| According to the NVAW Survey, 55% of female victims and 48% of male victims reported their stalking victimization to law enforcement. The Survey also found that law enforcement was more likely to arrest or detain stalking suspects in cases involving female victims, and law enforcement was also more likely to refer female victims to services than male victims. Although reports to law enforcement of stalking crimes have increased between 1990 (the year in which California adopted the first anti-stalking statute) and 1995 (the year by which all 50 States and the District of Columbia had adopted anti-stalking laws), there has been no significant difference between the number of arrests made in stalking cases prior to 1990 and those occurring after 1995. 76% of those victims surveyed whose stalkers were arrested expressed satisfaction with law enforcement's handling of their case. Of those whose stalker was not arrested despite reporting the stalking incidents, victims predictably expressed that they were not satisfied with law enforcement's actions on their case. 42% of those victims in the latter category said that they felt law enforcement should have jailed their stalker, while 20% said law enforcement should have taken their situation more seriously. 16% said that law enforcement should have done more to protect them from their stalker. 13% of victims felt police could have been more supportive and 12% felt that law enforcement should have investigated the stalking charge more thoroughly: "One victim told of police officers being called to her home on numerous occasions, listening to her accounts of being stalked and taking written notes. She found out only later that not one report had ever been officially filed. Another victim said that she went to the police only after her stalker broker her nose in broad daylight. They told her it would be too hard to prosecute her case. She endured numerous attacks by the stalker after her initial interaction with law enforcement, including one that left her hearing disabled. One victim indicated that she had received assistance from an FBI agent who got involved in her case when the stalker started sending threatening letters to her through the U.S. Postal Service. Prior to this intervention, however, she endured years of increasingly violent stalking acts." (Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.) The low arrest rates of stalkers at least partially explain the low prosecution rates of stalkers. The NVAW Survey found that 13% of female victims and 9% of male victims reported that their stalkers were criminally prosecuted. When only those cases with law enforcement reports are considered, the figures increase to 24% of female victims and 19% of male victims reporting that their stalkers were criminally prosecuted. Approximately 54% of the stalkers prosecuted were actually convicted of a crime, although the criminal conviction may not have been for stalking, but may have been for crimes related to stalking, including harassment, threats, vandalism, trespassing, breaking and entering, robbery, disorderly conduct and assault. Of those stalking offenders convicted, approximately 63% were believed to have been sent to prison. The Survey also revealed that approximately 28% of female victims obtained protection orders or restraining orders against their stalker, compared to 10% of male victims. Of those who obtained protection orders, 69% of the female victims and 81% of the male victims reported that their stalker violated the order. Overall, the number of stalking incidents being reported to police appears to be increasing, indicating that victims are beginning to feel, or at least act on the hope, that law enforcement and criminal justice professionals will respond in positive ways to reported stalking behavior. Unfortunately, although law enforcement appears to be responding to the reports of victims, actual arrests and prosecution of offenders remains small. Accusations of stalking may be particularly difficult to prosecute, as they more often than not lack evidence of physical bodily harm or of an easily discernable, apparent threat that is also easy to prove. For victims of stalking, the reality of pursuing a complaint for stalking through the criminal justice system involves an unconditional commitment investment of time, emotion and financial resources on the part of the victim, who must often endure more stalking offenses while documenting the evidence necessary to prosecute their stalker. Victims typically must keep detailed logs of stalking incidents, gather evidence, fill out paperwork, meet with investigators and prosecutors, petition the court for protection orders, and finally, testify in court against the stalker. To further discourage the victim from seeking criminal justice remedies against the stalker, many victims of stalking describe being approached by their stalker as they travel to and from government buildings, seeking court orders and other protections. Even when incarcerated, some stalkers continue to terrorize their victims from prisons or mental institutions by sending threatening letters to the victim. Many victims feel that imprisonment or containment of the stalker in a mental institution is only a "temporary reprieve" from stalking offenses and as a result, some victims change their identity and appearance, going to great length and personal expense to hide from their stalker. These victims need assistance similar to that provided through witness protection programs. Perhaps as a direct result of a perceived low effectiveness of the criminal justice system to adequately protect victims, it was found that stalking victims often express concern about their personal safety and are significantly more likely than non-stalking victims to carry something on their person to defend themselves against an assailant. 