Psychological Research and Public Policy/Law

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timer Asked: Jul 26th, 2018
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Question description

Week 11 discussion

Psychological research is and has been applied to many areas of daily life. From television commercials to a first grade classroom, you can see the effects of research in action. When psychological research is used to influence and shape public policy, in general, and specific laws, trained forensic psychologists and forensic psychology professionals typically are behind the scenes. Individuals who understand psychological research and the legal/political/legislative process are excellent candidates to help meld these two seemingly dissimilar areas.

To prepare for this Discussion:

  • Review the article, "Washington’s Sexually Violent Predator Law:Legislative History and Comparisons With Other States." Think about how historical and forensic psychological research contributes to the establishment of law and policy.
  • Review the article, "Stalking: Lessons From Recent Research." Pay particular attention to how research is used to influence community action and thereby affect public policy.
  • Review the article, "Sexually Violent Predator Evaluations: Empirical Evidence, Strategies for Professionals, and Research Directions." Consider how the findings described in this article might be helpful in influencing or setting public policy.
  • Using the Walden Library, identify and review a psychological research study that you believe has influenced a change in public policy or law.
  • Reflect upon the population studied, the key data and results, and other important takeaways of the research study.
  • Think about how this research study might influence public policy and/or law in forensics or in forensic settings.

With these thoughts in mind:

In APA formatting write:
1) brief summary of the research study you selected.
2) Be sure to include the population studied, key data and results, and other important takeaways of the article.
3) Then, explain how a forensic psychology professional might use the results of the study to influence public policy and/or law in forensics or in forensic settings.

References included:

Lieb, R. (1996). Washington’s sexually violent predator law: Legislative history and comparisons with other states. Retrieved fromhttp://www.wsipp.wa.gov/rptfiles/WAsexlaw.pdf

Miller, H. A., Amenta, A. E., & Conroy, M. A. (2005). Sexually Violent Predator Evaluations: Empirical Evidence, Strategies for Professionals, and Research Directions. Law And Human Behavior, 29(1), 29-54. doi:10.1007/s10979-005-1398-y

Travis, J. (1999, April). Stalking: Lessons from recent research. Address presented at the National Center for Women and Policing Conference, Orlando, FL. Retrieved from http://www.nij.gov/nij/about/speeches/past-directors/stalk.htm

Washington’s Sexually Violent Predator Law: Legislative History and Comparisons With Other States by Roxanne Lieb December 1996 Washington’s Sexually Violent Predator Law: Legislative History and Comparisons With Other States by Roxanne Lieb December 1996 WASHINGTON STATE INSTITUTE FOR PUBLIC POLICY The Evergreen State College Seminar 3162, MS: TA-00 Olympia, Washington 98505 Telephone: (360) 866-6000, extension 6380 Fax: (360) 866-6825 URL: http://www.wa.gov/wsipp Document No. 96-12-1101 Washington State Institute for Public Policy Mission The Washington Legislature created the Washington State Institute for Public Policy in 1983. A Board of Directors—representing the Legislature, the governor, and public universities— governs the Institute, hires the director, and guides the development of all activities. The Institute’s mission is to carry out practical research, at legislative direction, on issues of importance to Washington State. The Institute conducts research activities using its own policy analysts, academic specialists from universities, and consultants. New activities grow out of requests from the Washington Legislature and executive branch agencies, often directed through legislation. Institute staff work closely with legislators, as well as legislative, executive, and state agency staff to define and conduct research on appropriate state public policy topics. Current assignments include a wide range of projects in criminal justice, youth violence, social services, K-12 education, and state government organization. Board of Directors Senator Karen Fraser Senator Jeanine Long Senator John Moyer Senator Nita Rinehart Representative Lisa J. Brown Representative Steve Hargrove Representative Helen Sommers Representative Steve Van Luven Staff Roxanne Lieb, Interim Director Ken Conte, House Office of Program Research Edward Seeberger, Senate Committee Services Lyle Quasim, Department of Social and Health Services Gary Robinson, Office of Financial Management Roland De Lorme, Western Washington University Geoffrey Gamble, Washington State University Jane Jervis, The Evergreen State College Dale Johnson, University of Washington CONTENTS Executive Summary.................................................................................................................v Section I: Washington State’s 1990 Community Protection Act ...................................... 1 Section II: Sexual Predator Statutes in Other States........................................................ 4 Section III: Washington’s History With Sex Offender Laws, 1950–1984 ........................... 8 Appendix: Summaries of State Statutes ......................................................................... 13 Arizona ..................................................................................................... 14 California .................................................................................................. 15 Illinois ....................................................................................................... 16 Kansas ..................................................................................................... 17 Minnesota................................................................................................. 18 New Jersey............................................................................................... 19 Washington State ..................................................................................... 20 Wisconsin ................................................................................................. 22 The author wishes to thank the following individuals for assistance regarding their state’s laws: Michael Farnsworth, M.D. (Minnesota); Mary Burke (Wisconsin); Carla Stova (Kansas); Joni Hoffman (Arizona); Janice Marques (California); and Miriam Barati (New Jersey). David Boerner, Janie Maki, and Debra Fabritius provided valuable review, and Scott Matson assisted with the research. iii . EXECUTIVE SUMMARY In 1990, Washington State enacted a law authorizing civil commitment of individuals found to be “sexually violent predators” at the end of their criminal sentence. Twenty-one individuals have been found to meet this definition and are housed at a Department of Social and Health Services facility inside a prison in Monroe, Washington. This civil commitment law was part of an omnibus bill, the 1990 Community Protection Act. In order to increase the state’s knowledge about effective strategies with sex offenders, the legislature directed the Washington State Institute for Public Policy to evaluate this law’s effectiveness. The Institute has published numerous reports on the law to date; this publication updates information on the implementation and background of sexual predator laws. Legal Challenges Because the sexual predator law authorizes civil commitment of persons following a prison term, it has faced several constitutional challenges. The Washington State Supreme Court found the law constitutional in 1993. In 1995, U.S. District Court Judge John Coughenour found the statute to be criminal in nature and thus in violation of constitutional protections against ex post facto laws and double jeopardy. This ruling has been appealed to the Ninth Circuit Court of Appeals. The U.S. Supreme Court heard arguments in December 1996 on a similar law from Kansas State, Hendricks vs. Kansas. Washington State’s Attorney General filed an amicus brief to the court. A separate action regarding the treatment conditions at Monroe’s treatment facility caused U.S. District Judge William Dwyer to issue an injunction in 1994. A special master was appointed by the court to oversee the program’s progress toward fulfilling the court’s directions. Janice Marques continues to report to the court in this capacity. Comparison With Other States Six states in addition to Washington have statutes that authorize the confinement and treatment of sex offenders following completion of their criminal sentence: Arizona, California, Kansas, Minnesota, New Jersey, and Wisconsin. Illinois’s statute for sexual psychopaths allows confinement and treatment of sex offenders, but only as an alternative to criminal prosecution. The states’ laws fall into the following three models: • The Sexual Psychopathy Model: Illinois and Minnesota Illinois’s sexual psychopath law has existed since 1938 and has been declared constitutional by the U.S. Supreme Court. Here, the state must choose between v criminal prosecution and a sexual psychopath filing. Minnesota’s Psychopathic Personality Statute, passed in 1939, was also found constitutional by the U.S. Supreme Court. Since the early 1990s, this law has been used primarily to confine high-risk sex offenders indefinitely, after they have served their prison terms. • Mental Health Commitment: New Jersey When New Jersey considered laws for sexual predators in 1994, it elected to rely on its existing mental health commitment laws. The definition of mental illness was slightly amended so psychosis was not required for commitment, and special procedures to review prisoners were established. • Post-Prison Commitment: Arizona, California, Kansas, Washington, Wisconsin In 1990, Washington was the first to pass a post-prison commitment law with Arizona, California, Kansas, and Wisconsin passing similar statutes in the following years. Washington’s program is located in a mental health facility within the confines of a prison, whereas the Arizona, California, Kansas, and Wisconsin programs are in a hospital setting. (Kansas law specifies only that the program be located in a “secure facility.”) Every state but California specifices that the commitment is for an indefinite duration. Calfornia commits individuals for two years, and if the state believes that further confinement of the individual is needed, an additional petition and jury trial are necessary. . vi SECTION I: WASHINGTON STATE’S 1990 COMMUNITY PROTECTION ACT In May 1987, Earl K. Shriner, a mentally retarded man with a long criminal record, completed a ten-year sentence in Washington for kidnapping and assaulting two teenage girls. He had a 24-year history of killing, sexual assault, and kidnapping. Prior to his discharge, prison officials learned that he intended to torture children after he was released, and tried vigorously to detain him through the civil commitment laws covering mental illness.1 Unable to demonstrate the required “recent overt act” to prove dangerousness, the state had no option but to release Shriner. Two years after his release, he raped and strangled a seven-year-old boy in Tacoma, Washington, severed his penis, and left him in the woods to die. The Shriner case came to public attention one year after a young Seattle businesswoman was kidnapped and murdered by an inmate on work release. Gene Raymond Kane had been placed on work release after serving a 13-year sentence for attacking two women. Kane had been turned down by the state’s sexual psychopathy program because the mental hospital considered him “too dangerous to handle.”2 In response to these crimes and significant public outcry, then Governor Booth Gardner appointed citizens, professionals, and legislators in May 1989 to a Task Force on Community Protection and asked them to recommend changes to the state law. During the Task Force deliberations, Wesley Allen Dodd was apprehended during an attempted abduction of a six-year-old boy from a movie theater in southwest Washington. Following an investigation, Dodd confessed to the killings of two young boys who had been riding their bikes in a park and the kidnapping and murder of a four-year-old boy he had found playing in a school yard.3 The Task Force held public hearings throughout the state and considered numerous ways to strengthen the state’s laws concerning sex offenses. The group’s recommendations became an omnibus bill to the 1990 Legislature, outlining sweeping changes in the penalties for sex offenses, enacting a sex offender registry and community notification provisions, and establishing programs to assist victims. The Task Force’s most controversial recommendation called for a new civil commitment statute authorizing the state to confine and treat a small group of sex offenders over whom the state had no existing authority. This civil commitment proposal, and the majority of the other Task Force recommendations, were passed unanimously by both houses of the legislature in February 1990.4 Civil Commitment for Sexually Violent Predators 1 During his last months in prison, Shriner designed plans to maim or kill children and made diary entries that identified apparatus he would use. In a conversation with a cell mate, he said he wanted a van customized with cages so he could pick up children, molest them, and kill them. “System Just Couldn’t Keep Suspect,” Tacoma Morning News Tribune, 23 May 1989. 2 David Boerner, “Confronting Violence: In the Act and in the Word,” University of Puget Sound Law Library, 15:526. 3 Wesley Allen Dodd was later executed for these crimes. He did not contest his death penalty verdict. 4 Substitute Senate Bill 6259, 51st Legislature, Regular Session, 1990. 1 The Task Force focused its attention on remedying the powerlessness that state officials faced in 1987 when Shriner was released. Every proposal for reform was tested against the key question: Would it offer the state the necessary power to contain someone like Shriner, who had reached the end of his maximum criminal sentence, and yet clearly posed extreme risks to the public?5 The Task Force’s solution, enacted by the legislature, addressed a small group of sex offenders called “sexually violent predators.” Individuals in this category were defined as those who have been convicted of or charged with a crime of sexual violence and suffer from a “mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence.”6 The law authorizes prosecutors (or the Attorney General) to initiate civil proceedings for a person whose sentence for a sexually violent offense has expired or is about to expire, and that person: • • • • has been convicted of a sexually violent crime and is nearing the end of a criminal sentence; has committed a sexually violent offense as a juvenile and is about to be released; has been charged with a violent sex offense but has been determined to be incompetent to stand trial; or has been found not guilty of a sex offense by reason of insanity. The procedure is initiated by the state filing a petition alleging that the person is a sexual predator. Following a probable cause hearing, a judge can order a 45-day confinement for the purpose of an evaluation. A trial then determines whether the person meets the statutory definition of a sexually violent predator, with the state having to prove its case beyond a reasonable doubt to a unanimous jury. If convicted, the person is confined for treatment until found by a jury to be safe for release. Legal Challenges in Washington The key legal question surrounding the statute is whether it is primarily civil in nature or if it is in essence a criminal statute. Challengers argue that sex offenders do not suffer from a mental disorder and cannot be treated. Furthermore, the argument continues, future dangerousness cannot be predicted accurately and therefore the statute is preventive detention. Washington’s statute was found constitutional by Washington’s Supreme Court in August 1993.7 The court found the statute civil in purpose and effect and thus not in violation of 5 For a thorough discussion of the Task Force’s deliberations on the sexually violent predator law, see Boerner, “Confronting Violence,” 525-577. 6 Revised Code of Washington, Chapter 71.09. Sexual violence includes First- and Second-Degree Rape, Indecent Liberties and Child Molestation. Lesser offenses such as Second-Degree Assault and Residential Burglary can meet the definition if the conviction includes findings of sexual motivation. 7 In re Young 122 Wn.2d 1,23,857 P.2d 989 (1993). 2 constitutional protections against ex post facto or double jeopardy laws.8 In August 1995, U.S. District Judge John Coughenour ruled the law unconstitutional, finding it to be criminal in nature. Coughenour’s ruling has been appealed to the Ninth Circuit Court of Appeals. A separate action regarding the Special Commitment Center’s treatment conditions caused U.S. District Court Judge William Dwyer to appoint a special master in 1994. The judge ruled that the facility was making inadequate progress toward a comprehensive treatment program. In his injunction, which ordered the center to correct its problems, Dwyer wrote, “The failure of the program to meet constitutional standards to date has contributed to a belief by residents that they have no chance of ever qualifying for release, i.e., that their confinement amounts to a life sentence.”9 Judge Dwyer directed the special master to oversee the program’s compliance with the following five areas specified in the injunction order: • • • • • Improving staff competence; Rectifying the lack of trust and rapport between residents and treatment providers; Implementing a treatment program which includes all therapy components recognized as necessary key professional standards in comparable programs; Developing and maintaining individual treatment plans for residents with objective benchmarks of improvement; and Providing an expert to supervise the clinical work of treatment staff. The special master, Janice Marques, Ph.D., has submitted nine reports to Judge Dwyer regarding the program’s progress with the injunction requirements.10 In December 1996, the U.S. Supreme Court Review heard arguments concerning the constitutionality of a Kansas statute that was based on Washington’s sexual predator law (Kansas v. Hendricks). The Kansas Supreme Court previously held that the definition of mental illness in their sexual predator statute violated constitutional standards for substantive due process. Washington State’s Attorney General filed an amicus brief on this case, along with Attorneys General from several other states. The court’s decision in this case will determine the future of Washington’s law. 8 The court did find constitutional flaws that provided the basis for the reversal of a second petitioner, Cunningham. These flaws were addressed by the 1995 Legislature in its passage of SB 5088. 9 Turay v. Weston, Order and Injunction, 4. 10 Case No. C91-664WD. 3 SECTION II: SEXUAL PREDATOR STATUTES IN OTHER STATES In addition to the Kansas statute, several other states have legislation directed at serious sex offenders. The statutes can be organized into three main categories: • • • Sexual psychopathy laws (Illinois, Minnesota); Mental health commitment laws (New Jersey); Post-release commitment laws (Arizona, California, Kansas, Washington, Wisconsin). Sexual Psychopathy Laws Sexual psychopath laws have proliferated in the United States since the 1920s, resting on the assumption that sex offenders were "mad, not bad,” should receive treatment, and once cured, could be safely released. By the late 1960s, over half the states had special statutes authorizing civil commitment for sexual psychopaths. By the 1990s, a number of these statutes had been repealed, including Washington’s.11 The arguments for repeal centered around concern for civil rights, the ineffectiveness of treatment, and a desire to have dangerous sex offenders behind bars for significant periods of time. [See Section III for a review of Washington’s history with sex offender legislation.] Illinois’s statute was enacted in 1938 and is still operational; the law provides an alternative to criminal prosecution. The state must choose to convict and punish an offender through the criminal system, or to pursue a civil commitment under this statute. If found to be a “sexually dangerous person,” the individual is committed to the Department of Corrections until deemed to no longer be dangerous. The statute was found constitutional by the U.S. Supreme Court in 1986 (Allen v. Illinois). Minnesota enacted a “psychopathic personality” statute in 1939, authorizing commitment of persons found to be sexually irresponsible and dangerous to others. The proceedings are civil in nature and decided by a commissioner, with release decisions made by an administrative board. This statute was upheld by the Minnesota Supreme Court in 1939 and affirmed by the U.S. Supreme Court in 1940.12 For several decades this law was used infrequently; a total of only 221 individuals were committed under this statute from 1939 through 1969. Then in the late 1980s, dangerous sex offenders became a topic of public attention, and an Attorney General’s task force recommended several changes to state law and practice, including greater use of this statute. The 1989 Minnesota Legislature directed that courts consider the appropriateness 11 In 1990, 13 states and the District of Columbia retained sexual psychopathy statutes. See Gary Gleb, “Washington’s Sexually Violent Predator Law: The Need to Bar Unreliable Psychiatric Predictions of Dangerousness From Civil Commitment Procedures,” UCLA Law Review 39:215. 12 State ex rel. Pearson v. Probate Court, 205 Minn. 545, 287 N.W. 297, 302 (1939), affirmed 309 U.S. 270, 60 Supreme Court 523 (1940). 4 of psychopathic commitment at the time of initial sentencing. By 1992, the Department of Corrections was evaluating all high-risk sex offenders for possible commitment prior to their scheduled release. The state had some difficulty proving that offenders had “utter lack of power to control” sexual impulses, a required element of the statute, particularly for those who had been confined in a prison setting and had few opportunities to reoffend. As a remedy, in 1994 the legislature enacted a “sexually dangerous persons” statute. This “dangerous persons” statute was heard by the Minnesota Supreme Court in September 1996.13 Because its constitutionality is still being litigated, most commitments for sex offenders in Minnesota occur under the psychopathic personality statute. Mental Health Commitment When New Jersey considered legislation for serious sex offenders in 1994, the legal challenges to Washington’s civil commitment law caused lawmakers to seek another approach. The legislature chose instead to modify its existing civil commitment law to indicate a sexually dangerous person as a specific type of person eligible for consideration under the mental health commitment laws. New Jersey’s statute provides that persons whose conduct is identified by the sentencing court as characterized by a “pattern of repetitive, compulsive behavior,” or who are identified by the Department of Corrections or the Parole Board, be evaluated at the end of their term for potential commitment. Because the legislature determined many sex offenders who pose significant public safety risks are not psychotic, the legislature amended the definition of mental illness to specifically not require a finding of psychosis. Post-Prison Commitment The Arizona, California, Kansas, and Wisconsin statutes are modifications of Washington’s statute, authorizing involuntary civil commitment of certain habitual sex predators upon release from prison. California’s statute is distinguished by its two-year limit on duration of commitment. Following this period, the state must renew the petition if additional confinement is viewed as necessary. Under state law, the individual receives all constitutional protections for the subsequent proceedings, including a jury trial. Program Setting Washington’s decision to locate its program within a prison has not been followed by other states. The Washington legislature’s decision regarding the facility’s location was significantly influenced by the escape history of Western State Hospital’s sexual psychopath program. [See Section III for further discussion of this history.] 13 In re Matter of Linnahan. 