>>>>>Stalking Laws <<<<< and Implementation Practices
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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:
- Stalking is pervasive and injurious. It affects between 2 million and 6 million victims annually, depending on the definition of stalking used. Official recognition of stalking actions falls far below this number. This failure is significant because stalking often has serious, injurious effects on its victims.
- Implementation of the new stalking laws is still limited. Most law enforcement and prosecution agencies lack policies for responding to stalking complaints and do not have personnel with expertise in stalking cases. Such expertise is important because stalking is a different type of crime . It combines elements of assault, threat, harassment, intimidation, and invasion of privacy. It occurs repeatedly and often must be investigated prospectively (by gathering evidence as stalking behaviors continue to occur after the initial complaint).
- A number of agencies have established special stalking units or assigned specialized staff to handle stalking cases. These efforts both demonstrate the importance of stalking case expertise and provide a model for other jurisdictions to emulate.
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. The study was funded by a grant from the National Institute of Justice to the Institute for Law and Justice (ILJ), grant number 97-WT-VX-0007. While the study has already contributed significantly to the literature on stalking, this report updates and synthesizes ILJ findings. For earlier reports, see Neal Miller, Stalking as a Focus of the STOP Program, in URBAN INSTITUTE, 2000 REPORT : EVALUATION OF THE STOP FORMULA GRANTS TO COMBAT VIOLENCE AGAINST WOMEN (2000); Federal and State Antistalking Legislation, in VIOLENCE AGAINST WOMEN GRANTS OFFICE, U.S. DEPARTMENT OF JUSTICE, STALKING AND DOMESTIC VIOLENCE: THE THIRD ANNUAL REPORT TO CONGRESS UNDER THE VIOLENCE AGAINST WOMEN ACT (1998) [hereinafter THIRD ANNUAL REPORT ]; Appendix E: Stalking Resources on the Internet, in THIRD ANNUAL REPORT ; Appendix F: Selected Bibliography, in THIRD ANNUAL REPORT . The recently released STALKING AND DOMESTIC VIOLENCE: REPORT TO CONGRESS (2001) includes a review of state legislation 1998-2000, a review of stalking court decisions, a report on a 1998 survey of police and prosecutor initiatives, and an updated bibliography. A preliminary report on this research was published as Neal Miller, Stalking Investigation, Law, Policy and Prosecution as Problem Solving, in STALKING CRIMES AND VICTIM PROTECTION: PREVENTION, INTERVENTION, AND THREAT ASSESSMENT (J. Davis ed., 2001) [hereinafter STALKING CRIMES]. The study:
- Analyzed stalking and related legislation in the 50 states,
- Reviewed leading court decisions interpreting those laws,
- Conducted a survey of police and prosecutor agencies across the country to determine how the laws are being implemented,
- Undertook field reviews in jurisdictions with innovative, special anti-stalking efforts, and
- Integrated study findings with the existing research literature on stalkers and their behavior.
The premise for the research was that stalking is a serious crime against persons As will be discussed more fully below, stalking is commonly classified as a felony crime, more serious than simple assault, yet less serious than aggravated assault. The crime closest to stalking is threat to seriously injure (often called "terroristic threat"), which is also commonly classified as a felony offense. Virtually all states include stalking among their codes' listing of crimes against persons. and is widely prevalent. See Patricia Tjaden & Nancy Thoennes, Stalking in America: Findings from the National Violence Against Women Survey, NATIONAL INSTITUTE OF JUSTICE/CENTERS FOR DISEASE CONTROL AND PREVENTION: RESEARCH IN BRIEF 3 (April 1998), who estimate that 1 percent of all adult women are stalked each year (1 million annually) and that 8 percent of all women (8 million) have been stalked at least once in their lifetime. Male stalking victims were estimated at 371,000 annually and 2 million lifetime. In comparison, in 1995 the Bureau of Justice Statistics estimated there were 355,000 attempted or completed rapes or other sexual assaults, approximately one-third of the number of stalking victims. LAWRENCE GREENFIELD, SEX OFFENSES AND OFFENDERS: AN ANALYSIS OF DATA ON RAPE AND SEXUAL ASSAULT 1 (1997). While there has been significant federal support for state and local agencies to adopt anti-stalking lawsSee, e.g., NATIONAL CRIMINAL JUSTICE ASSOCIATION, PROJECT TO DEVELOP A MODEL ANTI-STALKING CODE FOR STATES (1993) [hereinafter MODEL ANTI-STALKING CODE]. and implement anti-stalking initiatives,BUREAU OF JUSTICE ASSISTANCE, REGIONAL SEMINAR SERIES ON DEVELOPING AND IMPLEMENTING ANTISTALKING CODES (1996) [hereinafter REGIONAL SEMINAR SERIES]. In addition, the federal Violence Against Women Act of 1994 explicitly includes provision for federal funding assistance for projects directed at stalking, 42 USC 3796gg. 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.See notes 115-116 and accompanying text for a fuller discussion. Instead, a review of "best practices" was substituted as a prelude to later process and impact evaluations. The major research tasks included the following:
- Review and analysis of research on stalking, especially that relating to stalking's prevalence and impact on victims
- Review and assessment of state laws relating to stalking and ancillary crimes
- Review and analysis of court decisions interpreting stalking and related laws
- Survey of over 400 law enforcement and prosecutor offices in large jurisdictions asking about status of stalking law implementation in those agencies
- Survey of STOP (Services, Training, Officers, and Prosecutors) state funding agencies asking about stalking projects they may have funded
- Site visits to nearly a dozen prosecutor, law enforcement, and victim services agencies with special stalking units or staff
- Telephone and personal interviews with stalking case-experienced staff from over 50 law enforcement, prosecutor, and victim services agencies around the country
- Review and analysis of stalking training, policies and procedures, and operational manuals used by agencies.
In general, the examination of the status of stalking laws and their implementation in the 50 states found the following:
- Misperceptions of what constitutes stalking are widespread. Public awareness that stalking is a crime is lacking, and many criminal justice personnel also lack an understanding of their states' anti-stalking laws.
- The likely number of stalking cases (over 2 million felony and 4 million misdemeanor cases annually) is far greater than previously estimated. Official statistics greatly undercount stalking incidents.
- Stalking often has a devastating impact on its victims.
- Because stalking cases are very different from other personal injury crimes, they require problem-solving approaches in their investigation and prosecution, and they necessitate extensive agency resource commitments to develop staff expertise and allocate sufficient staff time.
- Every state recognizes that stalking is a crime distinct from other offenses, but many state laws lack adequate penalties. In only 12 states is stalking always a felony. In 25 states, stalking may be a felony, depending on the particular circumstances involved or at the discretion of the prosecutor. In the 13 other states, only a repeat stalking conviction is a felony.
- Criminal procedure laws relating to stalking are often lacking. Warrantless arrest for misdemeanor stalking is authorized in only 10 of the 38 states with misdemeanor stalking laws. Other legislative shortcomings include the absence of required training on stalking for law enforcement and prosecution.
- Civil law parallels to criminal anti-stalking laws are not as widespread. Only 26 states authorize the issuance of civil orders of protection against stalking; all 50 states authorize civil protection orders against stalking as domestic violence.
- Stalking laws have been the focus of considerable litigation. Nearly 200 reported cases were found involving stalking law issues, primarily challenges to their constitutionality or questions of interpretation of the scope of the laws. Similar legal issues were raised in another 300-plus cases involving harassment and threat laws.
- Implementation of the new stalking laws is still limited. Most law enforcement and prosecutor agencies do not place operational priorities on implementing state stalking laws. Specialized staffers for investigating and prosecuting stalking cases are available in only a small number of agencies. Training on stalking is generally lacking, especially for non-domestic violence-related stalking.
- Existing special anti-stalking programs demonstrate the usefulness of developing staff expertise with stalking cases and provide models for other jurisdictions to emulate.
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. A few states do not provide detailed statutory definitions of what are termed "common law" crimes. These may include murder, rape, and assault and battery. See, e.g., 17-a ME. REV. STAT. 201-205 (homicide); COL. REV. STAT. c 18-3-201 et seq. (assault). Common law crimes are inherited from the English common law that was in place in the 13 colonies before the Revolutionary War. Stalking is not a common law crime and must be defined by statute. Before stalking laws were enacted, stalking behavior was often characterized as "psychological rape." See K.S. Kurney & Joel Best, Stalking Strangers and Lovers: Changing Media Typifications of a New Crime Problem, in IMAGES OF ISSUES: TYPIFYING CONTEMPORARY SOCIAL PROBLEMS 33-57 (Joel Best ed., 2d ed.) (1995). 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,"
- A prosecutor described a recent homicide case in which an investigator found a diary kept by the suspect that described how he had followed the victim for nearly a year without the victim's knowledge.
- A STOP grants coordinator described how college men targeted specific vulnerable women to invite to a fraternity party at which they would be given date-rape drugs in their drinks.
- A police sergeant stated that proof of stalking includes a showing that the suspect has both threatened the victim and has taken action on his threats against the victim.
- An attorney filed a civil action based in part on the state anti-stalking law that claimed web sites' use of "cookies" to monitor site use is a "surveillance-like" scheme akin to 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.But see, Joyce Hargreaves, Stalking Behavior, in OFFENDER PROFILING SERIES--PROFILING RAPE AND MURDER 1, 3 (David V. Canter & Laurence Alison, eds. 2001) (defining stalking as involving an act of pursuit and stealth). Consider also such uses of the term "stalking" in D.C. JESSE BURKHARDT, FREIGHT WEATHER: THE ART OF STALKING TRAINS (2001); EUELL GIBBONS & RAYMOND W. ROSE, STALKING THE BEAUTIFUL HERBS (1989). 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.See PAUL MULLEN, MICHELE PATHE & ROSEMARY PURCELL, STALKERS AND THEIR VICTIMS 1 (2000) [hereinafter referred to as MULLEN et al.], who begin their book, "Until a little more than a decade ago the word 'stalking' was attached, almost exclusively, to the activities of hunters... To stalk and be stalked today have acquired radically different and even more sinister resonances." Compare Lorraine Sheridan, What is Stalking? The Match Between Legislation and Public Perception, in Australian Institute of Criminology, Stalking: Criminal Justice Responses Conference, December 7, 2000 (available at www. aic.gov.au/conferences/stalking/index.html) (hereinafter referred to as AIC Conference Papers), who found that laws that omit any references to stalker intent or actual victim fear most match public perceptions of what constitutes stalking. 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. Id at 7. See, e.g., Brian Spitzberg & Jill Rhea, Obsessive Relational Intrusion and Sexual Coercion Victimization, 14 J. INTERPERSONAL VIOLENCE 3, 6-9 (1999); Brian Spitzberg, et al., Exploring the Interactional Phenomenon of Stalking and Obsessive Relational Intrusion, 11 COMMUNICATION REPORT 33, 34 (Winter 1998). The concern of mental health professionals with stalking is that stalking often reflects serious psychological problems that require treatment. The term "treatment" as used here refers to a wide variety of interventions, depending on the degree of stalker pathology exhibited. It is not limited to traditional "medical" or psychological/psychiatric modalities. It specifically includes "behavior modification" techniques directed at teaching the stalker to avoid specific behaviors that constitute stalking. However, there is little research on "what works" in treating stalking of any kind, much less the gamut of behaviors that stalkers as a whole demonstrate. 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. J. Reid Meloy & Shayna Gothard, A demographic and clinical comparison of obsessional followers and offenders with mental disorders, 152 AMER. J. OF PSYCHIATRY 258 (1995). 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:
- A pattern of willful or intentional harassing or annoying/alarming conduct, such as repeat messages, following, vandalism, and other unwanted behaviors
- Infliction of credible explicit or implicit threats against a victim's safety or that of her family
- Actual and reasonable victim fear of the stalker resulting from that behavior.See generally, THIRD ANNUAL REPORT , supra note 1; MODEL ANTI-STALKING CODE, supra note 4.
