10.2: Stalking

The crime of stalking addresses a gap left exposed by modern fear assault statutes. Recall that to be guilty of fear assault, the defendant must place the victim in fear of imminent injury. See e.g. AS 11.41.220(a)(1)(A). Stalking criminalizes a pattern of behavior that places another person in fear. Unlike the crime of assault, stalking requires repeated conduct occurring over time. Also, unlike assault, the repeated acts, if viewed in isolation, may appear simply aggravating, annoying, or even harmless. Yet when viewed in context the acts demonstrate a pattern of threatening behavior that places a reasonable person in fear of death or physical injury.

While assault requires evidence of force or the threat of force, stalking contains no such element. Instead, it criminalizes repeated non-consensual contacts that create fear. Since the crime focuses on fear and not injury, law enforcement can intervene early and prevent a future physical attack. In a sense, stalking is an anticipatory crime similar to inchoate offenses.

The crime itself is relatively new; it did not exist at common law. After a series of high-profile stalking homicides in the early 1990s, state legislatures began criminalizing the dangerous conduct associated with obsessive behavior. Today, all 50 states criminalize stalking. Stalking a person across state lines (e.g., interstate stalking) is a federal crime. See 18 USC §2261A. Alaska’s anti-stalking statutes, enacted in 1993, created two degrees of stalking: Stalking in the First Degree (a class C felony) and Stalking in the Second Degree (a class A misdemeanor).

The basic crime of stalking (second-degree stalking) requires a defendant to engage in repeated acts of nonconsensual contact that recklessly places another person in fear for their own physical safety or the safety of a family member. AS 11.41.270. The term nonconsensual contact includes traditional methods of stalking such as following, approaching, confronting in public, or appearing at the victim’s workplace or residence. It also includes other common methods of instilling fear, such as contacting the person using the telephone, sending mail or electronic communication, or delivering an object to the victim’s home. AS 11.41.270(b)(3).

Because the crime of stalking requires the defendant to engage in a course of conduct, the crime necessarily occurs over time. Single, isolated events are insufficient. The defendant must engage in a pattern of behavior. See Cook v. State, 36 P.3d 710 (Alaska App. 2001).

Example of Stalking

Joel and Rebecca were married for 10 years. They mutually separated before formally filing for a divorce. Immediately after the separation, Joel made repeated attempts to reconcile with Rebecca, but she remained adamant in her desire to separate from him. During this period, Joel sent many text messages to Rebecca. Joel would text Rebecca at all hours of the day.

When Rebecca would respond, Joel would accuse her of leaving him for another man. In one telephone call, Joel went so far as to threaten to kill one of Rebecca’s co-workers (because Joel suspected that Rebecca was dating this co-worker).

Joel’s harassment was not limited to telephone calls or text messages. Joel drove by Rebecca’s residence twice when Rebecca was entertaining a female friend for dinner one evening. On another occasion, during a period when Joel was repeatedly calling her house, Rebecca saw someone running out of her yard and down the street. When she went out to check, she observed footprints leading up to her window. Rebecca did not know who made the footprints.

Rebecca attempted simply to ignore Joel. This worked for several weeks. But then Rebecca started dating another man. Joel called Rebecca and left angry messages regarding this relationship.

Joel then began driving by Rebecca’s residence for no apparent reason. To take a much needed break, Rebecca took a week-long vacation out of town. Shortly after she returned from her vacation, Rebecca invited her new boyfriend over for dinner. As soon as the man arrived at her house, her telephone began ringing “off the hook”; it was Joel. Joel demanded to know what Rebecca was doing with a man in her house. Rebecca hung up, but the calls continued until she turned off her phone. Later, when the man was getting ready to leave Rebecca’s home, he discovered that his vehicle had a flat tire.