5 Most states have located their programs within an established mental health facility serving high-risk individuals with existing rules and procedures governing the therapeutic environment. These facilities have trained staff and an ongoing program, thus persons committed under the statute have entered an environment with an established treatment regime. In contrast, Washington’s program and facility did not exist before the law. Individuals committed under the law were placed in a new program, with new staff, in a newly designated facility. In addition, the law’s uncertainty influenced residents’ willingness to participate in treatment. An expert in sex offender treatment and research, Vernon Quinsey, Ph.D., visited the program in 1992 and observed that the law’s “ambiguous constitutional status” generated “great uncertainty” among the residents. He observed that “many residents are simply waiting to see if the law will be declared to be constitutional.”14 Washington has thus faced some unique challenges in implementing its law. Figure 1 compares the key elements of the seven state statutes. The Appendix includes a detailed summary of each statute. 14 Vernon Quinsey, Review of the Washington State Special Commitment Center Program for Sexually Violent Predators (Olympia: Washington State Institute for Public Policy, 1992) 3. 6 Figure 1 Sexual Predator Statutes: COMPARISON OF KEY ELEMENTS Arizona California Kansas Minnesota New Jersey Washington Wisconsin Health Services Mental Health Social and Rehabilitative Services Human Services Mental Health Social and Health Services Social Services Hospital Hospital Secure Facility Hospital Hospital Hospital Standard of Proof Beyond a reasonable doubt Beyond a reasonable doubt Beyond a reasonable doubt Clear and convincing evidence Clear and convincing evidence Mental Health Facility within the Department of Corrections Beyond a reasonable doubt Jury Trial Yes Yes; must be unanimous Yes; must be unanimous No No Yes; must be unanimous Yes Indeterminate 2 years; can be extended by court with second petition and trial Court Indeterminate Indeterminate Indeterminate Indeterminate Indeterminate Court Commissioner Court Court Court Managing Department Setting Duration of Confinement Release Authority Court (The Appendix provides a more detailed review of each state.) WSIPP December 1996 7 Beyond a reasonable doubt SECTION III: WASHINGTON’S HISTORY WITH SEX OFFENDER LAWS, 1950–1984 The 1990 civil commitment law was not Washington’s first effort to confine and treat sex offenders under civil law. Washington passed a law in the 1950s authorizing treatment in lieu of punishment for sexual psychopaths and psychopathic delinquents.15 This and similar laws passed in about half the states were based on the rationale that sex offenders suffered from a mental disorder that could be treated, and thus their threat to society eliminated.16 Washington’s statute defined sexual psychopathy quite broadly. Program administrators in 1963 described this population as: “those who have committed almost all common sexual offenses from rape to incest, from indecent exposure to obscene telephoning, from homosexual behavior to indecent liberties with children, from transvestitism to voyeurism.”17 Proceedings for a sexual psychopath commitment could be initiated after the person’s guilt or innocence was determined. The court had the option to send an individual to the state mental health hospital for evaluation of two conditions: (1) whether the person met the definition of sexual psychopathy, and (2) whether the person was likely to benefit from the treatment. If both conditions were met, criminal proceedings were suspended and the person was committed to the state hospital until “improved to an extent that he is no longer a menace to the health, lives, or property of himself or others.”18 Those found by the hospital to not meet both conditions were returned to the court for criminal action.19 Starting in the late 1950s, Western State Hospital developed a specific treatment approach for sexual offenders. By the 1970s, the program achieved national recognition for its “guided self-help model,” where individuals progressed to higher levels of independence after reaching treatment milestones. Group therapy was used extensively, and offenders were selected to serve as group leaders.20 During each of the three phases of the program (inpatient treatment, work-release, and outpatient treatment), the hospital referred some offenders back to the court for criminal sentencing, either because of behavior difficulties or resistance to treatment. By the late 1970s a second program was established at Eastern State Hospital. Together the programs treated approximately 300 individuals. The program at Western State became headline news in 1974 when an escaped resident was apprehended for, and later convicted of, a rape of one person and the murders of two teenage girls. Headline attention returned in 1979 when a program graduate, who subsequently worked as a therapist in the program, was found murdered in an isolated 15 Revised Code of Washington 71.060 (1957). Frederick J. Hacker and Marcel Frym, “The Sexual Psychopath Act in Practice: A Critical Discussion,” California Law Review, 43:766, 1955. 17 Giullio Di Furia and Hayden L. Meeks, 1963, “Dangerous To Be At Large—A Constructive Critique of Washington’s Sexual Psychopath Law,” Washington Law Review 38:531, 532. 18 Revised Code of Washington 71.06.020 (1985). 19 In some cases, courts ordered the hospital to treat the person even though the hospital found the person unamenable and a security risk. See Maureen Saylor, The Rise and Fall of Sex Offender Programs at Western State Hospital, Presentation to the Seventh Annual Research and Data Conference Association for the Treatment of Sexual Abuses, 20, September 1988. 20 Legislative Budget Committee, “Sex Offender Programs At Western and Eastern State Hospitals,” Report No. 8516, 1985. 16 8 area. He had been shot by a man he was attempting to rape. Other bodies were found in this area, along with the discovery of sadomasochistic items in his apartment.21 The Legislative Budget Committee’s22 review of the program in 1985 raised substantial questions about the program’s effectiveness. The auditor concluded that less than a quarter of the offenders who entered the program were successfully discharged, and the recidivism rate of program graduates was approximately the same as offenders who had been imprisoned without treatment.23 The program was also found to be more expensive than incarceration, with even higher expenditures necessary to bring the program to “acceptable levels.” During the early 1980s, Washington enacted a determinate sentencing system for adults that was to go into effect in 1984. An independent agency, the Sentencing Guidelines Commission, was given the assignment of recommending standards and ranges for felonies. The Commission devoted extensive attention to sex offenses and methods of incorporating treatment sentences for sex offenders into a determinate sentencing system. In 1984 the Commission ultimately recommended, and the legislature enacted, a prospective repeal of the sexual psychopath statute. Treatment for sex offenders was retained but the context was significantly altered. The new state policy offered some treatment beds for high-risk offenders in a secure setting—prison—while also allowing community-based treatment (Special Sex Offender Sentencing Alternatives) for those judged by experts to pose a low security risk.24 Washington’s experiences with this sexual psychopathy program influenced policymakers in the 1990s during their deliberations on the sexual predator law. In particular, the escape history at the Western State Hospital made it politically untenable to consider placing the program in a hospital setting. Policymakers were also influenced by two previous state reforms—mental health and criminal sentencing. A review of these reforms helps to establish the decision-making context of both the Governor’s Task Force and the 1990 Legislature. Mental Health Reform—1973 Washington State’s commitment laws for the mentally ill were significantly reformed in 1973, replacing long-term institutionalization with short-term treatment emphasizing psychotropic medication as a means of stabilization.25 A series of procedural requirements established evaluation and treatment in incremental periods of hours and days for up to a 5month duration. A finding of “likelihood of serious harm,” as well as a threat that was manifested by a recent overt act, was required. During the Task Force deliberations, the group discussed the option of revising the commitment laws and adopting a statute like Minnesota’s. This proposal was rejected due 21 Saylor, Rise and Fall of Sex Offender Programs, 20. Now the Joint Legislative Audit and Review Committee 23 Legislative Budget Committee, Sex Offender Programs, 6. 24 Boerner, “Confronting Violence,” 552. 25 1973 Washington Laws ch. 142, Washington Rev. Code ch. 71.05 (1989). 22 9 to concerns that it would sweep in numerous individuals who did not pose significant risks and thus undermine the mental health reform.26 Sentencing Reform Act—1984 The state radically reformed its adult sentencing system in 1984, replacing an indeterminate system, where release decisions were made by a Parole Board, with a determinate system, where the judge set the sentence using statewide guidelines. With this “up-front” sentencing system, offenders who reached the end of their sentence were released with relatively short periods of supervision.27 A return to an indeterminate sentencing system for all offenders, and more narrowly for sex offenders, offered the state power over offenders for a longer duration. Washington’s then Attorney General, Ken Eikenberry, recommended such an indeterminate system for sex offenders as a bill to the 1990 Legislature. The principle objection to this bill, voiced during legislative hearings, centered on the significant cost implications and a reluctance to “derail” a significant reform effort.28 Sentence Lengths The state has always exercised significant control over sex offenders through sentencing decisions. The longer the prison term, the shorter time the person is at risk in the community. In 1990, some people argued that longer sentences offered the states a key mechanism to control sex offenders. The Task Force spent considerable time reviewing sentence lengths for sex offenses, and in fact recommended a 50 percent increase in the penalties for most of these offenses.29 The group, however, determined that sentence lengths were not a complete answer for several reasons: • Sentences could only be amended prospectively and thus would not solve the state’s powerlessness over persons like Earl Shriner. Unless all sentences for sex offenders were life sentences, the state could once again face the prospect of releasing sex offenders expressing direct threats of harm to other individuals. • Sex offenders are not a homogeneous group and differ greatly in culpability, risk, and the harm they have done, and their sentences need to reflect these differences. A teenager who molests a neighborhood child is not the same as a three-time rapist who breaks into women’s homes at night. Their sentences should be vastly different. The Task Force rejected a policy approach that would incapacitate all or most sex offenders in order to respond to the very small number of extremely dangerous individuals like Earl Shriner. 26 Boerner, “Confronting Violence,” 544. Under the original sentencing guidelines, there was no supervision after release. Later legislative amendments changed the post-release supervision term to one, two, or three years. 28 Boerner, “Confronting Violence,” 549. 29 Ibid., 573, 574. 27 10 • A significant proportion of sex offenses occur within the family. Family members can possess complex views about appropriate sentencing, frequently placing a higher value on treatment provisions than long terms of confinement. Since a high proportion of sex offenses are not reported to authorities, or if reported, do not result in a conviction,30 the Task Force was reluctant to set policy that further discouraged victims from coming forward. • Through its sentencing guidelines, the state ranked all major felonies with a keen focus on proportionality. Sentences that would incapacitate the majority of convicted sex offenders would have to be as long as existing penalties for murder. To increase the penalties for sex offenses would undoubtedly set in motion the need to revise other penalties—those involving loss of life, kidnapping, or assaults that result in extreme and permanent injury. • And finally, cost considerations played a role. The Sentencing Reform Act included a legislative commitment to pay for the prison cells and correctional resources necessitated by sentencing bills as part of its “truth in sentencing” commitment. Thus the legislative deliberations included an awareness of the price tags for various proposals. For these reasons, the Task Force chose to create a civil commitment statute specifically designed to confine and treat the most dangerous sex offenders and to authorize this option for use at the end of a criminal sentence. In 1993, Washington voters passed a “Three Strikes and You’re Out” initiative that results in a lifetime sentence without parole for offenders convicted of their third felony. The 1996 Legislature broadened the law to also apply to sex offenders with two separate convictions of specified sex offenses.31 Thus, many repetitive sex offenders now receive lifetime sentences in Washington. CONCLUSION Sex offenses will be of concern to the public, and to policymakers, for the indefinite future. Washington’s history of decision making regarding civil commitment for sexually violent predators reveals the forces and considerations that influenced the Governor’s Task Force on Community Protection and the 1990 Legislature. This history may shed some light on future policy options. 30 Task Force on Community Protection, Final Report, State of Washington, 1989, iv-2. Rape First Degree, Rape Second Degree, Indecent Liberties by Forcible Compulsion; or Murder First Degree, Murder Second Degree, Kidnapping First Degree, Kidnapping Second Degree, Assault First Degree, Assault Second Degree, or Burglary First Degree, with a finding of sexual motivation; or an attempt to commit any of the crimes listed above. 31 11 12 Appendix SUMMARIES OF STATE STATUTES Arizona California Illinois Kansas Minnesota New Jersey Washington Wisconsin 13 Arizona Year Enacted 1996 Definitions Sexually violent predator: person charged with or has been convicted of a sexually violent offense and who suffers from a paraphilia that makes the person likely to engage in predatory acts of sexual violence. Commitment Procedures County attorney or attorney general may file petition if the person is going to be released from confinement or custody (those found guilty except insane or incompetent to stand trial). A petition is filed and a probable cause hearing held. If there is probable cause, the person is taken into custody and transferred to an appropriate facility for an evaluation. Within 45 days of the petition, the court shall conduct a trial. The person has right to counsel and can retain expert of choice. The court or jury shall determine beyond a reasonable doubt if the person is a predator. If found to be a predator, the person is committed to the custody of the state Department of Health Services for placement in the state hospital or a licensed behavioral health or mental health inpatient treatment facility. The person shall remain in facility until paraphilia has so changed that the person would not be a threat to public safety. Location, Number Committed The law went into effect on July 1, 1966. No one has been committed yet. Placement will be at the forensic wing of the state hospital. Treatment and Release Provisions The person shall be examined annually, with a report to the court. The annual report shall state if conditional release to a less restrictive alternative is in the best interest of the person and will adequately protect the community. The person may retain, if indigent, or have the court appoint a qualified expert. The department director or superintendent can petition the court for release to a less restrictive alternative or for unconditional discharge, with the determination that the person’s paraphilia has so changed that the person is not likely to engage in predatory acts of sexual violence. The person can petition to the court without the superintendent’s approval. The hospital shall give person annual written notice of the person’s right to petition. If the person does not waive the petition right, the court shall set a show cause hearing. The person has right to an attorney, but not to be present. If the court finds probable cause for release, a release hearing is set. The person may be present at release hearing and receives same constitutional protections as applied to initial commitment. County attorney or attorney general may request a jury. Person is examined by expert chosen by the state, and can also retain expert of choice. A jury trial can be requested by state or petitioner. State must prove beyond a reasonable doubt that the person’s paraphilia has not changed, the person remains a danger to others, and is likely to engage in predatory acts if released, conditionally or unconditionally. The court’s jurisdiction over the person continues until the person is unconditionally discharged. Before the court orders a conditional discharge, conditions can be imposed for treatment, supervision, and housing determined to be necessary to ensure community safety. Following a hearing, the court determines if the conditions for conditional release have been met. The issue can be submitted to a jury. Conditional release cases are reviewed at least annually by the court. If the person does not comply with conditions, the court can revoke the conditional release and commit the person to total confinement. Legal Status No court decisions to date. 14 California Year Enacted 1996 Definitions Sexually violent predator: a sex offender convicted of specified sex offenses (committed by force, violence, duress, menace or fear of injury of a victim or another person); such offenses committed against two or more victims; and the person is determined to have a diagnosed mental disorder that makes it likely that he/she will engage in sexually violent criminal behavior upon release from the California Department of Corrections. Commitment Procedures Department of Corrections and Board of Prison Terms shall review each inmate 6 months prior to release. With probable cause, the person can be held for 45 days after prison release date at Atascadero Sate Hospital. The Department of Mental Health evaluates the referrals to determine if there is a diagnosed mental disorder which makes it likely that the person will engage in sexually violent criminal behavior upon release. Two department clinicians make this diagnosis. If the department clinicians do not agree, the person is examined by two independent professionals. If they do not concur, the person is released to parole at end of term or unconditionally discharged at end of statutory parole period. If both clinicians concur, the case is referred to the district attorney or county counsel for possible filing. The county superior court hears the matter, and a probable cause hearing is held within 10 days. The person has the right to counsel at the hearing. If probable cause is found, the person is held in a secure facility until the trial. The person can request a jury trial for the commitment hearing, and the jury must unanimously decide, beyond a reasonable doubt, that the person is a predator. Jurors are admonished that they may not find the person a predator, absent relevant evidence of a currently diagnosed mental disorder. The person is committed to the Department of Mental Health for 2 years for treatment in a secure facility. Location, Number Committed Atascadero State Hospital Treatment and Release Provisions Person is committed to the Department of Mental Health for 2 years. A person cannot be held for more than 2 years unless the court subsequently extends commitment by granting a new petition. Due process protections from initial commitment hearing apply, potentially including a jury trial. 2 committed as of September 1996; 12 trials pending. Each person’s mental condition is examined annually. The person may retain an expert of choice. With a change in mental disorder and likelihood to engage in sexual violence, the director can petition for an unconditional or conditional release hearing. The person is notified annually of right to petition court for conditional release, and subsequent unconditional discharge. Persons can petition for a conditional release and subsequent unconditional discharge. If time remains on the parole period, the person is supervised for remainder of statutory parole period. Legal Status Three California Appellate Districts have heard challenges to the statute and upheld its constitutionality. A fourth case is pending. An appeal to the California Supreme Court is likely. 15 Illinois Year Enacted 1938 Definitions Sexually dangerous person: Someone suffering from a mental disorder continually for at least one year, coupled with criminal propensities to the commission of sex offenses, and who has demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children. Commitment Procedures The state can petition the court to initiate commitment proceedings if the person has charges pending for a criminal offense indicating sexual dangerousness. The state can either convict and punish the person accused of a sexual offense or commit and treat the person under this statute. The court appoints two qualified psychiatrists to determine whether person meets criteria. The person has a right to jury trial and counsel. State must prove case beyond a reasonable doubt. If the person is declared sexually dangerous, he or she is committed to a treatment center until deemed no longer dangerous. The Director of Corrections is to provide care and treatment designed to effect recovery. If found not to be sexually dangerous, person can be tried for the crime. Location, Number Committed Bid Muddy Correctional Center, 88 individuals Treatment and Release Provisions The person can file application showing recovery and petition for release at any time following commitment. By state regulation, a staff psychiatrist must review person’s confinement every 6 months. Committing court must hear all applications for release. If found no longer to be dangerous, the court orders discharge and every information and indictment underlying the criminal charge is quashed. Those found to be dangerous remain in the department’s custody. When Director determines someone committed under this statute appears to no longer be dangerous, but institutional confinement makes such a conclusion uncertain, the Director can petition the court for conditional release authorization. The court can order the person released under supervision that will protect the public. If the person violates the supervision conditions, the court shall revoke the conditional release and re-commit the person. Legal Status Statute withheld challenge in Illinois Court of Appeals (1951) and 7th Circuit (1958). The US Supreme Court upheld statute in 1986 (Allen v. Illinois). 16 Kansas Year Enacted 1994 Definitions Sexually violent predator: any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others. Commitment Procedures Agency with jurisdiction over person shall inform county prosecutor regarding persons who will be released in 60 days who were convicted of sexually violent offense, or found not guilty by reason of insanity. Within 45 days of receiving notice from agency, the prosecutor may file a petition and the judge determines whether there is probable cause to believe the person is a sexually violent predator. The person is transferred for an evaluation by someone who is professionally qualified. Within 45 days, a trial is held. The person has right to an attorney, trial by jury, and examination by expert of choice. The court or jury determines on a unanimous basis whether, beyond a reasonable doubt, the person is a sexually violent predator. If the person is found incompetent to stand trial, a hearing is held where criminal rules of evidence apply. If court finds that the person did the act or acts, a final order is issued and the court considers whether to commit the person. The person is transferred to Social and Rehabilitation Services for care and control treatment in a secure facility until the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large. Location, Number Committed Individuals are currently housed in the Larned State Hospital, temporarily. They were recently moved from a wing of the Larned Correctional Facility. Nine individuals are committed; an additional 3 or 4 petitions have been filed and the cases await trial. Treatment and Release Provisions Each person committed shall be examined once every year regarding their mental condition. The report is delivered to the court, and the court conducts an annual review of the person’s status. If the court determines that the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large, then the court shall set a hearing. The person has the right to be examined by expert of choice, paid by state if necessary. The state has the burden of proof at the hearing to prove that the committed person’s metal abnormality or personality disorder remains such that the person is not safe to be at large and if released, is likely to engage in act of sexual violence. Person can file petitions for discharge. If the person files a petition without departmental approval and the court found a previous petition frivolous, or after a hearing, not to meet the release criteria, the court can deny the petition without a hearing if determined to be a frivolous petition. Legal Status The Kansas Supreme Court found the law unconstitutional. An appeal was heard by the U.S. Supreme Court in December 1996 (Kansas v. Hendricks). 