases the credibility of these orders as a deterrent. Personal service of these orders by Unit detectives also provides an opportunity to stress the seriousness with which order violations are pursued. Although state law limits warrantless arrests based solely upon probable cause in stalking cases to within six hours of stalking occurrence, the department has arranged for a bail commissioner or judge to be available "on-call" to issue warrants at any time.
Improved Services to Victims. Once a case is assigned to a detective, two important objectives are to reduce victim anxiety and to undertake a threat assessment. It is at this point that the detective will help with obtaining a restraining order. The victim advocate is also involved in all cases; she calls victims as soon as practicable and follows up once a week with phone calls. The advocate also attends arraignments to see if any victims are present and available to meet with her. To date there has been no use of the grant funds to relocate victims; should relocation be necessary, the Unit has developed a cooperative agreement with the DVERT Team in Colorado Springs, Colorado. The Unit protocol for relocation provides for financial assistance and help with name and Social Security number changes.
Victim safety planning is a primary Unit responsibility. The Unit protocol requires victim participation in safety planning; Unit personnel must provide victims with information about the risks they face so that safety planning can proceed. Planning includes an assessment of the risks posed by the victim's home, work, or school environment. Victims are kept informed of case status at all times, including bail status and custody release. A 25-item checklist is used for safety planning.
Development of a stalking support group has proven to be difficult due to lack of interest among some victims and staffing changes at the mental health agency that sponsors such support groups. The Unit is also trying to have batterer treatment programs available for stalkers in a domestic violence context.
Expand Scope of Department Protocol Use. The department seeks to gain wider use of its protocol, both locally and otherwise, in several ways. First of all, the Department has been open to visits from other justice agencies who are interested in seeing first hand what they do. Second it has sponsored a regional conference that was attended by personnel from Departments in New Hampshire, Massachusetts, and other states. Third, it has sponsored a rigorous evaluation by an independent evaluator to report on its successes and problems.
Other Activities. The Dover Police Department expends considerable effort on community relations. The Anti-Stalking Unit has developed a video on stalking and pamphlets explaining how the Unit can help victims. Unit staff have also led seminars on workplace violence for city employees and several local corporations. Another seminar that focused on workplace violence, stalking, and safety issues was held at a local college. They have also give talks to widow support groups on dating violence. The department has a web site that includes a stalking page. The department also participates on the county-wide Domestic Violence Council.
Statistical Measures of Performance
Data was not available at this time to measure the work of the Anti-Stalking Unit, due in part to the on-going evaluation of the project. A preliminary report by Dr. Kantor indicates that for 73 cases reviewed, about two-thirds involved intimates or former intimates and that 40 percent involved threats against the victim. The police-prosecutor reports that he handles about 150-200 order violations and stalking cases yearly. Each detective carries a caseload of about 20-25 cases at any one time.
Summary
The Dover Police Department prides itself on being a progressive agency, one that is on the cutting edge of change. The Anti-Stalking Unit is but one manifestation of that attitude. While most of its work might best be described as stalking prevention, nonetheless, it does handle both domestic violence-related and stranger stalking cases much more often than one might expect, considering Dover's population of 27,000.
The Dover Anti-Stalking Unit experience provides many lessons for law enforcement agencies of all sizes. First and foremost, stalking exists in significant numbers even in small jurisdictions. Second, stalking cases require changes in procedures and adoption of new techniques and technologies.
California Stalking Law
California Penal Code § 646.9 was adopted in 1990 and was the first law in the United States to provide criminal penalties for stalking. The key elements of the law are:
Simple stalking as defined above constitutes what in state practice is called a "wobbler" offense. That is, stalking may be treated at the discretion of the district attorney as either a felony or a one-year misdemeanor. Stalking in violation of a court restraining order is always a felony, with a maximum sentence of up to four years.
Because stalking laws are so new in California and elsewhere, only a small number of police departments have established special units to respond to stalking complaints. The first such unit is that established by the Los Angeles Police Department (LAPD).
LAPD's Threat Management Unit (TMU)
The Los Angeles Police Department (LAPD) Threat Management Unit (TMU) was the first (and until recently, the only) police unit to specialize in handling stalking cases. The TMU was set up in 1990 as a result of meetings between the LAPD and entertainment industry representatives to discuss what to do after the famous Rebecca Schaeffer murder case involving a stalker.270 These meetings resulted in a commitment by the LAPD to establish a dedicated unit for responding to threats involving strangers. This was a new approach to an old problem of how to handle cases involving obsessive behavior that may contain elements of harassment or threatening behavior, often without, however, any present injury. As the LAPD notes:
"Unless a specific crime had been committed, police agencies have historically remained uninvolved in such cases, leaving the victim to deal with his/her problem. However, by the time such cases escalate, some victims have experienced tragic consequences before police intervention could be initiated." Threat Management Unit Guidelines (February 1999)
This brief quote includes two key elements of stalking cases: their continuing nature, which will typically continue into the future, and the role of the special stalking unit for homicide prevention.
Overview of TMU Responsibilities
To fill the void in police services that stalking complaints historically found, the TMU today is responsible for investigating serious threat cases in the city. This includes cases involving:
Other duties include training divisional detectives and other law enforcement personnel. The TMU supervisor spends approximately 10 hours each month providing training. This includes training for LAPD detectives, POST training, and training for other organizations, including the California District Attorneys Association. The TMU has trained the Mayor's and other elected officials' staff about how to assess threats in letters, and it works with the city's Threat Assessment Team on employee violence cases not accepted by TMU. The TMU has also contributed to the city's a workplace violence policy and to the workplace violence protocol for police department employees.
TMU case investigations all involve similar tasks and problems. The most significant of these is threat assessment. It was this factor that led the unit to take over the elected official threat cases from the Criminal Conspiracy Section. The reason for this change in unit responsibility is that assassins rarely make explicit threats; specialized expertise is needed to assess the level of danger or seriousness of any implied threats. Other commonalties among TMU cases are the need to conduct surveillance (for some cases) and the need to take a proactive approach to prevent crime, in addition to reacting to crimes already committed. A final commonality is the use of community resources in investigations, to both prevent and investigate threats and other crimes.
TMU Staffing and Caseload
The TMU is composed of eight detectives and one supervisor, a significant expansion from the original three detectives and one supervisor. The TMU detectives range in rank from Detective II (equal to sergeant) to detective trainee. Most have a minimum of 10 years of law enforcement experience; and the TMU supervisor (rank of Detective III) has 24 years of law enforcement experience and has been with the TMU since 1992.
Most cases accepted by the TMU involve stalking. While workplace violence cases are increasing, they are still relatively rare (16 cases in 5 years). About 30 percent of the TMU's stalking cases come from the entertainment industry.
Each Unit detective typically has 10 to 15 active cases. In the course of one year, the Unit investigates about 200 cases. Of these, approximately 70 percent involve citizen complaints, the majority of which are related to domestic violence.
Case Referral and Acceptance
Cases are referred to the TMU from the Major Assault Crimes (MAC) units, patrol officers, the District Attorney, the City Attorney, the public (including victim service agencies), and the movie studios or other entertainment industry organizations. The TMU's Officer-in-Charge also reviews all police crime complaints involving stalking or terroristic threats to identify other cases for possible TMU involvement. Occasionally, the TMU also handles cases referred by the Commanding Officer of the Detective Services Group; this can occur where high profile cases are brought to the attention of the Commander (whether or not they fit the TMU's criteria for case acceptance).
Cases accepted by the TMU are those requiring the extra investigative and specialized resources available to the Unit. For example, the stalking cases handled by the TMU are "long-term abnormal threat and harassment cases." The Unit also accepts cases that have not yet reached the threshold of criminal behavior (e.g., "credible threat" or victim fear may be lacking). Although the harassing behavior in these cases may threaten to escalate into criminal stalking, a proactive response by the TMU detectives at this point may forestall more serious behavior and result in case termination without further formal action such as arrest.
Case Management Process
When a case is received by the TMU, a case intake form is filled out. This is used to record such information as
The intake form is entered into an ACCESS database, permitting cross checks (e.g., prior stalking cases), case monitoring, and statistical summaries. Once the intake form is completed, the detective assigned to the case interviews the victim by telephone. A decision is then tentatively made by the detective to accept the case pending an in-person interview with the victim to assess victim credibility and willingness to cooperate. The final decision whether to accept the case or not is made by the Unit supervisor.
Regardless of whether or not the case is accepted, TMU detectives provide victims with safety information. This may include suggestions about varying their schedules, changing phone numbers, monitoring in-coming phone calls, and informing others so they can also take precautions. Victims whose cases are accepted are also told to keep daily logs of all stalking-related incidents to build a paper trail to prove stalking occurred.
From case referral to case termination, stalking cases are handled by the TMU detectives on a vertical basis. The only exception to this rule is when a detective is out sick or on vacation; then another detective will temporarily step in to handle the case.
Once a case is accepted, the detective assigned to the case will investigate and call the complainant every 7 days. If a case is designated inactive, detective calls will be made every 30 days. Similarly, if a case involves pre-stalking behavior (designated PEST cases, does not reach the level of serious threatening behavior), the assigned detective monitors the case by contacting the victim every 30 days. Another group of cases is considered "information only.". These are cases that are outside the LAPD's jurisdiction or do not fit Unit criteria for handling.
