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Stalking Laws:
How to Determine the Elements
a District Attorney Has to Prove
Massachusetts, Alaska, Florida,
and Arizona Stalking Laws
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Special
for
Massachusetts'
folks:
Go to http://fatherhoodcoalition.org
the website of Massachusetts'
fathers'
rights group and get help and support and focus
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From
another State?
Email
your State's stalking law and its elements will be uploaded here.
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Alaska has reported in! 8/5/00 See
below. It's quite
different from Massachusetts' law.
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Massachusetts
Stalking Law
Just Passed in Massachusetts: Stalking
is
willfully and
maliciously
engag(ing) in
a knowing
pattern of conduct or series of acts over a period a time directed at a
specific person, which seriously alarms thet person and would cause a
reasonable
person to suffer substantial emotional distress.
Here are the ELEMENTS,
an ADA would have to prove:
(1)
that the
defendant's conduct was WILLFUL/WILFUL
(2) that
the defendant's
conduct was MALICIOUS, which means the ADA has to
prove that the conduct
arose out of an
improper motive or
took place by improper means
~NOTE~
This definition has
varied much over
the years.
Check the latest cases
for the latest
definition.
(3) that
there is a SERIES
of acts
(4) that
from the SERIES
of act, reasonable people can conclude that there is a PATTERN OF
CONDUCT
-- that is, that a PATTERN can be discerned in the series
~NOTE~
Think of all those
serial killer maps
in Grade
B movies:
he likes only parks or
he likes only
dark alleys
or he likes only blonde
teenagers.
(5) that
the defendant
KNEW that his/her conduct constituted a pattern
(6) that
the series of
acts occurred over a period a time
(7) that
the series of
acts were directed at a specific person
(8) that
the specific
person KNEW of each of these acts
(9) that
the specific
person was ALARMED by each of the acts
(10)
that the acts COULD
cause a reasonable person to suffer substantial
emotional distress.
AND although
the law doesn't spell it
out explicitly,
assume that three more elements are necessary to complete the crime,
and
that those elements ARE::::::
(11)
that the specific
person IS a REASONABLE person
(12)
that the specific
person suffered substantial emotional distress.
(13)
that the specific
person's substantial emotional distress was CAUSED by the acts of the
defendant
THE LAW IS REMARKABLE. Most
crimes do not
have
so many elements. Each is a hurdle. You or your lawyer have to
hold
the ADA's feet to the fire to prove all those elements. MAKE A
HUGE
CHART -- called a CHALK in court lingo -- with ALL 13 elements and use
it to check off as you question each witness.
CAUSAL
relationships are extremely hard
to prove. There
are always so many other things which could cause even a reasonable
person
to suffer substantial emotional distress.
The ADA would
also have to prove that
the specific
person KNEW of ALL the alleged acts. Seeing a 1995 blue Chevy
which
looked similar to the defendants is NOT enough. How many 1995
blue
Chevies are, for instance, in the Boston area?
After the ADA
puts in his or her case,
move for a directed
verdict of not guilty on the grounds that the ADA did not prove all the
elements . . . point out which ones he/she missed.
Put on your
case. Repeat the
motion for directed
verdict of NG.
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ALASKA
(as
of December
1999)
With
thanks to the
Law Offices
of James B. Gottstein,
which
put the
statutes online
and to
John
P. Curry for
bringing the
law to our attention. Mr. Curry is
Vice
President and
in charge
of the Juneau, Alaska, Chapter
of
Families First
Partnership,
for which the website is at http://64.70.162.158/index.html.
Alaska Stalking Laws
Title
11.
Criminal Law
Chapter 41.
Offenses Against the Person
Section 260. Stalking
in the First Degree
Section 270. Stalking
in
the
Second Degree.
AS
11.41.270.
Stalking in the
Second Degree.
(a) A
person commits
the crime of stalking in the second degree if the person knowingly
engages
in a course of conduct that recklessly places another person in fear of
death or physical injury, or in fear of the death or physical injury of
a family member.
