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Evolution of the First Stalking Law

Ironically, California’s stalking law, as it existed in 1991, would not have protected actresses Rebecca Schaeffer or Theresa Saldana, even if it had been in effect at the time of their attacks. Between 1991 and 1993, California’s stalking law required that a stalker make a “credible threat of death or great bodily injury” toward the victim, placing the victim in reasonable fear of the same. Neither Saldana nor Schaeffer were aware of the threats being made against them by their stalkers. Even if they had known, the threats themselves were implied and not direct.

In 1994, major revisions were made to California Penal Code Section 646.9, enhancing the ability of law enforcement and prosecutors to intervene and protect stalking victims at the earliest time; before death or great bodily injury occurred. These changes were made in direct response to an aggravated case in which stalking could not be charged due to the inadequacy of the stalking law at that time.


As a direct result of the above case, California’s stalking law was amended in 1994. The new law specifies:

Any person who willfully, maliciously, and repeatedly follows or harasses another person, and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty of the crime of stalking.

In California to convict a defendant of the crime of stalking, the prosecutor must prove the following elements beyond a reasonable doubt:

  1. A person willfully, maliciously, and repeatedly followed or harassed another person; (on two or more occasions);
  2. The person following or harassing made a credible threat; and
  3. The person who made the threat did so with the specific intent to place the other person in reasonable fear for his or her safety or the safety of the immediate family of such person(s).

Several California Court of Appeal cases have defined the wording of the stalking statute. In People v. Heilman (1994), the court defined the term “repeatedly” as meaning “on more than one occasion.” “Harassment” was defined in that case as “multiple acts, over a period of time, however short, evidencing a continuity of purpose.” “Harasses” is defined in Penal Code Section 646.9(e) as, “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments or terrorizes the person, and that serves no legitimate purpose. This course of conduct must be such that would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to such person.”

In 2002, the term “substantial emotional distress” was eliminated from the statute in order to overturn a bizarre court case, People v Ewing, in which the court held that substantial emotional distress was not shown because the victim did not seek out mental health treatment or medication. Many victims do not have the resources to seek out counseling or obtain medication, and may believe they will be unjustly stigmatized as being the unbalanced person in the relationship if they undergo such therapy.

The requirement that the victim be placed in “reasonable fear for his or her safety or the safety of their immediate family” is now sufficient to establish the crime of stalking.  At trial and preliminary hearing, the element of substantial emotional distress has been established through actions taken by the victim, such as hiring personal security and/or executive protection, informing people at work and neighbors about the threat, learning self-defense, changing his or her daily routine, adding additional security measures around the home and at work, avoiding public appearances, changing their phone number, email address, or even relocating. As part of an investigation, the victim and/or client is asked to recount what their daily routine was like prior to the stalking and what it is like now in comparison.

In People v. McClelland (1996), the court held that the victim’s state of mind and knowledge of the suspect’s prior history is relevant and admissible at trial. Intent to carry out the threat is not required, and the specific intent element is satisfied if the suspect intended to place the victim in fear (People v. Carron, 1995). During a recent trial, the defense attorney argued to the jury that his client’s conduct was not egregious because the victim could not show them any scars. The obvious reply to that argument was, “Not all scars are external.”

“Course of conduct” is defined in Penal Code Section 646.9(f) as, “two or more acts occurring over a period of time, however short, evidencing a continuity of conduct.” “Continuity of conduct” simply means that it is apparent to the victim that the stalker is not going to cease his or her activities. For example, a stranger follows the victim’s car for several miles on the freeway. When the victim leaves the freeway, the suspect follows. The suspect then tries to run the victim off the road with his car. The crime would be assault with a deadly weapon (the car). If the suspect began to follow the victim on the freeway the next day, turned off the freeway when the victim did and followed her down different streets, but did not try to run her off the road that day, the crime would be stalking (and assault with a deadly weapon from the previous day). Stalking is a continuous crime, and there must be at least two or more incidents before charges can be filed.

Most importantly, the term “credible threat” has been redefined to include not only a verbal or written threat, but also “a threat implied by a pattern, conduct, or a combination of verbal or written statements and conduct.” The threat(s) does not need to be direct. Stalking is a crime of conduct and context, not necessarily words. For example, a stalker may send a note stating, “I love you” and enclose a bullet in the envelope. The credible threat made by the stalker must be against the safety of the victim or the victim’s immediate family. There no longer needs to be a threat of “death or great bodily injury.” The language of the statute was changed in 1994, from a “threat of death or great bodily injury” to a “threat against a person’s safety” to incorporate threats of sexual assault and kidnapping into the statute. The current test of “credible threat” is whether a reasonable person would fear for his or her safety, or the safety of his or her immediate family; whether the victim believed the suspect would carry out the threat; and whether the threat actually caused substantial emotional distress to the victim. Thus, the victim must be aware of the threat, but it can be conveyed by third parties.

