The term "stalker" often invokes for us
the image of a trenchcoat clad stranger lurking in the shadows,
following every move made by the target of his obsession. But,
stalking is not only a crime committed by strangers. Stalking cases
often involve acts committed by a person with whom the victim is
either acquainted or has had a relationship in the past. And, while
there are instances where stalking of a former intimate partner is not
precipitated by violence in the relationship, in many instances
victims of domestic violence report stalking behavior committed by
their abusers not only after the victim has ended the relationship,
but also while the relationship is still ongoing.
Indeed, a 1997 National Institute of Justice study
of stalking found that eighty percent of stalking victims who were
stalked by their current or former intimate partner had, at some point
in their relationship, been physically assaulted by their partner, and
thirty-one percent had been sexually assaulted by their partner. Also
worthy of note is a recent FBI crime report that shows that thirty
percent of all murdered women are killed by their husbands or
boyfriends who had stalked them.
However, this is not to say that all stalkers of
former love interests exhibited violent behavior within the former
relationship. Stalking behaviors, and their preceding events, take
many forms.
In 1999, the New York State Legislature attempted
to criminalize a wide variety of stalking behaviors. To that end, on
December 1st of 1999, "The Clinic Access and
Anti-Stalking Act of 1999" became effective. The Legislative
Intent behind the Act provides a compelling and articulate summary of
the dynamics that precipitated the new laws:
The legislature finds and declares that
criminal stalking behavior, including threatening, violent or
other criminal conduct has become more prevalent in New York state
in recent years. The unfortunate reality is that stalking
victims have been intolerably forced to live in fear of their
stalkers. Stalkers who repeatedly follow, phone, write, confront,
threaten or otherwise unacceptably intrude upon their victims,
often inflict immeasurable emotional and physical harm upon them.
Current law does not adequately recognize the damage to public
order and individual safety caused by these offenders. Therefore,
our laws must be strengthened to provide clear recognition of the
dangerousness of stalking. [Emphasis added.]
These new laws vary in degree, including the class
B misdemeanor of Stalking in the Fourth Degree (punishable by up to 90
days is jail), the class A misdemeanor of Stalking in the Third Degree
(punishable by up to one year in jail), the class E felony of Stalking
in the Second Degree (ordinarily punishable by up to 1 1/3 to 4 years
in state prison) and the class D felony of Stalking in the First
Degree (punishable by up to 7 years in state prison). The degree of
the offense can be enhanced, under the new laws, based upon a prior
conviction by the offender to any of a number of specified offenses
committed against either the victim of the present offense or a member
of her family or, even against another completely different victim.
While we have had laws on the books for many years
that apply to stalking-like behavior, the new stalking laws focus
specifically on the state of mind of the stalking victim and the fear
that the stalker’s behavior is likely to cause the victim. This is
quite a change from the traditional "stalking" crimes of
harassment, menacing and criminal contempt, which require a specific
intent on the part of the stalker to either harass, annoy or alarm the
victim, or to place her in fear of injury.
In truth, it is often the case that a stalker’s
acts are governed by his obsession with his target and he does not
necessarily intend to upset her or cause her to fear him, though, of
course, there are many instances where a stalker does indeed intend to
upset, or even terrify, his victim. Still, prior to the enactment of
the new stalking laws, it was difficult for the criminal justice
system to hold accountable the "passive" stalker.
Recognizing this deficiency, the Legislature wisely chose to hold
stalkers accountable for actions that are reasonably likely to cause
fear even where the stalker himself did not actually intend such a
result.
The new stalking laws also address instances where
the stalking behavior is likely to cause the victim to reasonably fear
that physical violence will be directed at her family members, friends
or acquaintances, or where the acts of stalking are likely to cause
the victim to reasonably fear that her employment or career is
threatened.
In many of the new laws, an element of the crime
involves the "likelihood" that the offender’s behavior
will cause the victim to "reasonably" fear a certain type of
harm or result. This deliberately specific language raises two very
important considerations.
First, this language tells us that the victim of
the stalking behavior does not have to actually be placed in
fear. Rather, the stalker’s actions must be likely to cause
fear. Indeed, as it is not uncommon for a victim of domestic violence
to become somewhat hardened and immune (shell shocked) to her batterer’s
pattern of abuse, it is important to remember that a victim’s lack
of fear does not alleviate the offender’s criminal responsibility.
Second, it is important to note that the term
"reasonable" necessarily imparts great relevance to the
history that precipitated the stalking behavior. If the fear that the
victim is likely to experience must be "reasonable", then
her past experiences with, and knowledge of, her stalker become highly
probative of her state of mind.
For example, consider the case of a woman who has
recently ended her relationship with a man with whom she had been
romantically involved. A few days after she broke off the
relationship, her former boyfriend left a lily on her doorstep. In
fact, he did so three mornings in a row. The victim says that these
actions have scared her to death. Is her fear reasonable? We do not
know. Add to this example the following additional fact: The former
boyfriend had told the victim, in the course of their relationship,
that if she ever left him he would kill her. Now is the fear induced
by the lilies reasonable? Not yet. Add one more fact: The victim hates
lilies because they remind her of funerals . . . and her ex-boyfriend
knows this. Now, finally, the victim’s fear makes sense. In stalking
cases, context is everything. And, without knowledge of the history
precipitating the stalking behavior, there is no context from which to
make sense of the state of mind of the stalking victim.
Sometimes however, if you look closely enough, the
context is apparent even without knowledge of the history between the
parties. Consider the case of a man who sends several letters to his
former girlfriend. The letters are non-threatening in nature and
concern the return of property. On the front of the envelopes in which
the letters were sent, the man’s return address is listed as
"125 Cemetery Road". The victim does not know whether or not
her former boyfriend actually lives on Cemetery Road; she, in fact,
has no idea where he presently lives. Without knowing anything about
the dynamics of the couple’s former relationship, consider the
following two facts: The man does not live on Cemetery Road, and
Article 125 of the Penal Law contains the homicide statutes. In this
case, even though the victim does not put the pieces together and is
therefore not actually afraid, can we not say that the man’s actions
are likely to cause her reasonable fear?
While the new stalking laws are rather complicated
and not easily understood, they encompass a wide range of possible
acts. As with any new law, the statutes are also now open to judicial
interpretation and will, no doubt, in the coming years evolve into a
more definable and structured category of charges. No law is perfect,
but it seems that the policy behind the enactment, coupled with a
shift in focus to the victim’s state of mind, provides us with much
needed, and long overdue, tools with which to battle stalking behavior
and its terribly overwhelming impact on the women who are subjected to
a type of pattern of abuse that has, until now, been dangerously
neglected by the criminal justice system.