17 Minnesota Year Enacted 1939 Psychopathic Personality 1994 Sexually Dangerous Persons Definitions Psychopathic personality: A person exhibiting any or all of the following: emotional instability, impulsiveness of behavior, lack of customary standards of good judgment or a failure to appreciate the consequences of personal acts. These characteristics render the person irresponsible for personal conduct with respect to sexual matters and thereby is dangerous to other persons. Case law further defines the person who, “by habitual course of misconduct in sexual matters, evidences an utter lack of power to control his sexual impulses,” and as a result, is dangerous to others. “Habitual course of misconduct in sexual matters” has been interpreted in case law to be three convictions. Commitment as a psychopathic personality requires evidence of physical harm or intent to harm the victim (1993 decision). Sexually dangerous person: (1) has engaged in a course of harmful sexual conduct; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct. Inability to control sexual impulses need not be proven. Commitment Procedures The process for both types of commitments follows state’s civil commitment law. County attorney prepares a petition, including statement by court-appointed examiner. Second examiner selected by person and paid for by county. Court hears petition, with the individual given full procedural protections. The state must demonstrate by clear and convincing evidence that the individual meets the criteria. Individuals found to meet the criteria are committed to the Minnesota Sexual Psychopathic Personality Treatment Center or the Minnesota Security Hospital or other designated treatment facility. Following the initial commitment, a written treatment report must be filed with the court within 60 days. A final commitment hearing follows, with those found to meet the definition transferred to the treatment facility for an “indeterminate period of time.” Location, Number Committed Minnesota Sexual Psychopathic Treatment Center in Moose Lake has 85 individuals; an additional 10 individuals are housed at the Minnesota Security Hospital in St. Peter. Treatment and Release Provisions Individuals have a statutory right to be offered treatment in a mental health rather than a prison setting. Patients can petition for discharge to a 3-member special review board trained in mental illness. Commissioner of Human Services makes discharge decision, based on majority recommendation of the board. The Commissioner’s decision can be appealed to a special appeal panel appointed by the Supreme Court. Further decisions can be appealed to the Appeals Court and the Supreme Court. Legal Status The Minnesota Supreme Court upheld the constitutionality of the psychopathic personality statute in 1939 (State ex rel. Pearson v. Probate Court). The US Supreme Court affirmed this decision in 1940. The Minnesota Supreme Court upheld constitutionality of the psychopathic personality statute in 1994. The U.S. Supreme Court refused to review the cases submitted on this statute in October 1994. The Minnesota Supreme Court heard the sexually dangerous person law in September 1996 (In re matter of Linnahan). 18 New Jersey Year Enacted 1994 Definitions The civil commitment law applies to all persons. The only special provisions for offenders are procedural and apply to those offenders who never qualify for parole. Offenders with a conviction of aggravated sexual assault, sexual assault or aggravated criminal sexual contact, if the sentencing court found that the offender’s conduct was characterized by a pattern of repetitive, compulsive behavior, are evaluated at the end of their term, along with any other inmates when the Department of Corrections or the Parole Board believes they may meet the state’s standards of involuntary commitment, including the presence of mental illness. (Mental illness is specifically not limited to finding of “psychosis” or “active psychosis.”) Commitment Procedures Parole board or the superintendent of facility where the person was held believe the person may be in need of involuntary commitment; the procedures follow the state’s overall involuntary commitment laws. The attorney general has principle authority to file petitions for inmates; this can be delegated to county prosecutors. The petition filing must be supported by two clinical certificates from psychiatrists or physicians; psychologists are not acceptable. Persons paroled prior to serving the maximum term are not subject to commitment because the parole standards account for dangerousness. The commitment process occurs while the person is within the jurisdiction of the Department of Corrections. With a finding of probable cause, the person is temporarily committed to a facility for the criminally insane for 20 days. The court makes the required finding on clear and convincing evidence. There is no jury trial. If the court imposes conditions lasting longer than 6 months, a review hearing will be set. Location, Number Committed Forensic Psychiatric Hospital in Trenton. As of September 1996, 28 persons were institutionalized and 6 have been released. Treatment and Release Provisions No person shall be discharged prior to expiration of the maximum term that would have been served had the person not been committed. If an inmate is committed prior to expiration of term and no longer needs involuntary commitment, the person is returned to appropriate authority to complete any remaining term of incarceration, with credit for time served. Legal Status State Supreme Court upheld statute in August 1996 (In the matter of D.C.). 19 Washington State Year Enacted 1990 Definitions Sexually violent predator: a sexual offender who has been convicted of at least one crime of sexual violence and suffers from a mental abnormality or personality disorder that makes the person likely to engage in future predatory acts of sexual offense if not confined in a secure facility. Commitment Procedures When an offender previously convicted of a sexually violent offense is about to be released from confinement, or has committed a recent overt act since release, the prosecuting attorney may petition for involuntary civil commitment. The court determines if there is probable cause and if so, the person is taken into custody. A hearing is held within 72 hours. The person has the right to counsel, to present evidence and cross-examine witnesses. If probable cause is found, the offender is transferred to an appropriate facility for evaluation. Within 45 days, a trial is held. The person has right to jury trial, a lawyer, and an examination by an expert of choice. The state must prove that the person meets the definition beyond a reasonable doubt. The jury verdict must be unanimous. Persons found to be predators are transferred to a facility until such time as the person’s mental abnormality or personality disorder has so changed that the person is either safe to be at large or released to a less restrictive environment. Location, Number Committed Committed individuals are housed at the Special Commitment Center, a facility run by the Department of Social and Health Services and located in a state prison. As of September 1996, 21 individuals have been found to be predators. Treatment and Release Provisions Each person is examined annually to determine whether he or she is non-dangerous enough for release, and also may be evaluated by an examiner of choice. The reports are provided to the court. If the secretary determines the person has changed such that he/she is not likely to engage in predatory acts of sexual violence, the secretary shall authorize the person to petition the court for conditional release or unconditional discharge. The court shall schedule a hearing within 45 days. The prosecuting attorney or attorney general shall have the right to have the person examined by an expert of choice. The hearing is before a jury if demanded by either side. The state has to prove beyond a reasonable doubt that the person’s mental abnormality or personality disorder remains such that the person is not safe to be at large and that if conditionally released or unconditionally discharged, is likely to engage in predatory acts of sexual violence. The person can petition the court for discharge without the secretary’s approval. The secretary shall provide an annual written notice of the right to petition the court. If the person does not waive the petition right, the court shall set a show cause hearing to determine whether facts exist to warrant a hearing. The person has a right to an attorney at the hearing, but not the right to be present. If the court finds probable cause, a hearing shall be set. The person has a right to attend the hearing and shall receive all constitutional protections afforded at the initial commitment hearing. The state has a right to a jury trial and to have the person examined by an expert of choice. The person has right to an expert’s evaluation, paid for by the state if the person is indigent. The burden of proof at the hearing is upon the state to prove beyond a reasonable doubt that the person’s mental abnormality or personality disorder remains such that the person is likely to engage in predatory acts of sexual violence if conditionally released or unconditionally discharged. Conditional release to a less restrictive alternative is possible. The release can be revoked or modified with a court hearing. Annual reviews of conditional release are necessary, until unconditional discharge occurs. 20 Washington State, continued Legal Status Young v. Weston, a constitutional challenge to the statute, is pending before the 9th Circuit Court of Appeals. The statute was previously found constitutional by the Washington State Supreme Court (1993) and unconstitutional by the U.S. District Court (1995). A separate action challenging the treatment conditions at the facility (Turay v. Weston) caused the federal court to appoint a special master in 1995. 21 Wisconsin Year Enacted 1994 Definitions Sexually violent person: a person who has been convicted of a sexually violent offense, (or found not guilty by reason of insanity or mental disease, defect or illness) and who is dangerous because of a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence. Commitment Procedures When person is within 90 days of discharge or release from a sentence imposed for sexually violent offense, a petition can be filed by the attorney general or a district attorney. If the court finds probable cause, the court orders the person into custody for an evaluation. No longer than 45 days later, a trial is held. The criminal rules of evidence apply to the trial, including proof beyond a reasonable doubt. On the basis of a second hearing, the court specifies either institutional care in a secure mental health facility or supervised release. The department is to arrange for control, care and treatment in the least restrictive manner. The person is committed until he or she is no longer a sexually violent person. Supervised release is administered by the Department of Corrections. Location, Number Committed Mendota Mental Health Institute (a state mental institute), or Wisconsin Resource Center (a mental health facility within the Department of Corrections). 90 persons are housed at the facility as of August 1996: 41 were found to be sexually violent predators; the remaining await trail. 2 persons were committed, then ordered to conditional release. 4 people have been placed on supervised release. Treatment and Release Provisions The person is examined within six months of commitment and at least once yearly to determine if he or she has made sufficient progress to be entitled to transfer to a less restrictive facility, supervised release, or discharge. The person can retain or have appointed a qualified expert examiner. The court can also order the person re-examined at any time. Petitions for supervised release are allowed every six months. However, the facility director may petition at any time. The person is entitled to court-appointed counsel. Within 20 days, the court shall appoint one or more expert examiners to evaluate person. The court hears the petition without a jury within 30 days of expert’s report. The court shall grant petition unless the state proves by clear and convincing evidence that the person is still sexually violent and it is still substantially probable that the person will engage in acts of sexual violence if not confined in a secure facility. The court may consider the nature and circumstances of behavior alleged in original commitment petition, the person’s mental history and present mental condition, where the person will live and support self and access to and participation in treatment. If the person is found appropriate for supervision, a plan for supervision and treatment will be developed. Petitions for discharge: If the DHSS secretary determines the person is no longer sexually violent, the secretary shall authorize the person to petition the committing court for discharge. A hearing is held within 45 days. The prosecutor can have the person examined by an expert of choice. A bench trial is held with a standard of clear and convincing evidence. Wisconsin, continued 22 Treatment and Release Provisions (continued) The person can petition for discharge without the secretary’s approval. The person has a right to an attorney but not to be present at the probable cause hearing. If probable cause is found, the court schedules a hearing. The person has the right to be present and have counsel. The state can have the person evaluated by an expert of choice. The state must prove its case by a clear and convincing standard. If the state does not meet its burden of proof, the person is discharged from custody or supervision. If the burden is met, the court can modify the existing commitment order. In addition, the person can petition the court at any time. If the person previously filed for discharge without the secretary’s approval and the court determined that the petition was frivolous, or the person was still sexually violent, the court shall deny any subsequent petition without a hearing unless the petition describes a changed condition. If a hearing is warranted, a probable cause hearing will be set. Legal Status Statute was found constitutional in December 1995 by the Wisconsin Supreme Court. 4 appeals of commitment are pending before the U.S. Supreme Court. 12 individuals were found not to meet the statutory definition at the trial court level. 23
The author(s) shown below used Federal funds provided by the U.S. Department of Justice and prepared the following final report: Document Title: Stalking Laws and Implementation Practices: A National Review for Policymakers and Practitioners Author(s): Neal Miller Document No.: 197066 Date Received: October 24, 2002 Award Number: 97-WT-VX-0007 This report has not been published by the U.S. Department of Justice. To provide better customer service, NCJRS has made this Federallyfunded grant final report available electronically in addition to traditional paper copies. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Institute for Law and Justice 1018 Duke Street Alexandria, Virginia 22314 Phone: 703-684-5300 Fax: 703-739-5533 http://www.ilj.org i - - PROPERTY OF National Criminal Justice ReferenceService (NCJRS) . Box 6000 Rockville, MD 20849-6000 fl-t'Y- 0 Stalking Laws and Implementation Practices: A National Review for Policymakers and Practitioners Neal Miller October 2001 Prepared under a grant from the National Institute of Justice to the Institute for Law and Justice (ILJ), grant no. 97-WT-VX-0007 Any opinions expressed herein are solely those of the author and do not necessarily represent the views of the U.S.Department of Justice or ILJ. This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Acknowledgements Many individuals assisted the research and report writing in a variety of ways, including granting access to local programs and staff, answering numerous questions about what they are doing and why; providing documents and reports; and reviewing draft reports. Among those whose help I gratefully recognize are the following individuals. a Diedra Bialo-Padin, Brooklyn District Attorney’s Office Howard Black, DVERT, Colorado Springs Colorado Greg Boles, Los Angeles Police Department Anthony Colarusso, Dover: New Hampshire Police Department Melissa Collins, Safe Horimns, New York City Joseph Davis, San Diego State University Anna Guzman, San Diego Probation Department Kate Killeen, California District Attorneys Association Wayne Maxey, San Diego District Attorney’s Office J. Reid Meloy, San Diego, California Eugene Rugala, Federal Bureau ofInvestigation Rhonda Saunders, Los Angeles District Attorney’s Office Brian Spitzberg, San Diego State University Gail Strack, San Diego City Attorney’s Office Michelle Valdez, DVERT, Colorado Springs, Colorado Keny Wells, San Diego District Attorney’s Office Seema Zeya, National Center for Victims of Crime Special thanks are due Joan Peterschmidt of the Institute for Law and Justice, who provided much needed help in conducting the research and preparing this report, and Peter Oldhausen, who edited the final report. Any errors in the report are, of course, not the fault of any of those listed above; they are the sole responsibility of the author. This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Table of Contents a Overview .......................................................................................................................................... 1 I. Introduction: What Is Stalking?................................................................................................... 6 A . Common Misperceptions of Stalking .................................................................................... 6 B. Stalking in the Criminal Law ................................................................................................. Willfulhtentional Behavior .................................................................................................. Threat...................................................................................................................................... 8 9 Fear ....................................................................................................................................... 10 8 C. Examples of Stalking Crimes............................................................................................... Example 1............................................................................................................................. Example 2 ............................................................................................................................. Example 3 ............................................................................................................................. Example 4 ............................................................................................................................. 11 11 11 12 12 D. Summary .............................................................................................................................. 13 4 .... .. .- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ II. Stalking Matters: Prior Research on the Prevalence of Stalking and Its Impact on Victims ...14 A . Stalking Prevalence and Populations ................................................................................... , Research Findings: Stalking Prevalence .............................................................................. Research Findings: Victim Populations ............................................................................... Official Statistics.................................................................................................................. 14 14 17 18 19 B . Stalking Behaviors: Their Scope and Duration.................................................................... Court Opinions ..................................................................................................................... 20 Victim Reports ..................................................................................................................... 25 Research Reports ..................................................................................................... ............26 C. Stalking's Impact on Victims ............................................................................................... Victim Reports ..................................................................................................................... . . . . D. Victimization Responses...................................................................................................... 27 28 31 F. Summary .............................................................................................................................. 33 a Table of Contents This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 i III. Responding to the Problem: State Stalking Laws and Their Implementation......................... 35 A. Legislation and Court Rulings ............................................................................................. 35 35 42 46 ,. Legislation ........................................................................................ .................................. Court Decisions .................................................................................................................... Continuing Legislative Action ............................................................................................. B. Implementation of State Stalking Laws ............................................................................... c. National Surveys of Police and Prosecution Agencies......................................................... Other Research ..................................................................................................................... Federal Enforcement Actions ............................................................................................... STOP Funding: A Survey..................................................................................................... 48 48 53 54 54 summary ............................. 55 :................................................................................................ . . IV. Evaluating Stalking Laws' Effectiveness: What Works? ........................................................ A. Determining Effectiveness of Stalking Laws and Programs................................................ Stalking Legislation Variations ............................................................................................ Implementation Variations ................................................................................................... . . . . . . . . . . . . . .. ~..... .... .Performance Measures of Success ....................................................................................... Effectiveness Evaluation Alternative ................................................................................... . . . . .- ...... ~ -. . . . . . 57 57 58 58 . . . 59 60 B . Implementing Anti-Stalking Programs: Toward a Best Practices Model ............................ 61 62 Findings: Implementation Overview .................................................................................... Findings: Stalking's Differences from Other Crimes ............................................................ . . Findings: Case Identification................................................................................................ 66 Findings: Patrol Response .................................................................................................... 67 Findings: Investigation Assignment ..................................................................................... 68 Findings: Special Unithvestigator Case Screening ............................................................ 69 Findings: Case Investigation ................................................................................................ 69 . . . . Findings: Vichm Behaviors.................................................................................................. 76 Findings: Other Investigative Tools and Techniques........................................................... 78 . . Findings: Stalking Prosecution............................................................................................. 86 Findings: Victim Safety and Well-Being ............................................................................. 97 Findings: Special Unit Management .................................................................................. 105 C. Summary ............................................................................................................................. Table of Contents This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 107 0 ii V . Summary. Conclusions. and Recommendations.................................................................... 108 A . Legislative Issues ............................................................................................................... . Summary of Key Findings.................................................................................................. Recommendations for Legislators...................................................................................... 108 108 109 B . Implementation Issues........................................................................................................ 112 112 114 114 115 117 120 120 123 Summary of Key Findings.................................................................................................. Recommendations for Agency Managers........................................................................... Recommendations for Funding Sources............................................................................. Recommendations for Technical Assistance...................................................................... . . .......................................................................................... Recommendations for Traning Recommendations for the Judiciary................................................................................... Recommendations for Researchers .................................................................................... . . Other Recommendations.................................................................................................... Table of Contents This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 iii Overview Stalking is a crime of terror. It is one part threat and one part waiting for the threat to be carried out. The victim of stalking has no way to resolve the threat and terror she feels. (Most repoked cases involve male stalkers and female victims.) Stalking is also far more common than most people believe, including criminal justice professionals. Together, these two points underscore the reality that stalking is an impor&nt policy issue for the criminal justice system, for agencies providing services to victims of crime, and for advocates concerned about violence against women. Stalking has, of course, gathered considerable attention from the mass media. However, 3 notwithstanding a sizable literature about stalking as a legal construct and as a medical issue, - - systematicinformation about this crime and what is being done about it is largely missing. Most significantly, policy analysis of what needs to be done to improve anti-stalking investigation, prosecution, and provision of services to stalking victims is totally absent. To fill those gaps in knowledge, this study of the status of stalking laws and their implementation in the United States was conducted.' The study Analyzed stalking and related legislation in the 50 states, Reviewed leading court decisions interpreting those laws, Conducted a survey of police and prosecutor agencies across the country to determine how the laws are being implemented, ' The study was fimded by a grant from the National Institute of Justice to the Institute for Law and Justice (IIJ), grant number 97-WT-VX-OOO7. While the study has already contributed significantly to the literature on stalking, this report updates and synthesizes ILJ findings. For earlier reports, see Neal Miller, Stalking as u Focus ofthe STOP Program, in URBAN INSTITUTE,2000 REPORT: EVALUATION OF THE STOP FORMULA GRANTS TO COMBAT VIOLENCE AGAINST WOMEN(2000); Federal and Store Antisrulking Legislation, in VIOLENCE AGAINST WOMEN GRANTS OFFICE, U.S. DEPARTMENT OF JUSTICE, STALKING AND DOMESTIC ANNUAL REPORT TO CONGRESS UNDER THE VIOLENCE AGAINST WOMEN ACT (1998) VIOLENCE: THETHIRD [hereinafter THIRD ANNUAL REPORT]; Appendix E: Stalking Resources on the Internet, in THIRD ANNUAL REPORT; Appendix F: Selected Bibliogruphy, in THIRD ANNUAL REPORT. The recently released STALKING AND DOMESTIC VIOLENCE: REPORT TO CONGRESS (2001) includes a review O f State legislation 1998-2000, a review of stalking court decisions, a report on a 1998 survey of police and prosecutor initiatives, and an updated bibliography. A preliminary report on this research was published as Neal Miller, Stalking Investigation, Law, Policy and Prosecution us Problem Solving, in STALKING CRIMES AND VICTIM PROTECTION: PREVENTION, I-RVENTION, AND THREAT ASSESSMENT (J. Davis ed., 2001) [hereinafter STAUUNG CRIMES]. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 1 Undertook field reviews in jurisdictions with innovative, special anti-stalking efforts, and Integrated study findings with the existing research literature on stalkers and their I behavior. The premise for the research was that stalking is a serious crime against persons2 and is widely pre~alent.~ While there has been significant federal support for state and local agencies to adopt anti-stalking laws4 and implement anti-stalking initiatives: no comprehensive review of the status of such efforts had been done. Thus, there was no way of knowing what additional measures (such as federal assistance to state and local enforcement agencies, or new initiatives by state and local agencies themselves) might be needed to enhance local anti-stalking efforts. This study of stalking was designed to clarifL the status of stalking laws and their implementation needs. Although the original study design included an assessment of the effkctiveness of the new laws, that assessment proved to be impractical.6 Instead, a review of "best practices" was substituted as a prelude to later process and impact evaluations. The major - - - - research tasks. included the following: - _. . - ' Review and analysis of research on stalking, especially that relating to stalking's prevalence and impact on victims Review and assessment of state laws relating to stalking and ancillary crimes 4 ' As will be discussed more l l l y below, stalking is commonly classified as a felony c h , more serious than simple assault, yet less serious than aggravated assault. The crime closest to stalking is threat to seriously injure (often called "terroristic threat"), which is also commonly classified as a felony offense. Virtually all states include stalking among their cades' listing of crimes against persons. See Patricia Tjaden & Nancy Thoennes, Stalking in America: Findingsfiom the National ViolenceAgainst OF JUSTICdCENTERS FOR DISEASE CONTROL AND PREVENTION: RESEARCH Women Survey,NATIONAL INSTITUTE IN BRIEF3 (April 1998), who estimate that 1 percent of all adult women are stalked each year (1 million annually) and that 8 percent of all women (8 million) have been stalked at least once in their life*. Male stalking victims were estimated at 371,000annually and 2 million lifetime. In comparison, in 1995 the Bureau of Justice Statistics estimated there were 355,000 attempted or completed rapes or other sexual assaults, GREENFIELD, SEXOFFENSESAND approximatelyone-third of the number of stalking victims. LAWRENCE OFFENDERS: AN ANALYSIS OF DATAON RAPE AND SEXUAL ASSAULT 1 (1 997). See, e.g., NATJONAL C W I N A L JUSTICE ASSOCIATION, PROJECT TO DEVELOP A MODELANTI-STALKING CODE FOR STATES ( 1993) [hereinafterMODELANTI-STALKMG CODE]. AND IMPLEMENTING BUREAU OF JUSTICE ASSISTANCE,REGIONAL SEMINAR SERIES ON DEVELOPING ANTISTALKING CODES (1996) fiereinafter REGIONAL SEMINAR S E W S ] . In addition, the federal Violence Against Women Act of 1994 explicitly includes provision for federal funding assistance for projects directed at stalking,42 USC 0 3796gg. See potes 1 15-1 16 and accompanying text for a fuller discussion. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 2 Review and analysis of court decisions interpreting stalking and related laws Survey of over 400 law enforcement and prosecutor offices in large jurisdictions asking about status of stalking law implementation in those agencies Survey of STOP (Services, Training, Officers, and Prosecutors) state funding agencies asking about stalking projects they may have funded Site visits to nearly a dozen prosecutor, law enforcement, and victim services agencies with special stalking units or staff Telephone and personal interviews with stalking case-experienced staff fiom over 50 law enforcement, prosecutor, and victim services agencies around the country Review and analysis of stalking training, policies and procedures, and operational manuals used by agencies. - - In general, the examination of the status of stalking laws and their implementation in the 50 states found the following: - Misperceptions of what constitutes stalking are widespread. Public awareness that stalking is a crime is lacking, and-many criminaljustice persoxinel also lack an understanding of their states' anti-stalking laws. The likely number of stalking cases (over 2 million felony and 4 million misdemeanor cases annually) is far greater than previously estimated. Official statistics greatly undercount stalking incidents. Stalking often has a devastating impact on its victims. Because stalking cases are very different fiom other personal injury crimes, they require problem-solving approaches in their investigation and prosecution, and they necessitate extensive agency resource commitments to develop staff expertise and allocate sufficient staff time. Every state recognizes that stalking is a crime distinct fiom other offenses, but many state laws lack adequate penalties. In only 12 states is stalking always a felony. In 25 states, stalking may be a felony, depending on the particular circumstances involved or at the discretion of the prosecutor. In the 13 other states, only a repeat stalking conviction is a felony. a Criminal procedure laws relating to stalking are often lacking. Warrantless arrest for misdemeanor stalking is authorized in only 10 of the 38 states with misdemeanor stalking laws. Other legislative shortcomings include the absence of required training on stalking for law enforcement and prosecution. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 3 Civil law parallels to criminal anti-stalking laws are not as widespread. Only 26 states authorize the issuance of civil orders of protection against stalking; all 50 states authorize civil protection orders against stalking as domestic violence. Stalking laws have been the focus of considerable litigation. Nearly 200 reported cases were found involving stalking law issues, primarily challenges to their constitutionality or questions of interpretation of the scope of the laws. Similar legal issues were raised in another 300-plus cases involving harassment and threat laws. Implementation of the new stalking laws is still limited. Most law enforcement and prosecutor agencies do not place operational priorities on implementing state stalking laws. Specialized staffers for investigating and prosecuting stalking cases are available in only a small number of agencies. Training on stalking is generally lacking, especially for non-domestic violence-related stalking. Existing special anti-stalking programs demonstrate the usehlness of developing staff expertise with stalking cases and provide models for other jurisdictions to emulate. A key qualitative finding of the study was how arduous these cases can be to investigate and prosecute. The relative newness of the laws (first enacted in California in 1990) is only part 0 of the explanation. Stalking cases are unique in many ways, and their investigation and ' prosecution often require new techniques. Stalking investigators and prosecutors must approach these cases from a problem-solving perspective. Each case can present idiosyncratic challenges requiring problem-solving approaches for identifjing who the stalker is, gathering evidence to prove both the identity of the stalker and that a stalking has occurred, and proving those facts to a jury. Methods used with other types of crimes are often inadequate for stalking cases, and new approaches must be developed. This report explains how the conclusions above were reached and expands on them. Part I of the report introduces the legal definition of stalking. Part II reviews prior research on the prevalence of stalking and its impact on victims. Part III details research findings on the degree to which stalking laws have been enacted and implemented. Those findings are based on a 50state legislative analysis and a review of related court decisions; a report on two national surveys of law enforcement and prosecutor agencies asking about anti-stalking initiatives; and a review of federal funding of anti-stalking initiatives. Part lV provides a qualitative assessment of how 0 law enforcement and prosecutor agencies are implementing anti-stalking programs. This Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 4 assessment is based on both field observations and a review of prior research on stalking that has been used by practitioners to shape their activities, including stalker typology and threat assessment studies. In essence, it provides a research-distilled problem-solving-based "how-to" I for managers and practitioners, as well as suggestions for trainers. Part V discusses the policy implications of the research findings for legislators, agency administrators, and other supervisory practitioners responsible for day-to-day investigations and prosecutions. - - Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 5 I. Introduction: What Is Stalking? 0 Stalking is a crime. It is defined by statutes and by court decisions interpreting those statutes.' Nonetheless, because the tern "stalking" has other meanings that predate the creation of the crime of stalking, it is necessary to distinguish between stalking as a crime and stalking as other non-criminal activity (with which stalking crime is often confused). Failures to distinguish between the two can have significant consequences for how stalking laws are enforced. A. Common Misperceptions of Stalking When asked about "stalking," 1 A prosecutor described a recent homicide case in which an investigator found a diary kept by the suspect that described how he had followed the victim for nearly a year without the victim's knowledge. A STOP grants coordinator described how college men targeted specific vulnerable women to invite to a fratemity party at which they would be given date-rape drugs in their drinks. . ._ - . . A police sergeant stated that proof of stalking includes a showing that the suspect has both threatened the victim and has taken action on his threats against the victim. An attorney filed a civil action based in part on the state anti-stalking law that claimed web sites' use of "cookies" to monitor site use is a Osurveillance-like" scheme akin to stalking. None of these four statements accurately describes the crime of stalking. They do, however, illustrate common beliefs about what constitutes stalking. As the statements suggest, stalking in common parlance (and even among criminal justice professionals) is predatory ' a A few states do not provide detailed statutory defrntions of what are t e m d l k o m n law" crimes. These may include murder, rape, and assault and battery. See, e.g., 17-a ME. REV. STAT.$8 201-205 (homicide); COL.REV. STAT.c 18-3-201 et seq. (assault). Common law crimes are inherited fiom the English common law that was in place in the 13 colonies before the Revolutionary War. Stalking is not a common law crime and must be defmed by statute. Before stalking laws were enacted, stalking behavior was often characterized as "psychological rape." See K.S. Kumey & Joel Best, Stalking Strangers and Lovers: Changing Media Trpifications of a New Crime Problem, in IMAGES OF ISSUES: TYPIFYING CONTEMPORARY SOCIALPROBLEMS 33-57 (Joel Best ed.. 2d ed.).(1995). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 6 behavior.* For example, the lion stalks its prey or the hunter stalks the lion. However, stalking in criminal law requires more than simple hunting or trailing of another person as one might stalk an animal? One key difference between "stalking" as used in hunting and as used in criminal law is the victim's awareness of the stalking behavior. From this perspective, behavioral scientists and ,I mental health professionals have focused on stalking as behavior that inflicts unwanted intrusions and communications on another." The concern of mental health professionals with stalking is that stalking often reflects serious psychological problems that require treatment.' ' However, a treatment perspective would not necessarily require victim awareness to be part of a stalking diagnosis, since the need for treatment comes fiom the behavior of the stalker alone. Thus, Meloy and Gothard use the phrase "obsessional following" as interchangeable with stalking, with the implication that although such following suggests a need for treatment, that need exists regardless of any overt intrusions on the victim.'* Of course, it may be that the degree of need for treatment is generally correlated with the degree of victim awareness of the stalking, or that the mental health system is unlikely to know about the stalking behavior without a victim lo I' But see, Joyce Hargreaves, Stalking Behavior, in OFFENDER PROFILING SERIES-PROFILING RAPE AND MURDER 1,3 (David V. Canter & Laurence Alison, eds. 2001) (defining stalking as involving an act ofpursuit and FREIGHT WEATHER: THE stealth). Consider also such uses of the term "stalking" in D.C. JESSE BURKHARDT, ART OF STALKING TRAMS (2001); EUELL GIBWNS& RAYMOND w. ROSE,STALKING THE BEAUTIFUL H E ~ S ( 1989). See PAUL MULLEN, MICHELE PATHE & ROSEMARY PURCELL, STALKERS AND THEIR VICTIMS 1 (2000) [hereinafter referred to as MUUENet al.3, who begin their book, "Until a little mre than a decade ago the word 'stalking' was attached, almost exclusively, to the activities of hunters.. . To stalk and be stalked today have acquired radically different and even more sinister resonances." Compare Lorraine Sheridan, What is Stalking? The Match Between Legislation and Public Perception, in Australian Institute of Criminology,Stalking: Criminal Justice Responses Conference, December 7,2000 (available at www. aic.gov.au/conferences/ stahg/index.html) (hereinafter referred to as AIC Conference Papers), who found that laws that omit any references to stalker intent or actual victim fear most match public perceptions of what constitutes stalking. Id at 7 . See, e.g., Brian Spikberg & Jill Rhea, Obsessive Relational Intrusion and Sexual Coercion Victimization, 14 J. INTERPERSONAL VIOLENCE 3,6-9 (1999); Brian Spikberg, et al., Exploring the Interactional Phenomenon of Stalking and ObsessiveRelational Intrusion, 1 1 COMMUNICATION REPORT 33,34 (Winter 1998). The term "treatment" as used here refers to a wide variety of interventions, depending on the degree of stalker pathology exhibited. It is not limited to traditional "medical" or psychologicallpsychiatricmodalities. It specifically includes "behavior modification" techniques directed at teaching the stalker to avoid specific behaviors that constitute stalking. However, there is little research on "what works'*in treating stalking of any kind,much less the gamut of behaviors that stalkers as a whole demonstrate. J. Reid Meloy & Shayna Gothard, A demographic and clinical comparison of obsessionalfollowers and offenders with mental disorders, 152 AMER. J. OF PSYCHIATRY 258 (1995). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 7 complaint. (Stalkers who are obsessed with another person are not likely to refer themselves to 0 treatment.) But victim awareness does not necessarily elevate obsessional following to the level of a I criminal act. Simple unwanted intrusions upon another may or may not constitute harassment, depending on the applicable state law, and in most states such intrusions do not constitute criminal stalking. It is also true that not all stalking can be considered obsessional behavior. B. Stalking in the Criminal Law The crime of stalking involves much more than predatory behavior, although that is I typically one element of criminal stalking. The motivations for the stalking, including obsessional causes, are not at all relevant to defining the crime of stalking. Instead, most state penal codes define stalking as involving the following three elements:’ A pattern of willful or intentional harassing or annoying/alaming conduct, such as repeat messages, following, vandalism, and other unwanted behaviors Infliction of credible explicit or implicit threats against a victim’s-safety or that of her family Actual and reasonable victim fear of the stalker resulting from that beha~ior.’~ This lengthy definition may be simplified to the three key prosecutorial elements that present the greatest difficulties of proof The defendant’s multiple acts were willfbl or intentional. Threats were expressed by those acts. Victim fear resulted. Willful/lntentional Behavior State stalking laws in all jurisdictions require the prosecution to show that the stalking behavior was intentional. That is, the stalker meant to perform the acts that constituted the 0 l3 See generult’y, THIRD ANNUALREPORT,supra note 1; MODELANTI-STALKING CODE,supra note 4. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 8 ~ta1king.I~ In most states, the prosecution must also prove that the stalker intended to threaten 0 the victim and to cause fear." Court decisions in several states have reduced the prosecutorial burden of proving intent to threaten and cause fear by holding that the defendant's actions were such that he "knew or should have known" that his actions would provbke perceptions of a threat and fear. Threat A threat under most states' stalking laws" may be either explicit or implicit." In either instance, stalking threats do not require any immediacy; the execution of the threats can lie in the I I' Is - 0 l6 I* A general intent requirement is found 'm the stalking laws of 22 states and the District of Columbia. These states include Alaska, Arizona, Arkansas, Colorado, District of Columbia, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Michigq, Minnesota, Mississippi, Nevada, New Jersey, New York, North Dakota, Oklahoma,Oregon, and Tennessee. Full statutory cites are provided infia, notes 76-77.See generaZZy Comment, California'sAntistalking Statute: The Pivotal Role of Intent, 28 GOLDEN GATEL. REV.221 (1998) (discussing general versus specific intent). Laws in 29 states and the District of Columbia provide a specific intent requirement. These states include Alabama, Arkansas, California, Connecticut, District of Columbia, Florida, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, Ohio, Pennsylvania; Rhode Islind, Souih Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. (Full statutory notes are provided infia, notes 76-77.)In a few of these jurisdictions, the specific intent requirement is limited to "aggravated" or serious stalking, while simple stalking has only a general intent to commit the acts that constituted stalking. This review is limited to a "facial" analysis of the 50 states' laws, without regard to how the courts have interpreted or are likely to interpret the stalking laws. This is a significant qualificationsince many of the stalking laws use ambiguous language. Compare this analysis with that in Federal and State Antistalking Legislation, in THIRDANNUAL REPORT,supra note 1 at 23, 28-32.