Penal Code Section 646.9(k) defines “immediate family” as “any spouse, parent, child, any person related by consanguinity or affinity within the second degree (grandparent, brother, sister), or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.” Stalkers often try to frighten and intimidate their victims by directing their threats toward third parties who are close to the victim because the stalker perceives these persons as standing between him or her and the victim. A comprehensive study (Meloy, 1996) has indicated that intervention by third parties to help or protect the victim might increase the risk of violence because it can confirm the paranoid fantasies of the stalker. The Robert Hoskins (Madonna trial) case illustrates how Hoskins began directing his threats towards Madonna’s security team and assistant because he perceived they were standing between him and his goal. Eventually, Hoskins acted on his threats when he attacked and tried to kill Basil Stephens, Madonna’s bodyguard.

In the United States, all stalking statutes require at least two or more incidents to constitute the crime of stalking. In Illinois, the stalking statute requires a threat and relevant conduct in furtherance of the threat (People v. Bailey, 1995). Other states, including California, require a “continuity of purpose” (Culbreath v. State, 1995; Bouters v. State, 1995; Luplow v. State, 1995). In California, there must be two or more incidents of following or harassment.

In most states, the crime of stalking requires a credible threat, direct or implied, that places the victim in reasonable fear. In Long, v. The State’ of Texas (1996), Texas’ stalking law, Texas Penal Code Section 42.07(a)(7), was found to be unconstitutionally vague on its face. One of the grounds upon which the court found vagueness was that the statute did not incorporate a reasonable person standard, so that it could clearly be understood whose sensitivities must be offended. In most states, the stalker must have the specific intent (criminal intent) to place the victim in reasonable fear, and the course of conduct must be willful, purposeful, intentional or knowing. In Long (supra, p. 293), the court found that the statute lacked an element of specific intent, which was necessary because, in addition to creating greater specificity, these kinds of limiting elements help to avoid a vagueness problem by taking the First Amendment out of the picture. Conduct which alone would constitute protected activities may be actionable if it is part of a common plan that includes activity that is clearly unprotected. And, while conduct does not lose First Amendment protection merely because the actor intends to annoy the recipient, such conduct is much less likely to enjoy protection where the actor intends to “frighten” the recipient, and such conduct is unlikely to enjoy any protection where the actor intends to place the recipient in fear of death or bodily injury.”

One study, Pathé & Mullen, 1997, has shown that stalking takes a heavy psychological toll on its victims and those around them. After her stalker had been convicted and sentenced to jail, a stalking victim once stated to the prosecutor, “I have given up all hopes of ever having a safe life. For the rest of my life, I will be looking over my shoulder, expecting to see him there.” Incarceration is not a defense to stalking. Many stalkers, such as Arthur Jackson, while in jail or prison, will continue to send letters or make phone calls to their victims. New charges of stalking can be filed against them, and telephone and mail privileges can be restricted. The inmate could also lose “good-time and/or work-time” credits towards an earlier release date.

In many states a first-time stalking crime can be prosecuted only as a misdemeanor, unless there are aggravating circumstances, such as use of a weapon (Minnesota), violation of a restraining order (Oklahoma), conduct directed towards a victim under the age of 16 (Alaska), or commission of a prior stalking offense (New Hampshire). The New Hampshire statute (N.H. Rev.Stat.Ann, Section 633.3-a Supp. 1994) provides for misdemeanor warrantless arrests if a law enforcement officer has probable cause to believe that a stalking violation occurred within six hours preceding the arrest.

Under California’s current law, a first-time conviction can now be filed as a felony with a maximum prison term of up to three years, even if there is no restraining order in effect. If there is a restraining order or any other court order in effect during the period of stalking, the defendant can be sentenced to state prison up to four years.  If the defendant is convicted of stalking and has suffered a prior felony conviction of stalking (PC 646.9), Criminal Threat (PC 422), Domestic Violence with Injury (PC 273.5) or violation of a Domestic Violence Court Order (PC 273.6), the prison term is a maximum of five years in state prison.

Other provisions, of Penal Code Section 646.9 provide that the sentencing court may issue a restraining order valid for up to 10 years, require that the stalker participate in counseling, and, in certain cases, order the stalker to register as a sex offender. After reviewing the evidence in each case, the court can also make a recommendation to the California Department of Corrections that the stalker receive mental health treatment while incarcerated.


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