Know the Law: Explaining
 NY's Anti-Stalking Law

Explaining New York's
New Stalking Law
- with thanks
to former Albany County Assistant DA 

D.J. Rosenbaum


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 stalkerís 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 stalkerís 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 offenderís 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 stalkerís 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 battererís pattern of abuse, it is important to remember that a victimís lack of fear does not alleviate the offenderís 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 victimís 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 manís 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 coupleís 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 manís 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 victimís 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.


D.J. Rosenbaum, Assistant District Attorney

Domestic Violence Unit of the
Albany County District Attorneyís Office

August, 2000