This lengthy definition may be simplified to the three key prosecutorial elements that present the greatest difficulties of proof:
- The defendant's multiple acts were willful or intentional.
- Threats were expressed by those acts.
- Victim fear resulted.
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.A general intent requirement is found in the stalking laws of 22 states and the District of Columbia. These states include Alaska, Arizona, Arkansas, Colorado, District of Columbia, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Michigan, Minnesota, Mississippi, Nevada, New Jersey, New York, North Dakota, Oklahoma, Oregon, and Tennessee. Full statutory cites are provided infra, notes 76-77. See generally Comment, California's Antistalking Statute: The Pivotal Role of Intent, 28 GOLDEN GATE L. REV. 221 (1998) (discussing general versus specific intent). In most states, the prosecution must also prove that the stalker intended to threaten the victim and to cause fear. Laws in 29 states and the District of Columbia provide a specific intent requirement. These states include Alabama, Arkansas, California, Connecticut, District of Columbia, Florida, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. (Full statutory notes are provided infra, notes 76-77.) In a few of these jurisdictions, the specific intent requirement is limited to "aggravated" or serious stalking, while simple stalking has only a general intent to commit the acts that constituted stalking. This review is limited to a "facial" analysis of the 50 states' laws, without regard to how the courts have interpreted or are likely to interpret the stalking laws. This is a significant qualification since many of the stalking laws use ambiguous language. Compare this analysis with that in Federal and State Antistalking Legislation, in THIRD ANNUAL REPORT , supra note 1 at 23, 28-32. (Thirty-five jurisdictions have an intent or "knowing" provision.) 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. The use of an objective or "reasonable person" test has progressed furthest in Australia. See Gregor Urbas, Australian Responses to Stalking, in AIC Conference Papers, supra note 9 at 6.
A threat under most states' stalking laws Originally most states with a threat requirement limited that threat to one involving the death of the victim. Many states have since amended their laws to include lesser threats of serious injury. See e.g., CAL. PENAL CODE 649.6. As of 2000, 23 jurisdictions had criminalized stalking involving threats to the victim's "safety" or similar term. These include Alaska, Arizona, California, Colorado, Connecticut, District of Columbia, Delaware, Georgia, Hawaii, Idaho, Indiana, Kansas, Michigan, Mississippi, Montana, Nebraska, Nevada, Ohio, Oregon, Rhode Island, Vermont, Washington, and Wyoming. Even among those states with stricter threat requirements, the phrase "bodily harm" or its equivalent is used by five states Florida, Illinois, Iowa, Minnesota, and New Jersey). Again, the level of threat required varies in several states according to whether aggravated or simple stalking is charged. In Idaho and North Dakota, the laws have no threat requirement and stalking is a misdemeanor offense. Full statutory cites are provided infra, notes 76-77. may be either explicit or implicit. In 18 states (Alabama, Arizona, California, Colorado, Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, New Hampshire, New Jersey, Pennsylvania, South Dakota, Utah, and Washington), the stalking laws state that a threat may be implicitly made. Another 13 states use language such as "course of conduct" that in conjunction with specific intent and victim fear requirements can be read to include implicit threats. These include Alaska, Georgia, Hawaii, Maryland, Louisiana, Nebraska, New Mexico, New York, Ohio, Rhode Island, South Carolina, Texas, and Wyoming. The THIRD ANNUAL REPORT , supra note 1 at 23, 28-32, identified only 12 states with language in their stalking laws citing implicit threats. Full statutory cites are provided infra, notes 76- 77. 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.
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.
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.Case information was provided by stalking prosecutors in the district attorneys' offices of San Diego and Los Angeles counties.
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. People v. Poynton, GA038353 (Cal. Supr. Ct. L.A. County 2001). See generally, Dalondo Moultrie, Jury Urges Death for Man Who Killed Wife, LOS ANGELES TIMES, March 8, 2001, at B3; Twila Decker, Jury Finds Man Guilty of Killing Wife, LOS ANGELES TIMES, Feb. 28, 2001, at B3.
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.See e.g., J.Reid Meloy, Stalking and Violence, in STALKING AND PSYCHOSEXUAL OBSESSION (J. Boon & L. Sheridan eds., 2001).
In the criminal law context, however, the term "stalking" refers to
- Willful behavior that
- Threatens the safety of a victim and
- Results in victim fear.
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.See e.g., Tjaden & Thoennes, supra note 3.
The significance of stalking The absence of research has not reduced policymakers' concern for stalking remedies. Anecdotal media reports of stalking that end in homicide have been the impetus for enactment of stalking laws in several states, including California and Minnesota. See Doris Marie Hall, Outside Looking In: Stalkers and Their Victims 22 (1997) (unpublished Ph.D. dissertation, Claremont Graduate School), and The Victims of Stalking, in THE PSYCHOOGY OF STALKING: CLINICAL AND FORENSIC PERSPECTIVES 115 (J. Reid Meloy ed. 1998). See also, Note, Minnesota's Anti-Stalking Statute: A Durable Tool to Protect Victims from Terroristic Behavior, 12 LAW & INEQUITIES J. 613, 633-34 (1994) (cited in State v. Orsello, 554 N.W.2d 70 (Minn. 1996)). 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 See, e.g., Suzanne Cavenaugh, Report for Congress on Stalking: Recent Developments 2 (1996) (unpublished Congressional Research Service report on file)(citing as evidence of the number of stalking cases Senator Biden's estimate at hearings on antistalking legislation that there are 200,000 stalking cases annually). 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. Thaden & Thoennes, supra note 3 at 3-4. See infra notes 192-193 and accompanying text for discussion of how this lesser definition of stalking matches state stalking laws' coverage.
The National Survey estimates, although subject to caveats based on response rate and questionnaire issues,It is unclear what the survey response rate actually was. The report claims a "household participation rate" of 72 percent for females and 69 percent for men, with interview completion rates of 97 and 98 percent for women and men respectively. Recalculation of the participation rates by excluding double counting of noneligible respondents in both the numerator and denominator shows the actual participation rate for women to be 67 percent and slightly greater than half for men. Both are still quite good. However, neither number takes into account unanswered phone calls to potentially eligible households. According to the separately published report on the survey methodology, PATRICIA TJADEN & JOHN M. BOYLE, NATIONAL VIOLENCE AGAINST WOMEN SURVEY: METHODOLOGY REPORT 58 (1999) (draft), about one-quarter of all phone calls made were not answered after five separate calls. These households must be counted in determining the actual response rate, since these households may differ significantly from those households where someone was home to answer the calls. In toto, of 31,000 calls to non-business telephone numbers, 1,555 were to non-interviewables due to deafness, health, etc.; 11,789 were callbacks not resulting in an answer; 4,608 were to persons who refused to talk with the survey interviewers; 4,829 reached households where there was no adult; and 351 were terminations. This amounts to a 38 percent response rate, leaving aside the question of non-assigned numbers (the use of the term "callbacks" does not suggest nonworking-numbers). Given the inherent biases of any telephone survey, the survey findings cannot be called definitive on this basis alone. One other potential flaw with this National Survey was its screening question to identify stalking victims. The question asked whether "anyone had ever done (acts such as following, unsolicited calls, etc) on more than one occasion." This language is potentially ambiguous, since a person responding to a telephone interview might hear the question as also including two persons engaging once in stalking-like behavior, rather than being limited to the intended one person repeating his or her acts. 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. Prevalence and Health Consequences of Stalking--Louisiana, 1998-1999, 49 MORBIDITY AND MORTALITY WKLY. REP. 653 (2000) (hereinafter LOUISIANA REPORT ). In several ways, the estimates of stalking based on this survey are similarly a minimal figure. For example, the definition of stalking used by the survey required that the stalking occur for at least one month. There is no such requirement in law, where stalking can occur over the course of an afternoon as long as there were two or more distinct acts. See infra.Even 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. See also Hall, supra note 24 at 150 and 126, who found that stalking victims age 18-25 made up nearly one-fourth of all stalking victims in her sample. 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. BONNIE S. FISHER, FRANCIS T. CULLEN & MICHAEL G. TURNER, THE SEXUAL VICTIMIZATION OF COLLEGE WOMEN (2000). The definition of stalking used here rested solely on the interviewees' perceptions of being the subject of stalking-like behavior. No effort was reportedly made to judge the seriousness of the interviewees'reports of concern for their safety; many states laws require this fear to be of serious injury or danger. This defect affects many other studies of stalking among college women. See, e.g., T.K. Logan, Carl Leukfeld & Bob Walker, Stalking as a Variant of Intimate Violence: Implications from a Young Adult Sample, 15 VIOLENCE AND VICTIMS 91, 91-97 (2000). See also Elizabeth E. Mustaine & Richard Tewksbury, A Routine Activity Theory Explanation of Women's Stalking Victimization, 5 VIOLENCE AGAINST WOMEN 43 (1999) (reporting 15 percent of college women said they had been stalked in past six months). On the other hand, the Fisher survey's failure to define the terms "obsessive" and "repeatedly" (rather than using the common statutory definition of "two or more") may have led to underreporting of stalking. One other study of note is Beth Bjerregaard, An Empirical Study of Stalking Victimization, 15 VIOLENCE & VICTIMS 389, 401 (2000), which found that 6 percent of the sample of college students were being stalked at the time of the study. 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,TRACEY BUDD & JOANNA MATTINSON, THE EXTENT AND NATURE OF STALKING: FINDINGS FROM THE BRITISH CRIME SURVEY 9, 13-14 (2000) (Home Office Research Study 210); Home Office Research, Development, and Statistics Directorate, Research Findings No. 129: Stalking Findings from the 1998 British Crime Survey (2000). The Home Office survey findings show consistently higher crime rates than do United States surveys. Thus, the British survey found that both females and males reported identical rates of domestic violence, 4.2 percent, while the National Violence Against Women survey found 1.8 percent for females and 1.1 percent for males. Whether these differences are due to different methods of surveying or in populations cannot be determined. See also Rosemary Purcell, Michele Pathe & Paul Mullen, The Incidence and Nature of Stalking Victimization, in AIC Conference Papers, supra note 9, who also found a rate of stalking victimization about 50 percent higher than the United States surveys show. 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.Although most stalking research omits juvenile victims, such an omission is contrary to both law and other research suggesting that stalking of juveniles is not uncommon. See Denise M. Emer, Obsessive Behavior and Relational Violence in Juvenile Populations: Stalking Case Analysis and Legal Implications, in STALKING CRIMES, supra note 1 at 33.
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. Tjaden & Thoennes, supra note 3 at 4-5. While the survey also found no important differences among male stalking victims, the small numbers involved here make any such findings problematic. See supra note 27. 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).Hall, supra note 24 at 150-152. 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.Michele Pathe & Paul Mullen, The Impact of Stalkers on Their Victims, 170 BRIT. J. PSYCHIATRY 12, 13 (1997).
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.Mindy B. Mechanic, Terri L. Weaver & Patricia A. Resick, Intimate Partner Violence and Stalking Behavior: Exploration of Patterns and Correlates in a Sample of Acutely Battered Women, 15 VIOLENCE AND VICTIMS 55 (2000). Another study, by Tjaden and Thoennes, found that 16.5 percent of all domestic violence calls involved allegations of stalking. Patricia Tjaden & Nancy Thoennes, The Role of Stalking in Domestic Violence Crime Reports Generated by the Colorado Springs Police Department (report for the National Institute of Justice, December 1999), 15 VIOLENCE AND VICTIMS 427 (2000). 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.Tjaden & Thoennes, supra note 3 at 6.
