SCLaw

Civil Lawsuits and Safety Planning for Stalking Victims

Civil Litigation Remedies in Stalking Cases
Stalking cases are being prosecuted more frequently today than in the recent past of only a decade ago. Some victims of stalking who are dissatisfied with the law's ability to assist them in stopping the stalker by prosecuting the stalking crime itself have turned to more creative means of punishing the stalker and ending the stalking behavior. In many parts of the U.S., it has been discovered that civil lawsuits against stalkers are an effective means, in some cases, to stop the crime. Civil lawsuits also have the added advantage of establishing "equitable relief" for the victim.

In Illinois in1999, for instance, civil suit on a stalking case was initiated by a stalking victim with whom the accused stalker had once been involved in an extra-marital affair. Motivated by the belief that her stalker's criminal behavior would be best deterred if the stalker, who was a wealthy businessman, was confronted with the prospect of both public exposure for his behavior and financial consequences as well, the victim's suit pled intentional and negligent infliction of emotional distress, sleeplessness, anxiety, depression, nervousness, fear for her personal safety, loss of enjoyment of life, and intrusion upon personal seclusion (a form of invasion of privacy). Because the stalker's homeowner's insurance policy with The Hartford covered liability for invasions of privacy with benefits of $500,000 per incident, the victim made a claim on the stalker's homeowner policy. As a result, The Hartford was named as a party to the litigation.

This particular lawsuit resulted in the stalker voluntarily consenting to a "lifetime" (permanent) restraining order, barring him from further incidents of stalking behavior against his victim, and a lump sum payment of $300,000, of which the stalker paid 2/3 and The Hartford 1/3. The voluntary restraining order provided for payment of liquidated damages to the victim in the amount of $5,000 for any additional violations of the restraining order, in addition to any criminal sentence that might be imposed. Since September 2000, there had been no known violations of the voluntary order. (Wolf, Daniel A., Esq. (Fall 2000). "Suing a Stalker: A Case Study". Victim Advocate--the Journal of the National Crime Victim Bar Association, Volume 2, number 2, pgs. 3-6.)

In another stalking case in 1998 involving a family and one of their neighbors, civil litigation was filed against the neighbor, who had hired another man to harass and terrorize the family, and vandalize property. The case, tried over a five-day period in Fairfax County, Virginia, resulted in a verdict in favor of the family of $205,000, $30,000 of which was compensatory damages on the destruction of property charge, and the remaining $175,000 of which was punitive damages determined by the jury in the case. (Leiser, Phillip B., Esq. (Fall 2000). "The Tale from the Tape: Decedent's Statements Help Stalking Victims Secure Civil Justice". Victim Advocate--the Journal of the National Crime Victim Bar Association, Volume 2, number 2, pgs. 7-9.)

Every State has enacted some form of criminal stalking law, but only a few States have civil stalking statutes that allow victims to sue stalkers for monetary damages. (California, Oregon, Texas, Michigan, Wyoming, Nebraska and Kentucky have enacted civil stalking statutes that make special provision for civil actions based on stalking. However, special conditions may also apply in some States, such as a mandate that the victim must have first reported the stalker's criminal conduct to the police as a stalking offense prior to commencing the civil action.)

Yet, while most States do not have statutes that specifically allow stalking victims to file civil suit on their stalkers in civil court, all States have statutes that allow other causes of action that might be applied to a stalking case, based on certain evidence and conditions. For instance, a case that cannot be prosecuted under stalking statutes, might instead be prosecuted as "intentional infliction of emotional distress", or sexual harassment, trespass, assault or invasion of privacy.

In cases where intentional infliction of emotional distress is charged, for example, the prosecutor may be able to obtain a conviction on the victim's behalf if it can be shown that the stalker "intended" or determined to cause emotional distress. Since a common element in stalking cases is the need for the stalker to establish power and control over his/her victim, it naturally follows that the stalker's attempts to establish control will result in the victim feeling afraid. When evidence can be provided that the primary objective of a stalker's behavior was to traumatize, terrorize or otherwise instill fear in the victim, intentional infliction of emotional distress may be argued successfully in some States.

With the same logic, a civil remedy of sexual harassment might be successfully argued in another stalking case when there is not sufficient evidence of stalking behavior to prosecute criminal charges successfully, but when there is sufficient evidence of severe and continuous harassing of a sexual nature, undesired by the victim.

In Stinson vs. Slaughter (1993), Joan Stinson filed civil suit on her stalker, Richard Slaughter, after Maine authorities refused to arrest Slaughter on the basis that his stalking crimes perpetrated on Stinson were not an indictable offense under Maine's criminal law. William Knowles, Stinson's attorney, filed civil suit on Slaughter, which resulted in a $150,000 judgment in compensatory damages for emotional distress and the cost to Stinson of protecting herself from Slaughter. Additionally, the jury awarded Stinson $500,000 in punitive damages that Slaughter could not discharge by filing bankruptcy. (Ellis, Jennifer R. (Fall 2000). "Civil Stalking Statutes: Alternative Justice for Stalking Victims". Victim Advocate--the Journal of the National Crime Victim Bar Association, Volume 2, number 2, pgs. 17-19.)

