Broadly speaking, state law defines the crime of stalking as a course of conduct that intentionally targets a specific person, placing them in fear. Stalking may involve following the victim. In addition, stalking may involve unwanted communication, harassment, threats, or all of these. The conduct, to be considered stalking, must put both the victim and a reasonable person (that is, the average person) in fear.   

What are the Elements of Stalking?

Stalking is an unwanted course of conduct that is harassing, or annoying. Repeated harassing or annoying conduct can include, for example, repeated, unwanted threats; following of the victim; multiple unwanted emails, letters or telephone calls; and other unwanted conduct, such as destruction of personal property or vandalism

For conduct to qualify as stalking, it must be intended to harass, intimidate, or cause emotional distress. 

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 as well as the average person. 

Vague 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”).

What is a Course of Conduct?

Generally speaking, a course of conduct is a pattern of conduct.  A pattern of conduct is conduct made up of at least two acts, that is intended to intimidate the victim or put the victim in fear.

What Does “To be Put in Fear” Mean?

Stalking occurs when the stalker intends to cause the victim emotional distress, or put the victim in fear of bodily harm (bodily harm to themselves or to a specific family member or friend), damage to personal property, or death. In addition, the victim must in fact be placed in fear of these things. If the target of the stalking is not actually placed in fear, stalking has not occurred. 

How May Stalking Occur?

Stalking may occur through a variety of actions. These include (but are not limited to):

  • Monitoring a person’s movement or activity; either through physical or electronic means; or
  • Sending unwanted texts or instant messages to someone; or
  • Sending unwanted letters or emails; or
  • Following someone to or from their home, place of business, place of worship, or school

When stalking occurs online, it is generally referred to as cyberstalking or Internet stalking. Internet stalking consists of using the Internet to harass, threaten or intimidate another, with the specific aim of causing fear or emotional distress. 

What are the Penalties for Stalking?

Misdemeanor stalking, which typically consists of mere harassment, is punishable by up to a year in prison. The more serious offense of felony stalking can result in imprisonment of a year or more, fines, and/or penalties.

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, as well as 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.

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. Defendant may do so, for example, by proving that the victim was not placed in fear, or that 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, 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, 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 defendant’s email account and has used it to stalk another person using defendant’s name.

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

If you are facing stalking charges, you may wish to consult with a criminal defense lawyer. An experienced criminal defense lawyer near you can assess the facts and circumstances of your case. The lawyer can also advise you of your rights, provide case guidance, and can represent you at trial.