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.Tjaden & Thoennes, supra note 3 at 9, report that 55 percent of women and 49 percent of men filed police reports. The LOUISIANA REPORT , supra note 28, found that 67 percent of the women reported the stalking to the police. The state reporting the most stalking criminal cases is Florida, which in 1999 reported 704 stalking cases, a drop from 920 in 1998. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, CRIME IN FLORIDA: JANUARY-DECEMBER 1999, 1 (2000). 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. The Violence Against Women Act of 1994 requires the Department of Justice to include stalking as part of the National Incident Based Reporting System, 42 U.S.C. 14038, but this has not had much effect on state and local crime reporting.An example of the latter is New Jersey, which in 1997 reported 345 domestic violence-related stalking offense.NEW JERSEY STATE POLICE, DOMESTIC VIOLENCE OFFENSE REPORT : 1997, 3 (n.d.). In 1997, North Dakota reported the greatest number (per capita) of stalking cases of any state. OFFICE OF ATTORNEY GENERAL, BUREAU OF CRIMINAL INVESTIGATION, DOMESTIC VIOLENCE IN NORTH DAKOTA: 1997 (1999). In 1995, the state reported 82 stalking offenses. 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.OREGON JUDICIAL DEPARTMENT, CIRCUIT COURT STALKING FILINGS BY COUNTY: 1999 (Administrative Office of the Oregon Courts) (data provided by Maureen McKnight, Legal Aid Services of Oregon, February 2000). The large number of stalking orders in Oregon is consistent with the Australian experience where Inez Dussuyer, Is Stalking Legislation Effective in Protecting Victims?, in AIC Conference Papers, supra note 9, reports that in Victoria, Australia, there are 50 orders of protection sought for every stalking case prosecuted. 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.The descriptions of stalking behaviors here culled from the court opinions use only the courts' description of what the witness testimony claimed occurred. As the opinions often note, an appeals court review must look at the evidence from the perspective of the prosecution, that is, was there sufficient evidence that the jury might have believed to sustain a conviction? A jury's general verdict of conviction does not mean that it believed all the evidence it heard. A defendant is still able to contend specific stalking behaviors alleged at trial did not occur, while at the same time being unable to deny that stalking occurred. In all these cases, the convictions were upheld. 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.
- In State v. Marsala, defendant met victim in 1992 when he gave her a ride home one night. He then began stopping by her apartment uninvited and parking his car in front of her house. This went on until June 1993 when he was incarcerated. From prison he sent her letters that frightened her ("...I will strike back if you hurt me and you...know how really dangerous I am."). In March 1994, the defendant entered a facility where the victim had just been admitted two hours earlier; despite staff requests that he leave, he remained for 10 minutes, insisting on seeing the victim. He continued for some time to appear in front of the facility for long periods of time, including twice setting up chairs on the sidewalk in front. From April 1 to June 25, 1994, he made numerous harassing telephone calls to victim's mother to talk about the victim. The defendant was arrested for stalking on April 25 and June 28, 1994, after repeated warnings from victim's attorney to cease stalking her. State v. Marsala, 688 A.2d 336 (Conn. Appl. Ct. 1997). Another minimal acquaintance case is Crenshaw v. State, 515 S.E.2d 642 (Ga. Ct. App. 1999), where the victim had attended second grade with the defendant's son. Defendant began stalking victim when she was age 14 and continued his stalking behaviors when she was divorced and returned home to her parents' house.
- In People v. Nakajima, victim worked as a cashier in a store where she served defendant; once, when she was returning his credit card, he grabbed her hand. On several occasions after that he followed her throughout the store. On October 24, 1995, defendant followed her during her drive home from her elementary school teaching position. He did so again the following day, cutting across two lanes of traffic when she made a turn and staying no more than two car lengths away while traveling at speeds up to 60 miles per hour. That evening, victim saw defendant's car in the parking lot as she left her cashier job to go home. Police were summoned and the officers warned defendant that his actions would constitute a crime if continued. On November 4, victim saw defendant stopping her parents' car to talk with her father. A second warning about stalking was given to the defendant by the State's Attorney's Office, to which defendant responded by letter on November 7 that he would cease his conduct immediately. On November 18, 1995, victim saw defendant cruising the parking lot where she worked as a cashier, then parking a few spots away from her car. Defendant was charged with stalking.People v. Nakajima, 691 N.E.2d 153 (Ill. App. Ct. 1998). Another casual acquaintance stalking case is Troncalli v. Jones, 5114 S.E.2d 478 (Ga. Ct. App. 1999) (civil suit for stalking), where defendant began stalking by twice brushing victim's breasts at a party at a mutual friend's house. Defendant then followed victim in her car when she left the party. Other stalking incidents followed.
- In People v. Allen, the defendant and victim had had a two- or three-year dating relationship that had ended. On January 12, 1992, defendant threatened victim with two screwdrivers while she was walking to a friend's house. On March 8, defendant entered victim's apartment while she was taking a shower and hit her, creating a gash over her eyebrow. He then fled. Later the same evening, victim saw defendant outside her mother's house. He loudly stated that he had torn up victim's clothing and apartment and threatened to throw a Molotov cocktail at her mother's house. When victim returned to her apartment that evening it was indeed severely vandalized-holes in the walls, sink pulled out of the wall, and faucets pulled out of the sink. The sliding door to her bedroom was broken, as were her bedroom set and dresser. All her clothes were gone. On July 24, victim was resting at a friend's house. She woke up at 1 p.m. to find defendant beating on her; her face was swollen and her eye was protruding. On October 25, victim's mother saw defendant outside her home, riding a bicycle. He came and went four times. Defendant then threatened to kill both the victim and her mother, pointing a handgun at the mother. Defendant was arrested for stalking and terroristic threats.People v. Allen, 40 Cal. Rptr.2d 7 (Cal. Ct. App. 1995).
- In State v. Colbry, defendant had been abusing the victim (his wife) before they separated in August 1993. During September, defendant telephoned victim three or more times daily at home and at work. He threatened to fight for custody of their child and "to take [her] for everything [she] had." He also threatened a man with whom he suspected she was having an affair. Toward the end of September, defendant assaulted victim, but the police did not file charges. On October 10, defendant again assaulted victim. In response, she obtained a protection order. As she left the courthouse, her carwas pursued by defendant at high speed. Victim drove to the state police barracks. While she was telling her story, defendant drove up to the officer and threatened to kill victim's male passenger. He next went to victim's home and entered, screaming at victim and threatening to kill her male friend. For weeks thereafter, defendant appeared at victim's work site and followed her home. In December, defendant used his key to enter the couple's residence without permission and in violation of the no-contact order. In January 1994, defendant was convicted of assault for the October incident. In March, he was convicted of trespass for the December incident. Both convictions were accompanied by no-contact orders. Defendant continued to telephone victim and threaten to kill her male friend, with whom she was now living. In June, police monitoring of victim's telephone recorded defendant again threatening to kill or injure victim's male friend. Defendant was arrested for stalking.Peterson, Larson, Colbry v. State, 930 P.2d 414 (Alk. Ct. App. 1996).
- In People v. Borrelli, a woman (victim) obtained a restraining order after separating from her husband (defendant) in July 1995. When defendant appeared unannounced at the victims' parents' house instead of her home as planned on September 21, to pick up their children, he threatened to kill both her and her parents. A few hours later he appeared at her home, angry because the children had fallen asleep. He stomped on her foot and kicked her before leaving. On December 2, defendant appeared at a hair salon and called victim names because she had not been home when he came by to pick up the children. When she returned home to pack clothing for the children to go with defendant, he rear-ended her car while she was still parked in front of her house. She locked the car doors and defendant came up to the car, banging on the door and threatening to kill her. When he returned that evening with the children, he moved as if to grab her neck. For that he was arrested. In April 1996, defendant telephoned and again threatened to kill victim. The next day at 6 a.m. he again called with a threat to kill her. On May 1, victim moved without telling defendant of her new address; child custody exchanges were made at the local police department. On May 7, defendant appeared at victim's place of work, entering her office and calling her names. In December, defendant crashed his car into the front doors of the building where victim worked, saying he was making a statement to his girlfriend, who worked in the building.People v. Borrelli, 91 Cal. Rptr.2d 851 (Cal. Ct. App. 2000).
- In State v. Cartwright, the defendant in August 1997 began accusing the victim of having affairs with coworkers and friends (another common occurrence in many domestic violence cases). Defendant's accusations and threats were followed by apologies, reducing victim's fears. After accusing victim of an affair with her girlfriend, defendant spray painted victim's van with the word "fag." Victim fled to her parents' house and obtained a court order of protection. Defendant began parking across the street from the house in his truck, in which he also slept at night. Soon thereafter he entered the house and stole some of victim's jewelry. He next stole a cellular phone out of victim's van; he was arrested for theft and violation of the court order. Defendant later made reports to the Division of Family Services and to her employer that she was selling company secrets. After victim filed for a divorce, defendant apologized, offering gifts and excuses (claiming his medication was at fault). The accusations began anew when another girlfriend slept over. Once, after victim was talked into letting defendant shower in the house, she found three listening devices in the kitchen, her bedroom, and the spare bedroom. Another recording device was found later in the garage, taped into victim's phone. Still more recording devices were found later. In October, defendant began following victim to work, calling her on her cell phone, and stopping his car in the middle of the road outside her workplace and screaming, "I love you." Defendant also moved into a building near victim's house to allow him to "go outside and scream 'I love you, Laura.'" Defendant next threatened to buy guns when victim refused to give him access to his gun collection at the marital household. At a child visitation exchange, defendant posted a note on victim's car saying, "I am the ax murderer. If you fuck with me one more time, I will kill you." At Christmas victim found defendant in her basement. She called 911. Police discovered he had been there listening to her through the heating vents. Later victim found her nightgown shredded with a knife in the basement. Defendant was arrested for stalking.State v. Cartwright, 17 S.W.3d 149 (Mo. Ct. App. 2000). As these cases illustrate, child visitation requirements present unique complications for victims of domestic violence stalking. See also, for example, Commonwealth v. Alphas, 762 N.E.2d 575 (Mass. 1999), where the defendant began videotaping all his contacts with his divorced wife-victim. One other interesting aspect of that case was the defendant's bragging of using a scanner to hear his ex-wife's phone calls.
- In State v. Hoxie, defendant and victim were separated after eight years of marriage, and a divorce action was initiated in January 1994. Defendant was reported to have come by the school that victim was attending or by her home on a daily basis for the next two months. Many days, he would make 40 to 80 calls. During that period, victim changed her number six times. On some occasions, defendant assaulted victim. Three times in April, defendant appeared at victim's school, questioning her about her activities and friends. On May 22, defendant appeared nude in the victim's driveway, exposing himself to their two daughters. Police responded and escorted him from the property. On May 29, victim returned to her house, where defendant questioned her about her activities that day. An argument ensued, and victim and the daughters fled inside. Defendant beat on the house door until it was dented, and he threatened to kill victim. The victim's phone box was disconnected so that she could not call 911. On June 2, a court no-contact order was issued against defendant. Two days later defendant drove alongside victim's car and screamed at victim. On June 6, defendant called victim's house and warned her male friend to stay away. After leaving the house, the friend found that the tires on his car had been slashed. On June 10, defendant sought to obtain a key to the house from one of the daughters while she was at the local YWCA. On June 12, he came three times to the neighborhood pool where victim and the children were swimming. Defendant assaulted victim and said he would have her killed if she had him removed from the pool. Defendant followed victim to a restaurant on June 29 and later that night telephoned her to say he would not return their daughter from a weekend visitation. Defendant then tried to have victim's school scholarship taken away for misconduct and threatened the scholarship agency "if they did nothing." In July, victim's car tires were slashed on eight occasions. Throughout the summer, defendant left cards and notes at victim's home and place of employment expressing his love for her. Defendant would also follow victim at the school lunchroom. Finally, on October 23, defendant would not remove his truck from victim's driveway; an argument ensued, and he again seriously assaulted her. Defendant was charged with stalking, violation of court orders, and telephone harassment.State v. Hoxie, 963 S.W.2d 737 (Tenn. 1998).
