43. Stalking

Stalking is a relatively new crime now on the books in every state. It is generally defined as the intentional, repeated following of a person for the purpose of harassing the person with express or implied threats of violence or death. The definitions vary only slightly from state to state with some states adding things like lying in wait, surveillance, or warnings from police officers. Stalking statutes have become very important legal devices that, with protective orders, can help shield people from the threatening or harassing behavior of others in a variety of circumstances.

Most notably, celebrities have been the victims of stalking activity, when fans become obsessed with the object of their attention. Stalking may also occur when a jilted lover becomes obsessed with his or her ex-lover or spouse, or even when a person becomes obsessed with a complete stranger or co-worker. The crime can turn every day life into a nightmare for the victim of this crime. Consequently states have been quick to enact laws that specifically protect victims from harassing or stalking activity, even if the victim has not yet actually been physically injured by the defendant.

Several states have particular requirements in order for enhanced penalties to apply. The enhanced stalking crimes are usually distinguished by their designations as either first and second degree, or felony and misdemeanor stalking. Most often, enhancements are if the victim is below a certain age, or if the defendant has violated a court order or protective order, or if a deadly weapon was used.

Certain notorious cases have given rise in some states to specific legislation aimed at protecting particular persons. This may be the case in Illinois and New Jersey, each of which have provisions that state that incarcerated persons in penal institutions who transmit threats are not barred from prosecution under their stalking legislation.

Minnesota has a very broad stalker statute that exemplifies the variety of situations in which the law is used. Under this law, a person can be found guilty of stalking by harassment, or by intent to injure person, property or rights of another. A stalker may stalk using telephone calls, letters, telegraphs, delivery of packages or engaging in any conduct which interferes or intrudes on another’s privacy or liberty. These acts are considered “gross misdemeanors.” They are various situations where the crime of stalking in Minnesota is increased to a felony if the harassing activity is based on race, color, religion, sex, sexual orientation, disability or national origin, if stalking is accomplished by falsely impersonating another or using a dangerous weapon, if the victim is under 18 or if stalker is more than 36 months older than the victim. Although Minnesota’s state is unusual in terms of the breadth and detailed listing of activities covered, nearly every element contained in it can be found in some form in the provisions of some other state. A few states have added to the stalker’s penalties liability for the victim’s counseling for emotional trauma caused by the stress of the stalking experience.

In what may be perceived as a very new trend, three states have enacted amendments to their stalking laws that include “cyberstalking.” Two states, Illinois and Florida, actually use the term in their statutes, while Rhode Island simply adds special penalties to their existing laws if the crime is committed using computers “to engage in harassment.” It is expected that in the coming years, “cyberstalking” will increasingly become the subject of new stalking laws.

STALKING

Beginning in the late 1980s stalking became an accepted word in the American vocabulary and a distinct criminal offense under state and federal law. The sensitivity of the mental health and legal communities to this abnormal social behavior was heightened by the notable cases of Prosenjit Poddar (Tarasoff v. Regents of University of California, 551 2d 334 (1976); Meloy, 1996) and John Hinckley, Jr. (Caplan). Extensive media coverage of the stalking of some celebrated actors, musicians, and television show hosts raised the consciousness of the American public to this offense in the mid-1990s.

Stalking is the willful and malicious act of following, viewing, harassing, communicating with, or moving threateningly or menacingly toward another person. Stalking behaviors may be expressed by written and verbal communications, unsolicited and unrecognized claims of romantic involvement on the part of victims, obsessive surveillance, harassment, loitering, and following that may produce intense fear and psychological distress to the victim. Stalkers use telephone calls, conventional and electronic mail, and vandalism to communicate their obsessional interests.

Stalking is typically a long-term crime without a traditional crime scene. The stalking occurs at the target's residence, place of employment, shopping mall, school campus, or other public place. There are a number of aborted or obscene phone calls or anonymous letters addressed to the target professing love or knowledge of the target's movements. Written communications or symbolic items are often left on vehicle windows or placed in mailboxes or under doors by the stalker. The tone of communications may progress from protestations of adoration, to love, to annoyance at not being able to make personal contact, to threats of violence and menacing.

Although the actual number of stalking victimizations has yet to be systematically documented, a congressional report of 1998 estimates that approximately 1.5 million victims are subjected to the terror of threatened violence annually (Department of Justice). Remarkably, there are an estimated 200,000 stalkers in the United States. One of every twelve women in the United States has been or will be a victim of a stalker during her lifetime; one out of every forty-five men has suffered or will suffer the same fate. Stalking over the Internet, known as cyberstalking, claims additional victims from an estimated forty thousand offenders (Karczewski).

All states in the United States (including the District of Columbia) have passed antistalking legislation, following California's lead, in an attempt to fill the gaps left by generally ineffective civil restraining orders and criminal statutes prohibiting such activities as "threats of violence," "criminal trespassing," and "harassment" (Geberth). Many of these state statutes are patterned after provisions of a model anti-stalking law jointly drafted by the National Criminal Justice Association (NCJA) and sponsored by the National Institute of Justice (NIJ) (Fein, Vossekuil, and Holden). Federal anti-stalking legislation (the Interstate Stalking Punishment and Prevention Act of 1996) targets perpetrators who travel across state lines to commit crimes.