56% of female and 51% of male stalking victims report taking some type of self-protective measure against assault. Victims also tend to report that informal justice system interventions, such as warnings to stalkers from law enforcement officers and private detectives, are often more effective deterrents than formal justice system interventions, such as arrest, conviction or the securing of a protection order. 15% of victims reported that their stalking victimization ceased after the stalker received a warning from police, whereas only 9% of victims said their stalking stopped because the offender was arrested. 1% credited the cessation of stalking behavior to conviction of the stalker and less than 1% of victims said the stalking stopped because they obtained a protection order. Since stalkers are often prosecuted and convicted for crimes that are not defined as "stalking" (for instance, convictions for domestic violence or assault and battery) or a conviction may only account for one or two aspects of stalking behavior (such as harassment, violation of a protection order, etc.), statistics on stalking are difficult to obtain, the stalking charge often being obscured by convictions or prosecution on other charges. Each of these factors combined has had the net result of stalkers remaining under-arrested and under-convicted or sentenced. In addition, law enforcement and criminal justice professionals often erroneously presume that victims reporting stalking behavior are exaggerating their perceived danger or simply overreacting. Length of a relationship should not be considered a determining factor in evaluating a stalking threat. However, physical or sexual intimacy, regardless of the length of the relationship, may be an important consideration in evaluating the level of danger or risk posed by a stalker in some cases. The NVAW Survey supports the opinion of many crisis intervention professionals and victims that the actors in the criminal justice system do not fully understand the danger stalkers represent to victims. Predictably, when professionals working within the system don't understand the danger, the potential seriousness of the crime underestimated. The Third Annual Report to Congress under the Violence Against Women Act concerning Stalking and Domestic Violence states that criminal justice practitioners contacted report that their approach to stalking has become one of pursuing the case aggressively at the outset, so that the stalking acts are not allowed to rise to a level that would trigger the State's anti-stalking laws. But this approach may still not be adequate to protect American Indian and Alaskan Native victims of stalking. Since the NVAW Survey reveals that Indian women are stalked more than twice as often as white women and almost three times as often as African-American women, special implications for Native American victims of stalking cannot any longer be ignored. The Third Annual Report to Congress on Stalking and Domestic Violence states that: "This finding should be viewed with caution, however, given the small number of American Indian/Alaska Native women in the sample...Since information on violence against American Indian and Alaska Native women is limited, it is difficult to explain why they report more stalking victimization. A previous study found that the overall homicide rates for Native Americans were about two times greater than U.S. national rates.* Thus, there is some evidence that Native Americans are at significantly greater risk of violence--fatal and nonfatal--than other Americans. How much of the variance in stalking prevalence may be explained by demographic, social, and environmental factors remains unclear and requires further study. Moreover, there may be significant differences in stalking prevalence among women of diverse American Indian tribes and Alaska Native communities that cannot be determined from the survey, since data on all Native Americans were combined." (*Wallace, L.J.D., A.D. Calhoun, K.E. Powell, J. O'Neill, and S.P. James (1996). "Homicide and Suicide Among Native Americans, 1979-1992". Violence Surveillance Summary Series, No. 2. Atlanta, GA: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control.) (Stalking and Domestic Violence: The Third Annual Report to Congress Under the Violence Against Women Act (1998), Violence Against Women Grants Office, Office of Justice Programs, U.S. Department of Justice, NCJ-172204, pg. 8-9.) Only 88 American Indian/Alaska Native women and 105 American Indian/Alaska Native men were interviewed during the course of the NVAW Survey (4.8% of Indian men reported having been stalked in their lifetime, as compared to 2.1% of white men and 2.4% of African-American men). Regardless of these small numbers in the sample, it should not be difficult to explain why Indian people report more stalking victimization than persons of any other race. Nor should it be anticipated that the explanations will lie in demographic, social and environmental factors to any significant degree or that the results would be remarkably different than those arrived at in the Survey if the data on Native American people were separated by tribe or Indian Nation. The best possible explanation for the high rates of stalking victimization reported by Indian people can be found by examining the following considerations and their negative impact on the circumstances of Indian people: At least 70% of the violent victimizations of Indian people are