- In Fly v. State, defendant and victim were coworkers and had one dinner date in November 1991. In the next few months, defendant left the victim increasingly invasive messages and presents, including a burglar alarm left on her doorstep with the message that breaking into her home would be easy. It then became apparent that defendant had access to victim's computer at work, and investigation showed that he worked for a company subcontractor. Defendant was fired from his position and blamed victim. Defendant continued sending letters to victim and to her relatives, friends, and a former employer, detailing his love for her. In January 1993, defendant left the victim two $100 bills and letters. One letter stated, "I hope you don't have to die or nearly die to realize that I really cared about you.... " The letters he continued sending showed he was watching her house, going through her trash to obtain addresses of her boyfriends, and following her. Additional letters showed that defendant was taping her phone calls. The messages continued and expanded again to include her friends, coworkers, and minister, as well as the dean of her law school. Defendant was then convicted of wiretapping and placed on probation with a no-contact condition. On June 12, 1994, defendant left a message from the horror movie Fright Night. Defendant was again arrested. From jail, defendant sent the victim's minister a message strongly stating his contempt for the victim. Defendant's probation was reinstated on condition that he leave the state. Three months later he left her a telephone message. Within a week he left a cassette tape on the hood of her car during the night. Defendant was arrested for stalking but continued to send messages from jail to victim and her parents. Fly v. State, 494 S.E.2d 93 (Ga. App. Ct. 1997).
- In State v. Jackson, the victim was a male physician treating a female defendant for Lyme disease. After a while, defendant began to address the victim by his first name, rather than by his title, Doctor. On one occasion, victim found a rose placed on his wife's car, which he was using. A week later, roses were delivered to him at the hospital, signed only with "guess who." About the same time, victim began to receive strange telephone calls at his office, such as the sound of a "raspberry" and the phone hanging up. Other calls involved music playing lyrics, such as "I'll be watching you" and "we'll be together forever or else." Although victim terminated the doctor-patient relationship, the frequency of these calls increased and began to include calls to him while he was eating dinner with his family. At home, his wife began to receive calls followed by either a raspberry or silence several times a week and even several times a day. His wife then began receiving anonymous letters charging victim with adultery. Victim also began receiving odd letters, such as one anonymous note saying his wife was watching the parking lot to see if he left with anyone. A letter was sent to the president of the hospital that charged victim with unprofessional behavior. Defendant then began to intimidate victim in the hospital parking lot. On one occasion, defendant attempted to block victim's egress from the lot. On another occasion, when defendant took his child to a gym for karate lessons, defendant was seen at the front desk staring at victim and his child. Victim then left and defendant followed, continuing to stare at him and his son. State v. Jackson, 742 A.2d 812 (Conn. App. Ct. 2000).
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.Larry Stagner, Stalked, 56 WOMEN'S DAY 49 (March 3, 1993). See also Howard Kohn, The Stalker,180 REDBOOK 106 (April 1993); One Woman's Nightmare, 24 ESSENCE 72 (October 1993); Moore, When A Stalker Stops at Nothing, 225 COSMOPOLITAN 224, 224-28 (December 1998); Francine Maroukian, Stalked: One Woman's Terrifying Tale, 194 REDBOOK 99 (April 2000).
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, Tjaden & Thoennes, supra note 3 at 7. 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. Id. at 11. One other interesting finding was that intimate stalking lasted on average twice as long as non-intimate stalking, 2.2 versus 1.1 years. Tjaden & Thoennes, supra note 3 at 12. Care must be taken with all these findings because of the very small numbers involved. See discussion supra, note 27. 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. Tjaden & Thoennes, supra note 3 at 8. Similarly, 31 percent of stalked former intimates had experienced sexual assault by their former intimate compared to 5 percent in general population. The Louisiana survey also found a high level of prior assaults against stalking victims, 32 percent. LOUISIANA REPORT , supra note 28.
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. Alana M. Nicastro, Amber V. Cousins & Brian H. Spitzberg, The Tactical Face of Stalking, 28 J. CRIM. JUST. 69, 71 (2000). 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. Id. at 75. FISHER et al, supra note 30 at 28, report that 15 percent of their college campus victims said the stalker either assaulted or threatened to assault them. In 10 percent of the incidents, the stalker forced or attempted sexual contact. 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. Hall, supra note 24 at 150 and 132.
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:
- Courtship (e.g., letters, calls and personal meetings expressing love and saying "we can work things out," gifts and flowers)
- Surveillance (e.g., following, driving by home, calling employers) to send a "message"
- Symbolic violence (e.g., breaking into home, vandalism, property theft, leaving penal code provision number for murder on victim's pager)
- Physical violence. Jennifer Dunn, Courting Disaster: Intimate Stalking, Victimization, and the Law (n.d.) (unpublished paper on file with Sacramento County (Cal.) District Attorney's Office).
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.Id. In Nakajima, supra note 48, victim testified that she was "absolutely terrified." The court decision stated that she did not know what defendant intended or why he was following her. According to the victim, she "wanted to get to a safe place" and "didn't know if he would try to harm [her] in any way." In Hoxie, a neighbor testified that victim asked her to raise her children should defendant kill her. In Troncalli, the victim "developed shingles, experienced nausea and vomiting, became frightened and depressed, and sought psychological counseling." In State v. Schwab, 695 N.E.2d 801, 806 (Ohio App. Ct. 1997), victim reported that she no longer drives places or walks in her parents' neighborhood by herself, that she had purchased a cellular phone in case defendant "caught up with her," and that she is afraid for herself and her children. In Johnson v. State, 648 N.E.2d 666 (Ind. Ct. App. 1995), victim had moved four times in Ohio and then moved to a shelter in Indianapolis, all in an effort to hide from her ex-boyfriend stalker.
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. Colleen Ann Kasting, Being Stalked: Is Anyone Listening? An Exploration of Women's Voices (n.d.) (unpublished M.A. Dissertation, University of Victoria). 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.
- Interviewee 1 reported that her stalker was an acquaintance who first tried to gain control over her by implicating her in an armed robbery. He was convicted and sent to prison for the offense, but he continued to stalk her and on five occasions assaulted her; he was not convicted of assault, instead being returned to prison as a parole violator. Upon being released again, he abducted her and sexually assaulted her. The initial police response to reports of the abduction were minimal until a superior officer was reached. The sex crime detective assigned to the case after the arrest provided her with considerable assistance, including obtaining a name change and help in relocating to another jurisdiction. That detective continues to keep in contact four years later. At the same time, the detective also provided her with personal in-court support while she was waiting to testify in the criminal matter. Other police officials were less helpful, e.g., although they helped her sell her car anonymously, the sale was for only a small fraction of its worth. Eventually the police were helpful in helping her obtain a new driver's license and social security number. However, the latter took two years, during which she could not work and had to rely on welfare.
- Interviewee 2 was a former victim of domestic abuse who was assaulted after leaving the relationship. She reported, "I had to fight with the [prosecutor] to get her to even, like the police laid the charges, but the [prosecutor] said there wasn't enough evidence to charge, yet the police hadn't given her the whole file. So I really had to check up on the information she had, and that she was getting from the police. I was asking her if she had gotten the doctor's report and she said she didn't have them and that she didn't think they would be beneficial...." She further observed that "the whole legal system, the court system, etc., they don't work together enough. I guess they aren't severe enough...there's not enough repercussions for [the stalkers].... It's not made open enough in the newspapers.... That would be more validation...so that he can't walk with his head quite as high."
- Interviewee 3 was asked, "Did the police put you through hell?" She responded simply, "Yeah, and so we moved away." She also reported, "I went through the court system and it was an absolute disaster. I had no support from anybody and to be quite honest, I would never go through that again. Never.... I went through the five prosecutors and by the time I got to trial they didn't even have the evidence." She later said that after the conviction, "I still couldn't get on with my life...every time I go to town.... Just last summer, I ran into him...waving away at me...I just fell apart. She added, "I still feel like a victim. The only financial compensation I got was from workman's compensation. To me, money is the only thing that will compensate me. For one thing, it will get me out of this house...there was a long, long time when I couldn't even come home to the house. This is where he tried to kill me. This is where it all went on." She concluded, "I think the court system caused me health problems [nervous breakdown]. It was a big letdown to be told he was going to get a jail sentence and then he didn't."
- Interviewee 4 reported, "I still have to deal with the court system on an ongoing basis for the children's access to their father. Probation officers are the worst. They put me at more risk than anyone else.... [They] try to facilitate or mediate for custody access. They're not paying attention to what women are saying. And when I'm standing in front of one who's asking me to put myself at risk because they don't think the risk is great enough or they are telling me that the way I'm keeping myself safe is too extreme for them...."
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).Tjaden and Thoennes, supra note 3 at 11-12. Again, care must be taken with all of these detailed findings because of the very small numbers involved. See discussion supra, note 27. Nonetheless, the central finding about the seriously negative impact of stalking on its victims is not subject to such qualification. See generally, Keith E. Davis & Irene Hanson Frieze, Research on Stalking: What Do We Know and Where Do We Go? 15 VIOLENCE & VICTIMS 473, 479 (2000). 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.LOUISIANA REPORT supra note 28. 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. Mustaine & Tewsbury, supra note 30 at 56-57.
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:
- Major lifestyle changes or modification of daily activity for 94 percent of victims
- Curtailment of social activities for 70 percent of victims
- Decrease or cessation of work or school attendance for 50 percent of victims (due either to absenteeism or stalker invasion of work or school site)
- Relocation of residence for 40 percent of victims
- Change of workplace or school for 34 percent of victims.Pathe & Mullen, supra note 35.
The researchers also found important psychological problems resulting from the stalking, including these:
- Increased anxiety and arousal for 80 percent of victims
- Chronic sleep disturbance for 75 percent of victims
- Recurring thoughts or flashbacks to the stalking, resulting in distress for 55 percent of victims (often triggered by ordinary events such as a ringing telephone or doorbell)
- Appetite disturbance for 50 percent of victims
- Excessive tiredness, weakness, or headaches for 50 percent of victims
- Numbing of responses to others, including feeling of detachment for 38 percent of victims
- Nausea before going to places associated with the stalking for 33 percent of victims
- Increased alcohol or cigarette use for 25 percent of victims
- Contemplation of suicide for 25 percent of victims.Id.
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."MULLEN et al, supra note 9 at 59. 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).Nicastro et al, supra note 63 at 75. 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).Hall, supra note 24 at 152.
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. E. Blaauw, F. W. Winkel & E. Arensman, The Toll of Stalking: The Relationships Between Features of Stalking and Psychopathology of Victims, in AIC Conference Papers, supra note 9.
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
- Statutory anti-stalking enactments and interpretative court rulings and
- Local anti-stalking initiatives, with special attention to the federal role in supporting these initiatives.
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:
- Stalking criminal laws
- Stalking civil laws
- Related criminal laws
- Criminal procedure laws, e.g., warrantless arrest for stalking and requirements for stalking training.