In this case, Joel is likely guilty of second-degree stalking. Joel engaged in repeated acts of nonconsensual contact. He repeatedly called her, drove by her house, and threatened one of Rebecca’s co-workers. Even though Joel made no explicit threats against Rebecca, Joel’s conduct – in context – would place a reasonable person in fear.

Cyberstalking

Cyberstalking is also criminal. AS 11.41.270(b)(3)(H)-(I). Cyberstalking occurs when a stalker uses the internet and social media as the medium to engage in their stalking behavior; similar to a traditional stalker, but instead of physical surveillance, contact, or intimidation, the stalker uses technology to stalk their victim.

Aggravated stalking

First-degree stalking elevates an otherwise misdemeanor stalking to felony stalking if the defendant commits the crime of stalking along with a defined aggravating, or attendant, circumstance. AS 11.41.260(a). The code provides six circumstances that if present, heighten the risk of death or serious injury to the victim, and thus, increase the defendant’s blameworthiness. See Figure 10.3.

Figure 10.3 Alaska Criminal Code – Stalking in the first degree

Constitutional Challenges

Because stalking criminalizes otherwise blameless activities (if done in isolation), courts narrowly interpret the offense. Stalking is potentially unconstitutional as overbroad (e.g., criminalizing both lawful and unlawful conduct) if expansively interpreted. Recall that the First Amendment protects many forms of speech including uncomfortable speech. A defendant who is expressing ideas in a repeated, offensive, and even scary manner is protected unless such speech falls within one of the narrowly defined exceptions. Individuals also have a constitutional right to travel freely without unnecessary government interference. Conduct normally associated with the crime of stalking may impede that right.

Although individuals have many constitutional protections, the Constitution does not allow individuals to threaten other people. It is for this reason that stalking survives constitutional attack. Stalking requires the defendant to engage in repeated nonconsensual contact that places another person in fear of injury or death – this is a form of assaultive conduct. See Peterson v. State, 930 P.2d 414 (Alaska App. 1996). Stalking, like assault, criminalizes violent and threatening behavior. Such behavior is not constitutionally protected.

That is not to suggest that all nonconsensual contact constitutes stalking. Inadvertently encountering a person in a public place or merely appearing within the victim’s sight is not “contacting” for purposes of the stalking statute even if the person knows the victim will be fearful of the contact. See Cooper v. Cooper, 144 P.3d 451 (Alaska 2006). Nonconsensual contact made for legitimate, lawful purposes is not criminal. SeePeterson, 930 P.2d at 425-26. Likewise, although the victim must perceive the threat of harm, the victim’s fear must be reasonable. See Kenison v. State, 107 P.3d 335 (Alaska App. 2005).

You be the Judge …

A group of skinheads routinely ride the municipal bus. Their appearance, their language, and their demeanor frequently cause other regular bus riders to fear for their safety. The skinheads know that the other bus riders are afraid of them, but they continue to ride the bus, day after day. Have the skinheads committed stalking? Check your answer at the end of the chapter.

Dickie v. State, 282 P.3d 382 (Alaska App. 2012)

As with most criminal law, the stalker’s motivation is irrelevant. While some stalkers may be motivated by jealousy, resentment, or anger, others may be motivated by infatuation. Although the specific stalking behaviors – repeated contact, semi-surreptitious surveillance, unwanted gifts, or implicit threats – may be similar, the stalker’s motivation may differ significantly. In the following case, Dickie v. State, the defendant was motivated by an obsession with his victim and her family. Notice how the court explains that force or coercion is not an essential element of stalking. The focus is not on the overt threats made (or lack thereof), but on whether the victim was reasonably placed in fear.

282 P.3d 382
Court of Appeals of Alaska.
Bruce DICKIE, Appellant,
v.
STATE of Alaska, Appellee.
July 27, 2012.

OPINION
BOLGER, Judge.