Victimology and targets of stalkers

Historically, the study of crime began with and focused primarily on the study of offenders (Goring; Goddard; Lindesmith and Dumham; Rennie; Megargee and Bohn; Roebuck). In the late 1960s, social scientists began to theorize that a true understanding of crime required an examination of the role of the victim (Schafer). Consequently, researchers began to address the role of the victim in the victimization process and the acute and long-term effects of violence on both victims and their social network (Kinder; Burgess and Holmstrom; Cook, Smith, and Harrell; Wirtz and Harrell; Lerman).

The study of victims (victimology) has contributed to the way social scientists and practitioners view the role of victims and the dynamics of criminal acts. The victim's account of "what happened" often provides a contrasting view to the offender's account. Offenders may distort or misrepresent the facts of the criminal incident in order to minimize their responsibility, may have "fantasies" about the criminal act, or may simply claim that the victim is lying (Groth; Kestler).

The victim often provides detailed information about the circumstances surrounding the crime, including interactions and conversations with the offender prior to and after the crime; threats and demands that the offender made of the victim; weapons, if any, used by the offender during the crime; the identity and location of the offender; and details about the offender's personality (if the victim knows the offender). It is information from the victim that assists clinicians and investigators in classifying and investigating the crime and eventually questioning the offender (Douglas, Burgess, Burgess, and Ressler; Kestler).

Targets of stalkers often feel trapped in an environment filled with anxiety, stress, and fear that often results in their having to make drastic adjustments in how they live their lives. The terms "target" and "victim" are not necessarily interchangeable. The term "target" is used to describe the primary recipient of the stalker's attention. However, in many cases innocent parties and the target's circle of friends and associates become victims of the stalker's behavior.

From the target's perspective, the stalker is either known or anonymous. With stalking, there is a continuum of no physical contact to a lethal amount of contact and aggression. Until stalking legislation, law enforcement was often unable to arrest an individual unless there was evidence of direct contact in the form of assault.

Early research efforts addressing the crime of stalking come from victims of domestic violence who are often stalked by their offenders. One domestic violence study in Boulder and Denver, Colorado, noted that 48 percent of those who had obtained restraining orders were stalked prior to the issuance of the order and 12 percent were stalked within three months after the issuance of the order (Harrell, Smith, and Cook). Anecdotal accounts of victim assistance service providers support the findings of Harrell and colleagues (Harrell, Smith, and Newmark).

Targets have often crossed paths with the stalker, most likely without notice by the target. They will, therefore, have no knowledge of the stalker's identity. The relationship between the stalker and target is one-way. The target will eventually become aware of the stalker's presence. Other potential victims are spouses, partners, or any who are viewed as an obstacle that comes between the stalker and his or her target.

In a nonrepresentative study of stalking targets, Hall examined questionnaires completed by 145 current and prior stalking victims from twenty states who ranged in age from sixteen to seventy and who had been stalked for varying lengths of time, with some cases beginning or going back to the 1960s. Seventeen percent had been stalked from less than one month to six months; 23 percent from six months to one year; 29 percent from one to three years; and 13 percent for five years or more, with one case having continued for over thirty-one years. Although 57 percent of the victims were stalked by their former intimate partners, only 50 percent of the victims were females stalked by a male intimate partner. Over one-third (35%) of all the stalkers had had prior, nonintimate relationships with their victims (only four of these cases were workplace related) and the remaining 6 percent were strangers with no prior relationship to their victims.

Motivation

Isolated research has reported findings from cases involving the pursuit of public figures (Dietz, Matthews, Martell et al., 1991), of serial homicide (Ressler, Burgess, and Douglas), or describing the personalities and motivations of a small sample of stalkers (Hazelwood and Douglas; Geberth). Newspaper and anecdotal accounts are more prevalent than the academic literature; however, these accounts reveal little about the overall dynamics of the crime beyond the specific incident.

Stalker crimes are primarily motivated by interpersonal aggression rather than by material gain or sex. The purpose of stalking resides in the mind of stalkers, who are compulsive individuals with a misperceived fixation. Stalking is the result of an underlying emotional conflict that propels the offender to stalk and/or harass a target.

Because of the cognitive component to the behavior, stalking can be conceptualized as occurring on a continuum from nondelusional to delusional behavior. Delusional behavior may indicate the presence of a major mental disorder such as a schizophrenia, psychosis, or delusional disorder (American Psychological Association). Nondelusional behavior, while reflecting a gross disturbance in a particular relationship and a personality style or disorder, does not necessarily indicate a detachment from reality. This distinction is significant because of the potential legal implications, that is, pleas of insanity. What most readily distinguishes the behavior on this spectrum is the nature of the relationship an offender has had with his target and the content of the communication.

