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Challenges to Anti-Stalking Statutes

(The following review appeared in the May 2001 Report to Congress, Stalking and Domestic Violence, U.S. Department of Justice, Office of Justice Programs, NCJ 186157.)

As previously mentioned, as of August 2000, there were approximately 500 stalking and related cases that were tried either at a Federal, State or local level. Court decisions in these cases "measured constitutional challenges based on overbreadth by whether the law prohibits acts rather than speech and by whether it contains an intent to cause a specified harm. Vagueness claims generally were evaluated based on whether the harmful acts barred by the law are of such specificity that an ordinary person would not fail to understand what is prohibited". According to the May 2001 Report to Congress, a review of the cases suggests that:

Most stalking statutes meet constitutional minimums. Inclusion of an intent requirement resolves most vagueness challenges. However, the use of terms such as "annoy" or "alarm" without limiting definitions makes a law vulnerable to challenge on the basis that it is unconstitutionally vague. Statutes have been upheld that establish a rebuttable presumption of intent where there is evidence that the victim requested that the stalking conduct end. Most statutes require that the prohibited acts include a threat component, that the defendant intend to cause or know of the victim's fear of death or serious injury and that the victim's fear be reasonable.
A finding of contempt for a violation of a protection order does not generally prevent a second prosecution for the substantive stalking offense on double jeopardy grounds. Some courts may require, however, that the acts constituting stalking be different from those underlying the charge of violating the order. There is no agreement among the courts that evidence of a prior restraining order may be admitted to show the defendant's intent or course of action, but a prior order may be used to show victim fear. Courts differ on whether a collateral attack may be permitted on the validity of a court order in protection order violation proceedings.
Harassment laws are vulnerable to a constitutional challenge where the prohibited speech is not limited to "fighting words". "Fighting words" refers to language that is likely to lead to a physical confrontation. Such language is entitled to less protection under the First Amendment.
It is permissible for threat laws that include a reasonable fear requirement to equate reckless behavior by the perpetrator with intent to cause reasonable fear for the victim. In some States, actual terror is not required, merely that fear would be reasonable under the circumstances and that there is an intent to terrorize. An intent to carry out the threat is not an element of the crime, and physical acts alone may constitute a threat. The absence in most States of statutory language defining stalking to include implied threats is made even more significant by the lack of court rulings in many of these same States interpreting threat laws to include implied or conditional threats.
Harassment and threat laws apply to communications delivered through third parties where such delivery may be reasonably anticipated or intended.
Telephone harassment and threat laws usually focus on the intent of the caller, not the response of the person called, because invasion of privacy is an implicit second element of the crime. Intent must be complemented by proof of harassment or threatening acts. A law barring intent alone without regard to the actual contents of the communication will be overbroad. A few courts do, however, require that victim fear result from a telephone threat, depending on the specific language of the statute involved. Courts also are split on whether harassing intent must be the sole purpose of the communication or may co-exist with legitimate motives for the communication.
Prosecution of electronic harassment by fax, Internet, citizen band radio, or other means may require specific statutory language prohibiting the use of these medias to harass.
Jurisdiction or venue lies in the locality or State where a non-face-to-face threat or harassment communication is received. Jurisdiction also may lie in the location from which the communication was sent.
Intrastate communication that involves interstate intermediaries to deliver the message confers Federal jurisdiction over the crime where a Federal statute applies to the conduct.
As a consequence of the litigation referred to, it has been revealed that too often, State legislatures and courts often do not recognize implied or conditional threats in their construction of anti-stalking statutes. This lack allows stalkers who don't make "explicit" threats to avoid punishment. In addition, many stalking statutes do not explicitly cover cyberstalking and other types of high-tech communication terrorism.

The Violence Against Women Act of 2000 (VAWA 2000) amended the Federal interstate stalking law to include travel across State and national boundaries, as well as travel into or out of Indian country and within the "special maritime and territorial jurisdiction of the United States". The Act also amended the Federal statute to cover certain travel or conduct with "intent" to kill, injure, harass, or intimidate another person (previously covered only the intent to injure or harass), or to place the victim in reasonable fear of the death of, or serious bodily injury to, the victim's current or former intimate partner. The new statute also contains penalties for the use of U.S. mail or any facility of interstate or foreign commerce (including "cyberstalking" acts) to "engage in a course of conduct that places the victim in reasonable fear of the death of, or serious bodily injury to, the victim, a member of the victim's immediate family, or a spouse or intimate partner of the victim".

As of October 2000, the Justice Department had prosecuted 35 of 39 stalking cases under the interstate stalking provision. Of these cases, convictions were obtained against 25 defendants in 23 cases, with 11 cases still pending disposition as of the date of submission of statistical information. In all but one of the 35 cases, the stalker was male. In one case, the male stalker had a female accomplice, and in another case, the stalker's mother and father were his accomplices. In 34 of the 35 cases, the victim was female, and in 27 cases the stalker and victim were current or former intimate partners. Three cases involved workplace stalking. The prosecution and conviction rate described at a Federal level provides ample evidence that the Federal anti-stalking statute is a valuable tool for prosecuting cases where the interstate nature of the stalking offense may complicate effective State investigation and prosecution.

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