Criminal Law Newsletter
The Criminal Offense of Stalking
Most states recognize the crime of stalking as “a clear pattern of conduct in which the offender follows, harasses, or threatens another person, putting that person in fear for his or her safety.” Depending on the seriousness of the crime, stalking laws in most states provide victims with both civil and criminal remedies.
Although the burden of proof in a civil case is far less demanding than the burden of proof in a criminal case (making the task of proving the elements of stalking much easier in a civil case), someone who is found guilty of stalking in violation of a state’s penal code generally faces more severe penalties.
The Crime of Stalking
In most states, the crime of stalking typically involves a pattern of conduct directed at a specific person that is likely to put that person in reasonable fear of harm. For example, pursuant to California’s penal code, an individual is guilty of the crime of stalking if he or she “willfully, maliciously, and repeatedly follows or…harasses another person and…makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family.” In California, an individual is guilty of harassment when he or she engages in “a knowing and willful course of conduct” (i.e., two or more acts) that:
- Is directed at a specific person
- Seriously alarms, annoys, torments or terrorizes the person
- Serves no legitimate purpose
Although similar, New York’s stalking law further narrows the definition of stalking by degrees, ranging from first degree stalking to fourth degree stalking (with first degree stalking being the most serious stalking offense). Characterized as a Class D felony, stalking in the first degree usually requires the person accused of stalking to “intentionally or recklessly [cause] physical injury to the victim.”
Criminal Penalties for Stalking
In addition to a wide range of possible civil claims available to victims of stalking (e.g., civil injunctions to prohibit stalkers from making future contact with their victims), many states enforce criminal penalties against individuals charged with stalking. Generally, the criminal penalties for an individual convicted of stalking (as defined by a state’s penal code) include imprisonment and/or a fine.
For example, an individual found guilty of the crime of stalking in California could face up to one year of imprisonment and/or a fine of up to $1,000. In addition, the laws in most states allow a stalker to be charged with other crimes, including:
- Intimidation of a witness
- Breaking and entering trespassing
Often, the family members of celebrities can have a case for trespassing against the celebrity’s stalker, if the stalker goes to the homes of the celebrity’s family members. Also, someone who violates a civil injunction against stalking could be criminally punished (e.g., held in contempt of court and sent to jail).
Federal law makes “interstate stalking” a crime which can carry severe penalties, depending on the nature of the injury to the victim. Generally, “interstate stalking” involves placing another person in “reasonable fear” of death or serious bodily injury by traveling or using the mail within the United States with the intent to:
- Kill, injure, harass, or intimidate the other person, or
- Cause the victim to travel to another state
Any person found guilty of violating the federal interstate stalking law can be fined and/or imprisoned according to the following guidelines:
- If the victim dies – imprisoned for life or any term of years
- If the victim is permanently disfigured – imprisoned up to 20 years
- If the victim suffers serious bodily injury – imprisoned up to 10 years
- If the offender uses a dangerous weapon during the offense – imprisoned up to 10 years
- In any other case – imprisoned up to 5 years
In addition to the civil and criminal penalties authorized for the federal crime of stalking, federal law also allows courts to order restitution “to pay the victim the full amount of the victim’s losses” (e.g., medical costs, therapy, child care expenses, lost income etc.).
Employment Law Related to Stalking
Many states have enacted laws modeled after the federal Family and Medical Leave Act (FMLA) that require employers to grant up to 12 weeks of unpaid leave to the victims of domestic and sexual violence (including stalking). For example, Illinois’ Victims’ Economic Security and Safety Act (VESSA), which became effective on August 25, 2003, requires employers who employ at least 50 employees to grant up to 12 weeks of unpaid leave to a victim of domestic or sexual violence (including those who have a family or household member who has been a victim).
VESSA also prohibits discrimination by requiring employers to restore victims “to the same or equivalent position when the leave is completed.” Similarly, legislators broadened New York City’s Human Rights Law in 2003 to prohibit discrimination against victims of sex offenses and stalking. According to the amendment, employers must now provide “reasonable accommodations” to enable victims of domestic violence, sex offenses or stalking to fulfill their essential job duties.
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