The crime of stalking is the unwanted pursuit or harassment of another person that places that person in fear or causes them mental distress.
Stalking behaviors include following a person, appearing at a person's home or place of business, and making harassing phone calls. It may also involve leaving written messages or objects or vandalizing a person's property.
Media coverage of celebrity stalkers gives the impression that victims are strangers targeted by an obsession. In reality, it's more likely that a stalker will be someone you know.
By its nature, stalking is not a one-time event. Rather, it is a pattern of behavior meant to cause harm or distress. Stalking cases include repeated harassment or misconduct directed at a specific person over a period of time. Law enforcement will review a suspect's series of actions to determine if stalking charges are appropriate.
Stalking may involve criminal offenses like making physical threats of harm. It may also involve a series of acts, some criminal and some noncriminal, that only demonstrate a criminal intent when viewed as a whole.
Read on to learn more about stalking laws and penalties, legal defenses, and where to go for help for a crime victim or someone accused of a crime.
What Is Stalking?
All 50 states have laws against stalking. Federal law also prohibits stalking that crosses state lines (interstate stalking). It also prohibits stalking via mail, an interactive computer service, or an electronic communication system used in interstate commerce (cyberstalking).
The federal Office on Violence Against Women (OVW) defines stalking as a course of conduct directed at a specific person that would cause a reasonable person to:
- Fear for their safety or the safety of others
- Suffer substantial emotional distress
In most states, stalking laws require the government to show that the defendant, with knowledge or purpose, engaged in such a course of conduct to place the victim in fear or to cause them mental distress.
Police may charge an individual with stalking regardless of any pre-existing relationship with the victim. The course of conduct can include several actions that occur relatively close in time. It may include following the victim, harassing the victim by phone, or showing up where the victim lives or works. It may also include unwanted text messages and threats posted on social media.
In California, for instance, the California Penal Code provides that the crime of stalking prohibits:
Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family.
So, for example, Dan spends a number of hours each week harassing Victoria, his former girlfriend, by following her home from work, sending her threatening emails, and calling her in the middle of the night. It isn't just a one-time occurrence but a pattern of harassment and threats. The "credible threat" can be direct or implied by Dan's conduct. Under such circumstances, the police may charge Dan with the offense of stalking.
In Ohio, state law defines the crime differently. It covers several behaviors that amount to stalking. Based on an offender's conduct, the crime may be a misdemeanor or a felony. The crime of menacing by stalking in Ohio states that no person, by engaging in a pattern of conduct, shall knowingly cause:
- Another person to believe that the offender will cause physical harm to the other person or to their family member or household member
- Mental distress to the other person or to their family or household member
The basic offense of menacing by stalking is a first-degree misdemeanor. Yet, several aggravating factors may enhance the stalking charge to a felony of the fourth degree. Such factors include:
- Having a prior conviction under the stalking statute
- Making a threat of physical harm to or against the victim
- Trespassing on the land or premises where the victim lives, works, or attends school
- The victim is a minor (under 18 years old)
- The offender has a history of violence toward the victim or any other person
- The offender has a deadly weapon on or about their person
- The offender is subject to a protection order issued against the offender that is active at the time of the offense
- The offender caused serious physical harm to the victim's residence or real property where the residence is located or any personal property on the premises
- There is evidence that a court had previously determined the offender to represent a substantial risk of harm to others
Menacing by stalking can also become a felony offense when the crime includes the use of any written communication or electronic message. The use of a written or verbal graphic gesture or urging someone else to commit stalking enhances the offense as well. Felony enhancement also occurs when the offender has a sexual motivation or targets child protective service workers.
Let's go back to our example with Dan. Under Ohio law, if Dan's threatening emails included threats of physical harm to Victoria, his conduct would expose him to a felony menacing by stalking charge.
As state laws may vary, you may want to seek legal advice to clarify the potential punishment in your state. For example, a misdemeanor stalking conviction in Ohio may lead to up to 6 months in county jail, a $1,000 fine, or both. A felony stalking conviction can result in up to 18 months in state prison, a $5,000 fine, or both.
In California, stalking may result in up to 1 year in county jail, a $1,000 fine, or both. If the offender commits the offense while subject to a protection order or with a prior felony or stalking conviction in their criminal record, the court can impose a term of years in state prison.
Defense strategy will vary based on the facts and circumstances of an individual case. Common legal defenses raised in stalking cases include:
- Alibi/Mistaken Identity: The defendant provides alibi evidence that they were not at the location(s) where the victim says the crime occurred.
- Coincidental Acts: The defendant had legitimate business that placed him in the location(s) where the crime occurred but no criminal intent to stalk the victim.
- Conduct Not Intended to Cause Fear or Harm: The defendant may agree that they had an argument or dispute with the victim. Yet, the defendant claims their actions did not amount to stalking the victim or making threats of physical harm. The defendant may attempt to show the victim could not have a "reasonable" belief that their safety was at risk.
- Question the Victim's Credibility: The defendant may claim the stalking victim's statements are not true or are mistaken. The defendant may attempt to show that the victim has a motive to lie or make false accusations toward them.
Stalking and Domestic Violence
While stalking is often discussed in the context of celebrities and the paparazzi, most cases involve current and former domestic partners, estranged spouses, or obsessive or controlling behaviors by an acquaintance. Over 80% of stalkers know their victims.
For this reason, stalking charges often occur in cases of domestic violence and dating violence, where one party has intimidated or threatened violence against the other party.
In a common scenario, the victim of domestic violence or dating violence is the party trying to leave the relationship. This can be a dangerous time for a victim. Once arrested for domestic violence, the defendant might attempt to reach out to the victim to convince them to drop the charges. Or they might pressure the victim to become uncooperative or unavailable to police or prosecutors. If the victim does not respond, the defendant may engage in stalking activities to locate and confront the victim.
In domestic violence and dating violence cases, the police and prosecutors will often seek a temporary protection order or restraining order during the criminal case. Victims can also seek a civil protection order that can last beyond the time frame of the criminal prosecution.
Protection orders are court orders that tell the defendant to make no contact with the victim or the victim's family or household members. Domestic violence offenders will often violate these orders in their attempts to contact the victim or intimidate the victim. The police can arrest a defendant for violating a protection order or stalking a victim, filing new charges.
When Does a Court Issue a Protective Order?
State laws permit courts to issue protective orders in certain criminal cases and through civil procedures as well. In most states, the victim in a criminal case can request and receive a protective order from the court in cases involving:
- Domestic violence
- Dating violence
- Sexual Assault
The victim or the police come forward and offer evidence of a criminal incident or series of threatening behaviors by the defendant. If there is good cause, the judge will issue a protective order (also called orders of protection and restraining orders). They require the subject of the order -- the suspect or defendant -- to remain a certain distance from the alleged victim for a specified time. They may grant temporary custody of children to the victim. They may also provide exclusive use of a residence or home to the victim.
Penalties for violating a protective order may vary based on the circumstances. Where the defendant's criminal record demonstrates prior convictions, the offense may proceed as a felony and expose the defendant to a prison sentence.
Need Help Related To Stalking Charges? Contact An Attorney
The crime of stalking usually requires a pattern of behavior with an intent to cause fear or suffering, but each state has its own definition and penalties.
If you believe someone is stalking you, consider contacting local law enforcement. You can also contact national hotlines hosted by the National Center for Victims of Crime (855-484-2846) or the Strong Hearts Native Helpline (844-762-8483).
If you're being investigated or charged with a stalking crime or any criminal matter carrying the threat of jail time or prison time, you should consider speaking with an experienced criminal defense attorney near you.