On the delusional end of this spectrum there is usually no actual relationship, rather such a relationship exists only in the mind of the offender. Communication content includes the presence of bizarre or nonbizarre delusions (American Psychological Association). On the nondelusional end of the spectrum there is most often a historical relationship between the offender and victim. These tend to be multidimensional relationships such as marriage or common law relationships replete with a history of close interpersonal involvement. Communication content includes a one-sided romantic fixation. In between these two poles are relationships of varied dimensions and stalkers who exhibit a mix of behavior. The offender may have dated his target once, twice, or not at all. The target may only have smiled and said "hello" in passing or may in some way be socially or vocationally acquainted.

Relationship to target: nondomestic stalkers

The stalker with no interpersonal relationship with the victim may target an individual from a prior meeting or from nothing more than an observation. In nondomestic or anonymous stalker cases, the target usually cannot identify the stalker when first aware of the behavior. This classification has two types: the organized stalker and the delusional stalker.

The organized stalker's identity is unknown or at some point the individual may make his or her identity known through continuous physical appearances at the victim's residence, place of employment, or other location. It is unlikely that the victim is aware of being stalked prior to the initial communication or contact. Only after the stalker has chosen to make personal or written contact will the target realize the problem.

The stalker may place himself or herself in a position to make casual contact with the target at which time verbal communication may occur. A description of this contact may be used in a later communication to terrorize and/or impress upon the target that the stalker is capable of carrying out any threats.

A delusional stalker or erotomania-related stalking is motivated by an offender-target relationship that is based on the stalker's psychological fixation. This fantasy is commonly expressed in such forms as fusion, where the stalker blends his personality into the target's, or erotomania, where a fantasy is based on idealized romantic love or spiritual union of a person rather than sexual attraction (American Psychological Association). The stalker can also be motivated by religious fantasies or voices directing him to target a particular individual. This preoccupation with the target becomes consuming and ultimately can lead to the target's death. The drive to stalk arises from a variety of motives, ranging from rebuffed advances to internal conflicts stemming from the stalker's fusion of identity with the target. In addition to a person with high media visibility, other victims include superiors at work or even complete strangers. The target almost always is perceived by the stalker as someone of higher status. Targets often include political figures, entertainers, and high media visibility individuals but do not have to be public figures. Sometimes the victim of a stalker's violence is perceived by the stalker as an obstruction.

Although the research on menacing, harassing, and stalking behaviors in persons who have or had a prior relationship is relatively new (Walker), the psychiatric literature has been building a classification scheme on a subgroup of stalkers diagnosed with erotomania in whom the relationship exists only in fantasy and delusion (Seeman, 1978). Mullen and Pathé note that erotomania has long been known to be associated with stalking behaviors of both men and women and has the potential to lead to overt aggression; they provide a historic perspective both on the forensic aspects of stalking and the psychodynamic components. The physician Claude De Clérambault outlined the features of an erotic delusion syndrome in his book Les Psychoses Passionelles (1942). De Cléambault observed that erotomania began with love and hope but then disintegrated into resentment and anger. The patients, usually female, were described as holding the delusional belief that a man, usually older and of an elevated social rank, was passionately in love with them. This love became the purpose of the patients' existence; they may have sent letters and telephoned the person both at home and at work. Raskin and Sullivan observed that the patients may be dangerous and threaten the life of their victim or his family especially when the patient reaches the stage of resentment or hatred that replaces love. Meloy (1989) has suggested the dynamics of blurring of unrequited love and the wish to kill.

Rekindling an interest in the forensic aspects of erotomania has been credited to Goldstein and Taylor, Mahendra, and Gunn, and has also led to various classifications of stalkers. Zona and colleagues (1993) analyzed police files and classified persons as either erotomanic, love obsessional, or simple obsessional. Stalkers have been classified from a mental health intervention standpoint using short-term crisis intervention to assist survivors (Roberts and Dziegielewski) and a law enforcement perspective (Wright et al.) based on the nature of the relationship, nondomestic or domestic; the content of communication, nondelusional or delusional; level of aggression (low, medium, or high); level of victim risk; motive of stalker; and outcome. Forensic studies of obsessional harassment and erotomania have occurred in criminal court populations (Meloy and Gothard). Meloy and Gothard have suggested the term obsessional follower for someone who engages in an abnormal or long-term pattern of threat or harassment directed toward a specific individual. Consequently, stalking patterns in domestic violence are now seen as dangerous and the forensic aspect is being tested (Perez). Erotomania in and of itself is insufficient for explaining stalking behavior. When focusing on relationships involving romantic attachment and domestic activities, empirical investigation demonstrates different characteristics associated with stalking behaviors than those found in erotomania (Meloy, 1996).

