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Stalking by Definition

Developing a Working Definition for "Stalking"
Since the passage of the initial VAWA legislation in 1994, the issues of domestic violence, sexual assault and stalking have received the focused attention of many legislators, employers, researchers, the public health community, policymakers, criminal justice professionals and crisis intervention specialists. Behaviors generally associated with stalking have been suggested and discussed by numerous people, each endeavoring to create a working definition for the term "stalking" that can be used and understood in the non-specific communications of crisis intervention specialists, as well as the specific language of those working within the confines of the criminal justice system. This task, seemingly so simple, has posed complex obstacles for those who have approached it.

Typically, those who have tried to define the term suggest obsessive, repeated following and harassment as behavior common to stalkers. Harassing phone calls, threatening behavior that includes leaving written messages or objects and acts of vandalism may be included in the definition.

Most States include "willful, malicious and repeated following and harassing of another person" in the legal definition of statutory law regarding stalking. Some States include one or more of the other behaviors or characteristics listed or the statute may add to the definition activities such as "nonconsensual communication" or "surveillance". Almost without exception, the various States require that the stalking involve more than one isolated event and that the stalker make a "credible threat" of violence against the victim. Requirements relative the level of fear the victim of stalking may feel also vary from State-to-State.

Unfortunately, if stalking behaviors are listed within the ordinance or statute, some courts may rule that the specific behaviors listed are "exclusive" of stalking behavior, although the statute may actually list only a few behaviors that are common to stalking offenders.

The Northern Cheyenne of Lame Deer, Montana, is one of the few tribes that have actually adopted code addressing the crime of stalking. The code reads, in part:

"Whereas: The Northern Cheyenne has determined that a Stalking Ordinance is necessary due to increased incidents involving the domestic abuse violations on the Northern Cheyenne Reservation, and Whereas: The Domestic Abuse Ordinance lacks this clause and the stalking of the victim has occurred various times throughout the years, where the perpetrator has harassed and intimidated the victim by the use of presence and by other means.
So Be It Ordained by the Northern Cheyenne Tribal Council that the following ordinance, the Stalking Ordinance, is hereby adopted by the Tribal Council...Stalking is a Class A offense. The Ordinance is as follows:

A person commits the offense of stalking if the person purposely or knowingly causes another person substantial emotional distress or reasonable apprehension of bodily injury or death by repeatedly:
following the stalked person; or
harassing, threatening or intimidating the stalked person, in person or by phone, by mail, or by other action, device or method...
Attempts by the accused person to contact or follow a person after the accused person has been given actual notice that the stalked person does not want to be contacted or followed constitutes prima facie evidence that the accused person purposely and knowingly followed, harassed, threatened or intimidated the stalked person."
In the Northern Cheyenne code, stalking might be defined as repeated harassing, threatening or intimidating behavior through any type of communication, that causes the person substantial emotional distress or reasonable apprehension of bodily injury or death.. Based on paragraph (5) of the Ordinance, acts of stalking might be further defined by whether or not the stalked person has provided actual notice that they do not desire to be contacted.

The Northern Cheyenne Ordinance sets a penalty of thirty (30) days jail time and a fine of not less than $500 for a first offense conviction. A second offense conviction carries the penalty of ninety (90) days in jail and a fine of not less than $1,000, with the third or subsequent convictions carrying a penalty of not less than 180 days jail time and a fine of no less than $2,000.

The Ordinance highlights many activities that are commonly associated with stalking and it is both innovative and forward-thinking, particularly when one considers that few other Indian Nations have addressed this issue. However, the Ordinance's preamble language links stalking to domestic violence. Whether or not the tribal judiciary would perceive this "link" to be a prerequisite for stalking ordinance violations or even as establishing a "legal limit" within which stalking offenses can be considered, only the tribe's case law could demonstrate.

The Ordinance requires that communication take place between the stalker and the victim, but this requirement may exclude from consideration by a tribal court the statement of a victim who claims she is being stalked by someone whom she has never had any type of communication or contact with. By further providing that the stalked person must give "actual notice" to the stalker that she does not wish to be contacted--another standard for definition upon which a court's determinations may be based--a victim may have a difficult time convincing a court that she is a stalking victim. Too, if a victim attempted to meet the requirement of providing "actual notice" to her stalker, she could be taking action that could place her in greater danger of physical assault.

In using the language "substantial emotional distress", the court is placed in a position of having to determine what level of distress might be defined as "substantial", for after all, what may be "substantial" to one person may be totally insignificant to another. Likewise, "reasonable apprehension" may have different meanings for different people. There is a major difference between "reasonable apprehension" and apprehension that a "reasonable person" may feel.