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.First offense stalking felony laws include ALA. CODE 13A-6-90, 91; ALASKA STAT. 11.41.260 (weapon, minor, or order violation); ARIZ. REV. STAT. 13-2923; ARK. CODE 5-71-229; CAL. PENAL CODE 646.9 (discretionary charging with prosecutor); COLO. REV. STAT. 18-9-111 (4), (5); CONN. GEN. STAT. 53a-181c (order violation or minor); DEL. CODE tit. 11 1312A; FLA. STAT. 784.048 (threat or order violation); GA. CODE 16-5-91 (order violation); 720 ILCS 5/12-7.3, 7.4; IND. CODE 35-45-10-5; IOWA CODE 708.11 (order violation, weapon, or minor); KAN. STAT. 21-3438; KY. REV. STAT. 508.130, .140, .150 (order violation or weapon); LA. REV. STAT. 14:40.2 (B)(3) (order violation); MD. CODE art. 27 124 (five-year misdemeanor); MASS. GEN. LAWS ch. 265 43; MICH. STAT. 28.643(9)(3) (threat or order violation); MINN. STAT. 609.749 (5); MO. REV. STAT. 565.225 (5); NEV. REV. STAT. 200.575 (2)(a), (3)(a); N.J. STAT. 2C:12-10 (c), (e) (order violation or while under supervision); N.M. STAT. 30-3A-3, 3.1 (order violation, weapon, or minor); N.Y. PENAL L. 120.40- 120.60; N.D. CENT. CODE 12.1-17-07.1 (6)(a)(2) (order violation); OHIO REV. CODE 2903.211 (B)(2) (made threat, weapon use, history of violence with victim, order violation, damage to property of victim, trespass); OKLA. STAT. tit. 21 1173 (order violation); 18 PA. CONS. STAT. 2709 (c)(2)(ii); S.C. CODE 16-3-1720 (B), 1730 (order violation or violence); S.D. CODIFIED LAWS 22-19A-2 (order violation); UTAH CODE 76-5-106.5 (5) (weapon); VT. STAT. tit. 13 1061-63; WASH. REV. CODE 9A.46.110 (5)(b) (order violation, weapon or special victim); WISC. STAT. 940.32 (3) (with bodily injury); WYO. STAT. 6-2-506 (e) (bodily injury or order violation) 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. Laws authorizing felony penalties for a second misdemeanor stalking offense include HAW. REV. STAT. 711- 1106.4 (where stalking accompanied by order violation); IDAHO CODE 18-7905 (c); MISS. CODE 97-3-107 (3); MONT. CODE 45-5-220 (3); NEB. REV. STAT. 28-311.03, .04; N.H. REV. STAT. 633:3-a (VI)(a); N.C. GEN. STAT. 14-277.3 (b); OR. REV. STAT. 163.732; R.I. GEN. LAWS 11-59-2 (6); TENN. CODE 39-17-315 (b)(2); TEX. PENAL CODE 42.072 (c). States that provide felony penalties for a second misdemeanor stalking conviction where felony penalties are available for the most serious stalking cases include Alaska, Connecticut, Georgia, Hawaii (if second violation violates court order or release conditions), Indiana, Iowa, Louisiana (within seven years), Michigan, Missouri, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Washington, Wisconsin, and Wyoming. Laws providing felony penalties for a third stalking conviction include ME. REV. STAT. tit 17-A 210-A (3), 1252 (2)(C) (general incarceration sentencing provisions); VA. CODE 18.2-60.3 (B); W.VA. CODE 61-2-9a (d). See also IOWA CODE 708.11 (3)(a), providing for felony penalties for a third simple stalking conviction. The District of Columbia provides for increasing penalties for both second and subsequent stalking convictions, D.C. CODE 22-504.The federal interstate stalking law also provides for felony penalties. 18 U.S.C. 2261A. Exhibit 1 details the differences in stalking penalties among the states.
Exhibit 1. Stalking Criminal Laws: Felony or
Misdemeanor Penalties, 2001
| 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. N.C. GEN. STAT. 14-277.3. 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. HAW. REV. STAT. 711-1106.5; 720 ILCS 5/12-7.3. Similarly, Maryland law defines stalking in terms of approaching or pursuing the victim, MD. CODE art. 27 124. Wisconsin defines stalking as "repeatedly maintaining a visual or physical proximity" to the victim. WISC. STAT. 940.32 (I)(a).Connecticut law forbids only stalking involving following or lying in wait.CONN. GEN. STAT. 53a-181d, 181e. In 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. W. VA. CODE 61-2-9a.This 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. State laws authorizing stalking protection orders include ARIZ. REV. STAT. 12-1809 (harassment); CAL. FAM. CODE 6320, CIV. PROC. CODE 527, 527.6 (workplace violence order); COLO. REV. STAT. 13-14-102, 18-1- 1001 (criminal order of protection); FLA. STAT. 784.046; GA. CODE 16-5-94; HAW. REV. STAT. 604-10.5; IDAHO CODE 18-7905 (by implication); IOWA CODE 708.12 (1) (criminal no-contact); ME. REV. STAT. tit. 5 4655; MD. CTS. & JUD. PROC. 3-1503, 1504, 3-8201 (peace order); MICH. STAT. 27A.2950(1); MINN. STAT. 609.748; MO. REV. STAT. 455.020, .040, .050; MONT. CODE 40-15-220 (4); NEB. REV. STAT. 28-311.09; NEV. REV. STAT. 200.591; N.H. REV. STAT. 633:3-a (III-a); N.J. REV. STAT. 2C:12-10.1 (after guilty plea or finding), 10.2 (child or developmentally disabled); N.D. CENT. CODE 12.1-31.2-01 (disorderly conduct order); OHIO REV. CODE 2903.214; OKLA. STAT. tit. 22 60.2 (A); OR. REV. STAT. 30. 866, 163.735, .738; R.I. GEN. LAWS 11-59-3 (setting penalties for order violation); S.C. CODE 16-3-1750-1790; S.D. CODIFIED LAWS 22- 19A-8; VA. CODE 19.2-152.8-.10.; WASH. REV. CODE 10.14.040-.200 (anti-harassment); WIS. STAT. 813.12, .125; WYO. STAT. 7-3-507-511. See also GA. CODE 34-1-7 (workplace order of protection issued to employer on behalf of employee); VA. CODE 18.2-60.3 (D) (criminal no-contact order authorized after plea or finding of guilty); W. VA. CODE 61-2-9a (h)(i) (criminal no-contact order authorized after plea or finding of guilty). 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.Arizona and Michigan are among the states that authorize anti-stalking orders but do not explicitly authorize criminal penalties for violation of an anti-stalking protective order. Presumably, criminal contempt is an alternative criminal penalty in these states. (See, e.g., ARIZ. REV. STAT. 12-1809.) In only nine states can a violation of the stalking order be treated as a felony; Felony penalties for violating a stalking court order are provided by CAL. FAM. CODE 6320, CAL. CIV. PROC. CODE 527, 527.6; GA. CODE 16-5-91; NEV. REV. STAT. 200.591 (5)(b)(permanent order); N.D. CENT. CODE 12.1-17-07.1 (6)(a)(2); OHIO REV. CODE 2919.17 (B)(2)(b) (with two prior order violations or stalking convictions); OR. REV. STAT. 163.732 (2)(b); R.I. GEN. LAWS 11-59-3; WASH. REV. CODE 9A.46.110 (5)(b); WYO. STAT. 6-2-506 (e)(iv). 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. See IDAHO CODE 18-7905 (c); MO. REV. STAT. 455.085.1 (7), (8); MONT. CODE 45-5-626 (third violation is felony); N.H. REV. STAT. 633:3-a (VI)(a) (second offense); VA. CODE 18.2-60.3 (B) (third offense). Only 10 states have legislation providing for the entry of stalking protective orders into a special statewide registry. See CAL. CIV. PROC. CODE 527.6 (n), CAL. FAM. CODE 6380 (b); COLO. REV. STAT. 18-6-803.7 (2); FLA. STAT. 784.046 (8)(b) MICH. COMP. L. 600.2950a (7); MINN. STAT. ANN. 609.748 Subd. 7; MO. REV. STAT. 455.040(3); 22 OKL. STAT. 60.5; OR. REV. STAT. 163.741; VA. CODE 19.2-152.10(E); WASH. REV. CODE 10.14.110. See also ARIZ. REV. STAT. 12-1809 (K) (authorizing county level registry); NEV. REV. STAT. 200.597 (local dissemination); OHIO REV. STAT. 2903.214(F) (local registry). However, 36 states also have registries for domestic violence protective orders; such orders typically include anti-stalking provisions or stay-away orders.These include ALASKA STAT. 18.65.540; ARIZ. REV. STAT. 13-3602(L) (local registry); ARK. CODE 12-12- 215(a); CAL. FAMILY CODE 6380; COLO. REV. STAT. 18-6-803.7; CONN. GEN. STAT. 46b-38c(c); DEL. CODE tit. 10 1046(b); FLA. STAT. 784.046(8)(b), 741.30(7)(b), 943.05(2)(e); IDAHO CODE 39-6311(2)(b); IND. CODE 5-2-9-5; 725 ILCS 5/112A-28, 750 ILCS 60/302; KY. REV. STAT. 403.737, 403.770; ME. REV. STAT. tit. 19 16 632(4-B); MD. CODE art. 27 7A; MASS. GEN. LAWS ch. 209A 5 (referring to Acts 1992, Ch. 188, establishing registry); MICH. STAT. 27A.2950(10); MO. REV. STAT. 455.040(3); NEV. REV. STAT. 179A.350; N.H. REV. STAT. 173-B:5(IX); N.J. STAT. 2C:25-28(n), 29 (c) (state police notification); N.Y. EXEC. LAW 221-a; N.C. GEN. STAT. 50B-3(d); N.D. CENT. CODE 12-60-23; OHIO REV. CODE 3113.31 (F)(2) (local registry); OR. REV. STAT. 107.720; 23 PA. CONS. STAT. 6105(E), 6109 (B); R.I. GEN. LAWS 12-29-8.1; TENN. CODE 36-3-609; TEX. FAM. CODE 85.042(a), GOV'T CODE 411.042 (b)(5); UTAH CODE 30-6-8, 53-5-209; VT. CODE tit. 15 1107(b); VA. CODE 16.1-279.1(B); WASH REV. CODE 26.50.100, .160; W. VA. CODE 48-2A-12; WIS. STAT. 813.12(6)(b), (c); WYO. STAT. 35-21-110.