perpetrated by non-Indians; and The various Acts of Congress and U.S. Supreme Court decisions since 1831 that have shaped the U.S. government's "Indian policy" do not allow Indian people adequate protection under the law (or in fact, equal protection with other races under the law). Jurisdictional issues exist with regard to how the federal, state and tribal laws interact with each other, and these same jurisdictional issues often have the effect of allowing non-Indians to perpetrate violent acts upon Indian persons without fear of arrest, detention or prosecution. (A more complete discussion of the laws affecting American Indian people may be found in the "Judicial Responses" section of this handbook.) In fact, the historical experience of Native American people has included extreme "conditioning" to influence Indian people to suffer in silence and believe that legal recourse does not exist for them under the American justice system. The historical experience of Indian women in colonial times often included rape or violent assault at the hands of non-Indian men and few of the women victimized dared approach American jurisprudence for either protection against the perpetrator or justice for the wrongs committed. Those Indian women who did report to non-Indian justice systems violence perpetrated upon them more often than not received only ridicule and further shame. Even today, this tradition of not reporting and not "telling" has continued among Native American people. Too often, the Native American victim of violence perpetrated by a non-Indian person is painfully aware that the American system of justice cannot or will not protect them or take punitive actions on behalf of the victim. Distrust for government and non-Indian persons in general encourages a failure to report. Since so much of the violence perpetrated against Native American persons is committed by a non-Indian person, Native American women particularly feel a distaste and aversion for talking about what happened to them to "another non-Indian" person, or a person who is "like"--at least in appearance--the one who committed the violent act. The 1998 Report to Congress on Stalking and Domestic Violence also notes that Asian and Pacific Islander women are at a significantly less risk of being stalked than women of other racial and ethnic backgrounds. The Report suggests that traditional Asian values emphasizing close family ties and harmony may discourage Asian women from reporting or disclosing abuse by intimate partners, explaining why women from these racial groups appear to suffer fewer stalking crimes, when in fact, they may suffer at the same rates as other races. However, it should be noted that Native American people also embrace traditional values relative family allegiances, tribal and clan loyalties, and general harmony among members of the community. Yet embracing the same values that are deemed to place Asian and Pacific Islander women at less risk of stalking clearly did not result in less reporting for Survey purposes by Native American women. This fact suggests that cultural values do not impact the reporting of stalking incidents by either Asian and Pacific Islander women or Native American women. If it can be reasoned, therefore, that the statistics relative stalking for Asian and Pacific Islander women are correct, regardless of cultural values emphasizing close family ties and harmony, then it should also be reasoned that the same cultural values held by Native Americans do not affect the statistics relative stalking as it impacts Native American women. Because the potential for violent assault and death associated with stalking cases is great, the criminal justice system accessed by the victim, whether from an American paradigm of justice or a tribal, indigenous paradigm of justice, must recognize the need to protect the victim and must never underestimate the stalker. Federal anti-stalking legislation was enacted in 1996 with the Interstate Stalking Punishment and Prevention Act. The Act prohibits individuals from traveling across a State line with the intent to injure or harass another person or place another person in reasonable fear of death or bodily injury as a result of, or in the course of, such travel. The legislation enables federal prosecution to take place when the interstate feature of a stalking case creates additional challenges to successful State (or tribal) prosecution of a case. Federal law aside, though, stalking crimes are largely the responsibility of State, tribal or local jurisdictions. In 23 States, a first offense of stalking may be a felony under certain conditions and circumstances. In 12 States, conviction for a first offense of stalking is an automatic felony. In the remainder of States, a first offense of stalking is a misdemeanor, but a second conviction is a felony. In Oklahoma, an initial stalking offense is classified as a misdemeanor, for example. However, a second misdemeanor stalking offense carries felony penalties. While all 50 States and the District of Columbia have enacted some type of stalking law, provision for civil protection orders has been made in the stalking laws of only 27 States. In those States, stalking protection orders may be issued in addition to a protection order against domestic violence: As of August 2000, there were nearly 500 stalking and related cases identified that had been prosecuted either at a Federal, State or local level: Cases involving stalking were most common (157 cases), followed by harassment (142 cases) and threats (122 cases). Only a few State stalking laws have been struck down on the basis of overly vague terms such as "annoy" or lacking