(Thirty-fivejurisdictions have an intent or %nowing" provision.) The use of an objective or "reasonable person'' test has progressed furthest in Australia. See Gregor Urbas, Australian Responses to Stalking, in AIC Conference Papers, supra note 9 at 6. Originally most states with a threat requirement limited that threat to one involving the death of the victim. Many states have since amended their laws to include lesser threats of serious injury. See e.g., CAL.PENAL CODE6 649.6. As of2000,23jurisdictions had criminalized stalking involving threats to the victim's "safq" or similar term. These include Alaska, Arizona, California, Colorado, C O M ~ C ~ ~District C U ~ ,of Columbia, Delaware, Georgia, Hawaii, Idaho, Indiana, Kansas, Michigan, Mississippi, Montana, Nebraska, Nevada, Ohio, Oregon, Rhode Island, Vermont, Washington, and Wyoming. Even among those states with stricter threat requirements, the phrase "bodily harm" or its equivalent is used by five states Florida, Illinois, Iowa, Minnesota, and New Jersey). Again, the level of threat required varies in several states according to whether aggravated or sirnple stalking is charged. In Idaho and North Dakota, the laws have no threat requirement and stalking is a misdemeanor offense. Full statutory cites are provided infia, nates 76-77. In 18 states (Alabama, Arizona, California, Colorado, Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, New Hampshire, New Jersey, Pennsylvania, South Dakota, Utah, and Washington), the stalking laws state that a threat may be implicitlymade. Another 13 states use language such as "course of conduct" that in conjunction with specific intent and victim fear requirements can be read to include implicit threats. These include Alaska, Georgia, Hawaii, Maryland, Louisiana, Nebraska, New Mexico, New York, Ohio,Rhode Island, South Carolina, Texas, and Wyoming. The THIRD ANNUAL REPORT,supra note 1 at 23,2832, identified only 12 states with language in their stalking laws citing implicit threats. Full statutory cites are provided infia, notes 76-77. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 9 indefinite future. Implicit threats differ from explicit threats in not conveying a threat by their very words. Instead, the threat is inferred by the victim based on what the stalker says and does, 0 taking into account any special knowledge that the victim has of the stalker, such as a prior history of violence. Threats must also meet a "reasonable person" standard to exclude oversensitive reactions from the law's reach. Fear Stalker threat and victim fear in response to that threat are easy to separate where the stalking threat is explicit.'' But most stalking cases do not involve explicit threats. In cases where the threat is implicit in the stalker's actions, threat and fear can be dificult to separate. Proof of one often also means pro\;ing the other, per the reasonable person standard. In these cases, it is the context in which - the - harassing or stalking behavior occurs that provides the link between that behavior and victim fear. For example, sending flowers as a gift may be stalking behavior, depending on what actions have preceded the gift. In some cases, the threat against the . -. victim may be obvious even where only implicit (as where the stalker places a nylon sex doll - - --__ _ _ _ _with-a-rope tied-iirouni'its-neck-in-thevictim's bed):Iii other cases, more background __. . information is needed, e.g., where the stalker uses the phrase "loveforever" and in the same letter refers to his prowess as a rifle sharpshooter. The requirement in most jurisdictions for actual fear l9 Nineteen jurisdictions' laws do not require victim fear of death or serious injury or substantial emotional distress as an element of the crime of stalking. Those jurisdictions are Arkansas, Colorado, District of Columbia, Hawaii, Idaho, Illinois, Kentucky, Maine, Maryland, Massachusetts, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Dakota, Tennessee, Virginia, and West Virginia. In those jurisdictions, the victim's state of mind may still be at issue where the statute refers to victim annoyance or harassment, a less significant level of injury. (Full statutory cites are provided inpa, notes 76-77.) The THIRD ANNUAL REPORT, supra note 1 at 23,28-32,identified 17 states in 1997 that had a standard of fear that was not as high as that of death or serious physical injury. Fear as an element of the crime of stalking is largely a North American construct. Urbas, supra note 16, reports that victim fear is not a statutory element of stalking in most Australian laws. However, intent to cause fear is a statutory element in most of the Australian states. See EMMA OLGIVIE, STALKING: LEGISLATIVE, POLICING AND PROSECUTION PATTERNS IN AUSTRALIA 61-71 (2000)(reprinting the relevant statutes). Similarly, Marejke Malsch, Stalking in the Netherlands, in AIC Conference Papers, supra note 9, reports that the stalking laws of Ireland, Norway, Belgium, and Denmark do not contain a victim fear requirement. The Protection fiom Harassment Act of 1997, applicable to England and Wales, also does not contain an actual fear rcquimnmt. But closer to home, the Canadian stalking law does require victim fear as an element of the crime,CANADIAN CRIMINAL CODE5 264.Olgivie suggests that the fear requirement difference between the United States and Australian versions of stalking laws lies in the former's antecedents in stranger stalking, while the latter's focus has ,been on stalking as a variant of domestic violence. Id. at 56. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 10 means that unless the victim is aware of being followed, simple predatory behavior does not constitute the crime of stalking. 0 C. Examples of Stalking Crimes I There is no typical stalking case. Suspect behaviors vary widely. The only constant is that multiple acts form a pattern of behaviors that together constitute stalking. Some examples of stalking cases follow?o Example 1 A woman was dating a man who was a fellow student at a university in San Diego. After three months together, she felt he was trying to isolate her from her fiiends and family, and he seemed controlling and demanding (common in domestic violence cases). Soon after she told him their relationship was over, she found her car tires slashed and a brick thrown through the windshield. The vandalism was followed by threatening phone calls and messages on her pager citing the California penal code section for murder-1 87. The woman went into hiding from him. A couple ofmonths later, she was asleep in bed with-her daughter when she was-awakened 0 by a loud popping noise-the man striking her in the mouth with a ball wen hammer. He fled the scene but was arrested days later. While awaiting trial, he asked a cellmate to hire a "hit man" to kill the woma. Upon being told of this by an informant, the prosecutor's investigators staged a "murder." A makeup artist was hired to prepare the woman to appear as if she had been shot in the head. Polaroid photos were then taken of her, apparently assassinated. An undercover investigator went to the jail and visited the stalker, who after seeing the photo, acknowledged that the murder was what he wanted. The prosecutors filed charges in San Diego, and the man was convicted of stalking, burglary, assault with a deadly weapon, torture, and soliciting for murder. He received a prison sentence of 13 years to life. Example 2 The victim, an 18-year-old female, sang in her church choir. She was seen performing with the choir by a total stranger, who began to stalk her. Among other things, he sent m Case information was provided by stalking prosecutors in the district attorneys' offices of San Diego and Los Angeles counties. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 11 , pornographic pictures and videos to her home. With the pornography, he would add a message saying, "This is you and this is me." He also called her at home, making threats and playing the 0 soundtrack fiom a pornographic movie. When he was arrested, he explained his actions as motivated by his being a "student of human nature." He said he simply wahed to see how she would react to his presents, and he would sit in the back of the church to see how she was holding up to his actions. The defendant was convicted of stalking and sentenced to 16 months in prison. Example 3 A man became fixated on a woman who refbsed to engage in a romantic relationship with him. After several years, the man began to impersonate the woman on the Internet. He placed several sexually graphic want ads on Internet bulletin boards and began to correspondwith men, while still pretending to be the woman. He then solicited the men to rape the woman,'claiming to enjoy rough sex and rape fantasies. As part of the solicitation, he provided the men with the woman's address, phone number, and other personal information. When the woman learned of - -- these-eventsEom-one ofthe men so sohited, she went-to locd police and w& told the& was nothing they could do. Eventually, the Federal Bureau of Investigation @I) referred her to the Los Angeles District Attorney's Stalking and Threat Assessment Team (STAT). After extensive investigation by STAT that included issuance of search warrants to Internet service providers to track the source of the Web postings, a felony stalking complaint was issued. The man eventually pled guilty and received a six-year sentence to state prison. Example 4 For years a woman had been the subject of domestic violence. When the violence escalated, she called 91 1; the police responded but did not arrest the batterer. When the batterer began to threaten her children, the victim obtained an order of protection that required the batterer to leave the household. The issuance of the order seemed to incense the batterer, who began a campaign of harassment against the victim, including following her for four weeks. At trial, he was quoted as saying to her by telephone, "I am across the street watching you, and I'm going to kill you." No calls to the police were ever made. One day, while she was driving home 0 fiom work, a car tried to run her off the road in the mountains. She stopped and began talking to ._ Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. a 12 witnesses of the incident. The batterer approached her in disguise and attacked and killed her. A copy of the protection order was found in his car. The batterer was convicted of first degree murder and sentenced by the jury to death, partly on the basis that he had been lying in wait, a statutory aggravating factor.2' D. Summary I The term "stalking" is used in a variety of ways, many of which have little to do with the criminal law's use of the term. The resultant potential for confusion is rarely recognized. Even professionals in the field of stalking do not always distinguish between the term "stalking" in common usage and as a criminal law term. For example, the threat assessment literature often uses the phrase "celebrity stalking," while at the same time noting that such "stalkers" do not usually provide the victim with advance notice of a planned attack?* In the criminal law context, however, the term "stalking" refers to Willful behavior that Threatens the safety of a-victimand Results in victim fear. Not every state's laws fit this tri-part definition. Further, states vary in their specification of what each crime element requires. Nonetheless, there is general agreement nationally that this definition of stalking is appropriate and usehl as a research con~truct?~ ~ 2' 22 t3 People v. Poynton, GA038353 (Cal. Supr. Ct. L.A. County 2001). See generally, Dalondo Moultrie, fury Urges Deathfor Man Who Killed Wife, LOS ANGELESTIMES,March 8,2001, at B3; Twila Decker, Jury Finds Man GuiZty of Killing Wife, LOS ANGELES TIMES,Feb. 28,2001, at B3. See e.g., J.Reid Meloy, Stalking and Violence, in STALKING AND PSYCHOSEXUAL OBSESSION (J. Boon & L. Sheridan e&., 2001). See.e.g., Tjaden & Thoennes, supra note 3. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 13 I e I 11. Stalking Matters: Prior Research on the Prevalence of Stalking and Its Impact on Victims The significance of stalking24lies in how often it occurs and in its deep impact on victims. Given its recent addition to the criminal codes, it is not surprising that research has just begun to address these issues. As the review below suggests, the number of such studies is growing. A. Stalking Prevalence and Populations Research Findings: Stalking Prevalence I Anecdotal and convenience or limited sample estimates of the incidence of stalking2' have-now been replaced by more systematic surveys directed at stalking frequencies in the population. The most important of these is the National Violence Against Women Survey, which conducted telephone interviews with a randomly selected sample of 8,000 women and 8,000 men. The study estimated that over 1 million women and 370,000 men were stalked in the year prior to the inte&ews. Put another way, about 1 percent of all women and 0.4 percent of all men 0 had been stalked in the 12-month period under examination. Although no estimates of statistical sampling error were provided by the study itself, application of statistical tests for "rare" events to the survey findings results in an estimate that 750,000to 1.25 million women and 200,000 to 600,000 men are stalked annually. The study estimated that over 10 million men and women had been stalked at least once in their lifetime. Using a broad definition of stalking that includes cases where victim fear was not as great, estimates of the number of persons stalked annually 24 z5 The absence of research has not reduced policymakers' concern for stalking remedies. Anecdotal media reports of stalking that end in homicide have been the impetus for enactment of stalking laws in several states, including California and Minnesota. See Doris Marie Hall,Outside Looking In: Stalkers and Their Victims 22 (1997) (unpublishedPh.D. dissertation, Claremont Graduate School), and The Victims of Stalking, in THEP S Y C H ~ Y OF STALKING: CLIN~CAL AND FORENSIC PERSPECTIVES 1 15 (J. Reid Meloy ed. 1998). See also, Note, Minnesota's Anti-Stalking Statute: A Durable Tool to Protect Victimfrom Terroristic Behavior, 12 LAW & INEQUITIES J. 613,633-34(1994)(cited instate v. Orsello, 554 N.W.2d 70 (Minn. 1996)). See, e.g., Suzanne Cavenaugh, Report for Congress on Stalking: Recent Developments2 ( 1996)(unpublished Congressional Research Service report on filexciting as evidence of the number of stalking cases Senator Biden's estimate at hearings on antistalking legislation that there are 200,000 stalking cases annually). Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 14 I increase to 6 million women and 1.4 million men; lifetime stalking incidence rises to 12.1 e million women and 3.7 million men?6 The National Survey estimates, although subject to caveats based op response rate and questionnaire issues:' are probably low. A more recent study using a similar methodology was conducted by the Louisiana Office of Public Health. The study found that 15 percent of Louisiana women interviewed reported being stalked at least once in their lifetime, or nearly twice the numbers reported by the National Survey, using a similarly high "fear" criterion.28 Even that estimate may be low since women aged 18-24 were underrepresented in the sample surveyed, and another study of stalking of college women suggests that may bias results to minimize the actual incidence of talking?^ That third survey used telephone interviewing to gather data on six campuses. The survey found that 13.1 percent of the 'female college students - - 26 __ 22 0 28 29 Thaden & Thoennes, supra note 3 at 3-4. See infia notes 192-193 and accompanyingtext for discussion of how this lesser d e f ~ t i o of n stalking matches state stalking laws' coverage. it is unclear what the survey response rate-actually Was. The report claims a "household participation rate" of 72 percent for females and 69 percent for men, with interview completion rates of 97 hnd 98 percent for women and men respectively. Recalculation of the participation rates by excluding double counting of noneligible respondents in both the numerator and denominator shows the actual participation rate for women to be 67 percent and slightly greater than half for men. Both are still quite good. However, neither number takes into account unanswered phone calls to potentially eligible households. According to the separatelypublished report on the survey methodology, PATRICIA TJADEN & JOHN M. BOYLE, NATIONAL VIOLENCEAGAINST WOMEN SURVEY: METHODOLOGY REPORT58 (1999) (draft), about one-quarter of all phone calls made were not answered after five separate calls. These households must be counted in determining the actual response rate, since these households may differ significantly fiom those households where someone was home to answer the calls. In toto, of 3 1,000 calls to non-business telephone numbers, 1,555 were to non-interviewablesdue to deafness, health, etc.; 11,789 were callbacks not resulting in an answer; 4,608 were to persons who refbed to talk with the survey interviewers; 4,829 reached households where there was no adult; and 35 1 were terminations. This amounts to a 38 percent response rate, leaving aside the question of non-assigned numbers (the use of the t e m "callbacks" does not suggest nonworking-numbers). Given the inherent biases of any telephone survey, the survey findings cannot be called definitive on this basis alone. One other potential flaw with this National Survey was its screening question to identify stalking victims. The question asked whether "anyone had ever done (acts such as following, unsolicited calls, etc) on more than one occasion." This language is potentially ambiguous, since a person responding to a telephone interview might hear the question as also including two persons engaging once in stalking-like behavior, rather than being limited to the intended one person repeating his or her acts. Prevalence and HeaIth Consequences of StaIking-Louisiana, 1998-1999, 49 MOREMDITY AND MORTAUTY WUY. REP. 653 (2000) (hereinafter LOUISIANA REPORT). In several ways, the estimates of stalking based on this survey are similarly a minimal figure. For example, the definition of stalking used by the survey required that the stalking occur for at least one month. There is no such requirement in law, where stalking can occur over the course of an afternoon as long as there were two or more distinct acts. See infia. See also Hall, supra note 24 at 150 and 126, who found that stalking victims age 18-25 made up nearly onefourth of all stalking victims in her sample. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 15 perceived that they had been stalked during the school year in which the survey was c~nducted.~' Lifetime estimates of stalking exposure were not derived, perhaps in part because of the relatively young age of the respondents. Another estimate of stalking prevalence comes from the British Crime Survey conducted in 1998 using face-to-face interviews combined with a computer-assisted, self-administered procedure (the interviewer hands a laptop computer to the interviewee, who then fills out the form). The survey found that between 550,000 and 900,000 persons were stalked in the year preceding the survey. This amounted to 2.9 percent of the British population, a figure more than double that of the National Violence Against Women Survey in the United States. Limiting the definition of stalking to behavior inducing fear of violence reduces the proportion of stalking victims to 1.9 percent of the British population:' still nearly 50 percent greater than the National Survey estimate for the United States. While it is possible that the differing estimates are due to differing populations, the more likely explanation is that the differing methodologies are the cause. The use of laptops was introduced by the British Crime Survey to reduce interviewee embarrassment at having to discuss highly personal questions, especially sexual assault and 3' BONNIE S.FISHER, FRANCIS T. CULLEN & MICHAEL G. TURNER, THESEXUAL VICTIMIZATION OF COLLEGE WOMEN (2000). The defintion of stalking used here rested solely on the interviewees' perceptions of being the subject of stalking-like behavior. No effort was reportedly made to judge the seriousness of the interviewees' reports of concern for their safety; many states laws require this fear to be of serious injury or danger. This defect affects many other studies of stalking among college women. See, e.g., T.K. Logan, Carl Leukfeld & Bob Walker, Stalking as a Variant of Intimate Violence:Implicationsfi.oma Young Adult Sample, I5 VIOLENCE AND VICTIMS 91,91-97 (2000). See also Elizabeth E. Mustaine & Richard Tewksbury, A Routine Activity Theory Explanation of Women's Stalking Victimization,5 VIOLENCE AGAINST WOMEN 43 (1999) (reporting 15 percent of college women said they had been stalked in past six months). On the other hand, the Fisher survey's failure to define the terms "obsessive" and "repeatedly" (rather than using the common statutory definition of "two or more") may have led to underreporting of stalking. One other study of note is Beth Bjemgaard, An Empiricul Study of Stalking Victimization, 15 VIOLENCE & VICTIMS389,401 (2000), which found that 6 percent of the sample of college students were being stalked at the time of the study. TRACEY BUDD& JOANNA MATIINSON, THEEXTENT AND NATURE OF STAUUNG: FINDINGS FROM THE BRITISH CRIME SURVEY 9,13-14 (2000) (Home Office Research Study 210); Home Office Research, Development, and Statistics Directorate, Research Findings No. 129: Stalking Findingsfiom the I998 British Crime Survey (2000). The Home Ofice survey findings show consistently higher crime rates than do United States surveys. Thus, the British survey found that both females and males reported identical rates of domestic violence, 4.2 percent, while the National Violence Against Women survey found 1.8 percent for females and 1.1 percent for males. Whether these differences are due to different methods of surveying or in populations cannot be determined. See also Rosemary h c e l l , Michele Pathe & Paul Mullen, The Incidence and Nature of Stalking Victimization, in AIC Conference Papers, supra note 9, who also found a rate of stalking victimization about 50 percent higher than the United States surveys show. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 16 - - I I domestic violence. Moreover, the computer program requires that the interviewee complete all questions before the program can be terminated. Both factors lead to increased reporting. e The British Crime Survey, the Louisiana health study, and the campus stalking survey all indicate that the National Violence Against Women Survey may understate stalking's incidence by as much as a factor of two. However surprising that surveys estimate (over 1 million stalking cases annually) may have been, the true figure is probably over 2 million felony-level stalking cases annually. The higher figure takes into account both the wide range in the survey's estimates (1.4 to 7.4 million victims, depending on the definition of stalking used) and the findings of the three other studies. It does not, however, include "lesser" stalking cases where victim fear does not result, nor does it include stalking against juveniles?