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, [3);
240.30-). 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
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
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).
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
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.
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
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.