Bruce Dickie appeals his conviction for first-degree stalking of a family in Anchorage. Dickie contends that the State’s evidence was legally insufficient to prove that his repeated contacts with the family were “nonconsensual” within the meaning of AS 11.41.270(b)(3)—i.e., that these contacts were “initiated or continued without [the family’s] consent, … or … in disregard of [the family’s] expressed desire that the contact[s] be avoided or discontinued.” In particular, Dickie argues that the State’s evidence in this case was insufficient to prove that he knew that his contacts with the family were contrary to their wishes. We conclude that the State’s evidence, viewed in the light most favorable to the jury’s verdict, was sufficient to establish this element of the offense.

Dickie also argues that the statutory definition of “nonconsensual” is unconstitutionally broad unless we require the State to prove that the unwanted contacts were accompanied by some degree of coercion or force. For the reasons explained in this opinion, we reject this contention.

[…]

Background
The Petersen family resided in a duplex in Anchorage. In May 2009, the Petersens’ eighteen-year-old daughter saw Dickie walking around their house at approximately 9:30 p.m., holding a bag of beer. A short time later, Dickie knocked on the door and asked for someone named Sherry Anson. The daughter informed Dickie that Sherry Anson did not live at that residence. Dickie then left.

About two weeks later, the Petersens found a pizza on their front porch. Another week later, someone left two Starbucks coffee drinks and a bag of deli food from Fred Meyer on the porch. At the end of May, the family left town for Memorial Day weekend and returned to find a can of Pringles potato chips on their porch.

On June 1, the Petersens observed Dickie return to the house and leave another bag of Fred Meyer deli food on the porch. Mr. Petersen was able to stop Dickie in the driveway and ask why he was leaving the food. Dickie stated that he thought his friend, Sherry Anson, lived at the house. Dickie said his name was Bruce, but gave a false last name.

Mr. Petersen informed Dickie that he was scaring his family and that he believed Dickie was stalking them. Mr. Petersen said he would call the police if Dickie returned to their home. Mr. Petersen wrote down Dickie’s license plate number as he drove away.

On June 8, Ms. Petersen was watching a movie when she saw Dickie enter their yard from the woods behind their duplex. Dickie was swaying and appeared to be drunk. Mr. Petersen herded his family upstairs into a bedroom, while Ms. Petersen called 911 on her cell phone. Dickie was crouched down in the yard and holding “a big, silver gun.” He eventually got up and walked out of the yard through a wooded area.

Anchorage police responded to the 911 dispatch and went to Dickie’s home, a short distance from the Petersens’ duplex. Dickie was slurring his speech and had an odor of alcohol about him. Anchorage Police Officer Jonathan Gould performed a field sobriety test that led him to believe Dickie was intoxicated.

Police found two guns and several magazines of ammunition in Dickie’s pants. One of the guns was a Para–Ordnance that had a round of ammunition in the chamber and rounds of ammunition in the magazine. The second gun, a nine-millimeter Beretta, contained rounds in the magazine. Police also found “a very large” loaded Smith and Wesson revolver on Dickie’s couch. Police located three other guns—a loaded .44 Ruger handgun, a 30.06 rifle, and a Blissfield shotgun—in Dickie’s bedroom.

Dickie was indicted on one count of third-degree misconduct involving weapons, one count of first-degree stalking, and one count of first-degree criminal trespass. After the State presented its case at trial, Dickie moved for a judgment of acquittal on the stalking charge. Dickie argued that the State failed to prove that he engaged in a course of conduct that placed the Petersens in fear of death or physical injury. Superior Court Judge Philip R. Volland denied Dickie’s motion. The jury found Dickie guilty of all three charges, and he now appeals.

Discussion
Dickie argues that the court erred in denying his motion for judgment of acquittal because the State failed to show that Dickie made repeated, nonconsensual contacts with the Petersens as necessary to satisfy the stalking statute.