* Research Findings: Victim Populations - - The research also shows that stalking occurs among all populations, rather than being largely limited to specific subgroups. Thus, the National Survey found no difference between white and minority women in their prevalence of stalking victimization, nor was there _ _ a- - - - . - - statistically significant difference between Hispanic and non-Hispanic ~ o m e n Hall . ~ ~adds to @ these findings in her report on 145 stalking victims who volunteered to h w e r questions about their experiences. Her findings show that persons of all ages and employment may be victims of stalking. Five of the victims were under age 18, while two were over age 70; 20 percent were age 41-50, while nearly one-fourth were ages 18-25. These stalking victims also varied widely in their jobs;they were professionals (31 percent), managers (20 percent), technical workers (17 percent), sales workers (16 percent), students (12 percent), retired persons (3 percent), and homemakers (3 percent).34 Pathe and Mullen's study of Australian stalking victims found a similar pattern of diversity. Among their sample of 100 victims, the age of the stalking victims ranged from nine to 66 years, with most being in their mid to late 30s. At the outset of the ~~~ 32 33 a 34 Although most stalking research omits juvenile victims, such an omission is contrary to both law and other research suggesting that stalking of juveniles is not uncommon. See Denise M. Emer, Obsessive Behavior and Relational Violence in Juvenile Populations: Stalking Case Analysis and Legal Implications,in STALKING CRIMES, supra note 1 at 33. Tjaden & Thoennes, supra note 3 at 4-5. While the survey also found no important differences among male stalking victims, the small numbers involved here make any such findings problematic. See supra note 27. Hall, supra note 24 at 150-152. - Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 17 I stalking, 36 percent of the victims were employed as professionals, in s u d fields as medicine, e law, or education?' One population is, however, unusually subject to being stalked: battered women who I have separated from their batterer. Indeed, as noted elsewhere, it is homicide and stalking against that group that motivated many states' stalking laws. One of the few studies to examine the incidence of stalking among these women, conducted by Mechanic and colleagues, found that 13 to 29 percent (depending on the definition of stalking used) of their sample of 144 battered I women reported being stalked in the six months immediately following ~ e p a r a t i o n .Another ~~ study, by Tjaden and Thoennes, found that 16.5 percent of all domestic violence calls involved allegations of talking.^' The mor5 important question, however, is what proportion of stalking involves domestic violence. The National Violence Against Women Survey found that slightly more than half(54 percent) of all stalking is done by current or former intimates or dating partners. That cluster included 59 percent of female stalking victims and 32 percent of male stalking victims. If, however, dating partners who had not cohabited are excluded, the proportion of stalking cases involving domestic violence is reduced to 40-45 percent3* a Official Statistics - Official statistics do not in any way match these estimates, even though both the national and Louisiana surveys reported that stalking complaints are typically made to law enfor~ement.~~ The state reporting the most stalking criminal cases is Florida, which in 1999 reported 704 stalking cases, a drop fiom 920 in 1998.4' Most states either do not report stalking crimes at all or exclude them fiom their annual crime statistics reporting, although some stalking crimes are 35 36 37 38 39 10 Michele Pathe & Paul Mullen, The Impact of Stalkers on Their Victims, 170 BRIT.J. PSYCHIATRY 12, 13 (1997). Mindy B. Mechanic, Terri L. Weaver & Patricia A. Resick, intimate Partner Violence and Stalking Behavior: Exploration of Patterns and Correlates in a Sample of Acutely Battered Women, 15 VIOLENCE AND VICTIMS 55 (2Ow Patricia Tjaden & Nancy Thoennes, The Role of Stalking in Domestic Violence Crime Reports Generated by the Colorado Springs Police Department (report for the National Institute of Justice, December 1999), 15 VIOLENCE AND VICTIMS 427 (2000). Tjaden & Thoennes, supra note 3 at 6. Tjaden & Thoennes, supra note 3 at 9, report that 55 percent of women and 49 percent of men filed police reports. The LOUISIANA REPORT, supra note 28, found that 67 percent of the women reported the stalking to the police. F L O ~ D DEPARTMENT A OF LAWENFORCEMENT, CRIME IN FLORIDA: JANUARY-DECEMBER 1999,1(2000). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 18 captured in domestic violence crime 0 statistic^.^' An example of the latter is New Jersey, which in 1997 reported 345 domestic violence-related stalking offense!2 In 1997, North Dakota reported the greatest number (per capita) of stalking cases of any ~tate.4~ Even so, its rate, if applied nationally, would equate to only 22,805 stalking cases. One of the few states to report civil stalking filings (for orders of protection) is Oregon. That state's Judicial Department reported that in 1999 there were 1,404 filings for stalking orders of protection.44 Extrapolating from that number to the U.S. population as a whole translates into 115,409 stalking cases nationwide. However one counts, the official statistics for stalking fall far below the actual number of such cases. B. Stalking Behavior&Their Scope and Duration To understand how victims react to stalking, it is necessary to understand the variety, persistence, and repetition of stalking behaviors. Understanding those factors also permits inferences about victims' responses to be drawn, based on the reasonable person standard used in many state stalking laws. .- The illustrations of stalking previously presented exemplify, but do not .delimit, the range 0 of behaviors that a stalking victim may be exposed to. Anecdotal reports of stalking cases are widespread, and few studies provide statistical summaries of the fiequency with which different stalking behaviors occur. Anecdotal reports come from a variety of sources. One excellent but rarely used source is published court decisions in stalking cases. Personal accounts of stalking are also available and provide an additional, important perspective. " '' '' *( The Violence Against Women Act of 1994 requires the Department of Justice to include stalking as part of the National Incident Based Reporting System, 42 U.S.C. 8 14038, but this has not had much effect on state and local crime reporting. NEWJERSEYSTATEPOLICE, DOMESTIC VIOLENCE OFFENSEREPORT: 1997,3 (n.d.). OFFICE OF ATTORNEY GENERAL, BUREAU OF CFUMINAL INVESTIGATION, DOMESTIC VIOLENCE IN NORTH DAKOTA: 1997 (1999). In 1995, the state reported 82 stalking offenses. OREGONJUDICIAL DEPARTMENT, CIRCUIT COURT STALKING FILINGS BY COUNTY: 1999 (AdministrativeOfice of the Oregon Courts) (data provided by Maureen McKnight, Legal Aid Services of Oregon, February 2000). The large number of staking orders in Oregon is consistent with the Australian experience where Inez Dussuyer, Is Stalking Legislation Effective in Protecting Victims?, in AIC Conference Papers, supru note 9, reports that in Victoria, Australia, there are 50 orders of protection sought for every stalking case prosecuted. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 19 Court Opinions The examples below are taken from court opinions affirming convictions in stalking cases.45 Because the nature of a relationship can affect the specific stalking behaviors engaged in, the examples are listed according to the type of prior relationship between the stalker and the victim. ,I No Prior Relationship In State v. Mursalu, defendant met victim in 1992 when he gave her a ride home one night. He then began stopping by her apartment uninvited and parking his car in front of her house. This went on until June 1993 when he was incarcerated. From prison he sent her letters that frightened her ("...I will strike back if you hurt m i and you...know how really dangerous I am.").In March 1994, the defendant entered a facility where the victim had just been admitted two hours earlier; despite staffrequests that he leave, he remained for 10 minutes, insisting on seeing the victim. He continued for some time to appear in fiont of the facility for long periods of time, including twice setting up chairs on the sidewalk in front. From April 1 to June 25,1994, he made numerous harassing telephone calls to victim's mother to talk about the victim. The defendant was arrested for stalkingan April 25 and June 28,1994, after repeatedwarnings-hm victim's attorney to cease stalking 4 In People v. Nukujima, victim worked as a cashier in a store where she served defendant; once, when she was returning his credit card, he grabbed her hand. On several occasions after that he followed her throughout the store. On October 24,1995, defendant followed her during her drive home from her elementary school teaching position. He did so again the following day, cutting across two lanes of traffic when she made a turn and staying no more than two car lengths away while traveling at speeds up to 60 miles per hour. That evening, victim saw defendant's car in the parking lot as she left her cashier job to go home. Police were summoned and the officers warned defendant that his actions would constitute a crime if continued. On November 4, victim saw defendant stopping her parents' car to talk with her father. A second warning about stalking was 4s 46 e The descriptions of stalking behaviors here culled from the court opinions use only the courts' description of what the witness testimony claimed occurred. As the opinions often note, an appeals court review must look at the evidence fiom the perspective of the prosecution, that is, was there sufficient evidence that the jury might have believed to sustain a conviction? A jury's general verdict of conviction does not mean that it believed all the evidence it heard. A defendant is still able to contend specific stalking behaviors alleged at trial did not occur, while at the same timebeing unable to deny that stalking occurred. In all these cases, the convictions were upheld. Stare v. Marsala, 688 A.2d 336 (Conn. Appl. Ct. 1997). Another minimal acquaintancecase is Crenshaw v. Stare, 5 15 S.E.2d 642 (Ga. Ct. App. 1999), where the victim had attended second grade with the defcndant's son. Defendant began stalking victim when she was age 14 and continued his stalking behaviors when she was divorced and returned home to her parents' house. Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 20 given to the defendant by the State's Attorney's Office, to which defendant responded by letter on November 7 that he would cease his conduct immediately. On November 18, 1995, victim saw defendant cruising the parking lot where she worked as a cashier, then parking a few spots away from her car. Defendant was charged with ~talking.4~ Dating Relationship In People v. Allen, the defendah and victim had had a two- or three-year dating relationship that had ended. On January 12, 1992, defendant threatened victim with two screwdrivers while she was walking to a friend's house. On March 8, defendant entered victim's apartment while she was taking a shower and hit her, creating a gash over her eyebrow. He then fled. Later the same evening, victim saw defendant outside her mother's house. He loudly stated that he had tom up victim's clothing and apartment and threatened to throw a Molotov cocktail at her mother's house. When victim returned to her apartment that evening it was indeed severely vandalized-holes in the walls, sink pulled out of the wall, and faucets pulled out of the sink. The sliding door to her bedroom was broken, as were her bedroom set and dresser. All her clothes were gone. On July 24, victim was resting at a friend's house. She woke up at 1 p.m. to find defendant beating on her; her face was swollen and her eye was protruding. On October 25, victim's mother saw defendant outside her home, riding a bicycle. He came and went four times. Defendant then threatened to kill bo&-the victim and h& mother, pointing a handgun at the mother. Defendant was mested for stalking and terroristic threats.48 Prior Marriage In State v. Colbry, defendant had been abusing the victim (his wife) before they separated in August 1993. During September, defendant telephoned victim three or more times daily at home and at work. He threatened to fight for custody of their child and "to take [her] for everything [she] had." He also threatened a man with whom he suspected she was having an affair. Toward the end of September, defendant assaulted victim, but the police did not file charges. On October 10, defendant again assaulted victim. In response, she obtained a protection order. As she left the courthouse, her car was pusued by defendant at high speed. Victim drove to the state police bmacks. While she was telling her story, defendant drove up to the officer and threatened to kill victim's male passenger. He next went to victim's home and entered, screaming at victim and threatening to kill her male fiend. For weeks thereafter, defendant appeared at victim's work 17 People v. Nahjima, 691 N.E.2d 153 (Ill. App. Ct. 1998). Another casual acquaintance stalking case is Troncalli v. Jones, 51 14 S.E.2d 478 (Ga. Ct. App. 1999) (civil suit for stalking), where defendant began stalking by twice brushing victim's breasts at a party at a mutual fiiend's house. Defendant then followed victim in her car when she left the party. Other stalking incidents followed. Pecple v, Allen, 40 Cal. Gtr.2d 7 (Cal. &. App. 1995). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 21 site and followed her home. In December, defendant used his key to enter' the couple's residence without permission and in violation of the no-contact order. In January 1994, defendant was convicted of assault for the October incident. In March, he was convicted of trespass for the December incident. Both convictions were accompanied by no-contact orders. Defendant continped to telephone victim and threaten to kill her male fiiend, with whom she was now living. In June, police monitoring of victim's telephone recorded defendant again threatening to kill or injure victim's male fiiend. Defendant was arrested for stalking.49 e . _. __ In People v. Borrelli, a woman (victim) obtained a restraining order after separating &om her husband (defendant) in July 1995. When defendant appeared unannounced at the victims' parents' house instead of her home as planned on September 21, to pick up their children, he threatened to kill both her and her parents. A few hoqrs later he appeared at her home, angry because the children had fallen asleep. He stomped on her foot and kicked her before leaving. On December 2, defendant appeared at a hair salon and called victim names because she had not been-homewhen he came by to pick up the children. When she returned home to pack clothing for the children to go with defendant, he rearended her car while she was still parked in fiont of her house. She locked the car doors and defendant came up to the car, banging on the door and threatening to kill her. When he returned that evening with the children, he moved as if to grab her neck. For thathe was mested. In April 1996, deTendiint telephonedihd again threatened to kill victim. The next day at 6 a.m. he again called with a threat to kill her. On May 1,victim moved without telling defendant of her new address; child custody exchanges were made at the local police department. On May 7, defendant appeared at victim's place of work, entering her ofice and calling her names. In December, defendant crashed his car into the fiont doors of the building where victim worked, saying he was making a statement to his girlfriend, who worked in the b~ilding.~' . 0 In State v. Cartwright, the defendant in August 1997 began accusing the victim of having affairs with coworkers and friends (another common occurrence in many domestic violence cases). Defendant's accusations and threats were followed by apologies, reducing victim's fears. After accusing victim of an affair with her girlfriend, defendant spray painted victim's van with the word "fag." Victim fled to her parents' house and obtained a court order of protection. Defendant began parking across the street h m the house in his truck, in which he also slept at night. Soon thereafter he entered the house and stole some of victim's jewelry. He next stole a cellular phone out of victim's van; he was arrested for theft and violation of the court order. Defendant later made reports to the Division of Family Services and to her employer that she was selling company secrets. After victim filed for a divorce, defendant apologized, offering 49 Peterson, Larson, Colbry v. State, 930 P.2d 414 (Alk. Ct. App. 1996). People v. Borrelli, 91 Cal. Rptr.2d 851 (Cal. Ct. App. 2000). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 22 gifts and excuses (claiming his medication was at fault). The accusations began anew when another girlfkiend slept over. Once, after victim was talked into letting defendant shower in the house, she found three listening devices in the kitchen, her bedroom, and the spare bedroom. Another recording device was found later in the garage, taped into victim's phone. Still more recording devices were found later. In October, defendant began following victim to work, calling her on her cell phone, and stopping his car in the middle of the road outside her workplace and screaming, "I lotveyou." Defendant also moved into a building near victim's house to allow him to "go outside and scream 'I love you, Laura."' Defendant next threatened to buy guns when victim refused to give him access to his gun collection at the marital household. At a child visitation exchange, defendant posted a note on victim's car saying, "I am the ax murderer. If you fbck with me one more time, I will kill you." At Christmas victim found defendant in her basement. She called 91 1. Police discovered he had been there listening to her through the heating vents. Later victim found her nightgown shredded with a knife in the basement. Defendant was arrested for stalking." In State v. Hoxie, defendant and victim were separated after eight years of marriage, and a divorce action was initiated in January 1994. Defendant was reported to have come by the school that victim was attending or by her home on a daily basis for the next two months. Many days, he would make 40 to 80 calls. During that period, victim changed her number six times. On some occasions, defendant assaulted victim. Three times in April, defendant appeared at victim's school, questioning her about her activities and fiiends. On May 22, defendant appeared nude in the victim's driveway, exposing himself to their two daughters. Police responded and escorted him fiom the property. On May 29, victim returned to her house, where defendant questioned her about her activities that day. An argument ensued, and victim and the daughters fled inside. Defendant beat on the house door until it was dented, and he threatened to kill victim. The victim's phone box was disconnected so that she could not call 911. On June 2, a court no-contact order was issued against defendant. Two days later defendant drove alongside victim's car and screamed at victim. On June 6, defendant called victim's house and wamed her male fiiend to stay away. After leaving the house, the fiiend found that the tires on his car had been slashed. On June 10, defendant sought to obtain a key to the house from one of the daughters while she was at the local YWCA. On June 12, he came three times to the neighborhood pool where victim and the children were swimming. Defendant assaulted victim and said he would have her killed if she had him removed fiom the pool. Defendant followed victim to a restaurant on June 29 and later that night telephoned her to say he would not return their daughter from a weekend visitation. Defendant State v. Curtwriglrt, 17 S.W.3d 149 (Mo. Ct. App. 2000). As these cases illustrate, child visitation requirements present unique complications for victims of domestic violence stalking. See also, for example, Commonwealth v. Alphas, 762 N.E.2d 575 (Mass. 1999), where the defendant began videotaping all his contacts with his divorced wife-victim. One other interesting aspect of that case was the defendant's bragging of using- a scanner to hear his ex-wife's phone calls. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 23 then tried to have victim's school scholarship taken away tor misconduct 'and threatened the scholarship agency "if they did nothing.'' In July, victim's car tires were slashed on eight occasions. Throughout the summer, defendant left cards and notes at victim's home and place of employment expressing his love for her. Defendant would also follow victim at the school lunchroom. Finally, on October 23, defendant would not remove his truck from victim's driveway; an argument ensued, and he again seriously assaulted her. Defendant was charged with stalking, violation of court orders, and telephone hara~sment.~~ Acquaintance Relationship 0 In Fly v. State, defendant and victim were coworkers and had one dinner date in November 1991. In the next few months, defendant left the victim increasingly invasive messages and presents, including a burglak alarm left on her doorstep with the message that breaking into her home would be easy. It then became apparent that defendant had access to victim's computer at work, and investigation showed that he worked for a company subcontractor. Defendant was fired from his position and blamed victim. Defendant continued sending letters to victim and to her relatives, fiiends, and a former employer, detailing his love for her. In January 1993, defendant left the victim two $100 bills and letters. One letter stated, "I hope you don't have to die or nearly die to realize that I really __cared about you.. .. 'I The letters he continued sending showed he was--watching her house,-going throu-ghher trash to obtain addresses of her bo*-ends, and following her. Additional letters showed that defendant was taping her phone calls. The messages continued and expanded again to inklude her fiiends, coworkers, and minister, as well as the dean of her law school. Defendant was then convicted of wiretapping and placed on probation with a no-contact condition. On June 12,1994, defendant left a message from the horror movie Fright Night. Defendant was again arrested. From jail, defendant sent the victim's minister a message strongly stating his contempt for the victim. Defendant's probation was reinstated on condition that he leave the state. Three months later he left her a telephone message. Within a week he left a cassette tape on the hood of her car during the night. Defendant was arrested for stalking but continued to send messages fiom jail to victim and her parent^.'^ In State v. Jackson, the victim was a male physician treating a female defendant for Lyme disease. After a while, defendant began to address the victim by his fist name, rather than by his title, Doctor. On one occasion, victim found a rose placed on his wife's car, which he was using. A week later, roses were delivered to him at the hospital, signed only with "guess who." About the same time, victim began to receive strange telephone calls at his office, such as the sound of a "raspberry" and the phone hanging up. Other calls involved music playing 52 53 State v. Hoxie, 963 S.W.2d 737 (Tcnn. 1998). FZy Y. State, 494 S.E.2d 93 (Ga. App. Ct. 1997). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 24 I lyrics, such as "I'll be watching you" and "we'll be together forever or else." Although victim terminated the doctor-patient relationship, the fiequency of these calls increased and began to include calls to him while he was eating dinner with his family. At home, his wife began to receive calls followed by either a raspberry or silence several times a week and even several times a day. His wife then began receiving anonymous letters charging victim with adultery. Victim also began receiving odd letters, such as one anonymous note saying his wife was watching the parking lot to see,if he left with anyone. A letter was sent to the president of the hospital that charged victim with unprofessional behavior. Defendant then began to intimidate victim in the hospital parking lot. On one occasion, defendant attempted to block victim's egress from the lot. On another occasion, when defendant took his child to a gym for karate lessons, defendant was seen at the front desk staring at victim and his child. Victim then left and defendant followed, continuing to stare at him and his a Victim Reports Information about stalkers also comes from personal reports published by or about stalking victims. For example, one well-known story is that of Kathleen Baty. In 1982, her stalking began with a phone call from a high school classmate whom she had not seen in years. The phone calls continued, and she soon noticed a pickup truck circling the house, -Po€icewere called and found a loaded rifle in the truck. Defendant was held for 48-hour psychiatric . evaluation and released. The calls resumed, and defendant was soon rearrested outside victim's ' parents' home, again carrying a rifle. On this occasion, defendant was sent to a mental facility for six months and received three years' probation. After he completed probation, defendant was arrested again, this time for t y n g to break into victim's home. He received a 60-day jail sentence and three more years on probation. In summer 1989, victim met the defendant again by chance; she ordered a pizza and he was the deliverpan. In November of that year the stalking resumed. The next spring, victim got married and defendant went missing. Soon, he appeared in victim's kitchen, holding a knife and planning to take her to a mountain cabin for a couple of weeks until she began to love him. Fortunately, the phone rang and the victim was able to communicate to her mother what was happening. Police were summoned and arrested defendant. Defendant was sentenced to eight years in prison.ss ~ 54 " Stare v. Jackson, 742 A.2d 812 (Corn. App. Ct. 2000). Larry Stagna,Stalked, 56 WOMEN'SDAY 49 (March 3, 1993). See also Howard Kohn, The StaZker,180 REDBOOK106 (April 1993); One Woman'sNighmare, 24 ESSENCE72 (October 1993); Moore, WhenA Stalker Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 25 Research Reports In general, the research supports these anecdotes as illustrating both the scope of stalking behaviors and their duration and frequency. The National Violence Against Women Survey, for exarhple, found that 82 percent of the women stalked reported that their stalkers followed them, spied on them, or stood outside her house. Sixty-one percent said they had received unwanted phone calls, 33 percent received unwanted letters or gifts, and 29 percent had property vandalized. The survey also found that 9 percent of the stalked women reported threats to kill the family pet,56a finding not seen in the stories above. The survey respondents were also unlikely to experience extended stalking, lasting more than one year; only one-third of those stalked were stalked for a period greater than one year. Only 10 percent of those stalked were stalked for more than five years.57'Finally, the survey found that stalking victims who had previously been intimate partners with their stalker were significantly more likely to have been victims of domestic violence than were women'in the general population; 8 1 percent of intimate stalking victims had been assaulted by their spouse in the past compared to a 20 percent lifetime experience of domestic violence among all women who have been manied or lived - with a man.58 _. - ' _ . . _._ The Louisiana survey also found a high level Qfprior assaults against stalking victims, 32 percent.59 Other research on stalking supports both the National Survey's findings and the stories above. Nicastro, Cousins, and Spitzberg, for example, in summarizing eight studies on stalking list the following behaviors as characteristic of stalking: frequent telephone calls, personal contact at home or work, driving by home, repeated following or watching, appearing at work or school, sending or leaving letters or objects, contacting third parties, damaging property, breaking and entering, and threatening violence to the victim or othersa In a review of criminal 56 57 58 59 60 0 Stops at Nothing, 225 COSMOPOLITAN 224,224-28 (December 1998); Francine Maroukian, Stalked: One Woman's TemBing Tale, 194 REDBOOK99 (April 2000). Tjaden & Thoennes, supra note 3 at 7. Id. at 1 1. One other interesting finding was that intimate stalking lasted on average twice as long as non-intimate stalking, 2.2 versus 1.1 years. Tjaden & Thoennes, supra note 3 at 12. Care must be taken with all these findings because of the very small numbers involved. See discussionsupra, note 27. Tjaden & Thoennes, supra note 3 at 8. Similarly, 3 1 percent of stalked former intimates had experienced sexual assault by their former intimate compared to 5 percent in general population. LOUISIANA REPORT, supra note 28. Alana M. Nicastro, Amber V. Cousins & Brian H. Spikberg, The Tactical Face of Stalking, 28 J. CRIM. JUST. 69,71 (2000). Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 26 case files in the San Diego City Attorney's Office, these researchers also found that 45 percent of the stalking cases involved physical assaults of one sort or another.61 Hall also found a high 0 incidence of assaultive behaviors among other stalking actions. She found that 38 percent of her victim sample reported being hit or beaten and 22 percent reported a sexual assault. The most common stalking behaviors reported by these victims included making unwanted telephone calls (87 percent), surveillance at home (84 percent), following (80 percent), driving by home (77 percent), appearing at workplace (54 percent), and sending letters (50 percent). Some unusual activities included spreading gossip (48 percent) and sending packages with materials such as urine, blood, or dead animals (3 percent). One victim also reported an arson.62 A number of researchers hqve developed typologies of stalking behavior. One especially interesting study is Dunn's review of stalking case files and interviews of stalking victims in a major California jurisdiction. She classifies stalking behaviors as falling into four categories: Courtship (e.g., letters, calls and personal meetings expressing love and saying "we can work things out," gifts and flowers) . . Survdilance (e.g., following, driving by home, calling employers) to send a "message" - Symbolic violence (e.g., breaking into home, vandalism, property theft, leaving penal code provision number for murder on victim's pager) Physical violence.63 In sum, both the anecdotal reports drawn fkom court decisions and personal stones agree on the scope of stalking behaviors and their duration. C. Stalking's Impact on Victims Relatively little research has focused on the impact stalking has on its victims, although homicide--the most serious impact of stalkinHed to policy attention to stalking. But nonhomicide-stalking victims are also often dramatically impacted. Information about such impacts Id. at 75. FISHERet al, supra note 30 at 28, report that 15 percent of their college campus victims said the stalker either assaulted or threatened to assault them. In 10 percent of the incidents, the stalker forced or attempted sexual contact. Hall, supra note 24 at 150 and 132. a Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 27 comes from a variety of sources. These include information from the victims themselves, especially victim interviews, their courtroom testimony, and victim surveys asking about impacts. Victim Reports A statutory element of the crime of stal$ing in most states is victim fear. Hence, it is not surprising that many court rulings in stalking cases cite reports of victim fear. But the term "fear'' does not really convey the complexities of how victims respond to stalkers. Thus, we need to know more about other internalized reactions and about victim responses that involve lifestyle changes, d In all the court cases cited above, victims reported being physically frightened. In the last of thesecases, Jackson, the victim stated, Well, it's affected my life.. .tremendously. It's like living in a prison. I mean, these things continue. The willfulness of it all. The continued lying-in-wait. Everywhere I g-ere would b e 4 have incidents of phone calls, letters, letters to neighbors-I mean, it's just awful. I mew none of it-I mean, I've done nothing wrong. Here I am as a doctor tryrng to help a patient and this is ...what occurred. And it is horrible. I live every day still in fear that something's going to happen to me. Fear that.. .my children are going to be left alone if somedaFyou know-I'd drive up and meet her and sh-r she's just there and.. .does bodily harm to me. I mean it's just awful. Nothing is changed. We still do the alarm, we still do the binoculars. At night ...y ou hear sounds and-normal sounds of the neighborhood and here I am running to the window.. .trying to look out or going out and seeing.. .what's occurring. It's just horrible. It's a horrible way to live in fear of your life.. .every day I wake up I'm in fear of my safety.64 a' Dunn quotes another stalking victim, who told her, ~~ 63 a Jennifer DUM, Courting Disaster: Intimate Stalking, Victimization, and the Law (n.d.) (unpublished paper on file with Sacramento County (Cal.) District Attorney's Ofice). Id. In Nakajima,supra note 48, victim testified that she was "absolutely terrified." The court decision stated that she did not know what defendant intended or why he was following her. According to the victim, she "wanted to get to a safe place" and "didn't know if he would try to hann [her] in any way." In Hoxie, a neighbor testified that victim asked her to raise her children should defendant kill her. In Troncalli, the victim "developed shingles, experienced nausea and vomiting, became frightened and depressed, and sought psychological counseling." In State v. Schwab, 695 N.E.2d 801,806 (Ohio App. Ct. 1997), victim reported that she no longer drives places or walks in her parents' neighborhood by herself, that she had purchased a cellular phone in case defendant "caught up with her," and that she is afraid for herself and her children. In Johnson v. State, 648 Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 28 4 There's no advice I can give a person on how to deal with the fear. How do you, you know, there's nothing I could say that's gonna make sense, especially when you have a child. I mean I, the nights I had to put the knife under her bed, the nights, when what am I going to do? Cause if he was coming in, he had to get through me, to get to her. I mean, totally, I bet you, 70 to 80 nights like that, when he was coming over. And there's nothing, there's no advice I could ever give a person to deal with, there's no way to deal with it. It's the most powerful fear there is ...I'd never felt that kind,,of fear before. The only fear I'd ever felt before was the kind you feel when a person jumps out in front of you and you almost like, hit him, that roller coaster kind of fear, but walking around with that feeling that you get right at that moment, if you can imagine that feeling again, where you almost hit someone, never leaving.. .if you could imagine walking around that way, for months after months after months and it never leaving, the fear, whatever the thing that has made you afraid doesn't leave.. .. a Kasting, who reports on extensive interviews with stalking victims, points out that the impact of stalking by a former intimate partner can be affected by continuing emotional ties between the stalker and the victim, as well as by social pressures to make the former relationship "work." For example, one of her interviews was with a woman whose family supported the stalker's efforts since their religious beliefs favored the sanctity of marriage. These external _. - -- _ . _ .. - - .- - - .- ._ - forces may worsen stalking's impact by undercutting social support and understanding for the ' victims, increasing their isolation from society.6' Kasting's interviews also underscore how the justice system's response to stalking can ameliorate or exacerbate the negative effects of stalking on the victim's mental health and well-being. Interviewee 1 reported that her stalker was an acquaintance who first tried to gain control over her by implicating her in an armed robbery. He was convicted and sent to prison for the offense, but he continued to stalk her and on five occasions assaulted her; he was not convicted of assault, instead being returned to prison as a parole violator. Upon being released again, he abducted her and sexually assaulted her. The initial police response to reports of the abduction were minimal until a superior oficer was reached. The sex crime detective assigned to the case after the mest provided her with considerable assistance, including obtaining a name change and help in relocating to another jurisdiction. That detective continues to keep in contact four years later. At the same time, the detective also provided her with personal in-court support while she was waiting to testify in the criminal matter. Other police oficials were less helpkl, e.g., 65 N.E.2d 666 (Ind. Ct. Am. 1995), victim had moved four times in Ohio and then moved to a shelter in Indianapolis, all in an effort to hide from her ex-boyfhend stalker. Colleen Ann Kasting, Being Staked: Is Anyone Listening? An Exploration of Women's Voices (nd.) (unpublished M.A. Dissertation, University of Victoria). Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 29 although they helped her sell her car anonymously, the sale was for only a small fraction of its worth. Eventually the police were helpful in helping her obtain a new driver's license and social security number. However, the latter took two years, during which she could not work and had to rely on welfare. 1 8 0 - - - - . . ... 0 Interviewee 2 was a former victim of domestic abuse who was assaulted after leaving the relationship. She reported, "I had to fight with the [prosecutor] to get her to even, like the police laid the charges, but the [prosecutor] said there wasn't enough evidence to charge, yet the police hadn't given her the whole file. So I really had to check up on the information she had, and that she was getting fiom the police. I was asking her if she had gotten the doctofs report and she said she didn't have them and that she didn't think they would be beneficial.. .." She further observed that "the whole legal system, the court system, etc., they don't work together enough. I guess they aren't severe eriough.. .there's not enough repercussions for [the stalkers]. ... It's not made open enough in the newspapers.. .. That would be more validation.. .so that he can? walk with his head quite as high." Interviewee 3 was asked, "Did the police put you through hell?" She responded simply, "Yeah, and so we moved away." She also reported, "I went through the court system and it was an absolute disaster. I had no support from anybody and I __ went to be quite honest, I would never go through that again. Never.. ..__ __ through - -the3ve~rosecutofis;d$7tlie-tiiEIgott5 kiilihe~-di&ftEenhave the evidence." She later said that after the conviction, "I still couldn't get on with my life.. .every time I go to town.. .. Just last summer, I ran into him.. .waving away at me.. .I just fell apart. She added, "I still feel like a victim. The only financial compensation I got was fiom workman's compensation. To me, money is the only thing that will compensate me. For one thing, it Will get me out of this house.. .there was a long, long time when I couldn't even come home to the house. This is where he tried to kill me. This is where it all went on." She concluded, "I think the court system caused me health problems [nervous breakdown]. It was a big letdown to be told he was going to get a jail sentence and then he didn't." Interviewee 4 reported, "I still have to deal with the court system on an ongoing basis for the children's access to their father. Probation officers are the worst. They put me at more risk than anyone else.. .. [They] try to facilitate or mediate for custody access. They're not paying attention to what women are saying. And when I'm standing in bront of one who's asking me to put myself at risk because they don't think the risk is great enough or they are telling me that the way I'm keeping myself safe is too extreme for them.. .." Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 30 i D. Victimization Responses Considerable research has also been done on victim responses to stalking. For example, the National Violence Against Women Survey found evidence of significant mental health impacts. Thirty percent of the women and 20 percent of the men victims said they had sought psychological counseling due to being stalked. These victims were also more likely than others to be concerned about personal safety (42 versus 24 percent) and to carry something on their person to defend themselves (45 versus 29 percent). Over a quarter of the stalking victims reported loss of time from work due to the stalking (average time lost was 11 days); 7 percent said they had never returned to work. Other self-protection measures taken by stalking victims included purchasing a gun (17 percpt), changing address (1 1 percent), moving out of town (11 percent), and varying driving habits (5 percent).66 The Louisiana stalking survey reported similar - findings. Thirty-six percent of the stalking victims said they had moved their household as a result of the stalking, and 11 percent purchased a gun. Fifty-five percent said that they had experienced stress that interfered with their regular activities for a period of at least one month.67 With their survey of college students, Mustaine and Tewksbury found that stalking victims also reported significant changes in behavior to lessen their vulnerability, including carrying mace and ' carrying a pocketknife!* Mullen and colleagues have done extensive research on stalking impact in Australia. Their 1997 survey of 100 stalking victims found that stalking resulted in significant activity changes for its victims, including the following: Major lifestyle changes or modification of daily activity for 94 percent of victims Curtailment of social activities for 70 percent of victims Decrease or cessation of work or school attendance for 50 percent of victims (due either to absenteeism or stalker invasion of work or school site) Relocation of residence for 40 percent of victims 66 67 68 Tjaden and Thoemes, supra note 3 at 11-12. Again, care must be taken with all of these detailed fmdings because of the very small numbers involved. See discussion supra, note 27. Nonetheless, the central finding about the seriously negative impact of stalking on its victims is not subject to such qualification. See generully, Keith E. Davis & Irene Hanson Frieze, Research on Stalking: What Do We Know and Where Do We Go? 15 VIOLENCE & VICTIMS 473,479 (2000). LOUISIANAREPORTsupra note 28. Mustaine & Tewsbury, supra note 30 at 56-57. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 31 - Change of workplace or school for 34 percent of victims.6' e The researchers also found important psychological problems resulting from the stalking, including these: Increased anxiety and arousal for 80 percent of victims Chronic sleep disturbance for (75 percent of victims Recurring thoughts or flashbacks to the stalking, resulting in distress for 55 percent of victims (often triggered by ordinary events such as a ringing telephone or doorbell) Appetite disturbance for 50 percent of victims Excessive tiredness, weakness, or headaches for 50 percent of victims - - Numbing of responses to others, including feeling of detachment for 38 percent of victims Nausea before going to places associated with the stalking for 33 percent of victims - * -- Increased alcohol-orcigareae use fbr 25 percent o€ victims-- _ _ ._. Contemplation of suicide for 25 percent of victims?' The researchers' analysis of these findings suggested that most of the stalking victims experienced at least one major symptom associated with Post-Traumatic Stress Disorder (PTSD). The authors explain that this is not surprising because "stalking possesses many of the features that may produce chronic stress reactions and related psychological seq~elae."'~Those features include persistent, repetitive trauma; loss of control; state of persistent threat with associated symptoms that may far outlive the actual duration of the harassment; and loss of social supports normally available for crime victims because of mistrust and fear generated by the stalking itself. While many factors affected the specifics of the stalking impact on the victims, there was not one victim who did not experience some level of harm "that in some cases amounted to profound deterioration in functioning." 69 O ' " Pathe & Mullen, supra note 35. Id. MULLENet al, supra note 9 at 59. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 32 These findings were replicated by Nicastro and her colleagues and by Hall. Nicastro's 0 sample of 55 prosecution cases in San Diego showed that the most common impacts fkom the stalking were fear (80 percent), feeling threatened (43 percent), nervous reaction (33 percent), and anger (29 percent). A smaller number reported physical illness (1 1 pekent), depression (9 percent), and a sense of helplessness (7 per~ent).'~Similarly, Hall found that 87 percent of her sample of 145 victims said their personalities had changed as a result of the stalking, a figure greater for the female than the male victims. Specifically, 41 percent felt paranoid, 52 percent I easily frightened, and 27 percent more aggressive. The percentages of those saying they had been generally friendly (89%) and outgoing (78%) before the stalking dropped significantly, to 53 percent (friendly) and 41 percent (o~tgoing).'~ Finally, Blaauw and colleagues studied stalking's impact on victims in the Netherlands - - and found that even a year or more after the cessation of stalking, there was no significant reduction in the psychiatric symptoms associated with the talking.'^ Although the anecdotal reports provide a powerful, if limited, descriptive view of stalking's impact on the victims, the research cited above provides a much clear& view -ofthe 0 variety of impacts caused by stalking. E Summary There have been only a handfbl of studies of the incidence of stalking. Taking into account methodological differences among these studies, a best-guess estimate of the incidence of stalking is probably about two million victimizations annually. If one uses a looser definition of stalking to include cases where victim fear is relatively minor, the number of stalking cases occumng annually grows by another 2 to 4 million. While these numbers far exceed estimates based on oficial records, the difference is simply a matter of failure of victim reporting and poor agency record keeping. Whether one reviews the prior research or the anecdotal reports found in court decisions, or simply talks to victims of stalking, the inescapable conclusion is that stalking has a devastating l2 Nicastro et al, supra note 63 at 75. Hall, supra note 24 at 152. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 33 impact on victims. This might not matter if stalking were a rare occurrence, but it is not.' Literally millions of Americans have been victims of stalking, and millions more will be stalked unless something is done to prevent such acts. Stalking is important to its victims and should be I important for policymaken. ..... - ........... " ............. ... .... . . . . . . . . . . . . .- - .-. . . . . . . E. Blaauw, F. W. Winkel & E. Arensman, The Toll of Stalking: The Relationships Between Features of Stalking and.Psychopathology of Victims, in AIC Conference Papers, supra note 9. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 34 111. Responding to the Problem: State Stalking Laws and Their Implementation State lawmakers have responded to the problem of stalking by enacting anti-stalking laws. Questions arise, however, about the scope of those laws and how well they are being implemented. The research sought answers to both these questions by reviewing Statutory anti-stalking enactments and interpretative court rulings and Local anti-stalking initiatives, with special attention to the federal role in supporting these initiatives. Part N of this report continues the research examination of local anti-stalking initiatives 1 by examining the effectiveness of the new stalking laws from a best practices perspective. - A. Legislation and Court Rulings Enactment of criminal laws is just the first step in using the justice system to combat stalking. Court rulings must interpret possible ambiguities in the laws and limit the law where it - might impinge on First Amendment or other constitutional guarantees. AmendGmt ofthe 0 stalking law may then occur as a result of court rulings or as experience shows that the stalking law needs modifications. This review of the status of stalking laws examined all three issues: enactment, court review, and amendment. Legislation The legislative review examined state laws relating to both the crime of stalking and such related crimes as violation of civil protection orders against stalking, harassment, terroristic threats, and invasion ofprivacy. These latter code provisions are included because they also reflect the varying degrees to which state legislative bodies perceive stalking as serious. They also reflect the degree to which consideration is given to countervailing issues, such as the constitutional right of fiee speech and other constitutional doctrines found applicable by the courts. The legislative review covers these topics: Stalking criminal laws Stalking civil laws Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 35 - Related criminal laws I I Criminal procedure laws, e.g., warrantless anest for stalking and requirements for stalking training. Stalking Criminal Laws. As of November 1999, all 50 states'~leg&latures,the District of Columbia, and the federal government had enacted laws making stalking a crime. The laws vary significantly in the specific behaviors outlawed and the penalties provided for violation. In brief, the 50 states' laws treat stalking as a felony offense; however, many states do not necessarily make a first stalking offense a felony. In 37 states, a conviction for a first stalking offense can be a felony; in 12 of those states, any first stalking offense is a felony. In the other 25 states with felony stalking laws, only the most serious stalking offenses and repeat stalking are 1 felonies; simple stalking (without a weapon, for example) is a mi~demeanor.