As with other classifications of stalking, the activity of the erotomanic stalker is often long-term and includes written and telephonic communications, surveillance, attempts to approach the target, and so on. With the passage of time, the activity becomes more intense. Sometimes the preoccupation with the victim becomes allconsuming and may ultimately lead to the death or injury of another party. John Hinckley, Jr., both an attempted political assassin and a celebrity stalker, is one such example. His erotomanic obsession with the actress Jodie Foster was never destined to be consummated. Celebrity stalkers like Hinckley seek a self-identity through actions or fantasies, and often seek relationships with targets through the media. All actions are ultimately designed to fill the bottomless personality void, and are designed to bring media attention to someone with serious personality and social defects. Stalkers like Hinckley are likely to transfer targets of obsession. Indeed, Hinckley first staked out Jimmy Carter and only settled on Ronald Reagan when access to Carter eluded him. He injured both his target and surrounding victims. In Hinckley's 1998 release petition hearing, a state witness (a commander) testified that Hinckley was stalking her, in that he had gathered information about her personal schedule, recorded love songs for her, and, when ordered not to contact her, disobeyed by sending her a package. A state mental health expert testified that Hinckley's psychotic disorders were in remission but that Hinckley was still dangerous. The expert based his opinion on Hinckley's "relationship" with the commander, stating it was strikingly similar to the "relationship" he had with Jodie Foster (Hinckley v. U.S., 140 F.3d 277, 286 (1998)).

Domestic stalkers

Domestic stalking occurs when a former partner, family member, or household member threatens or harasses another member of the household. This definition includes common law relationships as well as long-term acquaintance relationships. The domestic stalker is initially motivated by a desire to continue or reestablish a relationship, a desire that can evolve into an attitude of "If I can't have her no one can."

A study by Burgess and others (1997) examined data from 120 male and female batterers of varied age, marital, educational, and economic status, who attended group treatment for batterers or who were charged with domestic violence in a district court. One-third of the sample group admitted to stalking, and their behaviors indicated the possibility of continuing violent acts even though separation with the partner had occurred. Researchers determined that both open and clandestine stalking occurred. At this point it is not clear if this sample is representative of a particular pattern. Stalkers feel that they have a right to do what they do. They also did not feel that the victim provoked their stalking behaviors. Such attitudes suggest that the triggering event is less predicated on behavior of the victim and resides more in the fantasy life of the stalker. A potential stalker might be provoked by displacement, for example, being humiliated or disappointed in areas of life outside of the home.

Factor analysis of batterers who stalk compared to nonstalking batterers found three stalking patterns of pursuit. First, stalkers are open in their attempts to contact their former partners; when this fails they begin to contact others and discredit the partner. The second factor is the conversion of positive emotion of love to the negative emotion of hate. Stalkers essentially go underground with the clandestine behavior, including anonymous or hang-up phone calls and entering the residence without permission. Just before they go public again, there is a phase of ambivalence indicating the splitting of love and hate, when, for example, they might send gifts and flowers. The third factor is when they move from the mix of public and secret behavior to a public display of stalking and targeting behavior, and, in the sample just cited, entered the victim's residence and displayed violence.

The stalking behavior reveals far more personal disturbance in the perpetrator than the loss of control and anger arising purely within an interpersonal exchange, for example, the man who has had a bad day at work, comes home and becomes enraged at the wife, feeling she has slighted him or not attended to the house. This is in contrast to a man who is fixed on a partner and pursues her with little or no provocation from the victim.

The stalking behavior represents a self-generating pattern within the individual rather than being linked to the victim. Such intense predatory preoccupation suggests such diagnostic categories as: obsessive-compulsive disorder, psychotic behavior, delusional fixation, or a combination of behaviors.

Cyberstalking

Computer technology has provided the stalker with another means for accessing a target. Some investigators specialize in prosecuting Internet cyberstalking. While some cases involve adults as both offenders and victims, many pedophiles exploit children with this technology.

In U.S. v. Reinhardt, 975 F. Supp. 834 (W.D. La. 1997), the court granted the government's motion for pretrial detention of an alleged pedophile cyberstalker. The defendant was charged with producing and distributing child pornography. On government's motion for pretrial detention under the Bail Reform Act, the district court held that: (1) the defendant's case involved a crime of violence; (2) there were no conditions of release that could reasonably assure safety of the community; and (3) the defendant also posed a risk of flight.

Reinhardt illustrates how the Internet can be a tool for pedophiles and child pornographers. It demonstrates a pedophile's use of technology to stalk children for sexual purposes, to gain control over the child and his family, to recruit new victims, and to communicate with other pedophiles. Reinhardt exemplifies the amount of detail, care, and compulsiveness that is demonstrated in the profile of a career pedophile.

Pedophiles' social networks consists of other pedophiles. They socialize, telephone, write letters, e-mail, network, and share strategies for continuing their deviant relationships with children even when in prison. In Florida, one convicted child pornographer used his prison post office box number to expand his distribution of child pornography until he was discovered.