[…]

A person commits the crime of stalking when 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 statute defines the phrase “course of conduct” as “repeated acts of nonconsensual contact involving the victim or a family member.” “[N]onconsensual contact” is defined as “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.” Such contacts include “appearing within the sight of that person”; “entering onto or remaining on property owned, leased, or occupied by that person”; and “placing an object on, or delivering an object to, property owned, leased, or occupied by that person.”

Dickie argues on appeal that his conduct does not fall within the definition of stalking because his conduct does not meet the definition of “nonconsensual contact.” Dickie argues that we should require an element of coercion or force as part of the phrase “without that person’s consent” to address potential constitutional problems with the stalking statute. Because these claims raise questions of statutory interpretation, our goal is to determine the intent of the legislature and to implement that intent.

In Petersen v. State, we noted that the phrase “without that person’s consent” appears to cover all contacts that are not expressly authorized beforehand. But we noted that this broad coverage is tempered by the other elements of the statute: “To establish the crime of stalking, the government must prove that the defendant knowingly engaged in repeated acts of nonconsensual contact, the government must prove that these nonconsensual contacts placed another person in fear of injury or death, and the government must prove that the defendant acted with reckless disregard for this result.” Because of these elements, we held that the stalking statutes do not criminalize nonconsensual contacts made for “legitimate purposes, even when the defendant knows that the person contacted may (or will) unreasonably perceive the contact as threatening.”

Under the facts of this case, we likewise conclude that the requirements of the stalking statute pass constitutional muster even if we do not require the prosecution to show an element of coercion or force as part of the proof that the defendant’s course of conduct against the victim was “without that person’s consent.”

In the stalking statute, the legislature did not provide a statutory definition for the phrase “without that person’s consent” or for the word “consent.” The word consent is generally defined as “[a]greement, approval, or permission as to some act or purpose.” “Without consent” then refers to the lack of agreement, approval, or permission.

[…]

Dickie does not point to any legislative history demonstrating that the legislature intended to require force or coercion where the defendant initiates contact without the victim’s consent. Had the legislature intended to require an element of coercion or force, the legislature could have included a statutory definition similar to the statutory definitions in the sexual offense, kidnapping, custodial interference, and human trafficking statutes. The lack of a similar definition in the stalking statute appears to indicate that the legislature did not intend to require force or coercion as part of the definition of nonconsensual contact.

We now turn to the evidence in this case. When we examine the sufficiency of the evidence to support a conviction, we view “the evidence in the light most favorable to the state and [ask] whether reasonable jurors could conclude that the accused’s guilt was established beyond a reasonable doubt.” In this case, the evidence indicates that the first time Dickie arrived at the Petersens’ residence, Dickie knocked on the door and asked for Sherry Anson. The daughter informed Dickie during that first encounter that “nobody lives here by that name.” From that point forward, Dickie was on notice that Sherry Anson was not present at that residence and that his continuing contacts with the Petersens were without their consent.

Dickie then repeatedly stopped by the house and left food without attempting to contact the Petersens. When Mr. Petersen confronted Dickie, he gave a false name. Dickie’s conduct suggested that he knew he did not have the Petersens’ consent, that he possibly knew his conduct was criminal, and that he felt the need to operate with some degree of secrecy. Then, after Mr. Petersen told Dickie not to come back, Dickie returned to the Petersens’ house with a gun. A juror could reasonably conclude that Dickie knew that his contacts with the Petersens were without their consent.

[…]

Conclusion
We AFFIRM the superior court’s judgment.

Even though the type of stalking in Dickie v. State is markedly different from those situations where the stalker is an estranged lover with a prior history of abuse, neither is less dangerous. Stalking, no matter the motivation, is a serious and dangerous crime.

The more you know …

For more information about stalking, steps victims can take, and available resources, the following resources are available

• The Stalking Prevention, Awareness, and Resource Center (SPARC)
• The Department of Justice Office on Violence Against Women (Stalking | OVW | Department of Justice)
• National Center for Victims of Crime, Stalking Resource Center (Stalking Resource Center – The National Center for Victims of Crime)