When a case is closed, the detective sends a letter telling the victim to contact the detective at once if the stalking reoccurs. Cases are closed through arrest, mental health intervention, self-resolved (suspect stops the stalking activity), or where the victim is uncooperative, making it impossible to prosecute or to increase victim safety.
In all cases where the stalker's identity is known, the TMU detective checks the suspect's criminal record, looks for wants and warrants, and reviews the Automated Firearms System for information about gun ownership. The detective will also review the Mental Evaluation Unit files and ask for a hand search of the files in appropriate cases. A copy of the suspect's driver's license, booking, or other ID photo will also be ordered. If at all possible, the detectives will also contact the stalking suspect in person. In misdemeanor stalking cases, they may send the stalker a letter asking him to contact the detective, or may directly contact the stalker through phone or personal interview.
The TMU detectives may also encourage the victim to obtain a court protective order against the stalker or inform the victim's employer that they may also seek a protection order against work-site stalking incidents. Where an order is obtained, the detective will personally serve the court order on the suspect.
If an emergency arises, victims are told to call 911 and inform the operator that this is a TMU case. Police "first responders" have been instructed to contact the TMU detective via beeper, if necessary. The detective then informs the Unit supervisor; however, very few emergencies actually require off-duty detectives to report in. In appropriate cases, detectives may act to divert suspects to a mental health agency for competency and dangerousness assessments.
Each stalking case is placed in a separate "stalking book." The stalking book is kept by the detective assigned to that case until the case is completed, whereupon the stalking book is placed in the Unit files. The stalking book contains a chronological record of all case activities and all paperwork associated with the case, including crime reports, evidence/property reports, follow-up and progress reports, detective notes, crime scene photos, newspaper clippings, and prosecution materials (See Appendix).
Management and Training
One purpose of a specialized such as the TMU is to develop expertise among unit members in dealing with the crime of stalking and other threat crimes. This requires that the unit officers stay with the unit for a relatively extended period of time sufficient to both develop and use their expertise. Fortunately, staff turnover is not a major managerial concern with the TMU, since several of the detectives have been assigned to the Unit for an extended period. However, the department does have a policy of rotating younger officers, several of whom may have to move to another unit to receive promotions.
A more serious problem is managing overtime. Managers are rated on how well they control overtime use. As a result, whenever special demands such as surveillance, can be scheduled, officers will change their shift hours to minimize overtime. There is no LAPD policy against the use of flex time where the activity is scheduled (e.g., victim interview can only be done in evening). Overtime is permitted, however, for emergency field work, such as looking for a dangerous suspect or completing the paperwork associated with an arrest. Long interviews that run over the scheduled work day may also be an authorized overtime activity. As a result, detectives may telecommute in order to complete the necessary paperwork.
To ensure timely handling of case referrals, the first detective arrives at the TMU offices at 7 a.m. The day ends at 5 p.m.
Detectives are partnered to ensure officer safety. Thus, whenever a detective is sent on a field assignment (e.g., serve protective order, surveillance), he or she will be accompanied by a partner. This partnering is especially important when interviewing suspects because of their potential for unstable behavior. Partnering detectives also allows for consistency in case handling when a detective is not on duty because of sick leave, vacation, etc.
Special managerial approaches are needed in Los Angeles to deal with celebrity stalking. Each detective in the TMU is responsible for liaison with 3 or 4 different movie-television studios. Liaison with shelter advocates is also needed to ensure that victims receive needed services. Training new detectives assigned to the TMU is done through on-the-job training by assigning the new detective to team with an experienced detective. This is done for a period of six months to one year. At least twice a year, the TMU has "training days" when outsiders come in to talk to Unit members. Typically this would include one academic and one tactical training day. The Unit members are all receiving training on the use of the Internet in stalking crimes; this is being provided by SEARCH and a state DOJ course on Internet crime. Staff also attend meetings of the Association of Threat Assessment Professionals.
Other Units Handling Stalking Cases
Major Assault Crimes. Major Assault Crimes (MAC) units are located in each of the LAPD's 18 geographical divisions. Among the duties of detectives assigned to MAC are investigation of less serious or aggravated stalking cases and domestic violence assaults. But even simple stalking cases that cross division lines are assigned to TMU.
Detectives newly assigned to MAC units receive training from the TMU; training is scheduled every quarter. Upon request, the TMU may also provide technical assistance to a MAC detective handling a stalking case.
A grant application has been submitted to the state to have two members of MAC in each division responsible for identifying stalking cases before they escalate. These detectives would try to use shelters for this purpose. The TMU will train shelter staff for this.
SMART. The LAPD's System-Wide Mental Assessment Response Team (SMART). SMART pairs a mental health professional and a law enforcement officer to conduct field assessments of suspects who display symptoms of psychiatric disorders. When officers respond to a call where the suspect may be mentally disordered, the officer can call the Mental Evaluation Unit to assist. The Unit will dispatch a SMART team, relieving the officers and allowing them to respond to new calls for assistance. The SMART team will then determine whether the individual should be released, arrested, or be involuntarily sent to a 72-hour holding facility for assessment and treatment. The TMU detectives consider SMART to be a very important resource.
School Threat Assessment Teams. A recent LAPD/TMU initiative is the establishment of a partnership between the Department and LA Unified Schools create threat assessment teams in the schools that use the assessment techniques pioneered by the TMU. The plan is for each school to establish an assessment team comprised of a school official, a law enforcement officer, a mental health professional, and legal counsel. The purpose of the teams will be to identify and resolve bona fide threats of violence in the schools. The TMU will be responsible for providing technical expertise and training. As of this writing, the school threat assessment teams are being formulated. TMU and other training will be implemented in the near future.
TMU Cases
To illustrate the investigative and legal issues facing TMU detectives, this section provides summaries of five cases handled by the TMU within the past few years. Case 1. The Threat Management Unit took over the investigation of a residential burglary/stalking case originally handled by the LAPD's North Hollywood Division. The first incident in the case was a burglary of the victim's residence. The burglar bypassed several items of value in favor of taking undergarments from the victim's clothes hamper. Immediately following the burglary, the victim began receiving obscene telephone calls late at night. The caller graphically described his intent to return and rape the victim. Using phone trap records, the TMU detectives and officers from the North Hollywood Special Problem Unit staked out a pay phone identified by the phone trap. This surveillance led to the identification and arrest of a parolee with prior convictions for rape and residential burglary. The suspect was literally caught in the act of placing a call to the victim from the nearby pay phone. A subsequent search of the suspect's apartment resulted in the recovery of several items belonging to the victim. The District Attorney's office filed charges of felony burglary, stalking and receiving stolen property. At trial, the suspect was convicted on all counts. He was sentenced to a term of 60 years to life.
Case 2. In January 1995, TMU detectives were directly contacted by the father of a female victim, requesting their help in handling an aggravated stalking situation. The victim and the female suspect had maintained a love relationship off and on for four years. During that time, the suspect became increasingly violent, leading to their subsequent breakup. After the separation, the victim began to receive numerous hang-up and threatening phone calls. These calls then began to include threats to the victim's immediate family. The victim's father was also the recipient of unordered magazines and advertising material from companies such as the Franklin Mint. The suspect also got herself arrested to be with the victim while the victim was in jail facing a forgery charge. After accepting the case, the TMU detectives instructed the victim on what she should do to help gather evidence of stalking (e.g., keep a log). With the evidence obtained from the victim, the TMU detectives obtained an arrest warrant for stalking against the suspect. The suspect subsequently pled guilty to stalking and was placed on probation. Upon release from jail, the suspect again began to harass and terrorize the victim and her family. The suspect was immediately re-arrested by the TMU detectives for violating probation. Probation was revoked by the court and a one-year prison sentence was imposed.
Case 3. In November 1994, the TMU was assigned a case involving the stalking of the director of a then popular television series. The victim was mailed death threats using cut out letters (e.g., "you will die."), mutilated dolls (cocktail swords stuck into the crotch of a Ken doll with its pants pulled down and red paint splashed on the doll), and envelopes full of feces. A possible suspect who had lived at the victim's home for awhile was identified by the victim, but there was no physical evidence linking him to the crime. The detectives began to work off-duty hours conducting stakeouts of the suspect in an effort to link him with the crimes. In May 1995, the detectives conducted surveillance of the suspect's car, because he had no known address. This ultimately lead to seeing the suspect approach the car carrying a package similar in appearance to those previously received by the victim. The suspect was then arrested while attempting to mail another package of feces to the victim. The suspect was charged by the District Attorney's Office with felony stalking and was convicted and sentenced to two years in prison.
Case 4. The suspect, a terminated employee of a national television network, was stalking and terrorizing a former co-worker. His behavior became so obsessive that the victim eventually obtained a court order against his behavior. Sometime thereafter, the victim's vehicle was burglarized and her identification badge taken. A few days later, the suspect's psychiatrist notified the TMU and the police mental health unit (see above) that the suspect had reported thoughts of kidnapping and killing the victim, then killing himself. A check of the automated firearms system showed that the suspect had eight firearms registered to him. Based on this information, the TMU obtained a search warrant for his residence to look for firearms. The suspect was then civilly detained as a mental health risk under § 5150 of the state Welfare and Institutions Code and the search warrant was executed. During the search, the TMU recovered 16 weapons and numerous rounds of ammunition. The victim's identification badge, taken in the burglary of her car, was also found. Additional evidence was found that linked the defendant to child pornography. The District Attorney's office filed charges of stalking, burglary, and receiving stolen property. The suspect pled to the burglary charge and was sentenced to two years in prison.
