The Continuing Legal Education and Mutual Assistance Division of the New York District Attorney’s Association, published the following article about New York's new law.

NY State’s Anti-Stalking Statute

By Leslie Perrin, Attorney

On December 1, 1999, New York Governor Pataki signed into law a bill, effective as of the same date, that amends the New York State Penal Law by adding provisions specifically to deal with stalking. The new law creates four degrees of stalking, ranging from a class B misdemeanor to a class D felony, to complement the already existing menacing and harassment sections (see Penal Law §§ 120.14[2J; 240.25; 240.26[2], [3); 240.30[1]-[4]). This legislation was developed with the cooperation of victim advocates and prosecutors.

The intent of the new statute is to address the physical and emotional harm caused by stalking. Although more than 16 million men and women have been the victims of some form of stalking, prosecution of the perpetrator took place in only 21% of those cases. See 1998 National Violence Against Women Survey by the National Institute of Justice and the Centers for Disease Control and Prevention.

The instant statutory changes are significant in that they target non-violent stalking behavior, meant to control, threaten, and intimidate, which can be as damaging to victims as assaultive behavior. The goal was to provide a means through which stalking behavior could be more readily prosecuted at an early stage, before an offender's actions lead to physical injury. Moreover, the new law provides for increased penalties for repeat offenders, those whose victims are children, and stalkers who possess weapons. To this end, the new provisions focus on frequently encountered as well as particularly egregious acts committed by stalkers.

There are several provisions within the new law. The addition of lowest magnitude, in terms of punishment, is Stalking in the Fourth Degree (Penal Law § 120.45), which creates a class B misdemeanor offense. The language of this section is comprehensive, covering behavior as basic as "following, telephoning, or initiating communication or contact" with another person, without a legitimate purpose. At the trial stage, this permits a broad scope of evidence both in terms of time frame of the action and type of conduct which is punishable.

This provision is of particular significance because spying, or standing outside the home of the victim, takes place in 77% of stalking cases; unwanted, but not necessarily fear-inducing, phone calls occur in 51% of all stalking cases; unwanted letters or items are sent to 30% of stalking victims; perpetrators vandalize the victim's property in 30% of stalking cases; and killing or threatening the family pet happens 8% of the time. See 1998 National Violence Against Women Survey by the National Institute of Justice and the Centers for Disease Control and Prevention. Much of this behavior, without more, was not readily prosecutable under the prior laws.

Moreover, the standard of intent required to prove the crime is less than under previous penal code sections. Earlier versions of the penal law required that the victim "reasonably fear[ ] physical injury, serious physical injury or death," a factor which is not present in every case.

Other relevant statutory subsections required that the offender intend to harass, annoy, alarm, or cause fear in the victim. Such intent cannot always be proven. Often, an offender's motive is simply to get the victim to return to him or her. Here, all that is required is that the actor intend to engage in the conduct, rather than intend to cause the result (reasonable fear of harm, actual harm). However, the actor must know, or reasonably should know, of the effect of the conduct.

Finally, the results ("resultant harm") covered by the statute are broad, including either material harm to physical health, safety, or property, or detriment to employment, business or career. (Under subdivision two, the defendant must have been previously informed to cease the conduct.) In fact, stalking often involves threats to personal property, employment, or mental or emotional health.

The new law also created the class A misdemeanor offense of Stalking in the Third Degree (PL § 120.50).

The first subsection of this offense deals with the scenario of a "serial stalker" - someone who has not previously been convicted of any stalking crime and stalks three or more different persons in separate transactions.

Subsection 2 was designed to punish an offender who continues to stalk a victim after having been convicted of one of several specified crimes against the victim or a family member of the victim. Notably, in cases where the perpetrator was the intimate partner of the victim, 80% of the victims had been previously physically assaulted by the perpetrator and 31% had been sexually assaulted. Moreover, even where orders of protection were issued (30% of the cases), they were violated 70% of the time. See 1998 National Violence Against Women Survey by the National Institute of Justice and the Centers for Disease Control and Prevention.

Subsection 3 combines the terms used in second-degree menacing with those contained in the definition of harassment. Under the resulting statute, an offender is guilty of stalking in the third-degree if; with the intent to harass, annoy or alarm the victim, the offender engages in conduct likely to cause reasonable fear of kidnapping, unlawful imprisonment, death, or physical injury (the offender does not have to intend to place the victim in fear). Moreover it covers threats made to family members. Of particular note is the broad definition of family used through-out the statute, making this subsection especially useful for prosecuting threats made against children.

Finally, subsection four of this provision delineates enhanced punishment for repeat offenders. A defendant may be charged with third-degree stalking for actions otherwise equating fourth-degree stalking, where the defendant has previously been convicted within the previous ten years of fourth-degree stalking against anyone.

The capacity to enhance chargeable offenses, and consequently punishments, for repeat offenders is present through­out other provisions, as well. Subsection two of Stalking in the Second Degree (Penal Law § 120.55), a class E felony, is chargeable as an enhancement of third-degree stalking, in situa­tions where the perpetrator has previously been convicted of committing a specified crime against the victim or the victim's family.

Also, under subsection three, a defendant with multiple convictions would be subject to conviction for stalking in the second degree. Thus, a defendant who has two prior fourth-degree stalking convictions (see third-degree stalking, subdivision 4) may be charged under second-degree stalking, for a third commission of actions which would otherwise only amount to fourth-degree stalking.

Under subsection one, an offender would be guilty of stalking in the second-degree if he commits stalking in the third-degree and, in the course of and furtherance of the crime, either: (1) displays or possesses and threatens to use a deadly weapon, dangerous instrument or any of a long list of other items, or (2) displays what appears to be "a pistol, revolver, rifle, shotgun, machine gun or other firearm.

Finally, subsection four provides for protection of children under 14. Where the actor is 21 years of age or older, and intentionally places or attempts to place the child victim in fear of physical injury, serious physical injury or death by repeatedly following the victim or by repeatedly engaging in other conduct over a period of time, the defendant may be charged with second-degree stalking.

Additionally, the new statute creates the crime of Stalking in the First Degree (Penal Law § 120.60).  Under this provision, a defendant will be charged with either a class D felony or, in certain circumstances, a class D violent felony.

Here, behavior otherwise classified as third-degree stalking is punishable as a felony where that action includes conduct which falls within the definition of specified sexual offenses (the misdemeanor offenses of sexual misconduct, second-degree sexual abuse; the class E felonies of third-degree rape, third-degree sodomy, or female genital mutilation; or the class D felonies of second-degree rape, or second degree sodomy).

Alternatively, behavior otherwise classified as third-degree stalking is punishable as a class D violent felony where that action, either intentionally or recklessly, causes physical injury to the victim.

There are, however, some challenges presented by the new statute. Initially, the language and construction are complex, due to the difficulty in defining stalking. This same difficulty occurred in drafting similar statutes such as first-degree criminal contempt. Additionally, the new provisions include the term "material harm" which is borrowed from civil practice. Presently, there is no criminal law definition or interpretation of such harm. Consequently, utilizing these provisions could prove challenging.

New York Prosecutors Training Institute

This project was supported by a Violence Against Women Act grant administered by the New York State Division of Criminal Justice Services. The points of view or opinions stated in this publication are those of the particular author and do not represent the official position of the Division of Criminal Justice Services. Information dealing with a specific legal matter should be researched in original and current sources or authority.