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.State laws criminalizing threats include ALA. CODE [new], 2000 Acts , Act 807; ARIZ. REV. STAT. 13-1202; ARK. CODE 5-13-301; CAL. PENAL CODE 422; COLO. REV. STAT. 18-3-206 (menacing), 18-9-106(1)(b) (disorderly conduct); CONN. GEN. STAT. 53a-62, 181 (d); DEL. CODE tit. 11 621; D.C. CODE 22-504(a); FLA. STAT. 836.05 (verbal threats), 836.10 (written threats); GA. CODE 16-11-37; HAW. REV. STAT. 707-716; 720 ILCS 5/12-6; IND. CODE 35-45-2-1; KAN. STAT. 21-3419; KY. REV. STAT. 508.050, 525.060 (1)(a); LA. REV. STAT. 14:40.1; ME. REV. STAT. tit. 17-A 209, 210; MD. CODE art. 27 562; MASS. GEN. LAWS ch. 275 1 et seq.(maintaining peace); MINN. STAT. 609.27; MO. REV. STAT. 574.010.1(c); MONT. CODE 45-5-203; NEB. REV. STAT. 28.311.01; N.H. REV. STAT. 631:4; N.J. STAT. 2C:12-3; N.Y. PENAL LAW 120.14(1); N.C. GEN. STAT. 14-277.1; N.D. CENT. CODE 12.1-17-04; OHIO REV. CODE 2903.21, .22; OKLA. STAT. tit. 21 1362; OR. REV. STAT. 166.155; 18 PA. CONS. STAT. 2706; TEX. PENAL CODE. 22.07; UTAH CODE 76-5-107; VT. STAT. tit. 13 1026, 1701; WASH. REV. CODE 9A.46.020; WIS. STAT. 943.30. In many states, threats may alternatively be punished as common law assault. See, e.g., 18 PA. CONS. STAT. 2701(a)(3); TENN. CODE 39- 13-101(a)(2). 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) Harassment laws include ALA. CODE 13A-11-8; ALASKA STAT. 11.61.120(a)(1); ARIZ. REV. STAT. 13-2921; ARK. CODE 5-71-208; COLO. REV. STAT. 18-9-111(1); CONN. GEN. STAT. 53a-182b; DEL. CODE tit. 11 1311, 12; HAW. REV. STAT. 711-1106; IOWA CODE 708.7; ME. REV. STAT. tit. 17-A 506-A; MD. CODE art. 27 123; MASS. GEN. LAWS ch. 265 art. 43A; MINN. STAT. 609.27. 749; MO. REV. STAT. 565.090; NEV. REV. STAT. 200.571; N.H. REV. STAT. 644:4; N.J. STAT. 2C:33-4; N.M. STAT. 30-3A-2; N.Y. PENAL LAW 240.25, .30; ND CENT. CODE 12.1-31-01(1)(e), (g), (h); OR. REV. STAT. 166.065; 18 PA. CONS. STAT. 2709 (A); S.C. CODE 16-3-1700, 1710; TEX. PENAL CODE 42.07; WASH. REV. STAT. 9A.46.020; WIS. STAT. 947.013. The Missouri law cited here also includes specific reference to harassment by means of electronic communication. and telephone harassment or threats (43 states).Telephone threat or harassment laws include ALA. CODE 13A-11-8; ALASKA STAT. 11.61.120(a)(2)-(4); ARIZ. REV. STAT. 13-2916; ARK. CODE 5-71-209; CAL. PENAL CODE 653m; COLO. REV. STAT. 18-9-111(1)(e)-(g); CONN. GEN. STAT. 53a-182b, 183; FLA. STAT. 365.16; GA. CODE 46-5-21; IDAHO CODE 18-6710; 720 ILCS 5/12-6; IND. CODE 35-45-2-2; IOWA CODE 708.7; KAN. STAT. 21-4113; KY. REV. STAT. 525.080; LA. REV. STAT. 14:285; ME. REV. STAT. tit. 17-A 506; MD. CODE art. 27 555A; MASS. GEN. LAWS ch. 269 14A; MICH. STAT. 28.808; MINN. STAT. 609.79, .749(2)(a)(4), (2)(a)(5); MO. REV. STAT. 565.090; MONT. CODE 45-8-213; NEV. REV. STAT. 201.255; N.M. STAT. 30-20-12; N.Y. PENAL LAW 240.30; N.C. GEN. STAT. 14-196, 14-277.1; N.D. CENT. CODE 12.1-17-07; OHIO REV. CODE 2917.21, 4931.31, 4931.99 (penalty provision); OKLA. STAT. tit 21 1172; OR. REV. STAT. 166.065 (1)(c),166.090; 18 PA. CONS. STAT. 5504; S.C. CODE 16-17-430; S.D. CODIFIED LAWS 49-31-31; TENN. CODE 39-17-308; TEX. PENAL CODE 42.07; UTAH CODE 76-9-201; VT. STAT. tit. 13 1027; VA. CODE 18.2-427; WASH. REV. CODE 9.61.230; W. VA. CODE 61-8-16; WIS. STAT. 947.012; WYO. STAT. 6-6-103. Letter threat laws have been enacted in 20 states.Letter threat laws include ARK. CODE 5-71-209 (a)(1); CONN. GEN. STAT. 53a-182b, 183 (a)(2); FLA. STAT. 836.10; 720 ILCS 5/12-6; IND. CODE 35-45-2-2 (a)(2); IOWA CODE 708.7 (1)(a)(1); KY. REV. STAT. 525.080; MD. CODE art. 27 561; MICH. STAT. 28.622; MISS. CODE 97-3-85; MO. REV. STAT. 565.090; NEV. REV. STAT. 207.180; N.Y. PENAL CODE 240.30(1); N.C. GEN. STAT. 14-277.1(a)(2), 394; OKLA. STAT. tit. 21 1304; OR. REV. STAT. 166.065(1)(c); TENN. CODE 39-17-308(a)(1); TEX. PENAL CODE 42.07; VA. CODE 18.2-60; WIS. STAT. 943.30. The federal government has also enacted laws criminalizing interstate threats or harassment using the mail or electronic communications (including telephone).These laws include 18 U.S.C. 115(a)(1)(B); 18 U.S.C. 875(c); 18 U.S.C. 876; 47 U.S.C. 223.
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. These include FLA. STAT. 484.048; IDAHO CODE 19-603; IOWA CODE 708.11; 17-A ME. REV. STAT. 15; MD. CODE art. 27 594B; MO. REV. STAT. 565.225; N.H. REV. STAT. 633:3-a (V); OHIO REV. CODE 2935.03; 18 PA. CONSOL. STAT. 2711; VA. CODE 19.2-81.3. See also IND. CODE 35-33-1-1(1)(a)(7). Although the California law permits a stalking case to be charged as a misdemeanor at the discretion of the prosecutor, CAL. PENAL CODE 646.9, stalking is a felony for purposes of warrantless arrest. 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.MISS. CODE. 97-3-7(3), (4)(c). Other states that authorize warrantless arrests based on probable cause in domestic violence cases may by implication authorize similar arrests where stalking is committed in the context of a relationship covered by the state's domestic violence law.
Legislation in only two states (Minnesota and Nevada) requires law enforcement training in stalking. MINN. STAT. 626.8451(1a), NEV. REV. STAT. 289.600. See also CAL. PENAL CODE 13519.05 (voluntary training program required); FLA. STAT. 943.17(5) (violent crime training required). In comparison, 30 states require law enforcement training on domestic violencePolice entry-level training on domestic violence is required by ALASKA STAT. 18.65.240, 18.65.510; CAL. PENAL CODE 13519 ; CONN. GEN. STAT. 7-294g(a), 46b-38b(f); D.C. CODE 16-1034; FLA. STAT. 943.171; GA. CODE 35-1-10; IDAHO CODE 39-6316; 50 ILCS 705/7 (a); IOWA CODE 80B.11 (2); KY. REV. STAT. 403.784; MASS. GEN. LAWS ch. 6 116A; MICH. STAT. 4.450(9 (c), 28.1274(3); MINN. STAT. 629.341 (subd. 5); MO. REV. STAT. 590.105.1 (7)(8)(9); NEB. REV. STAT. 42-927; NEV. REV. STAT. 481.054 (1)(m), (2)(e), (stalking training), 5(b); N.J. STAT. 2C:25-20; N.Y. EXEC. LAW 642 (5), 214b; OHIO REV. CODE 109.744, .77 (B)(3); OKLA. STAT. tit. 70 3311 (D)(2) (family intervention training); OR. REV. STAT. 181.642 (2); 23 PA. CONS. STAT. 6105 (a); R.I. GEN. LAWS 12-29-6 (a); S.D. CODIFIED LAWS 23-3-39.5, 42.1; TEX OCC. CODE 1701.253 (b)(1)(B)(iv); UTAH CODE 77-36-2.3; VA. CODE 9-170(38); WASH. REV. CODE 10.99.030 (2)-(4); W. VA. CODE 48-2A-9 (i), 48-2C-17; WIS. STAT. 165.85 (4)(b)(1); WYO. STAT. 7-20-105.; 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. Related criminal laws include intimidation and extortion; both of these include threats as punishment for past or future acts. Excluded from this review are criminal law cases that involve these related laws but where the facts of the case show behavior totally unrelated to stalking. See, e.g., Coates v. City of Cincinnati, 402 U.S. 611 (1971) (public disturbance of the peace) and State v. Kansas, 629 P.2d 748 (Ka. Ct. App. 1981) (hate crime threats, in this case cross burning).These 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.These cases were selected for review on these bases: (1) they involved an important legal question that has implications for interpretation of the stalking law or (2) the case facts involved a situation akin to stalking and questions of sufficiency of the evidence were important to the court decision. (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 issuesSee, e.g., Soldona v. State, 466 S.E.2d 655 (Ga. Ct. App. 1996) (insufficient evidence claim) and People v. Garrett, 36 Cal. Rptr.2d 33 (Ct. App. 1994) (evidence admissibility challenge). where no constitutional or statutory interpretation issues were decided. See also Kirkendoll v. State, 945 S.W.2d 400 (Ark. Ct. App. 1997) (defendant charged with stalking claimed failure of waiver of right to counsel in pro se defense).Threat and harassment cases that were totally unrepresentative of stalking concerns were excluded; these included, for example, threats and verbal abuse of police officers.See, e.g., Robinson v. State, 615 So.2d 112 (Ala. Ct. Crim. App. 1992). Other examples of excluded cases include People v. Thomas, 148 Cal. Rptr. 52 (Ct. App. 1978 ) (threat against witness testifying at future trial) and People v. Mirmirani, 178 Cal. Rptr. 172 (1982) (political terrorism threat). See also State v. Milner, 571 N.W.2d 7 (Iowa 1997) (arson threat against employees of state unemployment insurance office who had denied defendant claim to benefits) and State v. Mortimer, 641 A.2d 257 (NJ 1994) (bias-motivated harassment). 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.See, e.g., Seattle v. Camby, 701 P.2d 499 (Wash. 1985) (en banc) (intoxicated customer of restaurant, on being asked to leave, threatened doorman of restaurant).
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. See generally, Colautti v. Franklin, 439 U.S. 379, 395 (1979) ("This court has long recognized that the constitutionality of a vague statutory standard is closely related to whether the statute incorporates a requirement of mens rea").
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. See UNITED STATES DEPARTMENT OF JUSTICE, CYBERSTALKING: A NEW CHALLENGE FOR LAW ENFORCEMENT. A REPORT FROM THE ATTORNEY GENERAL TO THE VICE PRESIDENT (1999) [hereinafter CYBERSTALKING]. See also case example supra. 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.
Exhibit 2. 1998-2001 Stalking Legislation by Type of
Law and by State
| 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,42 U.S.C. 10601 et seq. 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.The short, six-question survey was printed one a single sheet of paper (front and back) and was designed to elicit a high response rate (which it did). 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:
- All but seven police agencies assign stalking cases to either their detective unit or a specialized unit, usually the domestic violence unit, or to a combination of crimes against persons detectives and domestic violence investigators.This finding indicates there have been significant changes in the way law enforcement agencies respond to stalking since stalking laws were first adopted. A survey of police agencies conducted in the early 1990s conducted by the Police Executive Research Forum reported that "[d]omestic violence and crimes against persons units are rarely involved" in investigating stalking incidents. MODEL ANTI-STALKING CODE, supra note 4 at 39. This change probably reflects the greater emphasis now placed on domestic violence by law enforcement rather than any increase in their perceptions of the seriousness of stalking. A few agencies assign stalking cases to their sex crimes unit. Only one law enforcement agency had a specialized stalking unit.
- Most prosecution offices similarly assign stalking cases to their domestic violence unit. A significant minority (15 percent) split stalking case duties between the domestic violence unit and another unit, usually the general trial unit. Another important pattern was for stalking to be handled by a special unit that is responsible for prosecution of domestic violence, sex crimes, and specialized cases such as child or elder abuse. Seven offices have either a specialized stalking unit or an assistant or deputy prosecutor who specializes in stalking cases.