Case 5. The TMU was contacted by a male model who reported that he was a victim of stalking by a former companion, a physician specializing in infectious diseases. The victim and the suspect had known each other for 18 months. When the suspect told the victim that his intentions were of a romantic nature, the victim did not want to become so involved. A friendship relationship continued for another year before the victim decided to end their relationship completely because of the suspect's attempts at possessiveness. The suspect began to harass the victim, placing numerous phone calls to the victim and threatening him with great bodily injury. The suspect then began to walk around the victim's neighborhood in disguise, enabling him to monitor the victim's activities and visitors. At one point the suspect, dressed as a woman, assaulted the victim outside his home. A restraining order was obtained to prohibit this harassment, but the suspect continued to show up at locations that the victim frequented, sometimes traveling three times in one evening to different locations. The suspect also left cards and mementos at the victim's residence. After entering the case, the TMU detectives arrested the suspect in front of the victim's residence for stalking. At the time of the arrest, the suspect possessed binocular and a flashlight, which he explained he needed to help him find a wallet he lost earlier that evening. The District Attorney's Office charged the suspect with stalking and making terroristic threats against the victim. After release from jail on bail, the suspect continued to violate the restraining orders of the court. The victim filed three additional crime reports alleging order violations, and the suspect was again arrested in front of the victim's residence. The original complaint was amended to include an additional count of stalking, and a bail revocation hearing was held at which a new bail was set at $500,000. Unable to make bail, the suspect remained in custody until trial. He was found guilty of stalking, but acquitted of terroristic threats. The court sentenced him to a term of three years in prison.
Summary and Conclusions
In many ways, the TMU is still a work in progress. The unit was established when stalking offenses were still not a criminal offense under the state Penal Code. Its original focus on stranger threats has expanded to include domestic violence stalking, workplace violence, and threats against government officials. It continues to receive ad hoc assignments to investigate criminal cases involving high profile victims that must be balanced against the need to protect many other citizens from serious threats. Most significantly, the TMU now has a parallel unit in the District Attorney's Office, whose existence may be expected to have an impact upon how the TMU operates. At the same time that it is evolving, the Unit operates within a professional structure. It has investigative and managerial protocols that govern the detectives' activities, while giving them flexibility to deal with a specialized and limited caseload.
It is also clear that TMU responsibilities go beyond simple case investigations. Because stalking crimes in Los Angeles far exceed the number of cases that the TMU can handle, the Unit acts as a resource and model for other LAPD detective units. It is also a training resource both for the LAPD and for other criminal justice personnel around the state. Most recently, the responsibilities of the Unit were again expanded to include training for school threat teams. Because of other demands, the TMU does not, however, undertake many community education or public speaking events to foster increased victim awareness of stalking or encourage service agency referrals (as the District Attorney's Office does).
The "bottom line" is that just as stalking is itself a unique crime, so too the TMU is a unique unit within the LAPD. As the Department, the TMU, and indeed, the entire justice system learn more about stalking and stalkers, the more its responsibilities and its operating procedures will change. The key point is that the TMU has been and continues to be a leader in responding to stalking crimes on a daily basis, while at the same time improving methods for responding to these crimes that can have devastating consequences for the victims unless promptly and effectively responded to by the justice system.
One District Attorney's Response to the New Stalking Laws
The Los Angeles District Attorney's Stalking and Threat Assessment Team (STAT) is responsible for prosecution of felony cases involving
The STOP-funded attorney position, however, is limited to cases consistent with the STOP guidelines for services. The unifying principle for the three different case jurisdictions is that each requires threat assessment of the level of danger posed against the victim.
History of STAT
In 1992, the Los Angeles District Attorney's Office handled one of its first stalking prosecution cases. At that time, the California stalking law had been in effect for only one year. For the most part, law enforcement was not familiar with the stalking law and did not recognize stalking complaints when they were filed. However, the LAPD's Threat Management Unit, which was formed in 1990, referred a burglary/stalking case to the District Attorney's Office, and Rhonda Saunders, one of the two deputy district attorneys currently with STAT, was assigned to the case.
The defendant in this case had been stalking the victim in public venues such as shopping malls for over a year after the victim ended their sexual relationship because of the stalker's violent behavior. The spurned lover then became obsessive, calling the victim at all hours, leaving gifts, and writing letters begging the victim to resume their relationship. A few months later, the victim began to hear strange noises from under her house. An exterminator was called and threw poisoned bait into a crawl space, but the noise continued. A few months later, a friend who was house sitting for the victim found the stalker inside the house bedroom and ordered her to leave. Within a few weeks, the victim discovered her Rolodex was missing when her friends and relatives began receiving strange letters from the stalker. Soon thereafter, the stalker broke into the house while the victim was showering. Police were called, but she had already left. The newly formed LAPD Threat Management Unit was called in and obtained a warrant for burglary against the defendant. Following her arrest, she was released on bail and, obtaining a gun from her father's house, went to the victim's home. The victim fled the house along with two dinner guests. The police were called and the SWAT team responded. At one point the defendant pointed a weapon at a SWAT team officer, but neither person fired any shots. After the defendant surrendered to the police, security specialists were called to install an alarm system. They discovered that the defendant had been living under the house in the crawl space. There was evidence that she had been able to tap the house telephones from this vantage point, enabling her to track the victim's movements to malls and the like. Despite the long history of stalking, the defendant was convicted only of assault on an officer; no stalking charge was even brought due to weaknesses in the law. The defendant was sentenced to nearly eight years in prison and has twice been released from prison, violating probation both times by renewing the stalking behavior. She is scheduled to be released in 2000, after serving all of her sentence.
In 1992, as a result of this prosecution experience and the defects in the stalking law that it exposed, the Los Angeles prosecutor's office sought amendments to the stalking law. The new law sponsored by the Office increased the punishment for ordinary stalking to a potential felony offense and made stalking a less difficult crime to prosecute. Over time, Ms. Saunders continued to periodically handle stalking cases, although assigned to other types of cases. Her work and that of other prosecutors in the office handling stalking cases encouraged the District Attorney to set up a specialized stalking unit, based, in part, on the correlation between stalking and domestic violence homicides. This led to the recognition that stalking prosecution needed increased resources and specialized expertise. Additional support for a special unit came from the entertainment industry, which had concerns that could not be met by police responses to stalking complaints.
A specialized stalking unit (the STAT) was established in July 1997 with two attorneys, Rhonda Saunders and Scott Gordon, who had considerable experience with domestic violence issues. A STOP grant was obtained from the state agency responsible for allocating STOP funds to support one attorney and an investigator. In addition, a victim-witness advocate was assigned to the STAT from the state-funded advocate unit in the District Attorney's Office. Most recently, the STAT was awarded a new STOP grant from the state to expand its operations with two new lawyers. Under this grant the STAT activities have been expanded to include a special focus on stalking and threats in the university environment. This will include a public awareness campaign and the efforts of one prosecutor on university-based cases. In addition, the Los Angeles Commission on Assaults Against Women will provide on-campus victim services and advocacy.
In its first 18 months of operation, the STAT prosecutors filed 58 stalking and terroristic threat cases. This included 44 cases filed in the period supported by the STOP grant and 14 cases filed before grant support of the Unit began.
STAT Staffing/Caseloads/Responsibilities
Unit Personnel
The Los Angeles District Attorney's STAT attorneys are both experienced prosecutors. Rhonda Saunders has prosecuted stalking cases since 1992 and was a principal stalking specialist in the District Attorney's Office before the STAT was established. The other attorney is Scott Gordon, the STAT project director for the STOP grant, who has a total of 20 years experience as a prosecutor and law enforcement officer. He previously served as special assistant to the Director of the Bureau of Special Operations. Mr. Gordon is also the District Attorney's representative to the Los Angeles Domestic Violence Council, which he has chaired since 1994.
The STAT investigator is Edward Messinger, who has 24 years of law enforcement experience. The investigator is assigned to the Special Crimes Office in the Special Operations Division of the Bureau of Investigation within the District Attorney's Office. Mr. Messinger replaces former STAT investigator Brian Hale, who is now a supervisor with the Family Support Unit. Celeste Musick, who is the STAT victim advocate, has two years experience as a victim advocate.
Jeffrey Jonas, head of the Target Crimes Division in the Bureau of Special Operations, supervises the STAT. Other units in the Bureau include those with responsibility for crimes against police officers, the career criminal unit, the extradition unit, and the Task Force on auto theft prevention.
Caseload
Scott Gordon, the STAT project director, estimates that the unit receives about 400 referrals yearly. Of these, approximately 125-150 cases are retained for monitoring or filing. A few additional cases may be retained for nontraditional "intervention" by the unit investigator. This typically involves notifying the suspect that his or her actions may be scaring the victim and violating the stalking law, with a warning that such continued behavior will have consequences. No formal prosecution is brought in cases where the stalking behavior then ends. Where the stalking continues, however, a formal investigation may be undertaken and charges filed; the intervention itself provides evidence that the defendant's actions were purposeful with full awareness of the impact upon the victim.
Attorney Caseloads. Each STAT deputy district attorney typically has an active caseload of 12-14 cases. In addition, the attorneys may be monitoring closed cases where the defendant is serving a probation sentence and is still at risk for renewed stalking activity.
