Stalking is now a prohibited act in the laws of 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. Even if the stalker claims romantic or equivalent interest, that is generally considered sufficient harassment to invoke the protection of the law. The definitions vary only slightly from state to state with some states adding aspects such as lying in wait, surveillance, or ignoring warnings from police officers. Stalking statutes have become vital protections that, if combined with civil or criminal injunctions and protective orders, can help shield people from the threatening or harassing behavior of others in a variety of circumstances.

Most of us have heard of situations when celebrities have been the victims of stalking activity, based on fans becoming obsessed with the object of their attention. Stalking may not make headlines, but commonly occurs when a jilted lover or spouse becomes obsessed with his or her ex-lover or spouse, or if a person becomes obsessed with a complete stranger or co-worker. The crime is far more than an annoyance for some victims, making their lives fraught with fear and even leading to physical symptoms based on the stress. Recently 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. The concept is that there is no need to wait until an actual physical attack is perpetrated to protect the victim.

This is not assault and battery. This is a separate crime involving harassment without assault. The actual law and some practical considerations are discussed in this article.


The Basic Law:

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” or “second degree,” or felony and misdemeanor stalking. It is common to have enhancements 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 or exposed to the victim.

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 the person, property or rights of another.

It is important to note that in many states, 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. In such states as Minnesota, those types of acts are considered “gross misdemeanors.” However, in various situations 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 statute 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 victim counseling.


The California Statute:

As every other State, California has passed laws that punish the stalker. The reader should review our article on Criminal Law before proceeding further. The relevant code section is as follows:

Penal Code Section 646.9

Defined As
Willfully, maliciously, and repeatedly follows or harasses another and makes credible threat with intent to place another in reasonable fear for own safety or safety of his/her immediate family. Penal Code Section 646.9(a)

1 year in county jail and/or $1,000; if probation granted or sentenced suspended, counseling required. However, the court, upon showing of good cause, may find that counseling shall not be imposed. P. C. 646.9(j); if convicted of spouse or child abuse felony (P. C. 273.5) or violation of protection order (P. C. 273.6) or making terroristic threats (P. C. 422), subject to 1 yr. or $1000 or both or 2, 3, or 5 yrs. in state prison. (Misdemeanor becomes a felony.)

Repeat Offense
If defendant stalked when there is a temporary restraining order imposed upon stalker, or injunction, or court order against the same party, then applicable sentence may be punishable by imprisonment in the state prison for 2, 3, or 4 yrs. P. C. 646.9(b).

Every person who, having been convicted of a felony under this section commits second/subsequent violation of section shall be punished by imprisonment in state prison for 2, 3 or 5 yrs. P.C. 646.9(c)(2). Note that the restraining order may be valid for up to 10 years. P.C. 646.9(k).


Practical Considerations:

Stalking is a particularly terrifying crime because it is unclear if the stalker plans to escalate the harassment to actual physical violence or will simply continue to be a presence. Most victims are not only annoyed by what appears to be unwelcome attention, but worry that they will soon be exposed to far more unwelcome advances.

Oddly enough, it is the personal harassment on the street that may be the most difficult to prove since the evidence is often only the testimony of the victim. Mail, email or telephone harassment is easily proven by records of the communications. However, with the increasing number of video cameras on street corners, even that type of harassment may be demonstrated.

It should be noted that by obtaining an injunctive or protective order, the punishment of the stalker is radically increased. Often victims will not only complain to the police, but will hire private counsel to seek such an injunction, and with that added protection, will be able to impose severe penalties if the harassment does not halt.

Many victims, especially ones who are confronted with a former romantic partner, are reluctant to involve the police or the courts, hoping that the stalking will disappear once the stalker “calms down.” That certainly can happen, but it should be remembered that the bulk of serious crimes are committed not against strangers, but against people known to the perpetrator. Stalking is not “usual” conduct, even for a jilted lover. It is demonstration of serious mental issues and the counseling requirements imposed by the Court may actually be helpful for the stalker.

Often a negotiated resolution is achieved, with counsel for the stalker stipulating to an injunction or protective order. Most courts are willing to be safer than sorrier and this writer has heard a judge state, simply, “If you aren’t stalking her, then you should have no problem with me ordering you to stay two thousand feet away from her.” The logic of that type of protective order is obvious.

There is no reason to live in fear and victims should realize that this crime is taken most seriously by the courts.

If you are a person accused of stalking, and it is an error, it is vital to obtain good legal counsel to explain to the court precisely how this error could occur and to perhaps arrange an agreed upon resolution. A felony on your record is a permanent event that can radically alter one’s future. And months or years in jail or prison destroys lives and livelihoods.

Today, when email is pervasive, much of the stalking is done electronically. That type of conduct is easily proven, and as seen in our article on hard drive discovery, almost impossible for the perpetrator to hide.

A single email may be enough to convince a judge to impose protections and to expose the sender to criminal liability. This should be kept in mind when one sits at a keyboard…or receives unwelcome continuous harassment in person, by email, by letter or by phone.