- Stalking training for police recruits is typically part of domestic violence training. About 13 percent of the agencies had specialized training in stalking that was independent of domestic violence training, although several offered both types of training. Less than 15 percent of the police agencies offered no stalking training to recruits. Significantly, over one-third provided no in-service stalking training to their officers. Slightly more than half reported in-service training on stalking is provided to all detectives or to special unit detectives.
- Most prosecutor offices (82 percent) provide some training on stalking. About 25 percent of the offices provide in-service stalking training to all their attorneys, and 17 percent provide stalking training to new attorneys; most of the latter agencies provide both types of training. Over one-third of the offices limit their in-service training to special unit prosecutors. Ten percent of the prosecution offices said that the only stalking training their attorneys get is from outside training sources.
- Fifty-seven percent of police agencies have written policies and procedures for handling stalking cases, most often as part of their domestic violence protocols. Only 11 agencies have separate stalking protocols. A slightly smaller proportion (50 percent) of prosecutor offices said they had written policies for prosecuting stalking cases. Only six offices have separate stalking protocols, including one office that also had a domestic violence stalking protocol.
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,
- Law enforcement agencies continue to assign stalking cases to non-stalking specialist units, most commonly the investigative division and secondarily to the domestic violence unit. Only three agencies reported that they rely on patrol officers to investigate stalking cases; however, another 19 agencies report that they split responsibilities in stalking cases between patrol and an investigative unit, with patrol officers usually handling either the preliminary investigation or low threat cases entirely. At the same time, there was increased reliance on having domestic violence unit detectives investigate stalking directed at intimates or former intimates, and on other detectives handling stranger and acquaintance stalking (22 percent of agencies split stalking case responsibilities in 1998 and 25 percent in 2000). In toto, nearly 40 percent of law enforcement agencies assign stalking cases to their domestic violence units, either exclusively or in conjunction with other detectives.
- Between 1998 and 2000, the number of prosecutors with a specialized stalking unit or prosecutor increased to 10 offices. Most continue to assign these cases to their domestic violence unit (70 percent). The number of stalking specialists in the domestic violence units increased, however, from two in 1998 to four in 2000. One other office reported having a stalking specialist prosecutor in another division, making a total of 15 agencies with stalking prosecutors, with a few other smaller offices reporting that their sole domestic violence prosecutor also was trained to handle all stalking cases. This is a significant increase from the seven such offices reporting stalking prosecutors in 1998. Surprisingly, 38 offices said they had no special unit or staff for handling stalking cases, up slightly from two years ago.
- Training on stalking showed slight improvement. Indeed, law enforcement agencies providing no stalking training to recruits actually increased (31 agencies in 2000 without such training versus 23 in 1998).A yet unpublished ILJ survey of state Police Officer Standards and Training agencies that regulate recruit training standards showed that in 2000, 35 states required such training. Of these, only six states devoted any significant amount of time to this training (1 hour or more). The remaining POST agencies included stalking as an element of some other training, e.g., domestic violence. The survey findings for in-service training are even more dismal; only 17 states offer in-service stalking training to law enforcement officers in their states. See also Graham Farrell, David Weisburf & Laura Wyckoff, Survey Results Suggest Need for Stalking Training, 67 POLICE CHIEF (Oct. 2000 at 163), who report that only 18 percent of police officers surveyed in a large Northeastern city defined stalking in a manner consistent with the state criminal law definition. There was a slight proportional gain in law enforcement agencies that include stalking training as part of their domestic violence training for recruits, from 71 to 73 percent. The proportion of agencies providing specialized stalking training did not change (13 percent). Prosecutor training actually worsened in some ways. The number of offices reporting no stalking training increased to 36 (21 percent versus 18 percent in 1998). The proportion of offices training new prosecutors on stalking remained constant, 17 percent. Twelve percent of prosecutors trained their staff on stalking issues only when external funds were available to go to conferences and the like, compared to 10 percent in 1998.
- Sixty-two percent of law enforcement agencies reported having policies and procedures related to stalking, most commonly as part of their domestic violence protocols, an increase from 1998 when 57 percent reported having such policies. Fifty-three percent of prosecutors reported having stalking policies and procedures, again a small increase from the 50 percent two years earlier. For both types of agencies, only a small number had stalking policies and procedures separate from their domestic violence protocols (nine law enforcement and seven prosecution agencies).
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:
- There is increased awareness among law enforcement and prosecutors of the significance of stalking crimes. To some degree, prosecutors have been better able than law enforcement agencies to develop staff expertise with stalking cases.
- Much more needs to be done by law enforcement and prosecutors. Only a small number of agencies have staff dedicated to stalking case investigation and prosecution. Training on stalking issues is badly lacking. A significant number of agencies equate stalking with domestic violence, failing to recognize that acquaintance and stranger stalking is common.
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. See supra notes 37-43 and accompanying text.Inferences 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.Tjaden & Thoennes, supra note 37 at ii-iii. Since that report was prepared, the department's multi-jurisdictional DVERT team, responsible for handling the most dangerous domestic violence cases, made a policy decision to stress stalking cases and made over 40 stalking arrests in 2000. In 2001, DVERT expects to make about 70 arrests for stalking. Personal communication, Howard Black, DVERT supervisor. DVERT, however, only accepts domestic violence cases involving the most serious threats to the victims; non-domestic violence and lesser threat cases that have a stalking component still may go unrecognized. Moreover, the research study was not designed to look at the incidence of stranger and acquaintance stalking. Since the police department makes few arrests for stalking outside of DVERT, there may also be problems with patrol officers recognizing these latter stalking cases. Farrell et al., supra note 109, report that the likelihood of an officer handling a stalking case increases threefold when that officer has previously handled a stalking case. Whether this is because the officer is now more sensitive to stalking cases or there is some other causal factor operating is not clear.
Federal jurisdiction in stalking cases arises from the Interstate Stalking Act of 1996, as amended.18 U.S.C. 2261A. 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,The interstate-stalking law was amended in 2000. See Victims of Trafficking and Violence Prevention Act of 2000, P.L. 106-386, 114 STAT. 1464 (2000). Section 1107 of the Act amended 18 U.S.C. 2261A to add the latter prohibition. 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.Personal communication, Margaret Grobun, VAWA Specialist, Executive Office of the United States Attorneys and Assistant United States Attorney, District of Maine. These statistics are based on an informal hand count of interstate stalking indictment cases, since the computerized information system for the Department of Justice may be inaccurate with respect to low-volume cases. The recent VIOLENCE AGAINST WOMEN OFFICE, STALKING AND DOMESTIC VIOLENCE REPORT TO CONGRESS 42 (2001), reported that as of October 2000 there had been 35 prosecutions against 39 stalkers brought by the Department of Justice.
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
- Verify that stalking was a project component and
- Identify other projects that contain a stalking element, even if not officially reported as such.
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. Supra note 45. See also Dussuyer, supra note 45. 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.See, e.g., Gene Barton, Taking a Byte Out of Crime:E-Mail, Harassment and the Inefficacy of Existing Law, 70 WASH. L. REV. 465 (1995); Susan E. Bernstein, Living Under the Siege: Do Stalking Laws Protect Domestic Violence Victims? 15 CARDOZO L. REV. 525 (1993); Wayne E. Bradburn, Jr., Stalking Statutes:An Ineffective Legislative Remedy for Rectifying Perceived Problems With Today's Injunction System, 19 OHIO N. U. L. REV. 271 (1992); Jennifer L. Bradfield, Anti-Stalking Laws:Do They Adequately Protect Stalking Victims? 21 HARV. WOMEN'S L.J. 229 (1998); Nanette Diacovo, California's Anti-Stalking Statute:Deterrent or False Sense of Security, 24 S.W.U.L. REV. 389 (1995). See also James T. Tucker, Stalking the Problems with Stalking Laws: The Effectiveness of Florida Statutes Section 784.048, 45 FLA. L. REV. 609 (1993) (reporting on a survey of law enforcement agencies that describes their response to the newly enacted stalking law, which was found to be deeply flawed). As the review of state legislation supra indicates, many state stalking laws do have significant flaws. This does not exclude the possibility, however, that the better drafted laws have had positive effects. This includes the since-amended Florida law that was the subject of Tucker's research. 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:
- The absence of any legislative consensus on what a stalking law should be like (and what behaviors it should criminalize)
- The lack of any uniformity in the implementation of stalking laws across and within states
- The absence of agreement on quantitative performance measures that can be used to evaluate stalking laws' effectiveness.
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 lawE.g., the American Bar Association's volumes, CRIMINAL JUSTICE STANDARDS. See more generally, NEAL MILLER &PETER OHLHAUSEN, COMPENDIUM OF STANDARDS FOR INDIGENT DEFENSE SYSTEMS (2000) (presenting a review of nearly two dozen separate sets of standards, including detailed prescription of the activities expected of defense counsel)., 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
- Incidence of stalking reports,
- Number of arrests,
- Number of stalking cases filed by the prosecutor, and
- Number of civil protection orders ordered by the court,
and outcome-related measures such as
- Number of convictions and
- Incidence of related crimes (e.g., stalking ending in homicide).
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. It is likely that cases now charged as stalking were previously charged under harassment, threat, or even trespass laws. But there is no way to know the degree to which this occurred. 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.For example, case filing statistics in a jurisdiction with aggressive policing of stalking may undercount the true filing numbers because the prosecutor is able to obtain consecutive misdemeanor penalties in lieu of a low-level felony charge. Over time, law enforcement will also begin to file similar charges (as they learn what the prosecutor's policy is).
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.Compare, J. HARRIS, AN EVALUATION OF THE USE AND EFFECTIVENESS OF THE PROTECTION FROM HARASSMENT ACT OF 1997 (Home Office Research Study 203) (2000), which also takes a process evaluative approach in select jurisdictions to what is a nationwide anti-stalking law. As used here, "best practices" means that there is general consensus among practitioners that the specific activities described constitute desirable actions. This is, of course, a far different standard than judging best practices on the basis of empirical study. A somewhat different approach to evaluation was taken by Dussuyer, supra note 45. Her evaluation of the effectiveness of stalking laws first used police and magistrate responses to a survey to learn how the criminal justice system has responded to the new stalking law and then asked for their opinions on the law's effectiveness. Recommendations for changes in the law were also obtained. The study's key statistical finding was that judicial intervention was thought to have been a significant factor in 40 percent of all cases where the stalking stopped and that in only 12.7 percent of the cases did stalking not cease. Id. at 7.1. 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. The Institute for Law and Justice has considerable information posted about stalking, as well as other violent crimes against women, at its website (http://www.ilj.org/stalking/index.htm).
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:
- Special stalking units develop the necessary expertise in identifying, investigating, and prosecuting stalking crimes by working ongoing crimes. Staffing of special units is still experimental. Often, a special unit shares jurisdiction over stalking crimes with other agency units, taking only the most serious cases.
- Special unit staff are highly qualified and motivated, often working unpaid overtime to handle both their caseload and community education and training.
- The special units have become highly expert at investigating and prosecuting stalking cases and helping victims. The many new practices they have developed provide models for other agencies to copy.
- Special units are more likely to join with other justice and victim services agencies in a coordinated community response. Such coordination enhances the unit's problem-solving capabilities and provides critical resources for ensuring victim safety and well-being.
- Failure of non-special unit agency personnel to identify stalking behavior is a continuing problem. All the special units devote considerable resources to training other criminal justice personnel and to educating the community.
The field review also showed that expertise with stalking cases is critical because such cases often present unique elements. These include the following:
- Stalking cases are hard to identify at the outset. Because stalking involves a course of conduct, complaints to law enforcement about a single incident often do not reveal that stalking is occurring. Often, responding officers must probe the victim's description of what she is concerned about before the stalking nature of the complaint becomes clear.