These considerations are not intended to be a critical summary of the Ordinance's flaws for the Ordinance uses terms and definitions that are common to most other stalking ordinances. Indeed, the Apache Tribe of Oklahoma's Protection Code, showcased in this handbook, defines Stalking in much the same terms as being "the willful, malicious and repeated following of a person by an adult, emancipated minor, or minor thirteen (13) years of age or older, with the intent of placing the person in reasonable fear of death or great bodily injury...". However, some of the terms used may not be sufficient to provide adequate judicial protection for victims of stalking.

The State of Oklahoma's statute defines stalking in the exact manner as the Apache Tribe's Protection Code. The Oklahoma statute goes on to provide that: "Any person who willfully, maliciously and repeatedly follows or harasses another person in a manner that (1) would cause a reasonable person...to feel frightened, intimidated, threatened, harassed, or molested; and (2) actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed, or molested, upon conviction, shall be guilty of the crime of stalking...".

This qualifying description in the statute requires only that a "reasonable person" feel fear, not that a person feel "reasonable fear" (as previously stated in the statute's stalking definition). The qualifying description also provides room for judiciary to establish standards by which a reasonable person's fear can be measured within the meaning of the law. Yet the State statute still contains some weaknesses, notably in its use of the word "repeatedly" without detailing how that word is to be defined by the judiciary. Also, the Oklahoma statute fails to recognize all the varied forms of stalking behavior, including lying-in-wait, surveillance and vandalism.

These flaws are not unique to Oklahoma's statutes either:

"More recently, in the 2000 Report to Congress evaluating the STOP Violence Against Women Formula Grants, the Urban Institute noted that stalking is the least understood of the three crimes addressed by VAWA. Only eight States address stalking in their STOP implementation plans."
(Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.)

It is reasonable to presume that even fewer American Indian or Alaska Native Tribal Nations address stalking, either through a STOP Violence Against Indian Women Formula Grant or on their own determination, independent of STOP funding. This realization highlights once again the great accomplishment of the Northern Cheyenne in adopting their anti-stalking ordinance.

The definition of stalking used by the National Violence Against Women Study, sponsored jointly by the National Institute of Justice and the Centers for Disease Control and Prevention is:

A course of conduct directed at a specific person that involves repeated visual or physical proximity; non-consensual communication; or verbal, written or implied threats; or a combination thereof, that would cause a reasonable person fear.
This may very well be the best possible definition for use in legal arenas since it is broad enough to encompass all the known behaviors of stalkers, yet strict enough to pose limitations on what might reasonably be construed to be stalking behavior.

The Model Anti-Stalking Code developed by the National Violence Against Women Survey, as provided by the National Stalking Resource Center, was created to establish a legal framework for addressing the crime of stalking. It is recommended for adoption by states and Indian Nations, with modifications as may be necessary in accordance with the Indian Civil Rights Act. The model code development project, in the creation of the code, provides explanations for the choice of terms used in the code and definitions for those words, as follows:

Section 1. For the purposes of this code:

"Course of conduct" means repeatedly maintaining a visual or physical proximity to a person or repeatedly conveying verbal or written threats or threats implied by conduct or a combination thereof directed at or toward a person;
"Repeatedly" means on two or more occasions;
"Immediate family" means a spouse, parent, child, sibling, or any other person who regularly resides in the household or who within the prior six (6) months regularly resided in the household.
Section 2. Any person who:

Purposefully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or herself or a member of his or her immediate family, or to fear the death of himself or herself or a member of his or her immediate family; and
Has knowledge or should have knowledge that the specific person will be placed in reasonable fear of bodily injury to himself or herself or a member of his or her immediate family, or will be placed in reasonable fear of the death of himself or herself or a member of his or her immediate family; and
Whose acts induce fear in the specific person of bodily injury to himself or herself or a member of his or her immediate family, or induce fear in the specific person of the death of himself or herself or a member of his or her immediate family; is guilty of stalking.
Analysis and Commentary on Code Language (Section 1) (provided by the National Violence Against Women Survey):

Prohibited Acts:

Unlike many (state) stalking statutes, the model code does not list specific types of actions that could be construed as "stalking". Examples of specific acts frequently proscribed in existing stalking statutes include following, non-consensual communication, harassing and trespassing.