Pedophiles can move from an isolated position as solo operators into a network of perpetrators; Reinhardt, for example, had a co-defendant. Indeed, an elaborate and organized pedophile network exists on the Internet both nationally and internationally. The Reinhardt case illustrates the Internet pedophile as entrepreneur, one who has a product line on his own home page. Reinhardt provided advice to a "chat room" correspondent on how to build a long-term relationship with a young boy, how to manipulate parents in order that they not "cause problems," and taught his victims how to answer questions about the ongoing sexual relationship.

Pedophiles are totally preoccupied with their sexual interest in children. The probation office identified nine jobs Reinhardt held in four states between 1986 and 1997. The defendant's obsession with the Internet was reflected in his ownership of several computers. This case reveals the inner workings of pedophiles and child pornographers. The general public can now access all dimensions of child sexual exploitation through the Internet. They can call up a pedophile's home page or talk with him or her in a "chat room."

State and federal anti-stalking laws

The legal history of stalking is a testament to the limitations of applying existing statutory law, and the passage of innovative legislation to address a newly conceived crime that extends beyond the boundaries of common law offenses. From the ineffectiveness of civil protection orders to the limited utility of a federal antistalking statute, victims are often left with little practical legal recourse. Add to this an often-muted response from criminal justice agencies and it is no wonder that nearly half of all stalking victims are dissatisfied with the law enforcement response to their victimization (Department of Justice).

Civil protection orders. The first line of defense for victims is a civil protection or restraining order that has the effect of enjoining the stalking behavior. These orders are designed to restrict an offender from making contact with the victim, or from appearing at a particular place, such as a victim's home or work. Sanctions include contempt of court, fines, and jail time or prison sentences. In a number of states, including California, Colorado, Delaware, Maine, South Carolina, Texas, and West Virginia, anti-stalking legislation has prompted more serious sanctions for violations of protection orders.

Eligibility restrictions for restraining orders in many states, however, severely limit their protective value. For example, some states require a legally recognizable relationship between the victim and offender (e.g., marriage) for a restraining order to be issued. Others will not issue an order unless there is a finding of actual physical abuse (Bradfield). Beyond such restrictions, restraining orders are far less than a guarantee of protection. Commentators note that: (1) approximately four out of every five orders are violated; (2) less than 20 percent of these violations result in an arrest; (3) there is an insufficient law enforcement commitment to protective orders; and (4) taking out a protective order, at best, does little to protect against future victimization and, at worst, may incite a stalker to retaliate against his victim (Walker, 1993; Patton).

Extending the application of related statutes. Until recently, the discretionary use of criminal statutes provided a remedy for the deficiencies of protective orders, as well as for the absence of carefully drafted antistalking laws. Over time, prosecutors have come to rely on various offenses found in most state penal statutes—statutes prohibiting harassment; terrorist threats; threatening or intimidating behavior; and telephone threats or harassment, letter threats, and threats using electronic technologies such as e-mail or facsimile. Critics have called these statutes inadequate given their failure to: (1) account for the repetitive nature of stalking, which is a primary feature of the offense; (2) consider the full range of bizarre behaviors found within stalking activity; and (3) recognize anything less than an explicit threat as a crime. Moreover, most of these statutes have narrowly drawn intentionality requirements that further limit their application to stalking cases. Finally, the sanctions associated with these statutes are often insignificant and, when applied, can have the effect of trivializing the serious crime of stalking (Bradfield).

State anti-stalking statutes. Antistalking statutes, prompted by the brutal murder of actress Rebecca Schaffer in California in 1989, attempt to address some of the limitations found with civil protection orders and related statutes. Many are drafted with an explicit consideration of the behavioral idiosyncrasies that characterize stalking offenses; without a requirement that the stalker has committed a violent act; with less significant mens rea or intentionality provisions; and with increased sanctions. In a majority of jurisdictions, a first-time offender may be indicted on either felony or misdemeanor charges; repeat stalking is most often prosecuted as a felony.

The requirements of state anti-stalking statutes generally require proof of a "course of conduct" and distinct threats by the offender that cause an actual fear of death or injury on the part of the victim. The former requires that the offender must have engaged in a persistent course of purposeful action amounting to a pattern of behavior. This may consist of nonconsensual communication, for example, obsessive surveillance, lying in wait, or physical harassment. A majority of states specify the number of incidents required to constitute a pattern of behavior or course of conduct.

Statutes differ with respect to the threat requirement. Some states require either a threat or conduct. Others mandate both a threat and conduct for prosecution. Still others impose threat, conduct, and intent requirements. A minority of jurisdictions requires that the stalker's behavior constitute an objectively "credible threat," that is, a threat that would create fear in a reasonable person in like circumstances.

The intent requirements of state statutes vary considerably as well. Most state statutes require that the offender purposefully or willfully intended to instill or cause fear; others require lesser mental states, for example, "knowing" negligent creation of fear. Only a few states omit the intent requirement. For obvious reasons, the more significant the intent requirement, the more difficult it is to obtain the proof necessary to secure a conviction.