There are several reasons for the low caseload of the STAT prosecutors. Stalking cases require more intensive work than most other crimes because stalking is by definition an on-going series of events. These events continue after the case is accepted for investigation and prosecution. Indeed, because physical evidence of past stalking behavior is often absent, proof of stalking requires extensive documentation of the stalking behavior occurring after case acceptance. This requirement extends the amount of time required before cases can be prosecuted. Thus although the yearly caseload for non-stalking cases is usually calculated by doubling the daily caseload (most cases take an average of about 6 months to go to trial), this is not true with stalking cases.
The wide geographic area served also affects STAT caseloads. Cases are referred to STAT from all over Los Angeles County. In a typical week, the prosecutors might be in as many as five local courts, sometimes for multiple appearances. Because so much time is spent traveling to and from these courts, less time is available for case preparation and management.
Investigator Caseload. The STAT investigator is responsible for assisting the prosecutors in identifying stalking cases and preparing them for prosecution. Investigator duties include meeting with walk-in or telephone complainants to assess their stories. As noted earlier, the investigator will intervene in some cases to approach the suspected stalker and warn that individual that he/she is close to the line where criminal behavior occurs. This is done in cases where such intervention may be expected to prevent escalation. Usually, the investigator has a police officer accompany him on intervention calls. In Los Angeles, the officer will be from the LAPD Threat Management Unit.
Investigating stalking cases is paper intensive. As noted above, stalking cases require building a paper record of stalking. Hence, the job requires interviewing and report-writing skills.
Investigative services are a high priority with the STAT. The normal ratio of investigators to attorneys in the District Attorney's Office is one to three; however, STAT has one investigator for its two attorneys. The STAT investigator normally handles between 8 and 12 cases at any one time. Of these, usually 4 to 6 cases are "hot" (that is, cases scheduled for trial). In comparison, auto insurance fraud case investigators have active caseloads of 9 to12 cases at any one time, all of which would be hot. In addition, because stalking cases require proactive investigation, they may often involve emergency situations. In the course of the STAT's first year of operation, the investigator handled 34 cases.
Victim Advocate Caseload. The STAT victim-witness advocate position is funded as part of a state grant to the District Attorney's Office for a victim-witness assistance unit. The STAT advocate's duties include identifying possible stalking cases from a review of all felony crime reports referred to her by other advocates, including those in the District Attorney's branch offices; by LAPD's Threat Management Unit; and by other prosecutors. Typically, referrals are based on the most serious charge involved; that is, the STAT advocate would not be referred cases where charges more serious than stalking were involved. A final source of referrals to the advocate is the STAT telephone answering machine, which provides up to 15 calls per month.
The advocate calls victims to offer her services for help and to gather more information about the case facts. If she cannot reach the victim by telephone (60 percent are reached by phone), she will send them a letter asking them to call her and describing the services offered; about 50 percent of these respond. The advocate is thus able to reach about of 80 percent of the victims referred to her. The advocate receives about 80 case referrals per month. Of these, perhaps as many as 50 cases could be stalking related. Cases most frequently rejected involve telephone harassment complaints where there is no indication of any pattern of calls or there is no former relationship that could have sparked the calls. The advocate reviews the case referrals, prioritizes them for immediate threat issues, and presents this information to the STAT prosecutors. Overall, the screening results in about 5 cases per month being marked for the STAT attorneys' attention. Of these, about 2 cases are accepted for prosecution.
At any one time, the advocate has an active caseload of 40 open cases. The advocate tries to talk to each victim once or twice each week. Other duties include supporting victims during interviews with the prosecutors and accompanying victims to court. The advocate may also be asked to handle some stalking related cases (e.g., domestic violence victim cases where the District Attorney's Family Violence unit received from the police a stalking case involving ex-spouses). In victim "walk-in" cases where no police complaint has been filed, the advocate requires that the victim file a complaint, so that she can process the victim's claims for compensation under the state's victim compensation law.
The STAT victim-witness advocate served 221 victims and 114 witnesses in her first year with the unit. The most frequent service provided was crisis intervention, followed by emergency assistance and referral to resources. Assistance was also provided to victims in filling out claims for compensation and assisting victims with preparing a victim impact statement for the sentencing hearing.
Case Monitoring
Not all complaints of stalking constitute stalking under state law. The state Penal Code specifies that stalking occurs only where the victim has a reasonable fear for his/her safety or that of the victim's family. Not all stalking meets this threshold requirement. In cases where the seriousness of the stalking behavior has been escalating but is not yet stalking under the statutory definition, the STAT may monitor the case. This monitoring involves periodic checks with the victim to determine if the threat level has significantly increased. It may also involve an investigator "intervention" as discussed above. At any one time, the STAT may have as many as five cases being monitored for future investigation and prosecution.
Case Closures
Because stalking prosecution is such an extensive process, the STAT closed slightly less than half of its active caseload, 27 cases, in its first year of operation. As discussed above, this is because stalking cases may take longer than other cases to be tried in court. Sentences imposed in the closed cases included 9 defendants sentenced to prison (average sentence 4 to 5 years) and 17 sentenced to jail. Most of these latter cases involved one-year jail terms as a condition of a five-year probation term. One other case resulted in a dismissal where defense counsel was able to present exculpatory information.
Illustrative Stalking Prosecution Cases
Because Los Angeles is the home of the U.S. movie industry, cases involving movie stars and directors are part of the STAT caseload. More common examples of their cases include those that follow.
Stalking Case Handling
Case Management Procedures
Once a stalking case is accepted for prosecution by STAT, all cases are vertically prosecuted by the deputy district attorney assigned the case. The same prosecutor appears in all case proceedings and the victim has a single person to call about case status or new stalking incidents. An exception to vertical prosecution occurs where a suspect has already been arrested for stalking. In those cases, another prosecution unit will have already handled the case preliminaries (e.g., bail hearing) before the STAT takes over. But where no arrest has yet been made, the STAT prosecutor handles all case preliminaries up to and including trial. Even in cases where the case is not prosecuted, instead being the subject of investigator "intervention" or monitoring, the prosecutor to whom the case is assigned for monitoring will also be responsible for case prosecution should that be needed.
Not all cases referred to the unit are accepted for either prosecution or monitoring. Probably as many as half the cases reviewed by the STAT are rejected because of lack of evidence, the absence of the needed element of victim fear for own or family safety, or simply because the simple facts of the case do not require the STAT's expertise for prosecution (other Office prosecutors will then handle these cases). Cases not accepted may be referred to:
When cases are accepted by the STAT, the deputy district attorney assigned to the case meets with the victim to explain what the unit will be doing and what the victim must do to help with the case investigation and prosecution. The latter includes creating a paper trail of stalking incidents through such means as keeping a written log.
Case Intake
Cases are referred to STAT by the District Attorney screening units at the Downtown office and the 26 branch offices, from victim service agencies, employer security directors, and through walk-ins or call-ins. The highest number of case referrals, however, comes from the Los Angeles Police Department's Threat Management Unit (TMU). Other case referrals come from LAPD branch detectives and other law enforcement agencies, including federal and state agencies.
Cases are prosecuted countywide. Although the STAT deputies used to be able to transfer cases to the Downtown court, the presiding judge no longer permits this. The STAT attorneys are now required to attend hearings all over the county. While this results in more travel time per case, it does allow the STAT attorneys to spend more time with the branch office attorneys and local police agencies. Case acceptance criteria include:
Deputies in the District Attorney's other units are encouraged to call the STAT attorneys for technical assistance, information, or victim service referrals on cases not meeting these criteria. STAT prosecutors try to review all stalking cases filed by the branch offices as a separate check on whether they should be involved or take over the prosecution of cases being handled by Branch office deputies.
Stalking charges may also be filed in more serious cases such as homicide, when there is evidence that stalking preceded the crime. This use of the stalking law takes advantage of the "actual fear" requirement for proving stalking, thus permitting evidence of victim impact to be heard by the jury where evidence law would not otherwise allow its introduction because of its potential to be prejudicial or not germane.
Threat Assessment
Threat assessment is done on a case-by-case basis. The use of threat assessment instruments is largely limited to training exercises to help illustrate the factors associated with risk. It also gets the trainees to think about risk potential. Furthermore, using the assessment instruments drives the novice to collect information relevant to risk that might not otherwise be collected. This includes information about the exact language used to threaten or the type of weapon displayed or possessed. As needed, the STAT prosecutors are able to call upon the assistance of other professionals in assessing the degree of threat against the victim. This includes the membership of the Stalking Task Force (discussed below).
Psychological Review
The STAT deputies will not make plea offers until the defendant has been psychologically assessed. Most judges are reported to agree with this policy. In cases where the defendant is not able to form mens re (i.e., intent to commit a crime), the STAT prosecutors will work with the District Attorney's mental health unit to seek civil commitment.
Case Prosecution
While most cases are resolved by a plea agreement, in cases that do go to trial, the STAT attorneys will use an expert witness to explain how the victim's behavior coping with the stalking threat is consistent with his or her claim of fear. Voir dire examination of potential jurors before the jury is selected will include questions about the juror's experience with either stalking or with civil restraining orders.
