Stalking and the Law

•  The first anti-stalking law was passed in California in 1990.
• In 1992, the U.S. Congress enacted legislation which required the U.S. Attorney General, through the National Institute of Justice, to conduct research on the issue of stalking and to develop and distribute among the states a "constitutional and enforceable" model anti-stalking code. (U.S. Departments of Commerce, Justice, State, the Judiciary and Related Agencies Appropriations Act for Fiscal Year 1993, Public Law 102 - 395, 109[b].)
• As of September 1993, all 50 states and the District of Columbia have some form of stalking (anti-stalking) law. (National Center for Victims of Crime, Legislative Database.)
• In October 1993, the final summary report of the Project to Develop a Model Anti-Stalking Code for States was presented to the National Institute of Justice. This was the end product of the 1992 legislation. (National Institute of Justice, 1993.)
• In 1996, the U.S. Congress passed the federal stalking law. (National Defense Authorization Act for Fiscal Year 1997, Public Law 104-201, § 1069.)

Overview

Stalking, commonly defined as "the willful, malicious and repeated following or harassing of another person" is gaining recognition and credibility as a serious crime in the United States. Victims of stalking include those currently at risk of physical and/or emotional harm, and those in constantly pending danger, but not immediately at risk. Women are the victims of stalking in disproportionate numbers (Puente, 1992).

While the impact of stalking is commonly minimized by society, the actions of stalkers can be extremely threatening and dangerous to their victims. Stalking can escalate to violence. Stalking victims frequently live in fear and terror. Often they are forced to alter their lives significantly in attempts to find safety and freedom from the harassing behavior of former spouses, ex-partners or strangers.

Until the passage of stalking (also known as "anti-stalking") legislation, victims had few remedies. Many citizens were victimized by incessant intimidation and physical harm because the jurisdiction's code of criminal laws offered law enforcement either inadequate or no tools to protect victims of these types of crimes.

Until recently, stay-away or restraining orders were the only means of protection for stalking victims. These traditional measures were rarely effective because they penalized perpetrators only after the orders had been violated -- when the harm they were designed to protect against had already occurred. These orders also often had jurisdictional boundaries which limited their enforcement.

Until recently, states required police to have either an accusation of assault (which, legally, is a threat with the immediate potential for physical harm) or a violation of a protective order before they could protect a victim by arresting the perpetrator.

In the past, police could also use harassment or terroristic threat statutes, but harassment statutes usually carry only misdemeanor penalties and are of limited effectiveness in deterring a stalker. Terroristic threat statutes were also of limited use because they usually did not encompass the types of behavior common to stalkers.

For these reasons, legislators across the nation have implemented stalking legislation which protects individuals from stalkers. California became the first state to recognize the deficiencies of traditional laws by enacting an anti-stalking law in 1990. Since California, every state and the District of Columbia have passed anti-stalking laws. These new laws give law enforcement agencies more powerful tools to arrest and prosecute stalkers and offer victims of this crime much greater protection than was previously available for them. (All statutes discussed in this summary are current through 1995 unless otherwise indicated. Source: National Center for Victims of Crime, Legislative Database.)

State Legislation

Anti-stalking legislation makes it a crime to engage in a pattern of behavior that harasses and/or threatens other people. Its purpose is twofold:

• To eliminate perpetrator behavior which disrupts normal life for the victim; and;
• To prevent such behaviors from escalating into violence.
• Most anti-stalking laws define stalking as "the willful, malicious and repeated following or harassing of another person." Some states require the existence of both a "credible threat" (defined as a verbal or written threat of violence made against a person by the perpetrator) and the appearance that the perpetrator intends and has the ability to carry out that threat. Some state laws specify a "course of conduct" in which the perpetrator (or stalker) "knowingly, purposefully, and repeatedly" engages in a series of actions (such as maintaining visual or physical closeness or repeatedly conveying verbal or written threats) directed toward a specific person and which serve no legitimate purpose and "alarms, annoys, and causes a reasonable person to suffer fear and emotional distress."
• Some statutes provide for lesser penalties for stalking when there is no "credible threat of violence"; otherwise, states may rely on harassment statutes.
• Generally, anti-stalking laws can be classified into three different categories related to penalties: 1) Those that make stalking a misdemeanor; 2) Those that make a first offense of stalking a misdemeanor and subsequent offenses felonies; and 3) Those that make stalking a felony. Most states classify first-time convictions of stalking as misdemeanors and subsequent convictions and/or violations of protective orders as felonies. A few states consider stalking a misdemeanor of several varying degrees.

Selected Approaches:

• Several state laws define stalking to include threats made to or toward the victim's immediate family.
• Iowa's law considers stalking convictions in other states as "previous violations," and allows for enhanced penalties in subsequent offenses, even if the first offense did not occur in Iowa. It also has no requirement that the second or subsequent offense be committed against the same person as the previous offense, a clause which punishes stalking because of the act, not because a specific victim is targeted.
• Iowa is also unusual because, upon a third offense of stalking (with two previous convictions), there exists a "presumption of ineligibility for bail." The burden to prove that the offender will not "jeopardize the personal safety of other persons" then shifts to the defense and not to the state.
• Illinois allows the denial of bail if the defendant "poses a real and present threat to the physical safety of the alleged victim of the offense."
• Michigan, Hawaii and Illinois each allow the court to require counseling of the offender -- in Michigan, at the offender's expense.
• Florida allows for warrantless arrest of offenders if the peace officer has reason to believe that the offense of stalking has occurred.