(b) In
this section,
(1)
"course
of conduct" means repeated acts of nonconsensual contact
involving
the victim or a family member;
(2) "family
member" means a
(A)
spouse,
child, grandchild, parent, grandparent, sibling, uncle, aunt, nephew,
or
niece, of the victim, whether related by blood, marriage, or
adoption;
(B)
person who lives,
or has previously lived, in a spousal relationship with the
victim;
(C)
person who lives
in the same household as the victim; or
(D)
person who is a
former spouse of the victim or is or has been in a dating, courtship,
or
engagement relationship with the victim;
(3) "nonconsensual
contact" means any contact with another person that is initiated
or continued without that person's consent, that is beyond the scope of
the consent provided by that person, or that is in disregard of that
person's
expressed desire that the contact be avoided or discontinued;
"nonconsensual
contact" includes
(A)
following
or appearing within the sight of that person;
(B)
approaching or
confronting that person in a public place or on private property;
(C)
appearing at the
workplace or residence of that person;
(D)
entering onto or
remaining on property owned, leased, or occupied by that person;
(E)
contacting that
person by telephone;
(F)
sending mail or
electronic communications to that person;
(G)
placing an object
on, or delivering an object to, property owned, leased, or occupied by
that person;
(4) "victim"
means a person who is the target of a course of conduct.
(c)
Stalking in the second
degree is a class A misdemeanor.
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ELEMENTS
of Stalking
in the Second Degree.
(a) the
person knowingly engages in a course of conduct that recklessly places
another person in fear of death or physical injury, or in fear of the
death
or physical injury of a family member.
The ELEMENTS
an ADA [assistant
district attorney] would have to prove:
(1)
that at least
two times, any of the seven forbidden acts -- (A) through (G) --
occurred
(2) that
the two or more
acts occurred over a period a time
(3) that
the two or more
acts were directed at a specific person, the "target"
(4) that
the target person
KNEW of each of these acts
(5) that
the defendant did EACH of
the acts alleged [any of the SEVEN acts described in (A) through
(G)]
(6) that
the forbidden act (any
of the Big 7) COULD put
the target in fear of death or physical injury
The following
-- (7), (8), and
(9) -- are not ELEMENTS but the defendant must force the ADA to prove
them. The
ADA will not ask about them on direct examination og the target, but IF
the defense PROPERLY cross-examines the target, the ADA will be forced
to rehabilitate and PROVE:
(7) HOW
EACH of the alleged COMMITTED
forbidden
acts
(any of the Big 7) COULD put
the target in fear of death or physical injury
(8) given
that a phone call cannot kill anyone, HOW the
target expected
to be killed or physically injured: by gun, knife, choking, explosion,
car . . .
(9)
that it was REASONABLE
for
the target to FEAR
that
he or she could be killed or physically injured by the defendant
(10)
that the defendant's
conduct was RECKLESS because it would inevitably
place the target in fear of death or physical
injury
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~NOTE~
The
KEYS here are
(A) that
it was UNreasonable for the target to have fear,
(B)
that NONE of
the seven
forbidden acts can
kill or
inflict physical
injury on the target,
(C)
that there
would have
to be ANOTHER ACT, an act NOT one of the BIG 7, to
give the fear,
and
(D)
that where
that OTHER
ACT is NOT one of the BIG 7, no conviction can be had for stalking.
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Each item is a
hurdle. You or
your lawyer have
to hold the ADA's feet to the fire to prove all those elements.
MAKE
A HUGE CHART -- called a CHALK in court lingo -- with ALL 10 elements
and
use it to check off as you question each witness and during your motion
for a directed verdict at the end of the prosecution's case and at the
close of all the evidence.
CAUSAL
relationships are extremely hard
to prove.
The ADA would
also have to prove that
the specific
person KNEW of ALL the alleged acts. Seeing a 1995 red Ford
pickups
which looked similar to the defendants is NOT enough. How many
1995
red Ford pickups, for instance, are in the Juneau area?
After the ADA
puts in his or her case,
move for a directed
verdict of not guilty on the grounds that the ADA did not prove all the
elements . . . point out which ones he/she missed.