Following passage of the first state statute in California in 1990, many legal scholars, advocates, and legislators predicted a series of constitutional challenges. The predictions were accurate. More than twenty state statutes have faced constitutional challenges for being broad and vague (Karbarz). Only a few cases have been successful beyond the trial level (Harmon). The Texas Court of Criminal Appeals is the highest state court to declare an antistalking statute unconstitutional, on the ground that it lacked sufficient clarity with regard to prohibited conduct; provided inadequate notice; and had a "vague" threat requirement (Long v. State, 931 S.W. 2nd 285 (1996)).

Model anti-stalking statute. The Model Anti-Stalking Code (Model Code) developed by the National Criminal Justice Association and sponsored by the National Institute of Justice took state legislation one step farther in an effort to address some apparent limitations in state statutes. According to Bradfield "some anti-stalking statutes still require that the stalker overtly threaten his victim, thereby allowing stalkers who communicate their threats through conduct to escape punishment. Likewise, some statutes still require that the stalker intend to cause fear, enabling stalkers who do not possess such intent to continue terrorizing their victims" (p. 245). Many states have amended their statutes in response to the well reasoned and carefully drafted provisions found in the Model Code.

The Model Code's act requirements are generous, allowing for a cause of action where there is:

1. A course of conduct involving repeated physical proximity (following) or threatening behavior or both;
2. the occurrence of incidents at least twice;
3. threatening behavior, including both explicit and implicit threats; and
4. conduct occurring against an individual or family members of the individual.

Satisfaction of the intent requirements is similarly relaxed. Prosecutors need only prove:

1. Intent to engage in a course of conduct involving repeated following or threatening an individual;
2. knowledge that this behavior reasonably causes fear of bodily injury or death;
3. knowledge (or expectation) that the specific victim would have a reasonable fear of bodily injury or death;
4. actual fear of death or bodily injury experienced by the victim; and
5. fear of death or bodily injury felt by members of the victim's immediate family.

Federal anti-stalking statutes. In an effort to "close the gaps" between individual state laws and to bolster their deterrent effect, Congress passed the Interstate Stalking Punishment and Prevention Act of 1996. The act prohibits stalking across state lines, makes restraining orders issued in one state valid in other states, and prohibits stalking on federal property, for example, post offices, national parks, and military bases. Violations of the act result in five years imprisonment, and twenty years in prison for violations that result in an injury or acts where the offender used a dangerous weapon. Life imprisonment is prescribed for stalking that results in the victim's death.

The limits of substantive law. The stark reality of the criminal justice system often places a severe constraint on the value of substantive stalking laws, no matter how carefully statutes are written and in spite of the many legislative advances around the United States since around 1990. Consider the risks to the victim that accompany the arrest of the offender. Pretrial detention for those charged with stalking offenses is rare. Arrests often escalate violence or lead to retaliation, with or without victim notification of release. In the unlikely event of a trial and conviction, a prison sentence does little to address the mental health treatment needs of most stalkers. Mental illness undermines principles of deterrence. In the end, the burden of fashioning a workable, realistic remedy to avoid future stalking often falls on the victim.

Ann W. Burgess

William S. Lauter

See also Attempt; Domestic Violence; Prediction of Crime and Recidivism.

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Karczewski, Lisa A. "Stalking in Cyberspace: The Expansion of California's Current Anti-stalking Laws in the Age of the Internet." McGeorge Law Review 30 (1999): 517.

Kestler, Jeffrey L. Questioning Techniques and Tactics. Colorado Springs, Colo.: Shepards/McGraw-Hill, 1982.

Kinder, GaryVictim: The Other Side of Murder. New York: Delacorte Press, 1982.

Lerman, Lisa G. Prosecution of Spouse Abuse: Innovations in Criminal Justice Responses. Washington, D.C.: Center for Women's Policy Studies, 1983.

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Megargee, Edward I., and Bohn, Martin I. Classification of Criminal Offenders: A New System Based on the MMPI. London: Sage Publications, 1979.

Meloy, J. Reid. "Unrequited Love and the Wish to Kill." Bulletin of the Menninger Clinic 53 (1989): 477–492.

——. "Stalking (Obsessional Following): A Review of Some Preliminary Studies." Aggression and Violent Behavior 1 (1996): 147–162.

Meloy, J. Reid, and Gothard, S. "Demographic and Clinical Comparison of Obsessional Followers and Offenders with Mental Disorders." American Journal of Psychiatry 152, no. 2 (1995): 258–263.

Mullen, P. E., and PathÉ, M. "Stalking and the Pathology of Love." Australian and New Zealand Journal of Psychiatry 28 (1994): 469–477.

Patton, E. A. "Stalking Laws: In Pursuit of a Remedy." Rutgers Law Journal 25 (1994): 465–515.

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CASES

Hinckley v. United States, 140 F.3d. 277, 286 (1998).

Long v. State, 931 S.W. 2nd 285 (1996).

Tarasoff v. Regents of the University of California, 551 2nd 334 (1976).