Sentencing Recommendations
The STAT unit does not have a unified policy on sentencing recommendations. Nonetheless, both prosecutors have similar approaches to sentencing. Thus, both prosecutors will seek prison time in some cases and a "split sentence" of jail plus probation in others. The latter sentence reflects the fact that in California split sentences are authorized, so that a condition of probation in a typical stalking case can be one year in jail.
Probation supervision will ordinarily be for 5 years. Any probation sentence must include a treatment plan, including batterer intervention in domestic violence stalking cases. The judge is asked to include a no-contact provision in any probation supervision order issued. This order includes a provision that bars the use of a third party to contact the victim. If the probation conditions are violated, the defendant can be sent to prison for up to 3 years. In contrast, most stalking sentences to prison are for 12 to 16 months, followed by parole supervision lasting 12 months. In all cases, the deputy will also seek a 10-year protection order to be issued by the court and a requirement that the defendant obtain mental health treatment. The most significant factor favoring one type of sentence over the other is the seriousness and immediacy of the threat to the victim and/or her family.
Post-Conviction Duties
When a stalker is convicted and put on probation, the victim is given the pager number of the investigator to report any recurrence of the stalking. In addition, victims can call the District Attorney's 24-hour command post to report new stalking incidents. The STAT deputy district attorney will also make periodic calls to the victim and to the probation or parole officer supervising the stalker. The deputy will also assist the victim in asking the Parole Board to put restrictions on the defendant's terms of release from prison, as authorized by California Penal Code § 646.9.2. The Parole Board is reported to have been very cooperative with victim requests under this law.
Related Responsibilities
Training. The STAT is specifically encouraged to provide training to prosecutors, law enforcement, the judiciary, and community-based victims' rights organizations. About 20 to 25 percent of the attorneys' time is spent on training, meetings with victim service providers (e.g., shelters), and presentations at community forums. Many of the training and public information tasks are done on weekends or evenings. As one deputy put it, "Training is a priority."
Training duties include regular training of prosecutors assigned to the Office's 26 local branches. Stalking is now included in training for prosecutors handling domestic violence cases. The Office also had stalking training presented at the monthly Saturday seminars for all personnel, who attend on a voluntary basis. This is expected to be repeated in the near future. Law enforcement are invited to attend these sessions. They also do exclusively law enforcement training with the County Sheriff's office and the Regional Community Policing Institute funded by the U.S.DOJ for domestic violence training (3 sessions). Law enforcement training also includes squad-level roll call training, as the attorneys are available. Other training has been provided to attendees at programs offered by the California District Attorneys Association and the Association of Threat Assessment Professionals. STAT staff are presently providing training on stalking to both probation and parole staff. One result of the training has been improved presentence reports to the court.
The STAT has also produced a training manual, which includes copies of all relevant civil and criminal laws, a review of stalking and terroristic threat case law, jury instructions, related materials such as sample motions for expert testimony admission, and security recommendations. The STAT investigator is also involved in training. Outside training requires about 10 to 15 percent of the investigator's time. However, most requests for training and other presentations cannot be met because of casework requirements.
Other Duties. One of the STAT deputies also monitors legislative proposals. Her review comments are then passed on to the District Attorney's legislative deputy for forwarding to the appropriate officials. The STAT deputy may also assist victims with civil law suits filed by their stalkers. Apparently, such suits are now being filed to obtain discovery of information about the victim.
Related Organizations
Related organizations include the Stalking Task Force for Los Angeles County, the Domestic Violence Council, the City Attorney's Office, and the LAPD Threat Management Unit.
Stalking Task Force
The STAT unit hosts a monthly meeting of the county Stalking Task Force. Attending the Task Force meetings are representatives of STAT, City Attorney, FBI, U.S .Attorney's Office, Secret Service, District Attorney's Mental Health unit, and law enforcement agencies, including the LAPD, County Sheriff, California Highway Patrol, U.S. Marshal's Office, and campus police. The purpose of these meetings is to (1) review problematic cases and suggest new approaches, (2) provide an opportunity for training of attendees, and (3) improve communication and cooperation among local, state, and federal agencies in Los Angeles County. Examples of meeting discussions include a demonstration by the Secret Service of its FISH methodology for assessing the common source of threatening letters through computerized content analysis. Since many suspects write threats to multiple officials at all levels of government, this will allow sharing of information about suspects rather than cases. Other examples include a discussion led by the stalking specialist at the Parole Board and a presentation by an expert on electronic monitoring.
The idea for a Stalking Task Force grew out of the office experience with the District Attorney's Organized Crime Unit. The work of that unit was a combined federal, state, and local initiative. Stalking presents the same need for coordination of effort. From this idea, the first meeting of the Task Force was held in the summer of 1998.
On average, about 12 Task Force members attend each meeting. However, no branch office deputy district attorneys attend these meetings. Meeting minutes are kept by the secretary of one of the STAT prosecutors.
Domestic Violence Council
The Domestic Violence Council is an umbrella organization that brings together 40 different agencies in Los Angeles County. The Council was created by the County Board of Supervisors in 1979 to advise the Board on domestic violence matters; it is said to be the oldest such organization in the country. The duties of the Council include liaison with over 100 organizations providing services to domestic violence victims. Presently the Council has two special projects: (1) examining the feasibility and utility of a domestic violence court, and (2) working with the Department of Human Relations on a domestic violence employee policy. The Council meets once a month but conducts most of its business through its committees. Mr. Gordon of the STAT appoints committee chairs. The Council is housed under the Department of Community Services, which funds local shelters. The importance of the Council lies in its ability to publicize the STAT and thereby increase referrals to STAT from service providers.
City Attorney Prosecutors
The Domestic Violence Prosecution Unit in the Los Angeles City Attorney's Office handles all misdemeanor stalking cases in the city, about two or three per month. This unit was established four years ago with funding from the City Council. The attorneys in this unit prosecute all domestic violence and stalking cases vertically, including refilings involving a defendant who had previously been charged with domestic violence. Stalking cases that are referred to the central unit by the Branch offices are prosecuted in the area of the City where the case arose. In the Branch offices, the City Attorney's Office may receive "wobbler" stalking cases (stalking may be prosecuted as either a misdemeanor or a felony at the discretion of the District Attorney) that are rejected by the District Attorney's prosecutors.
A few of the smaller cities in the county (e.g., Pasadena, Santa Monica) also have City Attorney offices that prosecute misdemeanors, but these are generally too small to have specialists such as Los Angeles does.
Office Management Issues
A key STAT management question is whether to centrally prosecute all stalking cases or to have a mix of centralization and branch offices handling these cases. For now, the latter alternative has been selected as the least disruptive of the existing Office structure.
Staff overtime is a significant managerial issue. In addition to the community and training activities that can occur on weekends, stalking cases are prone to major developments occurring at odd hours of the day or on weekends. Case pressures may also require staff to work in the evenings on case preparation. The STAT investigator reports from 3 to 5 hours overtime per week is required to respond to victim calls, report writing demands, etc. The two STAT deputies indicate varying overtime is needed, but agree that it is substantial.
Summary
The Los Angeles District Attorney's Stalking and Threat Assessment Team is distinguished by its specialized staff who are committed to prosecuting stalking cases and protecting the victims of stalking. A significant part of their work is outreach to train law enforcement and to educate the public and agencies serving stalking victims. This work builds increased recognition of stalking when it occurs.
Effectiveness of STAT is, however, limited by forces beyond its control. The Los Angeles District Attorney's Office is the largest prosecutor's office in the country, with over 1,000 attorneys and 250 investigators. The large geographic area covered by the office, the difficulties of coordinating multiple branch office activities, and the constant need to train other criminal justice professionals as well as the public, at large place great demands on the time of the STAT prosecutors. Geographic problems are especially a drain on resources because the Los Angeles Superior Court does not allow the STAT to centralize its case handling by permitting transfers from outlying areas of the county to the downtown courts.
It is unclear where STAT will go in the future. The number of stalking cases filed by the District Attorney's Office has been steadily rising about 10 percent each year since 1994. As a result, increased pressures to improve the work of the branch offices in their stalking cases can be anticipated. This in turn may require that the specialized STAT prosecutors spend more time on training and even monitoring branch office performance. It may be that the District Attorney's branch offices will be required to appoint stalking case specialists to prosecute and manage stalking cases that do not go to STAT. Expansion of STAT to handle all the cases now handled by the branch offices is probably not likely; geographic considerations limit the advantages of possible centralization of stalking prosecution. Some limited expansion of STAT is warranted, however, both to increase the number of cases the unit can handle and to better meet the demand for training and public education.
California Stalking Law
California Penal Code § 646.9 was adopted in 1990 and was the first law in the United States to provides criminal penalties for stalking. The key elements of the law are:
Simple stalking as defined above constitutes what in state practice is called a "wobbler" offense. That is, stalking may be treated at the discretion of the district attorney as either a felony or a one-year misdemeanor. Stalking in violation of a court restraining order is always a felony, with a maximum sentence of up to four years.
Because stalking laws are so new in California and elsewhere, a number of prosecutor offices have established special prosecution units to respond to stalking complaints. One of the best of these new units is that established by the San Diego District Attorney.
The Stalking Prosecution Unit
The Stalking Prosecution Unit of the San Diego County District Attorney's Office is responsible for the prosecution of felony stalking cases in San Diego County. In addition, the Unit prosecutes misdemeanor stalking cases outside the City of San Diego. Office policy, however, is that stalking cases that can be prosecuted as either a felony or misdemeanor should in most cases be prosecuted as felonies.