Put on your
case. Repeat the
motion for directed
verdict of NG.
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| AS 11.41.260.
Stalking in the
First Degree.
This
statute enhances
Stalking in the
Second Degree.
(a) A
person commits
the crime of stalking in the first degree if the person violates AS
11.41.270
and
(1) the
actions constituting the offense are in violation of an order issued or
filed under AS 18.66.100 - 18.66.180 or issued under former AS
25.35.010(b)
or 25.35.020;
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~NOTE~
The
statutes
referred to immediately
above are the following
and may be found in entirety at
http://www.touchngo.com/lglcntr/akstats/Statutes/Title18/Chapter66/Section100.htm
through
http://www.touchngo.com/lglcntr/akstats/Statutes/Title18/Chapter66/Section180.htm
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AS
18.66.100. Protective
Orders: Eligible Petitioners;
Relief.
AS 18.66.110. Ex Parte and
Emergency
Protective Orders.
AS 18.66.120. Modification
of Protective
Orders.
AS 18.66.130. Specific
Protective Orders.
AS 18.66.140. Filing and
Enforcement of
Protective Orders
Issued in Other States.
AS 18.66.150. Forms For
Petitions and
Orders; Fees.
AS 18.66.160. Service of
Process.
AS 18.66.170. Notification
of Law
Enforcement Agencies.
AS 18.66.180. Civil
Liability.
The
repealed
statutes were:
AS 25.35.010- 25.35.050.
Injunctive
Relief in Cases Involving
Domestic Violence.
[Repealed, Sec.
72 Ch 64 SLA
1996. For Current
Law, See AS
18.66.100 - 18.66.180].
(2) the
actions
constituting the offense are in violation of a condition of probation,
release before trial, release after conviction, or parole;
(3) the victim
is under 16 years of age;
(4)
at any time during
the course of conduct constituting the offense the defendant possessed
a deadly weapon;
(5) the defendant
has been previously convicted of a crime under this section, AS
11.41.270,
or AS 11.56.740, or a law or ordinance of this or another jurisdiction
with elements similar to a crime under this section, AS 11.41.270, or
AS
11.56.740; or
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~NOTE~
The
second statute
referred
to above is the following and may be found in entirety at
http://www.touchngo.com/lglcntr/akstats/Statutes/Title11/Chapter56/Section740.htm
AS
11.41.270. Stalking
in the Second Degree. Shown in
full
below.
AS 11.56.740. Violating a
Protective
Order.
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(6) the
defendant
has been previously convicted of a crime, or an attempt or solicitation
to commit a crime, under (A) AS 11.41.100 - 11.41.250, 11.41.300
- 11.41.460, AS 11.56.810, AS 11.61.120, or (B) a law or an ordinance
of
this or another jurisdiction with elements similar to a crime, or
an attempt or solicitation to commit a crime, under AS 11.41.100 -
11.41.250,
1.41.300 - 11.41.460, AS 11.56.810, or AS 11.61.120, involving the same
victim as the present offense.
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~NOTE~
The
statutes
referred to immediately
above are the following and may be found in entirety at
http://www.touchngo.com/lglcntr/akstats/Statutes/Title11/Chapter41/Section100.htm
through
http://www.touchngo.com/lglcntr/akstats/Statutes/Title11/Chapter41/Section250.htm
and
http://www.touchngo.com/lglcntr/akstats/Statutes/Title11/Chapter41/Section300.htm
through
http://www.touchngo.com/lglcntr/akstats/Statutes/Title11/Chapter41/Section460.htm
and
http://www.touchngo.com/lglcntr/akstats/Statutes/Title11/Chapter56/Section810.htm
and
http://www.touchngo.com/lglcntr/akstats/Statutes/Title11/Chapter61/Section120.htm
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AS
11.41.100. Murder in
the First Degree.
AS
11.41.110.
Murder in the Second
Degree.
AS
11.41.115.
Defenses to Murder.
AS
11.41.120.
Manslaughter.
AS
11.41.130.
Criminally Negligent
Homicide.
AS
11.41.135.