an intent requirement... Harassment laws that are not limited to prohibitions on "fighting words", which are not entitled to the same protection under the First Amendment as are other kinds of speech, were the most vulnerable to constitutional challenge. However, courts held that telephone harassment laws were not required to have such a limitation because of their invasion of privacy component. For much the same reason, telephone harassment and threat laws commonly focus on the intent of the caller to harass or threaten rather than the victim's response to these messages. In fact, a few States do not require actual fear to result from the harassment." (Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.) In States where stalking is a misdemeanor offense, explicit authority to arrest without a warrant is often absent in statutory law. This absence may present significant issues, although no statistics have been compiled on the subject to this date. In most States (49 States), a law enforcement officer may arrest without a warrant any person who has committed misdemeanor domestic violence that includes stalking acts, provided the arresting officer has jurisdictional authority. In States where stalking is classified as a felony, law enforcement officers may arrest without a warrant any person who they have probable cause to believe committed a felony act of stalking, provided they have jurisdictional authority. In those States where stalking falls into a felony category under certain restricted circumstances (as in Oklahoma), law enforcement officers may arrest without a warrant only when (1) they have established jurisdictional authority, and (2) when they have first determined that the stalking charges meet requirements for felony status. The results of a "mail only" survey conducted in November 1997 with 204 law enforcement agencies and 222 prosecution offices revealed that: "...all but seven of the police agencies surveyed assign stalking cases either to their detective unit or to a specialized unit, most commonly the domestic violence unit, or to a combination of detectives and domestic violence investigators. A few agencies assign stalking cases to their sex crimes unit. Only one has a specialized stalking unit. Most of the prosecution offices surveyed similarly assign stalking cases to their domestic violence unit. A significant minority (15%) split stalking case duties between their domestic violence unit and another unit, usually the general trial unit." (Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.) In addition, among those agencies which participated in the survey it was revealed that: stalking training for police recruits is typically part of their domestic violence training; about 13% of law enforcement agencies have specialized training on stalking independent of domestic violence, although several offer both types of training, with less than 15% offering no stalking training to police recruits; 82% of prosecution offices surveyed provide training on stalking; 10% of prosecution offices surveyed said that the only stalking training their attorneys receive is from outside training sources; 57% of the police agencies surveyed have written policies and procedures for handling stalking cases, most often as part of their domestic violence protocols, compared to 50% of prosecution offices who have written policies in place for prosecuting stalking cases. (Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.) With regard to issues of jurisdictional authority, it is particularly important to recognize that State law enforcement officers in most States (that is, non-P.L. 280 States) do not possess jurisdictional authority to arrest or detain Indian persons for any crime that took place on Indian land. Nor do non-P.L. 280 States possess jurisdiction to prosecute any crime that took place on Indian land involving at least one Indian person, either as the victim or the offender. (See the "Judicial Responses" section of this handbook for more information regarding P. L. 280). By the same token, Indian Nations do not possess criminal jurisdiction to prosecute non-Indians for any violation of tribal law, unless the offender stipulates (U.S. Supreme Court Oliphant vs. Suquamish, 1978). Therefore, in stalking cases where neither the tribal authority nor the State authority can establish jurisdiction, it is necessary that the federal authorities be appealed to for arrest, investigation and prosecution. Under the original 1996 federal anti-stalking statute, however, few stalking cases would rise to meet the standards for prosecution (interstate stalking), leaving American Indian and Alaska Native victims particularly vulnerable to further offenses. This Congressional "mistake" has been corrected with the VAWA II legislation, made effective November 1, 2000, allowing prosecution for stalking crimes that cross jurisdictions categorized as "Indian country". (Please refer to the Judicial Responses section of this handbook for discussions about jurisdictional authority in Indian Country and over Indian persons, particularly in the chapter "Implementing the Full Faith and Credit Provision in Indian Country".) In States where the anti-stalking statute language requires proof of "a course of conduct", prosecutors complain that stalking charges are sometimes difficult to prove since courts often do not allow admittance of testimony regarding previous stalking acts by an offender. Since the burden of proof is upon the prosecutor to establish a pattern of acts that constitute "a course of conduct", stalking cases are dismissed when prior acts are denied admittance in court. Other criminal justice