Generally, stalking is defined as the willful
or intentional commission of a series of acts that would cause a reasonable
person to fear death or serious bodily injury and that, in fact, does place
the victim in fear of death or serious bodily injury. Stalking is a crime
in every state. Every state has a stalking law, although the harassment
laws of some states also encompass stalking behaviors. In most states, stalking
is a Class A or first degree misdemeanor except under certain circumstances,
which include stalking in violation of a protective order, stalking while
armed, or repeat offenses. In addition, states typically have harassment
statutes, and one state's harassment law might encompass behaviors that
would be considered stalking in another state.
Significant variation exists among state stalking laws. These differences relate primarily to the type of repeated behavior that is prohibited, whether a threat is required as part of stalking, the reaction of the victim to the stalking, and the intent of the stalker.
Most states have broad definitions of the type of repeated behavior that is prohibited, using terms such as "harassing," "communicating," and "nonconsensual contact." In some states, specific descriptions of stalking behavior are included in the statute. For example, Michigan's stalking law provides that unconsented contact includes, but is not limited to, any of the following:
A handful of states have narrow definitions of stalking. Illinois, for example, limits stalking to cases involving following or keeping a person under surveillance.6 Maryland requires that the pattern of conduct include approaching or pursuing another person.7 Hawaii is similar, limiting stalking to cases in which the stalker pursues the victim or conducts surveillance of the victim.8 Connecticut limits stalking to following or lying in wait.9 Wisconsin requires "maintaining a visual or physical proximity to a person."10
When stalking laws were first adopted in states across the country, many laws required the making of a "credible threat" as an element of the offense. Generally, this was defined as a threat made with the intent and apparent ability to carry out the threat. As understanding of stalking has grown, however, most states have modified or eliminated the credible-threat requirement. Stalkers often present an implied threat to their victims. For example, repeatedly following a person is generally perceived as threatening. The threat may not be expressed but may be implicit in the context of the case.
Only two statesArkansas and Massachusettsrequire the making of a threat to be part of stalking,11 although a few other states require an express threat as an element of aggravated stalking. Most states currently define stalking to include implied threats or specify that threats can be, but are not required to be, part of the pattern of harassing behavior.
Stalking is defined in part by a victim's reaction. Typically, stalking is conduct that "would cause a reasonable person to fear bodily injury to himself or a member of his immediate family or to fear the death of himself or a member of his immediate family"12 or "would cause a reasonable person to suffer substantial emotional distress"13 and does cause the victim to have such a reaction. Some states refer to conduct that seriously "alarms," "annoys," "torments," or "terrorizes" the victim, although many of those states also require that the conduct result in substantial emotional distress.14 Others refer to the victim's fear for his or her "personal safety";15 feeling "frightened, intimidated, or threatened"; 16 or fear "that the stalker intends to injure the person, another person, or property of the person."17 In general, however, stalking statutes provide that the conduct must be of a nature that would cause a specified reaction on the part of the victim and in fact does cause the victim to have that reaction.18
Originally, most stalking statutes were "specific intent" crimes; they required proof that the stalker intended to cause the victim to fear death or personal injury or to have some other particular reaction to the stalker's actions. The subjective intent of a person, however, can be difficult to prove. Therefore, many states have revised their statutes to make stalking a "general intent" crime; rather than requiring proof that the defendant intended to cause a reaction on the part of the victim, many states simply require that the stalker intentionally committed prohibited acts.