Both stranger and domestic violence-related stalking are prosecuted by the Unit.. However, most stranger stalking cases that arise outside the City of San Diego are prosecuted by attorneys in the District Attorney's branch offices. Office protocol requires, however, that the Unit be notified whenever a branch office Deputy District Attorney receives a stranger stalking case. This policy permits the Unit to take over the case when appropriate and to provide technical assistance in those cases not taken by the Unit.
Unit History and Rationale
The Unit was started in 1996 with one attorney and one investigator handling non- The Stalking Prosecution Unit grew out of a review of domestic violence homicide cases in 1996 which showed that a factor common to most, if not all, of these cases was stalking of the victim. This suggested that these homicides might have been prevented by aggressively attacking the stalking precursor. Ms. Wells, the then Chief of the Family Protection Division which handles domestic violence cases, took these findings to the District Attorney, and he agreed to set up a special stalking unit with her as its head. The District Attorney was especially receptive to the idea of a special unit because he was aware at that time of several friends of his wife who had been stalked. He also was of the view that only the District Attorney's Office is in a position to deal with the problem of multi-jurisdictional stalking; otherwise cases would fall through the cracks. As the Unit has continued and provided him with feedback from its cases, his support for it has grown, especially his view that stalking specialization is required for prosecutors to understand the dynamics of stalking. One example he cited of the unique challenges posed by stalking cases is the difficulty in identifying the occasional false victimization reports received. These cases typically involve defendants seeking attention from their family, friends, or even law enforcement.271
At its inception, the new Unit did not, however, prosecute domestic violence related stalking; it only prosecuted stranger stalking cases. The Family Protection Division handled domestic violence related stalking. But in 1998, a STOP grant was gained for expanding the Unit to handle the domestic violence cases. The grant pays for the domestic violence stalking prosecutor and one investigator. A victim-witness advocate was also added to assist with stalking victims. Prior to this grant, domestic violence stalking was handled by the Office's Family Protection Division.
The rationale for distinguishing between domestic violence related stalking and stranger stalking; the dynamics of these two types of stalking are very different. Stranger stalking often involves some form of mental illness on the part of the stalker, who may be easier to control when on medication. Further, the love obsessional stalker found in many domestic violence stalking cases may put the victim at risk more than do other stalkers. This is because the stalkers know the victim well and know her vulnerabilities. Another problem for prosecutors in domestic violence stalking is that there is always the possibility of victim recantation in these cases, a possibility that is much less likely in stranger stalking. Even where there no recantation, stalking victims may continue to stay in contact with the stalker as a coping response. Expert testimony may then be needed to explain the reasons why victims act this way and why it is not inconsistent with the statutory credible threat and real fear requirements. Similar problems of explaining victim coping behavior may also be seen in stranger stalking cases. Another difference between the two types of cases is that many domestic violence stalking cases involve short periods of time during which the stalking occurred (1 to 3 days). Stranger stalking generally occurs over a long period of time before credible threat can be shown.
Organizational Placement and Unit Staffing
The District Attorney's Office in San Diego has 280 deputies, 110 investigators, victim advocates, and paralegals or interns. The Office is divided into a downtown office and branches. Special prosecution units are located at the downtown office, although most specialized units such as Family Protection Division have attorneys in the branch offices.
The Stalking Prosecution Unit has two attorneys, two investigators, a victim advocate, and one full time support staff. The Unit is headed by Kerry Wells, who has 19 years of experience as a prosecutor and years in prosecuting domestic violence cases. Fiona Khalil is the second deputy district attorney in the Unit, and she has 10 years of experience as a prosecutor, including the 3 previous years with the Family Protection Division. Wayne Maxey with 15 years in law enforcement and Greg Peters with over 20 years in law enforcement are the investigators who work fulltime with the two attorneys. Wayne Maxey has been with the Unit since its inception. Greg Peters joined the Unit under the STOP grant. Jacqueline Young, the victim advocate, also joined the Unit in 1998 under a separate Victim/Witness grant. She has been with the Victim Witness Assistance Program for 4 years, although this is her first experience as an advocate.
The Stalking Prosecution Unit is part of the Special Operations Division of the District Attorney's Office. This Division is also responsible for investigation and prosecution of public corruption, political crimes, organized crime, and other sensitive matters. The two Unit investigators are part of the Special Investigations Division of the Bureau of Investigation within the District Attorney's Office, the counterpart of Special Operations Division. Jacqueline Young is part of the Office's Victim Witness Assistance unit that is funded under a grant from the state.
Unit Performance
Case statistics are not necessarily the most appropriate indicator of unit performance, for reasons discussed below. With this important caveat, stalking case referral is probably the best indicator of Unit activity and performance. In the first year of the grant, the domestic violence stalking prosecution deputy received 74 cases for review. Of these, 33 cases resulted in criminal charges being filed. Twenty-four cases are being monitored for future prosecution, and 17 cases were rejected or referred to another agency. In the prior year when domestic violence stalking was handled by the Family Protection Division, 38 cases were received for review; and 16 of these cases were filed. Statistics for the stranger stalking cases during the same year include: 51 cases presented for review; 15 felony cases were issued, 7 were rejected, and 29 were placed on monitor status.
Related Organizations
Two other agencies/organizations play key roles in how the Unit operates. These are the Stalking Case Assessment Team and the San Diego City Attorney's Office.
Stalking Case Assessment Team (SCAT): The San Diego SCAT (Stalking Case Assessment Team) meets monthly to review and discuss problematic cases and provide case management advice to the attorneys and investigators responsible for the case. The meetings are chaired by the senior Stalking Prosecution Unit investigator, who also maintains all meeting records. Issues considered by SCAT include assessing seriousness of threat, victim safety, new investigative approaches. Members of SCAT include the DA's stalking unit, representatives of most law enforcement agencies in San Diego County (including federal agencies), probation, court security, law enforcement forensic specialists, victim service providers, and private treatment specialists.
The SCAT is an outgrowth from the San Diego Task Force on stalking, established in 1994. The Task Force, like the SCAT, contains representatives from all major public and private agencies concerned with stalking and its victims. With the advent of SCAT, the Task Force has only a few remaining responsibilities. The Task Force has sponsored several local conferences on stalking through its training committee and conference committee. These include one-day conferences in 1996 and 1997, and three smaller training sessions in 1998 that were directed at "first responders."
City Attorney Prosecutors: The San Diego City Attorney handles misdemeanor stalking cases. These include lesser stalking cases and violations of court orders of protection, especially where there is still an absence of credible threat with the violation. One Deputy City Attorney is assigned all stalking cases referred to this office. This attorney estimates that she receives about 2 stalking referrals per month and has about 10 cases open at any one time (2 are stranger stalking cases at present). She also handles regular domestic violence cases and about 50 percent of her work involves these cases. The stalking deputy prosecutor estimates that stalking cases require 3 to 5 times as much work as a non-stalking domestic violence case.
Where a case does not rise to the level of stalking, the Office will work with the victim to gather evidence; once stalking can be shown, they will refer the case to the District Attorney. The Office may also call upon the SCAT to provide suggestions for case building; however, the last two cases where SCAT use was considered were taken over by the Stalking Prosecution Unit before presentation to SCAT. This Deputy may also call upon the services of the investigator or victim advocate assigned to the Criminal Division of the Office. The stalking Deputy City Attorney reports to the Head Deputy of the Child Abuse/Domestic Violence Unit, who is also a member of SCAT.
Illustrative Stalking Prosecution Cases
Stalking Case Handling
Case Management Procedures
The District Attorney's protocol for stalking cases sets out the formal procedures for handling these cases. The protocol includes an intake form that records the relevant facts, such as victim relationship to defendant; whether a TRO was issued and date of issuance; factual synopsis. The intake form also records the status of the case, including whether case is simply being monitored for future developments or a case has been filed. A case disposition sheet is also part of the protocol. This contains information about the progress of cases that have been filed from charges and date of filing through case outcome and sentence.
A key element of decisions whether to file or not is the threat assessment of the danger to the victim or to other persons close to the victim. This protocol document includes extensive personal information about the suspect and his/her criminal history. It includes information about the suspect's psychiatric history and history of suicide threats or attempts. It asks about the suspect's access to weapons and alcohol or drug use. Finally, it reviews the specific nature of the stalking itself from how the suspect obtained knowledge of the victim and her whereabouts to describing the nature of the stalking behavior.
A final protocol form is the Victim Data Sheet that contains personal history information about the victim. This information includes both psychiatric history and criminal history reports. It also asks whether the victim has ever been stalked before. Finally it asks about victim actions taken for protection against the stalker.
The most significant case management requirement set forth by the protocol is for vertical prosecution of these cases. The Deputy receiving these cases is responsible for all elements of the case from victim interviewing through trial and post-conviction follow-ups with the victim. This is true for both cases handled by the Stalking Unit and for those handled in the branch offices.
One important consideration unique to stalking cases is the attention paid to efforts to minimize the threat to victims. This consideration affects every prosecutorial action from filing, to seeking a protective order, to ordering arrest. The concern is that official action may set off the stalker and violence will result. Hence case filing may be delayed in some instances in order to gain sufficient evidence to justify a request for very high or no bail.