Some courts have ruled that if a statute includes a specific list, the list is exclusive. The model code, therefore, does not list specifically proscribed acts because ingenuity on the part of an alleged stalker should not permit him to skirt the law. Instead, the model code prohibits defendants from engaging in "a course of conduct" that would cause a reasonable person fear.

Credible Threat:

Unlike many (state) stalking statutes, the model code does not use the language "credible threat". Stalking defendants often will not threaten their victims verbally or in writing, but will instead engage in conduct which, taken in context, would cause a reasonable person fear. The model code is intended to apply to such "threats implied by conduct". Therefore, the "credible threat" language, which might be construed as requiring an actual verbal or written threat, was not used in the model code.

Immediate Family:

A stalking defendant may, in addition to threatening the primary victim, threaten to harm members of the primary victim's family. Under the provisions of the model code, such a threat to harm an immediate family member could be used as evidence of stalking in the prosecution for stalking of the primary victim.

The model code uses a definition of "immediate family" similar to one currently pending in the California legislature. This definition is broader than the traditional nuclear family, encompassing "any other person who regularly resides in the household or who within the prior six (6) months regularly resided in the household". (NAC Note: a broad definition of "immediate family" is recommended in establishing tribal code as well, since the term "traditional nuclear family" often possesses an entirely different meaning for Native Americans than it does for non-Indian families.)

If states (or tribes) want to consider further expanding the definition of "immediate family", they should be aware that broadening it too much may lead to challenges that the statute is overly broad.

Commentary (Section 2)(provided by the National Violence Against Women Survey):

Classification as a Felony:

States should consider creating a stalking felony to address serious, persistent and obsessive behavior that causes a victim to fear bodily injury or death. The felony statute could be used to handle the most egregious cases of stalking-type behavior. Less egregious cases could be handled under existing harassment or intimidation statutes. As an alternative, states may wish to consider adopting both misdemeanor and felony stalking statutes.

Since stalking defendants' behavior often is characterized by a series of increasingly serious acts, states should consider establishing a continuum of charges that could be used by law enforcement officials to intervene at various stages. Initially, defendants may engage in behavior that causes a victim emotional distress but does not cause the victim to fear bodily injury or death. For example, a defendant may make frequent but non-threatening telephone calls. Existing harassment or intimidation statutes could be used to address this type of behavior. States also may want to consider enacting aggravated harassment or intimidation statutes that could be used in situations in which a defendant persistently engages in annoying behavior. The enactment of a felony stalking statute would allow law enforcement officials to intervene in situations that may pose an imminent and serious danger to a potential victim..

Classification as a felony would assist in the development of the public's understanding of stalking as a unique crime, as well as permit the imposition of penalties that would punish appropriately the defendant and provide protection for the victim.

Of utmost importance is a state's decision to require the criminal justice system and related disciplines to take stalking incidents seriously. A state's decision on how to classify stalking and how to establish its continuum of charges is of less importance.

Conduct Directed at a Specific Person:

Under the model code's language, the stalking conduct must be directed at a "specific person". Threatening behavior not aimed at a specific individual would not be punishable under a statute similar to the model code. For example, a teenager who regularly drives at high speed through a neighborhood, scaring the residents, could not be charged under a stalking statute based upon the model code.

Fear of Sexual Assault:

The model code language does not apply if the victim fears sexual assault, but does not fear bodily injury. It is likely that victims who fear that a defendant may sexually assault them also fear that the defendant would physically injure them if they resisted. Furthermore, since the human immunodeficiency virus (HIV), which causes acquired immunodeficiency syndrome (AIDS), could be contracted through a sexual assault, a victim is more likely to fear bodily injury or death, as well as psychological injury. Nevertheless, due to the nature of stalking offenses, states (and tribes) may want to consider expanding the language of their felony stalking statutes to include explicitly behavior that would cause a reasonable person to fear sexual assault in addition to behavior that would cause a reasonable person to fear bodily injury or death.

Intent Element:

Under the provisions of the model anti-stalking code, a defendant must engage purposefully in activity that would cause a reasonable person fear and have or should have knowledge that the person toward whom the conduct is directed will be placed in reasonable fear. In other words, if a defendant consciously engages in conduct that he knows or should know would cause fear in the person at whom the conduct is directed, the intent element of the code is satisfied.

A suspected stalker often suffers under a delusion that the victim actually is in love with him or that, if properly pursued, the victim will begin to love him. Therefore, a stalking defendant actually may not intend to cause fear; he instead may intend to establish a relationship with his victim. Nevertheless, the suspected stalker's actions cause fear in his victim. As long as a stalking defendant knows or should know that his actions cause fear, the alleged stalker can be prosecuted for stalking. Protection orders can serve as notice to a defendant that his behavior is unwanted and that it is causing the victim to fear.