Multiple Deaths.
AS
11.41.140.
Definition
In
AS 11.41.100 - 11.41.140
"person", when referring to the victim of a crime, means a human
being who has been born and was alive at the time of the criminal act.
A person is "alive" if there is spontaneous respiratory or cardiac
function
or, when respiratory and cardiac functions are maintained by artificial
means, there is spontaneous brain function.
AS
11.41.200.
Assault in the First
Degree.
AS
11.41.210.
Assault in the Second
Degree.
AS
11.41.220.
Assault in the Third
Degree.
AS
11.41.230.
Assault in the Fourth
Degree.
AS
11.41.250.
Reckless Endangerment.
AS
11.41.300.
Kidnapping.
AS
11.41.320. Custodial
Interference
in the First Degree
(a)
A person commits
the crime of custodial interference in the first degree if the person
violates
AS 11.41.330 and causes the
child or
incompetent person
to be
(1) removed from the state; or
(2) kept outside the state.
(b)
Custodial
interference in
the first degree is a class C felony.
AS
11.41.330.
Custodial Interference
in the Second Degree.
AS
11.41.370.
Definitions.
AS
11.41.410.
Sexual Assault
in the First Degree.
AS
11.41.420.
Sexual Assault
in the Second Degree.
AS
11.41.425.
Sexual Assault
in the Third Degree.
AS
11.41.430.
Sexual Assault
in the Third Degree. [Repealed, Sec. 10 Ch 78
SLA 1983. For Current Law, See AS 11.41.420(a)(2)].
AS
11.41.432.
Defenses.
AS
11.41.434.
Sexual Abuse of
a Minor in the First Degree.
AS
11.41.436.
Sexual Abuse of
a Minor in the Second Degree.
AS
11.41.438.
Sexual Abuse of
a Minor in the Third Degree.
AS
11.41.440.
Sexual Abuse of
a Minor in the Fourth Degree.
AS
11.41.443.
Spousal Relationship
No Defense. [Repealed, Sec. 61 Ch 50
SLA 1989. For Current Law, See AS 11.41.432(B)].
AS
11.41.445.
General Provisions.
AS
11.41.450.
Incest.
AS
11.41.455.
Unlawful Exploitation
of a Minor.
AS
11.41.458.
Indecent Exposure
in the First Degree.
AS
11.41.460.
Indecent Exposure
in the Second Degree.
AS
11.56.810.
Terroristic Threatening.
AS
11.61.120.
Harassment.
(b) In this
section, "course of conduct" and "victim" have the meanings given in AS
11.41.270(b).
(c) Stalking
in the first degree is a class C felony.
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ELEMENTS
OF
Stalking in the
First Degree
(1) The
ADA must FIRST prove that the defendant committed Stalking in the
Second
Degree AND
if so, THEN
(2) the
ADA must PROVE that the defendant's conduct is in violation of a
PROTECTIVE
ORDER OR AN EX PARTE AND EMERGENCY ORDER as defined in the statutes
below
OR in violation of an ORDER UNDER THE OLD STATUTE FOR INJUNCTIVE RELIEF
IN CASES INVOLVING DOMESTIC VIOLENCE
AS
18.66.100.
Protective Orders:
Eligible Petitioners; Relief.
AS
18.66.110. Ex Parte
and Emergency
Protective Orders.
AS
18.66.120.
Modification of Protective
Orders.
AS
18.66.130. Specific
Protective
Orders.