Case Intake
Cases may be referred to the Stalking Prosecution Unit from police patrol, from domestic violence detectives, from shelters and other victim service agencies, walk-ins or call-ins to the county victim hotline by the victims, and from the City Attorneys' Domestic Violence Unit. Another occasional source of case identification comes from the victim witness screening unit, which receives daily crime reports from the entire county.
One of the biggest problems the Unit has is that many stalking cases, especially domestic violence stalking, do not follow traditional "following" paths. Instead, the stalking consists of lesser behaviors such as vandalism, burglary, or order violations. As a result, cases referred to the Unit from the City Attorney's Office are often cases not identified by the police as stalking cases. In that office, the Assistant City Attorney may note a pattern of behavior among multiple misdemeanor charges that together constitute stalking. Or the stalking specialist may focus on building a case based upon multiple order violations plus encouraging the victim to keep a written log of incidents.
Threat Assessment
Uniform or formalized procedures for threat assessment do no exist. Instead, each case is assessed separately. The assumption is that they are all serious cases; this is confirmed by threat assessment instruments that cannot provide further stratification of seriousness. The task is to develop a safety plan to reduce the threat. One function of the SCAT is to provide a group assessment of threat seriousness and suggest appropriate countermeasures. The City Attorney uses MOSAIC to impress upon victims the seriousness of the stalking potential and also at sentencing hearings.
Psychological/Psychiatric Review
Psychological/psychiatric evaluations may be done on stalking suspects either to determine their competency to stand trial or as part of the sentencing process. These evaluations may be ordered by the court; a special court evaluation unit handles 2 to 3 such referrals a month from the court. More commonly, an evaluation may be required as a condition of any plea offer from the District Attorney or the City Attorney's Office. Even where the defendant has been convicted at trial, defense counsel may ask for an examination as part of their preparation for presenting a sentencing recommendation to the court.
Most psychological/psychiatric evaluations are done by private practitioners from an approved list of qualified experts/examiners; defense counsel may also request the court evaluation unit to do these reviews. In a few instances, probation may also ask the court evaluation unit to undertake an assessment for purposes of a pre-sentence report to the court.
Post-Conviction Duties
Because stalkers do not cease their stalking after conviction, even during incarceration, stalking prosecutors continue the victim's case. As with monitored cases, the prosecutor or investigator assigned to the case will telephone the victim periodically (at least once a month) to determine if there has been any recent contact from the stalker. If there has been, the case will be reactivated. Where the stalker received an intensive probation sentence, follow-up contact will be even more frequent (as often as once a week).
Most stalkers receive intensive probation sentences (family violence and sex offender supervision). This requires the Unit to maintain strong ties with the treatment providers to whom the stalkers are reporting.
Related Responsibilities
Because stalking is a new crime, it is not well recognized by law enforcement, by victims, or by those aiding victims. Thus, among the Unit staff duties, community awareness speaking and training of criminal justice personnel is a high priority. Staff estimate that they spend up to 25 percent of their time on these tasks. Kerry Wells reports that she has provided training to branch office attorneys handling stalking, including Family Protective Division staff prosecuting misdemeanor stalking. One category of deputies that has not been trained are the intake screening attorneys who review cases that may include unrecognized stranger stalking complaints. In part, this is because these positions are filled on a rotating basis. Other training targets are victim groups, especially those represented on the SCAT and its predecessor Task Force. Since June 1998, all four Unit professionals also have provided a 4-hour regular weekly training for 40 law enforcement officers at the Regional Law Enforcement Training Center. For this purpose, a training manual has been developed, a copy of which is provided trainees. Other training includes two one-day courses on stalking for first responders for 120 officers. Non-regular recent training included that to the Ventura County Domestic Violence Council, California Women Police Officers Association, and several trainings offered by the California District Attorneys' Association, the Association of Threat Assessment Professionals, and shelter groups.
Training is also done on a one-to-one basis when the office investigator works with a city officer or sheriff's deputy on a stalking investigation. For example, in cases that are accepted but need further investigation, the investigators will call the detective and offer to share any additional work that is needed to be done. In other cases where a detective may refer a case to the Unit but there is not sufficient evidence to file, the case will be returned to the detective with an explanation of what further information is needed. In both instances, keeping good relations with law enforcement officers is considered critical to future referrals. In the same vein, Wayne Maxey reports that he will send letters of thanks and appreciation to patrol officers who identify and refer stalking cases to the Unit.
Attending public meetings is another related task. At present, Ms. Wells no longer attends meetings of the Domestic Violence Council. She no longer has the time to do this. Instead, she relies on Pat McGrath from the City Attorney's Office and SCAT member to keep her informed. In the future, the domestic violence stalking prosecutor may attend these meetings, as time permits.
Support Staff Duties
The primary support staff for the Unit are the two investigators assigned to the Unit and the victim advocate.
Investigative Staff
The primary investigator duties are those relating to preparing cases for trial: identifying and interviewing new witnesses; and acting as liaison between victim and law enforcement. An important additional responsibility is to review cases that come in as walk-ins, without any police referral. In these cases, the investigators will check law enforcement files for prior complaints (e.g., vandalism, missing mail), and then work with other law enforcement officers on investigation follow-ups of prior complaints. Once a case is verified as involving stalking issues, the case is then brought to the appropriate Unit attorney for review and a decision on how the case is to be handled. Other duties include testifying in court, training, responding to victim calls (investigators provide their pager numbers to victims), and checking on offender status, especially release dates if incarcerated.
Victim Advocate Duties
The victim advocate duties include reviewing crime reports that are distributed to her from the Victim Witness Unit screening staff located at the San Diego Police Department assigned to screen all crime reports to the specialized unit. These referrals from the screening unit include both potential stalking and harassment complaints. The victim advocate will then telephone the victims to obtain more information and provide needed help in identifying service needs and providers. Where telephone calls are not possible or unsuccessful, a letter is sent to the victim offering the advocate's services. Once the victim is contacted, the advocate will verify the facts of the case, tell victims about safety issues, notify employers (as needed), and provide information on restraining orders.
Cases identified as involving stalking after this callback are referred to an investigator for further action. The advocate may also receive complaints of stalking or harassment behavior from a "warn line" and from calls to the unit from victims. About one-quarter of the calls that she receives may be actual stalking cases. The advocate also uses the monthly meeting of all the advocates to remind the screening unit to send her possible stalking cases. Advocates assigned to the Domestic Violence Prosecution Unit also refer cases to her; the elder abuse unit advocates may be expected in the future to be another source of referrals.
Other duties include explaining the court process and providing support at court hearings, including preliminary hearing. This serves to prevent witness intimidation. The time can also be used for additional fact-finding. Yet other duties can include helping with logistics of moving, contacting parole agent, explaining to relatives the reality of danger, assisting in getting property back that was used as evidence, helping with gaining restitution, assisting in preparation of victim impact statements, creditor or employer intervention, assisting with application for victim compensation.
Overall, the advocate estimates that while the volume of cases handled in the unit is low compared to other units, the amount of work done per case is much higher (up to 10 times greater). This is because stalking is a crime in progress, not merely a response to crime report or arrest. Even after conviction, victims call in to check on jail status.
Other Agencies
Relationship with Law Enforcement
Liaison with law enforcement is a major staff effort. The Stalking Prosecution Unit meets regularly with representatives of police and the sheriff through the SCAT. Staff provide in-service training to law enforcement on a weekly basis and through special training conferences. One-to-one training occurs with the District Attorney's investigators working closely on stalking cases with the detective assigned to the case before it was referred for prosecution. The City Attorney's Office also provides training and recently had a one-day retreat with the San Diego Police Department domestic violence detectives to explain stalking behavior.
Special stalking efforts on the part of law enforcement include assignment of two detectives with the San Diego Police Department to provide training on how to handle stalking cases. When the city detectives identify a stalking case they will usually call the Stalking Prosecution Unit to detail the case facts and be instructed as to which office will handle the case, the prosecutor or the City Attorney. The Sheriff's Department has a special domestic violence detective unit that also handles stalking cases; similar referral procedures are used by this agency. The City Attorney's office has developed a form for use by first response officers in DV cases that helps in identifying stalking cases. The form is intended to elicit information about possible stalking, beyond the victim's "When are you guys going to do something about ..." signal. The San Diego Police Department uses what they term the Key Case concept. The key case refers to the case number assigned to each case investigated by the police. When a detective is assigned a stalking case or a series of related case incidents, one case is selected as the key case. That number will be used to refer any additional cases written involving the activities of the suspect to the original case for tracking. The stalking victim is given the key case number and told that where there are new complaints in the future and the police called, the victim should inform the new investigative officer about the key case number and to inform the officer who the key case investigator is. All subsequent case reports will also refer in the report narrative to the key case number. Copies of these reports are to be sent to the Domestic Violence Unit for forwarding to the key case investigator.
Relationship with Probation
Because of the often serious psychological problems associated with stalking, probation probably needs to have stalking cases assigned to a specialist, especially in preparing sentencing recommendations to the court. In the northern end of the County, one probation officer, Anna Guzman, is assigned to supervise most stalking cases (caseloads permitting); two other officers also have stalking cases on their caseloads. Most of her stalking cases were prosecuted by attorneys in one of the District Attorney's branch offices.