United States v. Reinhold, 975 F. Supp. 834 (W.D. La. 1997).

STALKING

Criminal activity consisting of the repeated following and harassing of another person.

Stalking is a distinctive form of criminal activity composed of a series of actions that taken individually might constitute legal behavior. For example, sending flowers, writing love notes, and waiting for someone outside her place of work are actions that, on their own, are not criminal. When these actions are coupled with an intent to instill fear or injury, however, they may constitute a pattern of behavior that is illegal. Though anti-stalking laws are gender neutral, most stalkers are men and most victims are women.

Stalking first attracted widespread public concern when a young actress named Rebecca Shaeffer, who was living in California, was shot to death by an obsessed fan who had stalked her for two years. The case drew extensive media coverage and revealed how widespread a problem stalking was to both celebrity and noncelebrity victims. Until the enactment of anti-stalking laws, police had little power to arrest someone who behaved in a threatening but legal way. Even when the suspect had followed his victim, sent her hate mail, or behaved in a threatening manner, the police were without legal recourse. Law enforcement could not take action until the suspect acted on his threats and assaulted or injured the victim.

How to Stop a Stalker

Although antistalking laws give police and prosecutors the tools to arrest and charge stalkers with serious criminal offenses, victims of stalking have an important role to play in making these laws work. Law enforcement officials, domestic violence counselors, and mental health professionals offer the following advice to victims on how to stop a stalker:

• now the law. Because antistalking laws are new, some police officers may not know how the laws work. A stalking victim should visit the public library or a county law library and obtain a copy of the state's antistalking law. Victims should show the police the law when filing the stalking complaint and ask whether they should first seek a protective order against the stalker. In some states a violation of a protective order converts a stalking charge from a misdemeanor to a felony.
• Cooperate with prosecutors. Many stalking victims refuse to prosecute the stalker, thereby leaving themselves vulnerable to continued threats and violence. Some victims fear that prosecution will provoke worse behavior from the perpetrator. Nevertheless, victims should use the legal system and break any bond that may exist between themselves and the stalker.
• Protect yourself. Persons who are stalked should take steps to protect themselves and those around them. Neighbors and coworkers should be informed about the stalker, be given a photograph of the suspect, and be instructed on what to do if the stalker is sighted. Security officers at the victim's workplace should be provided with this information. Caller ID, which identifies telephone callers, should be installed on the victim's telephone. If the stalker makes repeated phone calls, the victim should ask the police to set up a phone tap.
• Collect evidence. A stalking victim should collect and preserve evidence that can be used to prosecute and convict the stalker. Police suggest that the victim keep a diary of stalking and other crimes committed by the perpetrator. It is also a good idea to photograph property destroyed by the stalker and any injuries inflicted by the stalker. The victim should keep all letters or notes written by the stalker and all answering machine tapes that contain messages from the perpetrator.

further readings

Proctor, Mike. 2003. How to Stop a Stalker. Amherst, N.Y.: Prometheus Books.

Schell, Bernadette H. 2000. Stalking, Harassment, and Murder in the Workplace: Guidelines for Protection and Prevention. Westport, Conn.: Quorum Books.

In general, stalking victims are women from all walks of life. Some are trying to end a relationship with a man, often one who has been abusive. The persons involved may be married or divorced or may have been sexual partners. In other cases the stalker and the victim may know one another casually or be associated in an informal or formal way. For example, they may have had one or two dates or talked briefly but were not sexual partners, or they may be coworkers or former coworkers. In a small number of situations, the stalker and the victim do not know one another. Cases involving celebrities and other public figures usually fall into this category.

Advocates of battered women have estimated that up to 80 percent of stalking cases occur in a domestic context, though there is little data on how many stalkers and victims are former intimates, how many murdered women were stalked beforehand, or how many stalking incidents overlap with domestic violence. According to estimates provided by the National Violence Against Women Prevention Research Center, over one million women and approximately 350,000 men are victims of stalkers each year.

Research also indicates that teenagers are subjected to stalking and that they have difficulty extricating themselves from such situations. Stalkers may include a high school classmate or an older man with whom a teenager has developed a relationship. When a teenage stalker is involved, the victim may have difficulty convincing law enforcement and school officials that the behavior is more than adolescent "boys will be boys" conduct.

The motivations for stalking are many. They include the desire for contact and control, obsession, jealousy, and anger and stem from the real or imagined relationship between the victim and the stalker. The stalker may feel intense attraction or extreme hatred. Many stalkers stop their activity when confronted by police intervention, but some do not. The more troublesome stalker may exhibit a personality disorder, such as obsessive-compulsive behavior, which leads him to devote an inordinate amount of time to writing notes and letters to the intended target, tracking the victim's movements, or traveling in an attempt to achieve an encounter.