These and other similar cases clearly suggest that civil litigation may be an important tool to sanction and control stalking behavior, particularly when civil suits can be employed together with any criminal penalties that may be applied under the law. Too, civil cases may also be easier to "prove" than criminal cases. For example, prosecutors have the obligation of providing a high burden of proof in criminal cases that may not be easily argued in many stalking cases. It is often difficult, after all, to convince juries and/or judges of the criminal intent and potential danger in a stalker's patterns of behavior, and protection orders or restraining orders may not effectively stop the stalking behavior of many stalkers. When stalking crimes "slip through the cracks" in the criminal justice system, civil stalking statutes can provide victims with viable options and alternatives to criminal charges.

Civil Lawsuits and Safety Planning for Stalking Victims
(The following article by Seema Zeya, Esq., Senior Program Director for the Stalking Resource Center, a program of the National Center for Victims of Crime ,originally appeared under the same title in the Fall 2000 issue of "Victim Advocate--The Journal of the National Crime Victim Bar Association", Volume 2, Number 2, pgs. 10-12. The article is re-printed here with Ms. Zeya's permission.)

Deciding whether to file a civil lawsuit against a stalker can be a very difficult and complex decision for a stalking victim. On the one hand, suing their stalker can help victims regain a sense of control over their lives and hold stalkers accountable for their behavior. In some cases, bringing a civil tort claim also may be the only way to obtain legal redress because criminal prosecution may not have been possible or successful. On the other hand, pursuing civil tort remedies may result in victims losing their privacy. It may also cost them money for litigation expenses and lost time from work, and force them to relive very painful memories related to their victimization.

Many victims do not realize that during the discovery phase of civil litigation, both the plaintiff and the defendant are entitled to compel each other to produce documents and evidence, answer questions, and testify at pretrial proceedings. Having to face a stalker in a pretrial meeting or in court can be a very frightening prospect for a victim. Another unsettling prospect is that the stalker may counterclaim against the victim as a form of intimidation or retribution. Even worse, some stalkers may attempt to physically retaliate against their victims for suing them in civil court. In such instances, victims may decide not to take legal action at all because of the risks attached, and instead may face no other choice but to go into hiding.

Risk Assessment and Safety Planning

Pursuing a civil tort claim against a stalker is not only about achieving justice by winning a monetary judgment on behalf of the victim, but more importantly, it is about securing the victim's safety. Therefore, attorneys must make victim safety a top priority and help their clients assess risks and realities that may place them in further danger.

Safety planning involves evaluating what is happening around a victim and examining options that will negatively and positively impact the victim's safety. More specifically, it is a tool designed to give a victim a specific plan to use if the stalking or threats of violence begin to escalate. Safety planning can help a victim devise a plan to leave an abusive partner and remain inaccessible to the stalker. Since safety plans can be quite complex, it is helpful to enlist the assistance of a trained advocate who can help victims determine which options will enhance their safety the most. The majority of input on the specific plan needs to come from the victims themselves since they are the most knowledgeable about the situation and the stalker's conduct. Plans must be tailored to meet the individual circumstances of each victim.

In short, safety planning is critical for stalking victims since the likelihood of violence escalates when a stalking victim leaves the stalker (if they are former intimate partners) or seeks legal interventions. Victims need to know in advance where to go and what to do in emergency situations. Done properly, safety planning not only can help keep stalking victims safe, it can enhance their self-esteem and provide resources to assist victims in regaining control over their lives.

Practical Tips for Safety Planning

Practitioners should be prepared to assist stalking victims in assessing danger and developing comprehensive safety plans that encompass a broad range of survival strategies. Beginning with the first client meeting, the attorney needs to show patience, compassion and sensitivity toward clients who may find it difficult to talk openly about traumatic events relating to their stalking victimization. The attorney should also stress that the client's safety is the top priority.

Stalking victims must understand that they should never underestimate their stalkers or the potential for danger. For example, any implied or direct threat, whether made in person, by phone, regular mail, or e-mail, needs to be taken seriously. Clients should be advised to call the police to report each incident of stalking; to keep a behavior log documenting any sightings or contact including the date, time, location, circumstances, and names of any witnesses; and to preserve all evidence.

Assessing Danger

While it is difficult to predict precisely how a stalker will react to a lawsuit or behave in the future, the following are warning signs that may indicate the stalker is very dangerous:

threats of homicide or suicide
history of attempted homicide or suicide
access to weapons such as firearms
history of physical or sexual violence toward the victim or others
depression or rage toward the victim because she left the stalker who is a former intimate partner
obsession or fixation on the victim.
Before a lawsuit is filed, the client should be asked about these factors as well as any escalation of the stalking or other patterns of abusive activity. At this stage, an attorney should enlist the assistance of a trained advocate who can help the client evaluate the situation. Assuming the client decides to proceed with a suit, the attorney and advocate should begin the safety planning process immediately and assist the client in developing a plan that is appropriate to the client's needs.