Fear Element:

Since stalking statutes criminalize what otherwise would be legitimate behavior based upon the fact that the behavior induces fear, the level of fear induced in a stalking victim is a crucial element of the stalking offense. The model code, which treats stalking as a felony, requires a high level of fear--fear of bodily injury or death. Acts that induce annoyance or emotional distress would be punishable under statutes such as harassment or trespassing, that do not rise to the felony level and carry less severe penalties.

In some instances, a defendant may be aware, through a past relationship with the victim, of an unusual phobia of the victim's and use this knowledge to cause fear in the victim. In order for such a defendant to be charged under provisions similar to those in the model code, the victim actually must fear bodily injury or death as a result of the defendant's behavior and a jury must determine that the victim's fear was reasonable under the circumstances.

In recent years, the necessity for adopting careful and concise language in anti-stalking laws has been highlighted as a result of legal challenges made to stalking laws in various states. In January 2002, the U.S. Department of Justice, Office of Justice Programs, Office for Victims of Crime, published their Legal Series Bulletin #1 entitled Strengthening Anti-Stalking Statutes. The Bulletin notes that:

"Many 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; however, it may not be necessary to provide such exceptions within the statute itself..."
The Bulletin goes on to say that the Supreme Court of Illinois interpreted the state's stalking laws to prohibit only conduct performed "without lawful authority", even though the laws do not contain that phrase. This ruling clearly acknowledges the "intent" of the statutory anti-stalking laws in the State and seeks to recognize that intent as being obviously implied under the law. Other state courts and legislatures are drawing similar conclusions.

Cases that challenge the constitutionality of stalking laws usually contain protests that the state statute's language and definitions are too broad or "unconstitutionally vague". From the synopses of the challenges cited in the OVC Legal Series Bulletin #1, decisions passed down in these cases have generally defined "unconstitutionally overbroad" as being a statute that "inadvertently criminalizes legitimate behavior". The Bulletin also points out that where the charge of "unconstitutionally vague" is leveled:

"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." Whether a given term is unconstitutionally vague is left to the interpretation of each state's courts."
Most state courts that have heard cases based on these challenges have ruled that the terms "repeatedly," "pattern of conduct," "series," "closely related in time," "follows," "lingering outside," "harassing," "intimidating," "maliciously," "emotional distress," "reasonable apprehension," "in connection with," and "contacting another person without the consent of the other person" are not unconstitutionally vague.

However, the Oregon Court of Appeals ruled that the term "legitimate purpose" was unconstitutionally vague, thereby invalidating the state's stalking law. As a consequence, the Oregon legislature revised the statute. The Supreme Court of Kansas also found the state's stalking laws unconstitutionally vague, ruling that the terms "alarms", "annoys," and "harasses", as used in the statute, were not defined by the statute or provided with an "objective standard to measure the prohibited conduct". The Texas Court of Criminal Appeals made a similar ruling on its state statute concerning the words "annoy" and "alarm". Both the Kansas and Texas legislatures have subsequently revised the states' stalking statutes. (OVC Legal Series Bulletin #1, Strengthening Antistalking Statutes, January 2002, U. S. Department of Justice, Office of Justice Programs, Office for Victims of Crime, created by the National Center for Victims of Crime (NCVC) under grant number 1999-VF-GX-K007 awarded by the Office for Victims of Crime.)

Clearly, the choice of words used to establish and define stalking crimes and penalties therefor must be chosen carefully. Tribal Nations developing anti-stalking legal code for use in tribal courts need to be aware of the challenges and legal issues created by the semantics of language manipulation in state courts across the nation, particularly in states where Public Law 83-280 or similar laws are in effect. Restraining orders and protection orders issued by Tribal Nations on behalf of stalking victims should certainly contain all the language typically found in VAWA-compliant protection orders to clearly implement the Full Faith and Credit provision of VAWA (see Section 6, "Judicial Responses", for more detailed information on Full Faith and Credit for Protection Orders.) But equally important is the selection of language in defining terms and standards for measuring stalking crimes. The possibility exists for legal complications and challenges to develop around tribal protection orders that come under the scrutiny of a state court under the VAWA Full Faith and Credit provision. Such tribal protection orders may be deemed invalid by a state court if the language in the tribal protection order does not meet the standards established for stalking crimes by state statute.

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