professionals point out that stalking is commonly an element in domestic violence cases, rendering the line between the crimes virtually imperceptible. Too, many judges do not comprehend the terrorist psychology that is commonly imbedded in stalking behavior, so they cannot adequately appreciate the terror that the victim feels as a result of the behavior and erroneously conclude that certain cases would have been better classified as harassment, with civil, rather than criminal, penalties. Due to these and numerous other problems incidental to prosecution of stalking offenders, most stalkers are sentenced not for stalking offenses, but for domestic violence offences or violations of protection orders. Others have noted that stalkers might typically be classified as "extremely persistent" in their actions, and logical reasoning would therefore suggest that stalking behaviors are potentially of an extremely serious nature, establishing an imperative need for the criminal justice system to take steps to protect the victim. Progressive sentencing structures have been suggested for inclusion in statutory law or tribal code that will impose increasingly stiffer penalties on repeat offenders. There is also evidence that intensive supervision of stalkers, both before and after conviction, may have a positive impact on stalking behavior. As a result, sentencing and supervision together have become the focus of judiciary who recognize that forms of both types of sanctions play a significant role in prevention of stalking behavior. In States where supervision of a convicted stalker is precluded until after sentencing, law enforcement and probation officers have noted that violence which takes place in the interim tends to be severe. Pre-sentencing supervision of stalkers and conditional bail options, where allowed by law, may be significant strategies available for use by prosecutors and judiciary in stalking cases. Since statistics provide evidence that protection orders in stalking cases are frequently violated, increased supervision and monitoring of offenders in the pre-trial and pre-sentencing phases of a stalking case are of particular necessity in the protection of victims. Counselors who work with stalkers also emphasize the need for close supervision of offenders, as well as the need for a solid working relationship between the counselor and the probation officer assigned to the case. Ideally, when counselors and probation officers work together to supervise and monitor the behavior of the offender, stalking behavior is curtailed. Also, while adhering to confidentiality protocol, counselors can often advise both victims and appropriate authorities of behavior noticed in the offender that may portend increased danger for the victim, thereby affording the victim greater protection. Visual or electronic monitoring of an offender's whereabouts and actions should be encouraged and in any stalking case, determination should be made as to what degree of threat a stalker poses to his victim. Such an evaluation should include a complete lethality assessment. Group counseling or batterer intervention therapy may also be employed with positive results in many cases. Some researchers believe that stalkers typically suffer from a mental illness: "The most significant research finding concerning stalkers is that the majority of the stalkers who have been brought to the attention of the police are suffering from a major mental illness or personality disorder. Some of the most often diagnosed disorders affecting stalkers have included erotomania, anti-social personality disorder, schizophrenia, or a substance abuse disorder. What is interesting to note is that most states' newly enacted anti-stalking legislation does not take into account the probability that stalkers may be suffering from mental illness even though recent research has clearly indicated that most stalkers do suffer from some disorder. Moreover, the majority of anti-stalking laws do not make it mandatory that a stalker even undergo a psychological evaluation after he/she is arrested and convicted." Osman, Daniel J. (post 1992, but undated). "In the Mind of a Stalker". From a Master's thesis for a degree in Criminal Justice at Boston University, re-printed by the Center for Criminal Justice Studies. These statistics, however, were probably the result of early research on stalking behavior when little information was available except statistics on celebrity stalking. Without a doubt, many celebrity stalkers suffer from one or more mental or emotional illnesses, but celebrity stalkers are not representative of all stalkers. In fact, celebrity stalkers represent only a very tiny percentage of the total number of identified stalkers. As a result, most crisis intervention professionals do not believe that the typical stalker is mentally ill or emotionally disturbed. Nevertheless, in the instances when a stalker appears to be unable to make clear choices regarding his/her actions, or where there is evidence that the stalker is delusional, referrals to mental health authorities should be made. In some instances, it may be possible to seek involuntary commitment and mental health evaluation for the offender. (Note: Victims who relocate in order to conceal their whereabouts from a stalker may discover that they are being stalked again as a consequence of filing for a renewal of an existing protection order since re-applying for a protection order may inform the stalker of the victim's location. As a result, some states are beginning to recognize the need to issue "lifetime" protection orders for stalking victims.) |
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