Federal Legislation

In 1992, the U.S. Congress passed legislation which charged the U.S. Attorney General -- through the National Institute of Justice, which is the research branch of the Justice Department -- with developing and distributing a "constitutional and enforceable" anti-stalking law to serve as a model for the states. The model was to be designed to assist the states in crafting and adopting stalking laws that are "not so broad as to be unconstitutional nor so narrow as to be virtually meaningless" (Statement of U.S. Senator William Cohen [Maine], Proposed Federal Stalking Statute: Hearing Before the Senate Committee of the Judiciary, 103rd Congress, 1st Session, 1993). The National Center for Victims of Crime consulted on the drafting of this model law. The published result of this legislated initiative, Project to Develop a Model Anti-Stalking Code for States, Final Summary Report, was presented in October 1993.

The model code encourages state legislators "to make stalking a felony offense; to establish penalties for stalking that reflect and are commensurate with the seriousness of the crime; and to provide criminal justice officials with the authority and legal tools to arrest, prosecute, and sentence stalkers" (National Institute of Justice, 1993, p. 43).

The model prohibits stalkers from engaging in "a course of conduct" that would cause a reasonable person fear. It encourages the use of a continuum of charges that could be used by law enforcement officials to intervene at various stages -- because stalkers' behavior is often characterized by a series of increasingly serious acts -- and the creation of a felony classification for stalking (National Institute of Justice, 1993).

In the fall of 1994, Congress passed the Violent Crime Control and Law Enforcement Act. A part of this crime bill, the Violence Against Women Act, encompassed a provision which makes it a federal crime to cross a state line (or to enter or leave Indian country) "with the intent to injure, harass, or intimidate that person's spouse or intimate partner" or to cause a spouse or intimate partner to cross a state line (or to enter or leave Indian country) by "force, coercion, duress, or fraud," which then results in bodily injury to that person. This provision also makes it a federal crime to cross a state line (or to enter or leave Indian country) with the intent to do anything that violates the "portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury" and then engages in such conduct (Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, Title IV, Subtitle B, Chapter 110A, 2261-2266). In 1996, Congress enacted a law prohibiting interstate stalking and stalking on federal property and other places within federal jurisdiction. The law also expanded the above-described Violence Against Women provisions to include all victims, not just the spouses and intimate partners of offenders. (Passed as part of the National Defense Authorization Act for Fiscal Year 1997, Public Law 104-201, § 1069, codified at 18 U.S.C. 2261, 2261A, and 2262.)

In addition to becoming familiar with current stalking laws, victims of stalking should become informed about the local, state and national resources and procedural precautions available to assist and protect them. Please refer to the FYI bulletin, Helpful Guide for Stalking Victims, as well as the other resources listed below.

References

National Institute of Justice. (1993). Project to Develop a Model Anti-Stalking Code for States, Final Summary Report. Washington, DC: National Institute of Justice, U.S. Department of Justice.

Puente, Maria. (1992, July 21). "Legislators Tackling the Terror of Stalking." USA Today, p. A9.

Bibliography

Guy, Robert. (1993). "The Nature and Constitutionality of Stalking Laws." Vanderbilt Law Review, 46(991).

Lardner, George. (1992, November 22). "The Stalking of Kristen: The Law Made It Easy For My Daughter's Killer." The Washington Post, pp. C1-2.

McAnaney, Kathleen, Laura Curliss and C.E. Abeyta-Price. (1993). "From Imprudence to Crime: Anti-Stalking Laws," Notre Dame Law Review, 68(4), pp. 830 - 849.

National Center for Victims of Crime (1995) "Stalking: Questions and Answers," FYI, Arlington, VA..

National Center for Victims of Crime (1997) "Helpful Guide for Stalking Victims," FYI, Arlington, VA.

Strikis, Silvija. (1993). "Stopping Stalking." Georgetown Law Journal, 81(1).

Thomas, Kenneth. (1992). "Anti-Stalking Statutes: Background and Constitutional Analysis." Congressional Research Service Report.

Thomas, Kenneth. (1993, March - April). "How to Stop the Stalker: State Antistalking Laws." Criminal Law Bulletin, Vol. 124.

For additional information, about your state's anti-stalking law, please contact:

Your state's Attorney General's office (for the phone number, check your local phone book in the Blue Pages under "State Government");

Your local prosecutor's office or law enforcement agency (for the phone number, check your local phone book in the Blue Pages under "City or Local Governments" or "County Government"); and/or

Your local law library, or check with the reference librarian in your local library.

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Copyright © 1997 by the National Center for Victims of Crime.  This information may be freely distributed, provided that it is distributed free of charge, in its entirety and includes this copyright notice.