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What Is Stalking?

Stalking is a popular word that has caused a variety of misconceptions about what the crime of stalking actually is. While in many cases it does involve following someone, there are many more instances where the crime of stalking can occur. While there is no federal law that makes stalking a crime, every state has outlawed stalking in one way or another.

The following are common elements of stalking that are found in most state criminal statutes:

  • A pattern of intentional harassing or annoying conduct, such as repeated messages, following, vandalism, and other unwanted behaviors
  • Infliction of credible threats against a victim's safety or that of her family
  • Actual and reasonable victim fear of the stalker resulting from that behavior

What Are Some Example of Stalking?

Stalking can be a variety of actions and behaviors that involves patterns of following, monitoring, watching another person with the intent to harass, threaten, intimidate, or cause some kind of emotional distress. Some examples of stalking include:

  • following a person without their consent
  • monitoring a person's computer, GPS, cell phone
  • sending someone letters, or notes that are unwanted
  • watching someone at their private residence
  • driving by or showing up at someone's workplace, residence, or school without their permission
  • gathering information about someone using private or public recirds

How Can a Victim Protect Him or Herself From Stalking?

A victim should not give in to the pressures of the stalker. The victim should document all evidence, including gifts and voicemail from the stalker. The victim should ensure that all close friends, family, and co-workers are aware of the problem and not be unwittingly charmed by the stalker into giving away personal information. If the problem becomes severe, a restraining order should be sought. If the danger becomes immediate, do not hesitate to call the police. 

Are There Any Legal Defenses to Accusations of Stalking?

There are a number of defenses to accusations of stalking. The defenses can include, but are not limited to:

  • Protected Activity: You were engaging in constitutionally protected activity. This defense isn’t typically used in domestic dispute or sexual assault cases. However, journalists who follow celebrities, government officials, or other public figures, may be able to argue that they have a First Amendment right to free speech and press which the court must balance. Protesting, peacefully assembling and labor picketing may also be exempt from stalking charges under this defense.
  • There is no credible threat. This defense is often used if the person claiming to be stalked cannot prove that the defendant made any kind of verbal or physical gesture to indicate violence. This is why it is vital for victims to collect evidence proving that they were threatened.
  • Denial of the elements of stalking: The prosecution must prove each element of stalking in order for a defendant to be found guilty of stalking. The prosecution must prove that there is a pattern, that there is a credible threat and that the victim actually felt fear from the unwanted behavior. If any of these elements are missing, the prosecution will not succeed.
  • Victim lied about what happened
  • Victim mistakenly or intentionally identified the wrong person as the stalker

What Are the Penalties for Stalking?

Stalking can be considered as a misdemeanor or felony. Misdemeanor stalking is often referred to as "harassment". Although there are varying degrees of the stalking offense, in most state penal codes the crime of stalking is a felony. The following are common sentencing penalties for the crime of stalking:

  • If found guilty of felony stalking, this offense is punishable by imprisonment in a county jail for not more than one year or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison
  • Any person currently under a restraining order, who is found guilty of stalking, can face three, four, or five years in state prison
  • A second or subsequent violation of stalking is punishable by three, four, or five years in state prison
  • In addition to these penalties, and depending on the nature of the offense, some states require offenders to register as sex offenders following their punishment

Should I Contact a Criminal Defense Attorney?

If you have been arrested or accused of stalking, you may find the advice of a criminal defense attorney to be extremely helpful. Because of the complex nature of this area of law, the advice of a defense attorney who specializes in this area can be beneficial in determining how best to proceed with your legal problem.

Photo of page author Kourosh Akhbari

, LegalMatch Legal Writer

Last Modified: 10-20-2017 12:46 AM PDT

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