Other states require that in committing the acts, the defendant must know, or reasonably should know, that the acts would cause the victim to be placed in fear. The latter approach was recommended in the NIJ Model Antistalking Code project. At least two courts have discussed the model's language in finding that general intent is sufficient.19
Most states have explicit exceptions under their stalking laws for certain behaviors, commonly described simply as "constitutionally protected activity." Many also specifically exempt licensed investigators or other professionals operating within the scope of their duties;20 however, it may not be necessary to provide such exceptions within the statute itself. The Supreme Court of Illinois interpreted that state's stalking laws to prohibit only conduct performed "without lawful authority," even though the laws do not contain that phrase. The court reasoned that "[t]his construction . . . accords with the legislature's intent in enacting the statutes to prevent violent attacks by allowing the police to act before the victim was actually injured and to prevent the terror produced by harassing actions."21
Many state codes include an offense of aggravated stalking or define stalking offenses in the first and second degrees. Often, the higher level offense is defined as stalking in violation of a protective order,22 stalking while armed with a deadly weapon,23 a second or subsequent conviction of stalking,24 or stalking a minor.25 Many states without a separately defined higher offense provide for enhanced punishment for stalking under such conditions.
Most of the cases challenging the constitutionality of stalking laws focus on one of two questions: whether the statute is overbroad or whether it is unconstitutionally vague. A statute is unconstitutionally overbroad when it inadvertently criminalizes legitimate behavior. In a Pennsylvania case, the defendant claimed the stalking statute was unconstitutional because it criminalized a substantial amount of constitutionally protected conduct. In that case, the defendant engaged in a campaign of intimidating behavior against a judge who had ruled against him in a landlord-tenant case. For nearly a year, the defendant made regular phone calls and distributed leaflets calling the judge "Judge Bimbo," "a cockroach," "a gangster," and "a mobster." During one of his many calls to the judge's chambers, her secretary asked him if his intentions were "to alarm and disturb" the judge. The defendant replied, "I would hope that my calls alarm her. I am working very hard at it. If my calls are disturbing, wait until she sees what happens next." He also called and spoke about the bodyguard hired for the judge and the judge carrying a gun "to let [her] know that he's watching and knows what is going on."
The court in that case found that the statute was not overbroad and did not criminalize constitutionally protected behavior. The court noted that "[t]he appellant cites us no cases, nor are we able to locate any, announcing a constitutional right to ‘engage in a course of conduct or repeatedly committed acts toward another person [with the] intent to cause substantial emotional distress to the person.'"26
Defendants have also argued that stalking laws are unconstitutionally vague. The essential test for vagueness was set out by the U.S. Supreme Court in 1926. A Government restriction is vague if it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application."27 Whether a given term is unconstitutionally vague is left to the interpretation of each state's courts.
In a New Jersey stalking case, the court rejected the defendant's claim that the statute was unconstitutionally vague, finding the defendant's conduct "unquestionably proscribed by the statute." In that case, the defendant had maintained physical proximity to the victim on numerous occasions, late at night, that the court found to be threatening, purposeful, and directed at the victim. He repeatedly asked for sexual contact that he knew was unwanted, and he implied that she had better agree. "To suggest, as the defendant does, that his activity could be seen as the pursuit of ‘normal social interaction' is absurd. On the contrary, his conduct was a patent violation of the statute."28
In a Michigan case, the defendant also argued that the stalking statutes were unconstitutionally vague and violated his first amendment right to free speech. The court disagreed. "Defendant's repeated telephone calls to the victim, sometimes 50 to 60 times a day whether the victim was at home or at work, and his verbal threats to kill her and her family do not constitute protected speech or conduct serving a legitimate purpose, even if that purpose is ‘to attempt to reconcile,' as defendant asserts."29
Claims that stalking laws were unconstitutionally vague have focused on the wide range of terms commonly used in such laws. For example, courts have ruled that the following terms were not unconstitutionally vague: "repeatedly,"30 "pattern of conduct," 31 "series,"32 "closely related in time,"33 "follows,"34 "lingering outside,"35 "harassing,"36 "intimidating,"37 "maliciously,"38 "emotional distress"39 "reasonable apprehension,"40 "in connection with,"41 and "contacting another person without the consent of the other person."42
Courts have also determined that terms such as "without lawful authority"43 and "serves no legitimate purpose"44 were not unconstitutionally vague. The Oregon Court of Appeals, however, did invalidate that state's stalking law on the grounds that the term "legitimate purpose" was unconstitutionally vague.45 The court found that the statute did not tell a person of ordinary intelligence what was meant by the term "legitimate purpose"; therefore, the statute gave no warning as to what conduct must be avoided. The Oregon legislature later revised the statute to remove the phrase.