- Stalking is a prospective or future-looking crime, while most crime investigations deal with past crimes. Investigation of stalking typically requires collection of evidence of stalking from the point when the victim reports the stalking to law enforcement; in most cases, the victim's report of prior stalking behaviors cannot be confirmed or corroborated by independent sources. Hence, proof of the stalking behaviors must come from future actions of the stalker. This further implies that the victim and the investigators must try to manipulate the stalker in his behaviors to facilitate the collection of evidence.
- The victim's testimony is usually not enough to prove stalking. Corroboration is needed. Yet, because the victim is often alone when the stalking occurs, direct corroboration may not be available. Hence, law enforcement often depends on the victim for evidence collection. This could include taping phone messages or conversations or retaining letters or presents from the stalker.
- Corroboration is also needed to prove the victim's actual fear. Corroboration of her state of mind includes evidence that shows that the victim asked others for help in dealing with the stalker (such as having coworkers screen her calls at work or notifying apartment building personnel about the stalking) or proof of a change in telephone number.
- Threat assessment and management to protect victim safety are parallel concerns. At the same time that the investigation and prosecution are occurring, officials must also ensure victim safety. Thus, threat assessment and management are an integral part of the agencies' stalking response. This task is made especially complicated where the stalking suspect displays signs of mental illness or personality disorder (e.g., pathological jealousy).
- False victimization reports are becoming more and more common, yet such cases may be difficult to distinguish; common indicia of false reports, such as diminishing victim cooperation with the investigation, are not as reliable in stalking cases. Whether the victim is seeking attention or trying to shift the blame, false victim reporters have significant incentives to keep telling their stories. Since all stalking cases are highly dependent on the victim to collect evidence, the lack of corroborative evidence may not become apparent for some time.In addition to the classical unfounded "victim" complaints, there are numerous anecdotal reports of stalkers, especially those who have committed prior domestic violence, filing false stalking reports against the victim. Because the motivations for such false claims are usually apparent (e.g., to muddy the waters at trial), such false claims are usually not difficult to identify.
- Stalking cases cross jurisdictional boundaries, such as when the victim works in one jurisdiction, lives in another, and shops in a third. Hence, agency coordination is especially important. Because stalking is an ongoing crime, steps must be taken to coordinate investigations across jurisdictional lines and to ensure that all agencies are made aware of the existence of the ongoing investigation.
- Stalking cases do not necessarily end upon conviction. Stalkers may continue their stalking behaviors while on probation and even while incarcerated. Conversely, stalking may not be prosecuted if prosecuting the stalker may result in extreme danger to the victim; other, non-criminal law alternatives may be required (e.g., victim moving).
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.Although there are a few crimes for which evidence may be collected as the crime is committed, these are almost always non-personal injury crimes. Such forward-looking investigations are, however, common in many economic crime investigations, police "sting" operations, and conspiracy investigations. 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."Hargreaves, supra note 8 at 3. 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.Victim advocates who work with police and prosecutor agencies provide help to victims of many different crimes. However, stalking victims often present a unique set of problems that last for an extended period. While some domestic violence victims present similarly long-lasting demands for aid, such demands are less common among domestic violence victims than among stalking victims.
For all these reasons, criminal justice agencies must adopt a problem-solving approach. Such an approach includes the following elements:
- Identification of stalking cases
- Case investigation and management
- Prosecution and sentencing
- Protection of the victim, even after sentencing and incarceration.
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. Personal communication from Gael Strack, Deputy City Attorney, San Diego City Attorney's Office (Domestic Violence Unit supervisor).
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.Personal communications.
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:
- Assault
- Abduction
- Violation of court order
- Burglary/criminal trespass
- Theft of personal clothing
- Vandalism/destruction of property
- Cruelty to animals (pet mutilation or killing)
- Wiretapping or mail tampering
- False reports to police
- Weapons violations.
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.Casey Gwinn, Gael Strack, Paul Cooper &Kurt Mechals, Stalking Questionnaire (August 1996) (unpublished manuscript from San Diego City Attorney's Office). 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.See REGIONAL SEMINAR SERIES, supra note 5 at 18.
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.Chicago Police Department, Department Special Order 92-5, Procedures in Stalking Cases IV (C) (1999). 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.Los Angeles Police Department, Threat Management Unit, Threat Management Unit Guidelines (Feb 1999). 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.Michael A. Zona, K. K. Sharma &John Lane, A Comparative Study of Erotomania and Obsessional Subjects in a Forensic Sample, 38 J. FORENSIC SCI. 894 (1993). See also Michael A. Zona, Russell E. Palarea &John Lane, Psychiatric Diagnosis and the Offender-victim Typology of Stalking, in THE PSYCHOLOGY OF STALKING: CLINICAL AND FORENSIC PERSPECTIVES 70 (J. Reid Meloy ed., 1998). A review of the relevant literature on this typology as of 1997 is Joseph Davis &Marcella Chipman, Stalkers and other obsessional types: A review and forensic psychological typology of those who stalk, 4 J. CLINICAL FORENSIC MED. 166 (1997). This typology focuses on the psychological underpinnings of the stalker-victim relationship. Thus, the typology distinguishes between three types of psychological motivations for stalking:
- Simple obsessional. Stalker and victim had a prior relationship (e.g., former intimate partners). The motivations for the simple obsessional relationship include a desire to lure the other person back into a relationship, anger at loss of control or feelings of mistreatment, and revenge for perceived wrongs.
- Love obsessional. The stalker and the victim have no prior relationship but the stalker, nonetheless, focuses on the victim as the object of love and adoration. Some stalkers suffer from a psychiatric disorder such as schizophrenia, while others are simply socially maladjusted. Stalking of public figures is a common subgroup of this category.
- Erotomania. The defining characteristic of this type of stalking is that the stalker delusionally believes that the victim is in love with him. Moreover, the stalker may perceive other parties as responsible for the victim's failure to acknowledge this love. Hence, spouses of the erotomanic's victim can also become stalking victims because the stalker believes that the spouse is interfering with the victim's love for the stalker.
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. Personal communications from prosecutors and victim advocates from New York City to Austin, Texas, to Sacramento, California. MULLEN et al., supra note 9 at 191-92, discuss a number of reasons for false victimization claims; their listing does not, however, include reasons for false victimization claims based upon a legal defense strategy to rebut the stalking criminal charges. They do make reference, however, to "malingerers" as a group of false stalking claimants, who do so to avoid prosecution for other offenses by claiming an unknown person is stalking them. Id. at 198-202.
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.Ronnie B. Harmon, Richard Rosner &Howard Owens, Obsessional Harassment and Erotomania in a Criminal Court Population, 40 J. FORENSIC SCI. 188 (1995); Sex and Violence in a Forensic Population of Obsessional Harassers, 4 PSYCHOL., PUB. POLICY &LAW 236 (1998). 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.James A. Wright, Allen G. Burgess, A.T. Laszlo, Gregg O. McCrary &John E. Douglas, A Typology of Interpersonal Stalking, 11 J. Interpersonal Violence 487 (1996). 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.Reported in MULLEN et al., supra note 9 at 74. 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.MULLEN et al., supra note 9 at 80-81. 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:
- Hyperintimacy (aggressive or inappropriate romantic gestures)
- Pursuit and proximity (increased contact including collection of information by such means as surveillance)
- Invasion (escalated surveillance)
- Intimidation (coercion in response to rejection)
- Violence (last resort or rage response to rejection).
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;Among others, this category includes the classic domestic violence batterer who uses stalking as a means of continuing prior efforts to control the former intimate. See R. F. DOBASH &R. P. DOBASH, WOMEN, VIOLENCE AND SOCIAL CHANGE (1992) for a discussion of the controlling behavior paradigm. 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.Brian H. Spitzberg &William R. Cupach, What Mad Pursuit? Obsessive Relational Intrusion and Stalking Related Phenomena, AGGRESSION &VIOLENT BEHAVIOR (in press, 2002). See also Spitzberg and Cupach, Paradoxes of Pursuit: Towards a Relational Model of Stalking-Related Phenomena, in STALKING CRIMES, supra note 1; The Inappropriateness of Relational Intrusion, in INAPPROPRIATE RELATIONSHIPS (R. Goodwin &Duncan Cramer eds., 2001)
The several researchers studying stalking from a variety of perspectives (psychiatric, behavioral science, legal) have identified five critical variables:
- Prior relationship
- Motivation for stalking
- Mental health status of stalker
- Stalking behaviors
- Background explanatory factors.
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).A more complete review of mental health issues of stalkers than that found here is in J. Reid Meloy, Stalking (Obsessive Following) in J. REID MELOY, VIOLENCE RISK AND THREAT ASSESSMENT, 167, 174-75 (2000).
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.See JAN ROEHL &KRISTIN GUERTIN, CURRENT USE OF DANGEROUSNESS ASSESSMENTS IN SENTENCING DOMESTIC VIOLENCE OFFENDERS (September 1998) (reprinted in 21 JUSTICE SYS. J. 171 (2000) (identifying ten "dangerousness" instruments). 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.Unlike some dangerousness instruments, MOSAIC does not claim to be a predictor of violence in specific cases. Instead, it is described by its creator, Gavin de Becker, as a "training system that teaches an assessment method" (personal communication, April 2001). From this perspective, its usefulness lies in the fact that the MOSAIC computer program leads users to consider variables related to threat assessment that they might not have thought about or gathered information on. It does not, therefore, provide correlation statistics to show what proportion of stalker behavior is accounted for by its 10-point scale. Even if such statistics were available, it is not clear that its practitioner users would find them useful. Many practitioners have also favorably commented in interviews on the fact that MOSAIC is designed to allow them to quickly provide a threat assessment report to victims, thereby underscoring how serious their cases are and emphasizing that they need to take actions to reduce that threat. On the other hand, the absence of validation data means that use of MOSAIC should not extend to its citations by expert witnesses as evidence relevant to proving victims' reasonable fear. Other instruments, such as the Spousal Assault Risk Assessment (SARA), that have been subject to validation studies are more appropriate for testimonial purposes. Personal communication from Dr. J. Reid Meloy.
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.
Exhibit 3. Stalking Typologies Summary
| 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.Personal communication. 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.See REGIONAL SEMINAR SERIES, supra note 5 at 18 (discussing stalking by gang members in public housing).
Case investigation may use these typologies in a number of ways.Threat assessment may make even more use of this information. See infra notes 208-221 and accompanying text. 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.MULLEN et al., supra note 9 at 78. 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.Id. 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.Id. 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.Id at 105, 111. 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.Id at 177, 179.
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.Id at 161-165.
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. Questions of the voluntariness of reconciliation may be often asked, however, since fear of the stalker may be the real motivation, especially where there is a history of domestic violence. Nonetheless, reconciliation for whatever reason undercuts the prosecution of a stalking case that by its very nature requires victim testimony about fear of the stalker.
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:Jennifer Dunn, Forceful Interaction: Social Construction of Coercive Pursuit and Intimate Stalking (1999) (unpublished Ph.D. dissertation, University of California at Davis) (scheduled for commercial publication in 2002).
- Active resistance
- Help seeking
- Coping to reduce danger
- Coping by complying with the stalker's demands.
Victim's active resistance (i.e., self-help in facing the stalker) included (in declining order of frequency):
- Not letting defendant in
- Threatening to call 911
- Fighting or struggling
- Logging or recording the stalker's behavior.
Help seeking behavior included:
- Calling police/insisting on arrest/insisting on prosecution
- Getting an escort
- Screaming.
Victim coping strategies to minimize danger included:
- Screening phone calls/changing phone number
- Leaving the scene/moving within the area
- Staying with family or friends, or hiding
- Taking other security measures.
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:
- Requesting that the case be dismissed, or recanting
- Visiting defendant in jail
- Going places with the stalker
- Continuing to have sex with the stalker.</l