Protection Orders

Attorneys should make certain that stalking victim clients have obtained a civil protection order before a civil lawsuit is initiated so that if the stalker attempts to contact, harass, or threaten the victim, the police can intervene. Clients should keep the order with them at all times and deliver copies to others in the community such as local police departments, employers and schools. If victims travel across state lines, they should carry a copy of the order because the order can be enforced nationwide pursuant to the federal full faith and credit law.

Refusal to Disclose Identifying Information

Throughout the course of the litigation, the attorney should try to make sure that the stalking victim's contact and identifying information is not revealed, since disclosure to opposing counsel and the stalker may seriously impact the victim's safety. The plaintiff's attorney should object under Federal Rule of Civil Procedure 26 (or its local equivalent), and if necessary, move for a discovery protective order so that the victim does not have to reveal home address, work address, home telephone number, work telephone number, e-mail address, and social security number.

Safety Precautions

Since the primary objective should be to keep the client safe at all times, the stalking victim should be advised to take some of the following safety precautions at home, work, court and in public. (Note: This is not an exhaustive list, but rather a sampling of some commonly recommended strategies.)

At HOME:

Change locks and add deadbolts.
Install a wide angle peephole in all primary doors.
Trim the shrubbery near the house and keep the fuse box locked.
Keep flashlights with working batteries.
Install fire detectors, security alarms, and outside lights.
Get a dog for added protection.
Purchase rope ladders to be used to escape from second-story windows.
Obtain a private, unlisted phone number.
Identify all visitors before opening doors.
Instruct the phone company to block incoming calls from certain numbers.
Use an answering machine or caller-ID when receiving phone calls to collect evidence of harassment, stalking or protection order violation.
Use caller-ID blocking if it is necessary to call the stalker or someone who might intentionally or inadvertently reveal the victim's phone number to the stalker.
Obtain a cellular phone which is preprogrammed to 911 or the number of a safe friend or relative and keep it in an accessible hiding place.
Never open an unusual package, box or device found on the property, but instead call the police and ask them to examine it.
Give a picture of the stalker to neighbors, if possible, and ask them to call the police if they see the stalker nearby.
Keep a bag packed and hidden in a safe place in case there is a need for a quick escape (the bag should contain money for phone calls, transportation, and one month's expenses; clothing; diapers; court documents; passports; identification; birth certificates; school and medical records; necessary medications; credit cards; checkbooks; work permits; green cards; mortgage/lease payments; insurance papers; bank books; telephone/address books; car/house keys; and ownership documents for house/car).
Prepare an emergency evacuation plan and brief household members on the procedures.
Know how to get to the local domestic violence shelter or the home of a safe friend or relative.
At WORK:

Inform supervisors, human resources personnel, or employee counselors about the situation.
Provide a picture of the stalker and a copy of any protection orders to security, superiors, and reception area staff.
Ask co-workers to call the police immediately if the stalker appears.
Request that all visitors and packages pass through central reception.
Ask a receptionist or co-worker to screen calls.
Save any voice mail and e-mail messages received from the stalker.
Ask about flexible or alternate work hours and relocation of work space to a more secure area.
Request a parking space close to the building.
Ask for an escort to the parking lot or to the bus.
In COURT:

If the stalker is nearby, wait in a safe place such as next to a security guard or bailiff.
Avoid sitting close to the stalker in the courtroom.
Always make sure that other people are between the victim and the stalker.
Avoid speaking directly to the stalker.
Ask for an escort to and from court.
If the stalker follows the victim, call the police or drive to the nearest police station and report the incident.
In PUBLIC:

Travel in groups or with a friend, if possible.
Have protection order and emergency phone numbers on person at all times.
Avoid walking or jogging alone at night.
Always park in well-lit areas.
Alter daily routines by changing transportation routes or timing (including picking up children from school).
Do not drive directly home if followed.
Drive to a local police station, fire department or busy shopping center if followed and honk the car horn to attract attention.
Counseling

Stalking can be psychologically devastating for victims as they become more concerned about their personal safety. In fact, thirty percent of female stalking victims and twenty percent of male victims reported that they needed to seek psychological counseling as a result of their victimization. Practitioners should encourage their clients to work with a trained victim advocate, counselor, or therapist during the pendency of the civil case since the victim may feel emotionally overwhelmed. In particular, if victims have to face stalkers in open court and testify about their victimization, it is critical that they be psychologically prepared for such an experience. It is imperative that practitioners understand the mental health needs of stalking victims and assist their clients in accessing appropriate services.

Conclusion

Civil lawsuits can hold stalkers accountable and can help victims achieve justice and regain a sense of control over their lives. However, safety planning must be an integral part of the process in order for the action to be truly beneficial to the victim. Practitioners should recognize the importance of assessing risks and dangers, and should be willing to assist their clients in developing comprehensive plans that will keep them safe throughout the course of the case.

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