Stalking Laws

Someone commits the crime of stalking if that person engages in a “course of conduct” (a “course of conduct” is made up of at least two acts) that is intended to intimidate the victim or put the victim in fear and that:

• Places another person in reasonable fear of death or serious bodily injury to themself, to an immediate family member, or their spouse or intimate partner,
• Causes, attempts to cause, or could reasonably be expected to cause substantial emotional distress to the target of their conduct, or
• Acts with the intent to kill, injure, harass, intimidate, or place the victim under surveillance to kill, injure, harass, or intimidate that person.

Stalking may involve:

• Monitoring a person’s movement or activity, either through physical or electronic means
• Unwanted communication (multiple unwanted emails, letters, texts, instant messages, or telephone calls)
• Harassment
• Threats
• Following someone to or from their home, place of business, place of worship, or school
• Other unwanted conduct, such as destruction of personal property or vandalism

To be considered stalking, the conduct must be sufficiently egregious so that (a) a reasonable person (that is, the average person) would be put into fear, and (b) the victim was actually put into fear.

In addition, to the extent the course of conduct consists of threats against safety or property, the threats must be credible. That is, the stalker must direct specific physical or verbal conduct that would frighten both the victim and the average reasonable person. To be considered credible, a threat must be specific, serious, and imminent, meaning that the threat is immediate or expected to happen soon.

To determine whether a threat is credible, law enforcement officials may consider factors such as the context of the threat, the history of the person making the threat, the relationship between the victim and the perpetrator, and any other relevant circumstances.

Vaguely threatening behavior or jests may render a threat not credible. If, for example, a would-be stalker jokingly states to the would-be victim, “One day, I’ll scratch your car — just kidding,” the threat would not be considered credible both because it was made in jest and because it lacked any kind of immediacy (i.e., “one day,” as opposed to “in one hour”).

When stalking occurs online, it is generally called cyberstalking or Internet stalking. Internet stalking consists of using the Internet to harass, threaten or intimidate another, specifically causing fear or emotional distress. It can involve sending unwanted messages, emails, or social media posts, posting or sharing personal information or images without consent, hacking into someone’s accounts or devices, or using technology to track someone’s movements or activities.

Like traditional stalking, internet stalking can cause fear, anxiety, and emotional distress for the victim. Stalking is a serious crime that can result in criminal charges and legal consequences. In addition, it can be prosecuted by the state government or federal officials.

What are the Penalties for Stalking?

Whether stalking is charged as a misdemeanor or a felony depends on the jurisdiction and the specific circumstances of the crime. In many states, stalking can be classified as a misdemeanor or a felony, depending on the severity of the behavior, the threat level posed to the victim, and whether the perpetrator has a prior criminal history.

For example, in California, stalking can be charged as either a misdemeanor or a felony, depending on the severity of the offense, and the potential penalties can range from probation to several years in prison. In some states, such as Texas and Illinois, stalking is always classified as a felony offense.

If extenuating circumstances exist, stalking is more likely to be charged as a felony. An extenuating or aggravating circumstance is a circumstance that makes the crime worse than if it had not been present.

Extenuating circumstances include:

• Use of a deadly weapon during the stalking
• If the stalking is a hate crime
• Prior convictions
• Stalking that involves sexual offenses against a minor

Suppose stalking is charged as a misdemeanor; by definition, that means that the maximum time of incarceration is one year. If it is a felony, the minimum amount of incarceration is one year, and it will most likely be served in prison, not jail. In addition to jail time, stalking may be punished by a fine.

Stalking may carry consequences beyond jail time, penalties, and fines. For example, many states allow for a judge to issue a restraining order prohibiting the stalker from any contact with the victim. The restraining order can apply while the stalker is imprisoned and when the stalker is released and is serving a term of probation. If the stalking is of a sexual nature, the stalker may be required to register as a sex offender on a state sexual offender registry.

State law prohibits stalking, and so does federal law. Federal officials can prosecute stalking if the manner of stalking involves the use of the phone, Internet, or mail or if the defendant travels across state lines to conduct the stalking. A person convicted of stalking under federal law faces a possible prison sentence of up to five years, a fine of up to $250,000, or both. Where the defendant’s stalking conduct results in the death of or physical injury to another person, a conviction may lead to a sentence of up to life in prison.

Are there Defenses to the Crime of Stalking?

All criminal defendants are entitled to due process rights. These rights include the presumption of innocence until guilt is proven. Due process also requires that the prosecution prove each element of the crime beyond a reasonable doubt.

A defendant may defend against a stalking charge by demonstrating the prosecution has not proven one or more elements of the offense. The defendant may do so, for example, by proving that the victim was not placed in fear or that the defendant did not intend to place the victim in fear.

There are several other defenses to stalking. These include, but are not limited to:

• The defendant was exercising their legal rights. Under this defense, the defendant was engaged in speech protected under the First Amendment. Generally speaking, speech that merely annoys another individual without more is constitutionally protected
• Mistaken identity. Here, the defendant asserts that someone else — not the defendant — is the individual who has 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 someone who has hijacked the defendant’s email account and has used it to stalk another person using the defendant’s name.

Do I Need a Criminal Defense Attorney for Help with Stalking Charges?

If you or someone you know has been accused of stalking, seek legal representation from an experienced criminal defense lawyer. A skilled criminal lawyer can provide guidance and support throughout the legal process, working to protect your rights and build a defense against the charges. They can also help you navigate the complex legal system, including negotiating plea deals and representing you in court.

Stalking charges can have serious consequences, including fines and imprisonment. With the help of a qualified criminal lawyer, you can work to prevent these consequences.