(3) the
ADA must ALSO PROVE that by the defendant's acts, the defendant
(A) has violated a condition of probation
or (B) has
been
released before being tried for Stalking in the Second Degree or(C)
has been released after being convicted of Stalking in the Second
Degree
or (D) is
on
parole; AND
(4)the
ADA must prove that the victim is under [less
than] 16 years old; AND
(5) the
ADA must PROVE that at any time when the defendant allegedly
stalked
the so-called victim, the defendant possessed a deadly weapon; AND
(6) the
ADA must PROVE that the defendant has been previously convicted
of Stalking in the First or Second degree or violated a
Protective
Order or violated a law or ordinance of Alaska or of some other
place which has a law with elements that are similar to those here for
Stalking in the First or the Second Degree or for
a
Protective Order; OR
(7) the
ADA must PROVE that defendant has (A)
been
previously convicted of comitting, attempting to commit, or soliciting
someone else to commit ONE of the crimes listed in tiny tiny
print
above involving the same victim as the present offense or(B)
was convicted of violating, attempting to violate, or soliciting
someone
to violate a law or an ordinance of Alaska or of some other place which
has a law or ordinance with elements that are similar to these listed
here
and involving the same victim as the present offense AND
(8)
the
ADA must prove that the defendant
repeated acts of nonconsensual contact with at least one family member
(a spouse, child, grandchild, parent, grandparent, sibling, uncle,
aunt,
nephew, or niece, of the victim, whether related by blood, marriage, or
adoption) or a person who lives, or has previously lived, in a
spousal
relationship with the victim; or person who lives in the same
household
as the victim; or a person who is a former spouse of the victim
or
is or has been in a dating, courtship, or engagement relationship with
the victim.
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| Florida
Stalking Law |
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| Section 784.048
Stalking; Definitions;
Penalties
(1) As
used in this
section, the term:
(a) "Harass"
means to engage in a course of conduct directed at a specific person
that
causes substantial emotional distress in such person and serves no
legitimate
purpose.
(b) "Course
of conduct" means a pattern a conduct composed of series of
acts
over a period of time, however short, evidencing a continuity of
purpose.
Constitutionally protected activity is not included within the meaning
of "corse of conduct". Such constitutionally protected activity
includes
picketing or other organized protests.
(c)"Credible
threat" means a threat made with the intent to cause the person
who is the target of the threat to reasonably fear for his or her
safety.
The threat must be against the life of, or a threat to cause bodily
injury
to, a person.
(2)
Any
person
who willfully, maliciously, and repeatedly follows or harasses another person commits
the offense of
stalking,
a misdemeanor of the first degree.
(3) Any
person who
willfully, maliciously, and repeatedly follows or harasses another person, and makes
a credible
threat with
the intent to place that person in reasonable fear of death or bodily
injury,
commits the offense of aggravated stalking, a felony of the third
degree.
(4) Any
person who,
after an injunction fro protection against violence pursuant to s.
784.046,
or an injunction for protection against domestic violence pursuant to
s.
741.30, or after any other court-imposed prohibition of conduct toward
the subject person that person's property, knowingly, willfully,
maliciously,
and repeatedly follows or harasses another person commits the offense
of
aggravated stalking, a fleony of the third degree.
(5) Any
person who
willfully, maciliously, and repeatedly follows or harasses a minor under 16 years of
age commits
the offense
of aggravated stalking, a felony of the third
degree.
(6) Any
law enforcement
officer may arrest, without a warrant, any person he or she has probable cause
to believe
has violated
the provisions of this section.
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| Arizona
Stalking Law |
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| 13-2923.
Stalking;
classification; definitions
A. A
person commits
stalking if the person intentionally or knowingly engages in a course
of
conduct that is directed toward another person and if that conduct
either:
1.
Would cause
a reasonable person to fear for the person's safety or the safety of
that
person's immediate family member andthat person in fact
fears for their
safety or the
safety of that person's immediate family member.
2.
Would cause a reasonable
person to fear physical injury to or death of that person or that
person's
immediate family member and that person in fact fears physical injury
to
or death of that person or that person's immediate family member.
B. Stalking
under
subsection A, paragraph 1 of this section is a class 5 felony. Stalking
under subsection A, paragraph 2 is a class 3 felony.
C. For
the purposes of this section:
1. "Course
of conduct" means maintaining visual or physical proximity to a
specific person or directing verbal, written or other threats, whether
express or implied, to a specific person on two or more occasions over
a period of time, however short, but does not include constitutionally
protected activity.
2. "Immediate
family member" means a spouse, parent, child or sibling or any
other
person who regularly resides in a person's household or resided in a
person's
household within the past six months.
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