The potentially dangerous consequences and the terrifying helplessness victims experienced led to calls for legislation criminalizing stalking. California enacted the first anti-stalking law in 1990. Eventually, all 50 states and the District of Columbia passed legislation that addresses the problem of stalking. Initially these laws varied widely, containing provisions that made the laws virtually unenforceable due to ambiguities and the dual requirements to show specific criminal intent and a credible threat. Many states have

amended these stalking statutes to broaden definitions, refine wording, stiffen penalties, and emphasize the suspect's pattern of activity.

In most states, to charge and convict a defendant of stalking, several elements must be proved beyond a reasonable doubt. These elements include a course of conduct or behavior, the presence of threats, and the criminal intent to cause fear in the victim.

A course of conduct is a series of acts that, viewed collectively, present a pattern of behavior. Some states stipulate the requisite number of acts, with several requiring the stalker to commit two or more acts. States designate as stalking a variety of acts, ranging from specifically defined actions, such as nonconsensual communication or lying in wait, to more general types of action, such as harassment.

Most states require that the stalker pose a threat or act in a way that causes a reasonable person to feel fearful. The threat does not have to be written or verbal to instill fear. For example, a stalker can convey a threat by sending the victim black roses, forming his hand into a gun and pointing it at her, or delivering a dead animal to her doorstep.

To be convicted of stalking in most states, the stalker must display a criminal intent to cause fear in the victim. Various statutes require the conduct of the stalker to be "willful," "purposeful," "intentional," or "knowing." Many states do not require proof that the defendant intended to cause fear as long as he intended to commit the act that resulted in fear. In these states, if the victim is reasonably frightened by the alleged perpetrator's conduct, the intent element of the crime has been met.

Defendants have challenged the constitutionality of anti-stalking statutes in many states. They alleged that the laws are so vague that they violate due process of law or are so broad that they infringe upon constitutionally protected speech or activity. Generally the courts have rejected these arguments and have upheld the anti-stalking laws.

Once a stalker is arrested, the prosecutor will ask the court to impose strict pretrial release conditions requiring the defendant to stay away from the victim. Violation of these conditions can lead to the revocation of bail and enhanced penalties at sentencing.

Before a stalker is arrested, a victim may obtain a civil protection, or restraining, order that directs the defendant not to contact or come within the vicinity of the victim. If the defendant violates the protection order, a court may hold him in contempt, impose fines, or incarcerate him, depending on state law. In some states a stalking penalty is enhanced if the stalker violates a protective order.

Protective orders can serve as the first formal means of intervening in a stalking situation. The order puts the stalker on notice that his behavior is unwanted and that if his behavior continues, police can take more severe action. However, enforcement of a protection order has proved difficult, leaving the victim with not much more than a legal document to try to restrain a violent stalker.

Many states have both misdemeanor and felony classifications for stalking. Misdemeanors generally carry a jail sentence of up to one year. Felony sentences range from three to five years, with the ability to enhance the penalty if one or more elements are present. For example, if the defendant brandished a gun, violated a protective order, committed a previous stalking offense, or directed his conduct toward a child, the sentence may be increased. In some states repeat offenses can result in incarceration for as long as ten years.

At the federal level, a number of statutes have been enacted to protect victims of stalkers. These include the Full Faith and Protection provisions of the violence against women act (18 U.S.C.A. § 2265–2266 [2000]), which mandate nationwide enforcement of orders of protection, including harassment and stalking, and the Interstate Stalking Act (18 U.S.C.A. § 2261A [1996]), which makes it a criminal offense to travel across state lines to stalk another person. The act also makes it a crime to stalk a person across state lines using mail, e-mail, or the internet. Such crimes are punishable from five years to life in prison.

Despite the nationwide awareness of stalking and the response of the criminal justice system, many women do not report these crimes to police. Failure to report stalking may be based on the private nature of the events and the belief that no purpose would be served by reporting the crime. Police departments and prosecutors have been criticized for continuing to minimize the seriousness of stalking and failing to provide adequate protection for victims. In addition, critics have claimed that courts are too lenient in sentencing stalkers.

further readings

Davis, Joseph A., ed. 2001. Stalking Crimes and Victim Protection: Prevention, Intervention, Threat Assessment, and Case Management. Boca Raton, Fla.: CRC Press.

Dennison, Susan M., and Donald M. Thomson. 2002. "Identifying Stalking: The Relevance of Intent in Commonsense Reasoning." Law and Human Behavior 26 (October).

Lamplugh, Diana, and Paul Infield. 2003. "Harmonising Anti-Stalking Laws." George Washington International Law Review 34 (winter).

Miller, Neal, and Hugh Nugent. 2002. Report on Stalking Laws and Implementation Practices: A National Review for Policymakers and Practitioners. Alexandria, Va.: Institute for Law and Justice.

U.S. Department of Justice, Office of Justice Programs, National Institute of Justice. 1996. Domestic Violence, Stalking, and Antistalking Legislation. Annual Report to Congress, March 1996. Available online at <www.ojp.usdoj.gov/ocpa/94Guides/DomViol/welcome.html> (accessed February 10, 2004).

cross-references

Victims' Rights.