The Supreme Court of Kansas found that state's stalking statute unconstitutionally vague because it used the terms "alarms," "annoys," and "harasses" without defining them or using an objective standard to measure the prohibited conduct. "In the absence of an objective standard, the terms . . . subject the defendant to the particular sensibilities of the individual. . . . [C]onduct that annoys or alarms one person may not annoy or alarm another. . . . [A] victim may be of such a state of mind that conduct that would never annoy, alarm, or harass a reasonable person would seriously annoy, alarm, or harass this victim."46 Kansas has since amended its statute, and the amended statute has been ruled constitutional. The court specifically found that the revised law included an objective standard, that is, the standard of a "reasonable person," and defined the key terms "course of conduct," "harassment," and "credible threat."47
Similarly, the Texas Court of Criminal Appeals found that state's original antistalking law unconstitutionally vague. Although there were several factors in this ruling, the expansive nature of the prohibited conduct was a key point in the decision. That conduct included actions that would "annoy" or "alarm" the victim. The court observed that "the First Amendment does not permit the outlawing of conduct merely because the speaker intends to annoy the listener and a reasonable person would in fact be annoyed."48 The Texas Legislature subsequently revised the law to correct the problem.
Massachusetts's stalking law was also declared unconstitutionally vague because it provided that a person could be guilty of stalking if that person repeatedly harassed the victim. "Harass" was defined as a pattern of conduct or series of acts. Thus, the court found that the statutory requirement of repeated harassment meant that a person "must engage repeatedly (certainly at least twice) in a pattern of conduct or series of acts over a period of time. . . . One pattern or one series would not be enough." The court noted that the legislature presumably intended a single pattern of conduct or a single series of acts to constitute the crime but did not state this with sufficient clarity to meet the constitutional challenges.49 The Commonwealth has since revised its stalking law to address the issue.
Other courts have disagreed with the reasoning of the Massachusetts decision. The Rhode Island Supreme Court declared that the Massachusetts court's "metaplasmic† approach . . . has attracted little, if any following." The court found that the statute, as drafted, met the constitutional test by giving adequate warning to potential offenders of the prohibited conduct. "It indeed defies logic to conclude that a defendant would have to commit more than one series of harassing acts in order to be found guilty of stalking."50 The D.C. Court of Appeals reached a similar conclusion.51
At least one state has grappled with the question of whether a person can be charged with attempted stalking. In Georgia, a defendant made harassing and bizarre phone calls to his ex-wife. The defendant was arrested and released under the condition that he was to have "[a]bsolutely no contact with the victim or the victim's family." A few weeks later, he called his ex-wife's office, claiming to be the district attorney, and asked personal questions about his ex-wife. He later attempted to call his ex-wife at the office, but she was out of town. He told a coworker to tell his ex-wife that "when she gets home she can't get in." The Georgia Supreme Court found that it was not absurd or impractical to criminalize attempting to stalk, which under the terms of the statute meant attempting to follow, place under surveillance, or contact another, when it was done with the requisite specific intent to cause emotional distress by inducing a reasonable fear of death or bodily injury. A concurring Justice noted that to hold otherwise would be to permit a stalker "to intimidate and harass his intended victim simply by communicating his threats to third parties who (the stalker knows and expects) will inform the victim."52
† Metaplasmia: alteration of regular verbal, grammatical, or rhetorical structure usually by transposition of the letters or syllables of a word or of the words in a sentence. Metaplasmic, adj. (Webster's Third New International Dictionary, 1971).