Ms. Guzman is part of an intensive supervision team of 10 officers, most of whom handle domestic violence cases. She generally has a caseload of between 50 to 60 cases. Included in this caseload are 5 or 6 stalking cases at any one time. The Probation Unit for the central city courts has a comparable intensive supervision unit, but that office does not have a stalking specialist.
Intensive supervision calls for a minimum of two visits per month by the supervising officer. This can be at home or at work. The officer also keeps in contact with the victim. Ms. Guzman provides the victim with her telephone number; she also urges them to call law enforcement if there is any repeat stalking. She has access to all law enforcement crime reports.
Most probation stalking cases have a requirement that the defendant attend a treatment program. In San Diego this is called the Stalking Treatment Option Program (STOP) and is provided by Dr. Bart Jarvis. The STOP program has no set length of treatment.
The court is reported to revoke probation in only 40 to 60 percent of the cases where revocation is recommended by probation. Ms. Guzman reports that she had 9 revocations in stalking cases last year.
Hot Line
In San Diego there are several hotlines. These include those for shelters. In addition, the Stalking Strike Task Force has a message machine. The Unit advocate monitors this machine daily.
Office Management Issues
The most important managerial issue with a stalking unit is the need for flexible time management. Stalking cases demand much more intensive work than do most other cases. Wayne Maxey estimates that the time he spends on a stalking case is two to three times greater than it would be if he were with a law enforcement agency. Even in relation to other District Attorney investigators, he spends about 50 percent more time per case than they do. This can lead to "burnout" over an extended period of time. In an effort to reduce burnout and provide better coverage, the Unit investigators work a 7 to 5 schedule, with every other Friday off. This requires, of course, that the Unit have at least two investigators to provide coverage on the alternate Fridays.
Attorneys and investigators must also be available outside of normal working hours to conduct interviews and reassure victims. Most commonly, interviews outside of normal work hours are of witnesses who cannot be interviewed at their work sites. Occasionally where there is a serious and new threat to the victim, more proactive work is required to insure her safety. Surveillance of the victim or the suspect may need to be done on weekends. One Unit investigator estimates that 10-15 percent of his time is overtime. These overtime demands may be said to make expansion of the Unit an imperative for the Unit to reach a minimum critical mass that allows for new case coverage when other staff are on vacation or ill.
Evaluation of Unit attorneys also differs from normal procedures because the Unit accepts cases that are not necessarily prosecutable. Instead of filing charges and trying cases, the attorneys and investigators may instead work with victims to defuse the situation so that it does not escalate. They will work with victims on safety planning, obtaining social services. Most importantly for the victims, they provide reassurance and validation that their case is important. The District Attorney suggested that one proxy measure of the Unit's success is the reduction of domestic violence homicides that involved stalking behavior.
The District Attorney finds that the stalking prosecution position is not a hard one to fill. The cases draw prosecutorial interest. The need for flex-time management can often match a prosecutor's interest in this option.
In setting up a stalking unit, prosecutors must remember that stalking is a new and not well understood crime. One of the most important functions of the unit is to "sell" the unit's services to law enforcement and victims. As law enforcement, community groups, and victims become aware of the new stalking laws, caseloads will increase and increasing demands will be put upon Unit staff.
A final management issue is the need to have the specialized Unit staff provide training to other prosecutors and law enforcement personnel, as well as educating the community. The obvious rationale for this function is the lack of familiarity among all parties of the relatively new stalking law (first adopted in 1990). Without an emphasis on training and community outreach, many stalking complaints would either not be made by victims or recognized by law enforcement or prosecutors. A further reason for encouraging these efforts is that training law enforcement can also provide political benefits from the appreciation shown by agency leadership for the free training. (Similarly, the availability of stalking investigators can relieve local law enforcement administrators of a potential staff allocation problem when his investigators take over a case.) Thus, despite the resources training requires, these efforts are an integral part of the Unit mission.
Summary
The San Diego Stalking Prosecution Unit is distinguished by four characteristics.
Expertise in handling stalking cases is extremely important. Stalking cases often involve on-going crimes which require specialized abilities to investigate and build a case. Analogies to stalking prosecution might be found in the handling of gang or organized crime cases, where there are also both criminal and civil remedies available and the potential for homicide can be high. Further, in all these cases, prosecution and conviction may not end the criminal behavior. Hence, all of these cases require individualized, rather than "cookie cutter" management and application of informed discretion on how to best proceed. Stalking cases may differ from these other cases, however, in that successful case resolution may not require prosecution: in some stalking cases, forceful intervention may succeed, while in others, premature prosecution can increase the danger to the victim.
Victim safety and service is clearly the overriding concern of the District Attorney and the Stalking Prosecution Unit. Case management procedures are geared to this objective. Unit members make special efforts to keep in contact with the victims, even after conviction, to monitor what is occurring. These efforts begin with the initial victim advocate phone call and continue past conviction and incarceration of the defendant.
Teamwork and individual initiative are the distinguishing hall marks of the Unit's operations. Significant responsibility is placed upon the Unit investigators and victim advocate to respond to victim complaints, even before any decision is made whether to formally file criminal charges or even accept the case for review.
Training and community outreach efforts are needed because stalking is still a new crime. In no other area of the criminal law is there a need for enforcement staff to "sell" their services. But most victims and many criminal justice agency personnel are either not aware of the stalking law or do not understand the extent of its full scope.
The leadership of the Stalking Prosecution Unit, especially in the person of Kerry Wells, has resulted in a broad community-wide effort to identify, investigate, and prosecute stalking cases. This broader effort begins with the Stalking Strike Task Force and its facilitating cross-agency communications and extends into virtually every criminal justice agency in the County. Thus, the City Attorney's Office has a specialized stalking staff, as does Probation. The several law enforcement agencies in the County also have specialists on stalking among their domestic violence units, although caseloads do not yet permit further specialization.
In sum, stalking is considered to be a serious crime in San Diego County. The Stalking Prosecution Unit in the District Attorney's Office is largely responsible for this occurring.
An Attorney General letter issued in March 1996 recommends that law enforcement agencies in the state adopt a presumptive arrest policy.
American Prosecutors' Research Institute, Stalking: Prosecutors Convict and Restrict. "Two Innovative Antistalking Programs: Dover, New Hampshire" (1996): 5-11.
New Hampshire Statutes § 633:3-a(1)(d)(5) provides that violation of a protective order may constitute stalking without more (i.e., no need to prove either threat or victim fear).
The Department provides computer-aided training (CAT) to officers weekly; the training lasts about 10-15 minutes. Officers are graded based upon how well they do in their testing of this training. Changes in the stalking laws are disseminated by a bulletin and then tested using the computer-based testing of the training (CAT). At the initiation of the project, a memo was sent to all sworn personnel about the Anti-Stalking Unit and its policies.
For example, in one case the Unit detective saw in the police report of a criminal trespass charge that the victim reported prior domestic violence had occurred. This was confirmed through a check of departmental records which showed prior domestic violence calls. The check also found that there was an outstanding out-of-state order of protection in force. It is unclear to what extent the Department's emphasis on domestic violence reporting has improved reporting of domestic violence incidents in other crime type cases.
Although the incumbent police prosecutor is a sworn officer, this is not a requirement of the position.
The use of a GPS requires that the defendant have a dedicated phone line, without call waiting; residence and work in building structures that do not interfere with signal; cooperation of all local jurisdictions where defendant and victim reside and work; and travel routes that separate victim from defendant.
Rebecca Schaefer was a television actress who was most famous for appearing in a television comedy series. She was called by a stalker who obtained her home address from the state motor vehicle records and who came to her house and shot her.
The Stalking Prosecution Unit estimates that they receive two or three false victimization reports a year, usually in cases involving claimed stranger stalking.
Nineteen jurisdictions' laws do not require victim fear of death or serious injury or substantial emotional distress as an element of the crime of stalking. Those jurisdictions are Arkansas, Colorado, District of Columbia, Hawaii, Idaho, Illinois, Kentucky, Maine, Maryland, Massachusetts, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Dakota, Tennessee, Virginia, and West Virginia. In those jurisdictions, the victim's state of mind may still be at issue where the statute refers to victim annoyance or harassment, a less significant level of injury. (Full statutory cites are provided infra, notes 76-77.) The THIRD ANNUAL REPORT , supra note 1 at 23, 28-32, identified 17 states in 1997 that had a standard of fear that was not as high as that of death or serious physical injury.
Fear as an element of the crime of stalking is largely a North American construct. Urbas, supra note 16, reports that victim fear is not a statutory element of stalking in most Australian laws. However, intent to cause fear is a statutory element in most of the Australian states. See EMMA OLGIVIE, STALKING: LEGISLATIVE, POLICING AND PROSECUTION PATTERNS IN AUSTRALIA 61-71 (2000) (reprinting the relevant statutes). Similarly, Marejke Malsch, Stalking in the Netherlands, in AIC Conference Papers, supra note 9, reports that the stalking laws of Ireland, Norway, Belgium, and Denmark do not contain a victim fear requirement. The Protection from Harassment Act of 1997, applicable to England and Wales, also does not contain an actual fear requirement. But closer to home, the Canadian stalking law does require victim fear as an element of the crime, CANADIAN CRIMINAL CODE § 264. Olgivie suggests that the fear requirement difference between the United States and Australian versions of stalking laws lies in the former's antecedents in stranger stalking, while the latter's focus has been on stalking as a variant of domestic violence. Id. at 56.
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