In general, state laws define the criminal offense of stalking as conduct that intentionally targets a specific individual and places them in fear. Stalking often involves following a victim.
Additionally, it may include:
- Unwanted communication;
- Harassment;
- Threats; or
- All of these.
In order for conduct to be considered stalking, it must place the victim in fear. It is important to note, however, that the victim will be considered to be an average, reasonable person.
This means, for example, if a reasonable person would be in fear of the defendant’s behavior, it will be considered stalking. For example, if the defendant simply sends a normal text message or two to the victim, even if that causes them fear, it would not likely be considered stalking.
What Are the Elements of Stalking?
Stalking is unwanted conduct that is annoying or harassing. Repeated annoying or harassing conduct may include, for example:
- Repeated and unwanted threats;
- Following the victim;
- Multiple unwanted:
- emails;
- letters; or
- phone calls; and
- Other unwanted conduct, including:
- destruction of personal property; or
In order for conduct for be considered stalking, it must be intended to:
- Harass;
- Intimidate; or
- Cause emotional distress.
Additionally, to the extent that the defendant’s course of conduct includes threats against the individual’s safety or property, those threats must be credible. In other words, the stalking must direct specific, physical or verbal conduct that would frighten both the victim as well as an average, reasonable person.
If a behavior is vaguely threatening, the threat may not be credible. For example, if an individual jokes that one day they will scratch the victim’s car, it would likely not be considered credible because it was made in a joking manner and it lacked immediacy.
How Can Stalking Occur?
Stalking may arise based on a variety of actions, which may include, but are not limited to:
- Monitoring an individual’s movement or activity; either through physical or electronic means;
- Sending unwanted texts or instant messages to another individual;
- Sending unwanted letters or emails; or
- Following someone to or from their:
- home;
- place of business;
- place of worship; or
- school.
Stalking may also occur online, or on the internet. When this occurs, it is typically referred to as cyberstalking or Internet stalking. Internet stalking involves using the Internet to harass, threaten or intimidate another individual with the specific aim of causing fear or emotional distress.
What Is Internet Stalking?
Internet stalking, also called internet harassment or cyberstalking, is the act of annoying, harassing, or threatening another individual through the internet with the intent to instill fear in the victim that an illegal act or injury will be inflicted on the victim or a loved one of the victim.
Stalking is considered a computer crime, in addition to:
- Copyright violation;
- Cracking codes;
- Cyber terrorism;
- Cyberbullying;
- Cybersquatting;
- Creating:
- malware;
- viruses; and
- spyware;
- Data falsification;
- Fraud;
- Identity theft;
- Intellectual property theft;
- Intellectual property rights violations;
- Phishing;
- Slander;
- Software piracy;
- Spamming;
- Spoofing;
- Theft;
- Vandalism; and
- Wiretapping.
What Can I Do if I Am Being Harassed or Stalked on the Internet?
If an individual is being harassed or stalking on the Internet, they should immediately report the incident to the system administrator of both their Internet Service Provider and the Internet Service Provider of the stalker. There are free services available on the internet that will analyze unwanted emails to determine their point of origin.
These services can then make a report that can be e-mailed to the appropriate system administrator. An individual may also be able to report the harassment or stalking to local law enforcement.
How Is Internet Stalking Different from Physical Stalking?
Although it may seem that being stalked on the Internet is safer than being stalked in real life, it can be very dangerous. In many cases, a stalker will stalk the individual in person first and then progress to the Internet to attempt to avoid any legal repercussions.
In other cases, the stalking may begin on the internet and then evolve into stalking in person. Annoying someone through the internet may be considered cyberbullying or stalking when an individual:
- Spreads rumors or lies;
- Shares naked pictures of another individual without their consent;
- Threatening to hurt another individual; and
- Stalks another individual online.
Cyberbullying is similar to stalking and may include stalking, as a perpetrator using technology to do any of the following to another individual:
- Threaten;
- Intimidate;
- Harm; or
- Harass.
What Should My Internet Service Provider Do to Help Me?
An Internet Service Provider will have an abuse policy that is typically outlined in the customer service agreement. In general, a complaint of abuse will be sent to the postmaster or the abuse department of the individual’s Internet service provider.
The majority of system administrators will not hesitate to cancel the account of any individual who sends abusive email. They will also typically cooperate with other system administrators to prevent future incidents.
What Are the Consequences of Internet Stalking?
Typically, Internet stalking is classified as a felony. There are serious legal consequences for a felony conviction, including prison time and fines.
A felony conviction also affects other areas of an individual’s life, including:
- The right to vote;
- The right to own firearms; and
- The right to custody and visitation with their children.
Are There Defenses to the Crime of Stalking?
Every criminal defendant is entitled to due process rights. These rights include the presumption of innocence until proven guilty. Due process also requires that the prosecution prove each element of the offense beyond a reasonable doubt.
There are defenses that may be available to a charge of stalking, including showing that the prosecution did not prove each element of the offense. A defendant may also argue that the victim was not placed in fear or that they did not intend to place the victim in fear.
There are other defenses to stalking that may be available, including, but not limited to:
- The defendant was exercising their legal rights: Under this defense, the defendant may argue they engaged in speech protected under the First Amendment;
- In general, speech that merely annoys another individual, without more, is constitutionally protected; and
- Mistaken identity: The defendant asserts that another individual is the one who engaged in the stalking behavior. A defendant may successfully assert this defense if, for example, they can show that repeated, threatening unwanted emails were sent not by the defendant, but by another individual who hijacked the defendant’s email account and used it to stalk another individual using the defendant’s name.
Do I Need a Lawyer if I Am Being Stalked on the Internet?
The laws governing Internet stalking vary by state. If you or a loved one have been stalked on the Internet, it may be helpful to consult with a family lawyer.
Internet stalking may also involve stalking in the real world, so it is important to learn about your rights and have someone who can help you take legal action against the stalker. Your lawyer can help you file a report with local law enforcement if needed.
Your lawyer may also be able to help you obtain the necessary information from your Internet service provider to show that stalking is, in fact, occurring. Having a lawyer on your case will help ensure your safety and protect your rights.