~~ In the 13 states (and the District of Columbia) where a first stalking offense is always a xhisdemeanor, repeat stalking is treated as a felony.76 The federal interstate stalking law also provides for felony penalties.77 Exhibit 1 details the diffaences in stalking penalties among the states. ___ '' '' - , First offense stalking felony laws include ALA. CODE$8 13A-6-90,9 I; ALASKASTAT.8 I 1.4 1.260 (weapon, minor, or order violation); A M . REV. STAT.8 13-2923; ARK. CODE$5-71-229; CAL.PENAL CODE8 646.9 (discretionary charging With prosecutor); COLD. REV. STAT.8 18-9-11 1 (4), (5); CONN. GEN.STAT.853a-181c (order violation or minor); DEL.CODEtit. 11 5 1312A; FLA.STAT.5 784.048 (threat or order violation); GA. CODEQ 16-5-91 (order violation); 720 ILCS 912-7.3,7.4; IND.CODE8 35-45-10-5; IOWACODE$ 708.1 1 (order violation, weapon, or minor); KAN. STAT.8 21-3438; KY.REV. STAT. $8 508.130, .140, .150 (order violation or weapon); LA. REV. STAT.8 14:40.2 (BX3) (order violation); MD. CODEart. 27 8 124 (five-year misdemeanor); MASS. GEN.LAWSch. 265 5 43; MICH. STAT.8 28.643(9)(3) (threat or order violation); MI". STAT.Q 609.749 (5); Mo.REV. STAT.8 565.225 (5); NEV. REV. STAT.8 200.575 (2)(a), (3Xa); N.J. STAT.4 2C12-10 (c), (e) (order violation or while under supervision); N.M. STAT.$8 30-3A-3,3.1 (order violation, weapon, or minor); N.Y.PENALL.8 120.40-8 120.60; N.D. CENT. CODE 6 12.1-17-07.1 (6xa)(2) (order violation); OHloREv. CODE8 2903.2 1 1 (B)(2) (made threat, weapon use, history of violence with victim, order violation, damage to property of victim, trespass); O U .STAT. tit. 2 1 8 1 I73 (order violation); 18 PA. CONS. STAT. 8 2709 (c)(Z)(ii); S.C. CODE88 16-3-1720 (B), 1730 (order violation or violence); S.D.CODIFIEDLAWS 8 22-19A-2 (order violation); UTAH CODE 8 76-5- 106.5 ( 5 ) (weapon); VT. STAT. tit. 13 5 1061-63; WASH. REV. CODE 89A.46. I 10 (5)(b) (order violation, weapon or special victim); Wlsc. STAT.8 940.32 (3) (with bodily injury); WYO.STAT.8 6-2-506 (e) (bodily injury or order violation) Laws authorizing felony penalties for a second misdemeanor stalking offense include HAW.REV. STAT.0 7 1 1 1106.4 (where stalking accompanied by order violation); IDAHO CODE0 18-7905 (c); Mas.CODE0 97-3-107 (3); MOW. CODE 8 45-5-220 (3); NEB. REV. STAT.$ 28-3 1 1.03, .04;N.H. REV. STAT.8 633:3-a (vI)(a); N.C. GEN.STAT.6 14-277.3 (b); OR.REV.STAT.8 163.732; RI. GEN.LAWS6 11-59-2 (6); TENN.CODE8 39-17-315 (b)(2); TEX.PENAL CODE 8 42.072 (c). States that provide felony penalties for a second misdemeanor stallang conviction where felony penalties are available for the most serious stalking cases include Alaska, Connecticut, Georgia, Hawaii (if second violation violates court order or release conditions), Indiana, Iowa, Louisiana (within seven years), Michigan, Missouri, Nevada, New Jersey, New Mexico, North Dakota, Ohio,Oklahoma, Pennsylvania, South Carolina, South Dakota,Utah, Washington, Wisconsin, and Wyoming. Laws providing felony penalties for a third stalking conviction include ME.REV. STAT.tit 17-A 0 2 1O-A (3), 1252 (2XC) - Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 36 Exhibit 1. Stalking Criminal Laws: Felony or Misdemeanor Pen'alties,2001 ' i (general incarceration sentencing provisions); VA. CODE 8 18.2-60.3 (B); W.VA. CODE 0 61-2-9a (d). See also IOWA CODE8 708.1 1 (3Xa), providing for felony penalties for a third simple stalking conviction. The District of Columbia provides for increasing penalties for both second and subsequent stalking convictions, D.C. CODE8 22-504. 18 ,U.S.C. 8 2261A. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 37 Several states have provisions that severely restrict their applicability. In North Carolina, for example, stalking refers only to instances where the stalker follows or is in the physical presence of the victim.’* This excludes long-range stalking such as sending letters or leaving gifts. In Hawaii and Illinois, the stalking law is similarly restricted to instances where the stalker Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 38 pursues or follows or conducts ~urveillance.~~ Connecticut law forbids oniy stalking involving following or lying in wait." In West Virginia, the stalking statute applies only to situations 0 where there is or was a personal or social relationship or such a relationship is being sought." This definition would exclude all cases where revenge was the motive 'for b e stalking and there had been no personal relationship between the stalker and the victim. In all these states, other provisions of state criminal law may be applicable, however, such as telephone harassment. I Stalking Civil Laws. Twenty-nine states authorize civil protection orders against stalking, in addition to laws in every state providing for orders against domestic violence.82 Violation of a stalking protective order is a crime in 24 of those states and may be criminal contempt of court in two other states.83 In only nine states can a violation of the stalking order be treated as a felony;84in many other states, however, repeat stalking in vidation of a court order - - increases the crime level to aggravated stalking, which is a felony. In addition, repeat violations ?a ._ 79 a : 82 83 84 a N.C. GEN.STAT. 8 14-277.3. HAW.REV. STAT.Q 7#1-1106.5;720 ILCS 912-7.3. Similarly, Maryland law defmes stalking interms of approaching or pursuing the victim, MD. CODEart. 27 6 124. Wisconsin defines stalking as "repeatedly maintaining a visual or physical proximity" to the victim. WISC. STAT. 8 940.32 (tKa). C o w . GEN.STAT. 0 53a- 18 Id, 18 1e. w. VA. CODE 8 61-2-9a. State laws authorizing stalking protection orders include ARIZ. REV. STAT. 0 12-1809 (harassment); CAL.FAM. CODE8 6320, Crv. PROC. CODE$8 527,527.6 (workplace violence order); COW. REV. STAT.$5 13-14-102, 181-1001 (criminal order ofprotection); FLA.STAT.0 784.046; GA. CODE1 16-5-94; HAW. REV. STAT.5 60410.5; IDAHO CODE 8 18-7905 (by implication); IOWA CODE 4 708.12 (I) (&minal nocontact); ME. REV. STAT. tit. 5 8 4655; MD.CTS. & JUD.P ~ o c85 . 3-1503, 1504,343201 (peace order); MICH.STAT. 4 27A.2950(1); MI". STAT.8 609.748; MO. REV.STAT.8 455.020, .040, .050; MONT.CODE 6 40-15-220 (4); NEB.REV. STAT. 28-31 1.09; NEV. REV. STAT. 8 200.591; N.H. REV. STAT. 8 633:3-a (111-a); N.J.REV. STAT. $6 2C:12-10.1 (after guilty plea or fmding), 10.2 (child or developmentally disabled); N.D. CENT. CODE8 12.1-3 1.2-01 (disorderly conduct order); OHIO REV. CODE 8 2903.214; O m .STAT. tit. 22 8 60.2 (A); OR.REV. STAT. 0 30.866, 163.735, .738; R.I. GEN.h w s 6 11-59-3 (setting penalties for order violation); S.C. CODE$6 16-3-1750-1790; S.D.CODIFIEDLAWS 8 22-19A-8; VA. CODE 8 19.2-152.8-.10.; WASH. REV. CODE8 10.14.040-.200 (antiharassment); WIS. STAT. $8 813.12, .125; WYO. STAT. $8 7-3-507-51 1. See also GA. CODE 6 34-1-7 (workplace order of protection issued to employer on behalf of employee); VA. CODE 0 18.2-60.3 (D)(criminal no-contact order authorized after plea or fmding of guilty); W. VA. CODE 8 6 1-2-9a (hxi) (criminal no-contact order authorized after plea or finding of guilty). &OM and Michigan are among the states that authorize anti-stalking orders but do not explicitly authorize criminal penalties for violation of an anti-stalking protective order. Presumably, criminal contempt is an alternative criminal penalty in these states. (See, e.g., A w . REV. STAT. 8 12-1809.) Felony penalties for violating a stalking court order are provided by CAL. FAM.CODE8 6320, CAL Crv. PROC. CODE64 527,527.6; GA. CODE8 16-5-91; NEV.REV. STAT. 8 200.591 (S)(b)(permanent order); N.D. CENT. CODE0 12.1-17-07.1 (6)(a)(2); OHIOREV. CODE3 2919.17 (B)(2)(b) (with two pnor order violations or stalking convictions); OR.REV. STAT. 5 163.732 (2)(b); R.I. GEN.LAWS8 11-59-3; WASH. REV. CODE 8 9A.46.110 (5)(b); WYO. STAT.8 6-2-506 (e)(iv). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 39 of a stalking order can be a felony in five states.85 Only 10 states have lesslation providing for 0 the entry of stalking protective orders into a special statewide registry.86 However, 36 states also have registries for domestic violence protective orders; such orders typically include anti-stalking provisions or stay-away orders.87 1 Related Criminal Laws. Stalking is one of several related crimes that infringe upon a victim's privacy and safety. Related crimes include harassment, terroristic threats, and invasion of privacy. The most serious of those offenses is the terroristic threat against the victim's person; terroristic threat laws are found in 35 states and the District of Columbia.88 Stalking difffks fiom a terroristic threat in that in stalking, both the threat and the victim,fear result fiom a series of acts, and the threat is for a fbture act. With a terroristic threat, a single act can constitute the threat; that threat must be one of imminent behavior and include the capacity to act on the threat. 85 86 0 87 88 See IDAHO CODE Q 18-7905 (c); MO. REV. STAT. Q 455.085.1 (7), (8); MONT. CODE $45-5-626 (third violation is felony); N.H. REV.STAT.Q 633:3-a (VI)(a) (second offense); VA. CODEQ 18.2-60.3 (B) (third offense). See CAL.CW. PROC. CODEQ 527.6 (n), CAL.FAM.CODE Q 6380 (b); COLO. REV. STAT.Q 18-6-803.7 (2); FLA. STAT.Q 784.046 (8)(b) MICH.COMP.L. Q 600.2950a (7); MI". STAT.ANN.Q 609.748 Subd. 7; Mo. REV. STAT. Q 455;840(3); 22 OKL:-STAT. Q 60.5; OR.REV. STAT. Q 163.741;VA.CODE Q 19.2-152.10(E); WASH. REV.CODEQ 10.14.1 10. See also ARIZ.REV.STAT.Q 12-1809 (K) (authorizingcounty level regisuy); NEV. REV.STAT.Q 200.597 (local dissemination); OHIO REV. STAT.8 2903.214(F) (lodal registry). These include ALASKASTAT.Q 18.65.540; ARIZ. REV. STAT.Q 13-3602(L)(local registry); ARK.CODEQ 12-12215(a); CAL.FAMILY CODEQ 6380; COLO.REV. STAT.Q 18-6-803.7; Cow. GEN.STAT.Q 46b-38c(c); DEL. CODEtit. 10 Q 1046(b); FLA.STAT.QQ 784.046(8)(b), 74 1.30(7)(b), 943.05(2)(e); IDAHO CODEQ 39-63 1 1(2Xb); IND.CODEQ 5-2-9-5; 725 ILCS 511 12A-28, 750 ILCS 601302; KY.REV. STAT.QQ 403.737,403.770; ME.REV. STAT.tit. 19 Q 16 Q 632(4-B); MD. CODEart. 27 Q 7A; MASS. GEN. LAWSch. 209A Q 5 (referring to Acts 1992, Ch. 188, establishing registry); MICH.STAT.Q 27A.2950( 10); MO. REV. STAT.Q 455.040(3); NEV.REV.STAT.Q 179A.350; N.H. REV. STAT.Q 173-B:5(IX); N.J. STAT.QQ 2C:25-28(n), 29 (c) (state police notification); N.Y. EXEC.LAWQ 221-a; N.C.GEN.STAT. Q50B-3(d); N.D. CENT. CODE Q 12-60-23; OHIOREV.CODEQ 31 13.31 (F)(2) (local registry); OR. REV. STAT. Q 107.720; 23 PA. CONS. STAT. QQ 6105(E), 6109 (B); R.I. GEN.LAWS8 12-29-8.1; TENN.CODEQ 36-3-609; TEX.FAM.CODEQ 85.042(a), GOVTCODEQQ 41 1.042 (bX5); UTAHCODE QQ30-6-8,53-5-209; VT. CODE tit. 15 Q 1 107(b); VA.CODE Q 16.1-279.1 (B); WASH REV.CODEQ$26.50.100, .160; W.VA. CODE Q 48-2A-12; WlS. STAT. Q 813.12(6)@), (C); WYO. STAT. Q 35-21-1 IO. REV.STAT.Q 13-1202; State laws criminalizing threats include ALA.CODEQ [new], 2000 Acts ,Act 807; ARIZ. ARK. CODE 8 5-13-301; CAL. PENALCODE 8 422; COLO. REV. STAT. $8 18-3-206 (XIleMChg), 18-9-106(1)@) (disorderly conduct); Cm"N GEN.STAT.QQ 53a-62, 181 (d); DEL.CODEtit. 11 Q 621; D.C. CODE0 22504(a); FLA.STAT.QQ 836.05 (verbal threats), 836.10 (written threats); GA. CODEQ 16-1 1-37; HAW.REV.STAT.Q 707716; 720 ILCS 5112-6; IND.CODEQ 3545-2-1; KAN. STAT.Q 21-3419; KY.REV. STAT.QQ 508.050,525.060 (l)(a); LA. REV. STAT.Q 14:40.1; ME. REV. STAT.tit. 17-A QQ209,210; MD. CODEart. 27 Q 562; MASS, GEN. LAWSch. 275 Q 1 e?seq.(maintainingpeace); MI". STAT.Q 609.27; Mo. REV.STAT.Q 574.010.1(c); MONT. CODE5 45-5-203; NEB.REV.STAT.Q 28.31 1.01; N.H. REV.STAT.Q 631:4; N.J.STAT.Q 2C:12-3; N.Y.PENAL LAWQ 120.14(1); N.C.GEN.STAT.Q 14-277.1; N.D. CENT. CODEQ 12.1-17-04; OHIOREV. CODEQQ 2903.21, .22; O W . STAT. tit. 2 1 4 1362; OR. REV. STAT. 8 166.155; 18 PA. CONS. STAT. Q 2706; TEX.PENAL CODE. Q 22.07; UTAH CODE 0 76-5-107; VT. STAT. tit. 13 $9 1026, 1701; WASH. REV. CODE 0 9A.46.020; WIS. STAT.Q 943.30. In many states, threats may alternativelybe punished as common law assault. See, e.g., 18 PA.CONS. STAT.fj2701(a)(3); TENN.CODEQ 39-13-101(a)(2). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 40 Harassment laws include simple harassment (25 states)89and telephone harassment or threats (43 0 states).g0 Letter threat laws have been enacted in 20 stateseg' The federal government has also enacted laws criminalizing interstate threats or harassment using the mail or electronic communications (including telephone).92 Criminal Procedure Laws. In only 10 states where stalking can be a misdemeanor offense does state law authorize warrantless arrest for stalking, similar to that authorized for misdemeanor domestic vi0lence.9~In the 11 states where stalking is always a felony, warrantless Harassment laws include ALA.CODE$ 13A-11-8; ALASKA STAT.$ 11.61.120(a)(1); ARIZ.REV. STAT.8 13292 1;ARK. CODE $ 5-7 1-208; COLO.REV. STAT.$ 18-9-1 1 1(1); CONN. GEN.STAT. $ 53a-182b; DEL. CODEtit. 1 1 $5 131 1, 12; HAW.REV. STAT. $ 7 1 1 1 106; IOWACODE $ 708.7; ME. REV. STAT. tit. 17-A 8 506-A; MD. CODEart. 27 8 123; MASS. GEN.LAWSch. 265 art. 43A; MI". STAT.$5 609.27.749; Mo. REV.STAT.$ 565.090; NEV.REV.STAT.$ 200.571; N.H. REV. STAT.$ 644:4; NJ. STAT.$ 2C:33-4; N.M. STAT.$ 30-3A-2; N.Y.PENAL LAW$ 240.25, .30; ND CENT.CODE$ 12.1-3 1-0 1(1He), (g), (h); OR.REV. STAT,$ 166.065; 18 PA. CONS. STAT. $ 2709 (A); SrC. CODE $4 16-3-1700, 1710; TEX.PENALCODE $ 42.07; WASH. REV.STAT. $ 9A.46.020; WE. STAT.$ 947.013. The Missouri law cited here.also includes specific reference to harassment by means of electronic communication. Telephone threat or harassment laws include ALA. CODE$ 13A-1 1-8; ALASKASTAT.4 1 1.6 1.120(a)(2)-(4); ARE. REV. STAT.$ 13-2916; ARK. CODE$ 5-71-209; CAL.PENAL CODE $ 6 5 3 COLO. ~ REV. STAT.$ 18-9111(I)(e)-(g); CoNN. GEN.STAT.$8 53a-182bY183; FLA.STAT.$ 365.16; GA.CODE$ 46-5-21; IDAHOCODE$ 18-6710; 720 ILCS 5112-6; IND. CODE $ 35-45-2-2; IOWA CODE $ 708.7; KAN. STAT. 5 21-41 13; KY.REV. STAT.$ 525.080; LA. REV.STAT.$ 14:285; ME. REV. STAT.tit. 17-A $ 506; MD. CODE^^^. 27 $ 555A; MASS. GEN.LAWS ch. 269 $ 14A; MICH.STAT.$ 28.808; MI". STAT.$8 609.79, .749(2)(a)(4), (2)(a)(5); Mo.REV. STAT.$ 565.090; MONT.CODE$ 45-8-213; NEV.REV.STAT.$ 201.255; N.M. STAT.$ 30-20-12; N.Y. PENAL LAW$ 240.30; N.C. GEN. STAT.$0 14-196, 14-277.1; N.D. CENT.CODE$ 12.1-17-07; OHIOREV.CODE$0 29 17.2 1,493 1.31,493 1.99 (penalty provision); O m . STAT. tit 2 1 $ 1172; OR.REV. STAT. $8 166.065 (1)(~),166.090;18 PA. CONS. STAT. $ 5504; S.C. CODE 8 16-17-430; S.D.CODlFlEDLAWS 8 49-31-31; TENN. CODE $ 39-17-308; TEX. PENALCODE $ 42.07; UTAH CODE $ 76-9-201; VT. STAT. tit. 13 $ 1027; VA. CODE $ 18.2-427; WASH. REV. CODE $9.61.230; VA. CODE $ 61-8-16; WlS. STAT. $ 947.012; WYO. STAT. $ 6-6103. Letter threat laws include ARK. CODE$ 5-71-209 (a)(]); CONN. GEN. STAT.$80 53a-l82b, 183 (a)(2); FLA. STAT.$ 836.10; 720 ILCS 5112-6; IND.CODE8 35-45-2-2 (a)(2); IOWACODE8 708.7 (lXa)(l); KY.REV. STAT. $ 525.080; MD. CODEart. 27 $ 56 I ;MICH.STAT.$ 28.622; Miss. CODE$ 97-3-85; Mo. REV.STAT,$ 565.090; NEV.REV. STAT.$207.180; N.Y. PENAL CODE$ 240.30(1); N.C. GEN.STAT.§$ 14-277.1(@(2), 394; O m . STAT. tit. 2 1 $ 1304;OR. REV. STAT. $ 166.065( l)(c); TENN.CODE $ 39-1 7-308(a)( 1); TEX.PENALCODE$ 42.07; VA. CODE $ 18.2-60; WIS. STAT. $ 943.30. These laws include 18 U.S.C. $ 11S(a)(l)(B); 18 U.S.C. $ 875(c); 18 U.S.C. $ 876; 47 U.S.C. $ 223. CODE$ 19-603; IOWACODE$ 708.1 1; 17-A ME.REV.STAT.$ 15; These include FLA.STAT.$ 484.048; IDAHO MD. CODEart. 27 $ 594B; Mo. REV.STAT.$ 565.225; N.H. REV.STAT.$ 633:3-a (V); OHIOREV. CODE$ 2935.03; 18 PA.CONSOL. STAT.$ 271 1; VA.CODE$ 19.2-81.3. See also IND.CODE$ 35-33-1-l(l)(a)(7). Although the California law permits a stalking case to be charged as a misdemeanor at the discretion of the prosecutor, CAL.PENAL CODE0 646.9, stalking is a felony for purposes of warrantless arrest. - 0 * w. 92 93 Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. o 41 I , I I arrest is, of course, authorized where probable cause exists. In Mississippi, warrantless arrest for misdemeanor stalking is authorized where the stalking is against a spouse or ex-spouse.% e Legislation in only two states (Minnesota and Nevada) requires lay enforcement training I in talking.'^ In comparison, 30 states require law enforcement training on domestic violence;% however, this requirement may be administratively interpreted to include stalking. Court Decisions I Although it has been only slightly more than a decade since the first stalking law was enacted, the passage of such laws in all 50 states has sparked considerable litigation over their constitutionality and scope. In ruling on stalking litigation, courts have often drawn on cases involving similar penal statutes, those criminalizing harassment, and thbse involving threat^.^' These laws not only deal with related behavior, but they also use almost identical terms and phrases (e.g., annoy, repeatedly) that may be the subject of legal attack by defendants. Thus, analysis of stalking laws must examine all three types of criminal laws and their cousins, telephone threats and harassment. Similarly, electronic stalking, harassment, and threats must . also be included; notwithstanding the relative paucity of such cases to date, their numbers are likely to increase. 94 95 96 97 Miss. CODE.Q 97-3-7(3), (4)(c). Other states that authorize warrantless arrests based on probable cause in domestic violence cases may by implication authorize similar arrests where stalking is committed in the context ofa relationshipcovered by the state's domestic violence law. MI". STAT.Q 626.8451(la), NEV.REV. STAT.Q 289.600. See also CAL.PENALCODEQ 135 19.05 (voluntary training program required); FLA.STAT.Q 943.17(5) (violent crime training required). Police entry-level training on domestic violence is required by ALASKA STAT.QQ 18.65.240, 18.65.510; CAL. CODE 8 13519 ;COW. GEN.STAT.QQ 7-294g(a), 46b-38b(f); D.C. CODEQ 16-1034; FLA.STAT.Q PENAL 943.171; GA. CODEQ 35-1-10; IDAHOCODE Q 39-6316; 50 ILCS 705/7 (a); IOWA CODE6 80B.11 (2); KY. REV. STAT.Q 403.784; MASS.GEN.LAWSch. 6 Q 1 16A; MICH.STAT.Q 4.450(9 (c), 28.1274(3); MI". STAT.Q 629.341 (subd. 5); Mo. REV.STAT.Q 590.105.1 (7)(8)(9); NEB. REV.STAT.5 42-927; NEV. REV.STAT.Q 481.054 (l)(m), (2)(e), (stalking training), 5(b); N.J.STAT.6 2C:25-20; N.Y. EXEC.LAW$0 642 (5), 214b; OHIO REV. CODE QQ 109.744, .77 (B)(3); OKLA. STAT. tit. 70 8 33 I 1 (DX2) (family intervention training); OR. REV. STAT.Q 18 1.642 (2); 23 PA.CONS. STAT. Q 6105 (a); R.I. GEN.LAWSQ 12-29-6 (a); S.D. CODIFIED LAWS QQ 23-3-39.5,42.1; TExOCC.CODE Q 1701.253 (b)(l)(B)(iv); UTAHCODE 5 77-36-2.3; VA. CODEQ 9-170(38); WASH. REV. CODE 6 10.99.030(2)-(4); w.VA. CODE $8 48-2A-9 (i), 48-2617; WE. STAT. 5 165.85 (4)(b)(l); WYO.STAT.Q 7-20-105. Related criminal laws include intimidation and extortion; both of these include threats as punishment for past or future acts. Excluded fiom this review are criminal law cases that involve these related laws but where the facts of the case show behavior totally unrelated to stalking. See, e.g., Coares v. City of Cincinnati, 402 U.S.61 1 (1971) (public disturbance of the peace) and Stare v. Kansas, 629 P.2d 748 (Ka. Ct. App. 1981) (hate crime threats, in this case cross burning). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 42 This review identified 530 state cases and 18 federal cases involving stalking and related crimes.98 (See Appendix 4 for a complete listing ofcases, along with a brief description of each 0 case's holding and citation.) Among them were a total of 198 stalking cases, including three federal cases. The stalking cases predominantly involved constitutional idsues (134 cases in 34 states, the United States, and the District of Columbia), typically vagueness and overbreadth challenges and a few double jeopardy challenges. The review also looked at the relationship between the stalker and his or her victim (almost all the reported cases involved male stalkers). Among the stalking-related cases were 58 cases of harassment and 117 cases involving threats. Among these decisions were 41 harassment and 42 threat cases involving constitutional challenges. There were 44 harassment and 66 threat cases involving statutory construction issues (many harassment cases involved both types of issues). I - - Other types of cases covered by this review include 20 telephone threats, 85 telephone harassment cases, nine letter threat or harassment cases, and six electronic threat or harassment cases. In addition, there are 53 cases involving protection orders, many of which also involved . - -- -stalking charges-related to an-order violation. Three cases involved-civil suitsfordamages based on civil stalking or some other basis for claiming invasion of privacy. e o n g these cases there were 87 constitutional law decisions and 53 cases involving statutory decisions. Six cases involved jurisdictional or other constitutional challenges to federal laws. The review did not include all relevant reported cases, although a significant effort was made to identify all such cases. The most significant omission is the exclusion of most threat and harassment decisions issued prior to 1970; it was assumed that the older cases are largely repetitive of more recent decisions (and these latter decisions have the further advantage of being informed by recent United States Supreme Court decisions). Also excluded fiom the review were reported decisions that involved solely evidentiary issuesw where no constitutional or statutory interpretation issues were decided.'00 Threat and harassment cases that were totally gg 99 e loo These cases were selected for review on these bases: (1) they involved an important legal question that has implications for interpretation of the stalking law or (2) the case facts involved a situation akin to stalking and questions of suficiency of the evidence were important to the court decision. See, e.g., Soldona v. State, 466 S.E.2d 655 (Ga. Ct. App. 1996) (insufficient evidence claim) and People v. Garrett, 36 Cal. Rptr.2d 33 (Ct. App. 1994) (evidence admissibility challenge). See also Kirkendoll v. State, 945 S.W.2d 400 (Ark.Ct. App. 1997) (defendant charged with stalking claimed failure of waiver of right to counsel in pro se defense). Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 43 I unrepresentative of stalking concerns were excluded; these included, for example, threats and verbal abuse of police officers.'o' Also excluded were cases where stalking was not the most 0 serious charge. Finally, the review excluded cases that despite their legal nomenclature as haraksment or threats really involved disorderly conduct in a public forum.'o2 Stalker-Victim Relationships. The review first looked at the relationship between the stalker and victim. This review found that the most common type of stalking case among those reported here involved non-intimate, non-dating relationships: 67 of the 158 stalking cases for which information was available. This category included 14 cases involving stranger stalking; the other non-partner cases involved relationships such as mother, neighbors, ex-employees, psychiatrist-patient,judge-litigant, and landlord-tenant. The next most common category involved 5 1 couples who had had a dating relationship, including several couples who had cohabited before splitting up. In many but not all states, stalking among former dating partners can be classified as domestic violence for such purposes as obtaining a court order of protection. The last category involved victims who were separated or divorced from their spouses; this - __ -. totaled 40 cas-es.. - .. _- - . - . - - - ._-- Constitutional Law Challenges. While a few state stalking laws have been struck doWn as unconstitutional, this is a small minority. Where state stalking or related statutes were struck, the law typically lacked an intent requirement, either to create fear or to do those acts that resulted in victim fear.'03 Double jeopardy claims were another common challenge, most often where there had been a previous finding of contempt of court. Rulings varied according to the factual differences among these cases as to whether the criminal offense and the contempt offense shared common facts to prove their cases. lo' 0 See, e.g., Robinson v. State, 615 So.2d 112 (Ala. Ct. Crim. App. 1992). Other examples of excluded cases include People v. Thomas, 148 Cal. Rptr. 52 (Ct. App. 1978 ) (threat against witness testifying at future trial) and People v. Minnirani, 178 Cal. Rptr. 172 (1982) (political terrorism threat). See also State v. Milner, 571 N.W.2d 7 (Iowa 1997) (arson threat against employees of state unemployment insurance ofice who had denied defendant claim to benefits) and Stare v. Mortimer, 641 A.2d 257 (NJ 1994) (bias-motivated harassment). See, e.g., Seattle v. Camby, 701 P.2d 499 (Wash. 1985) (en banc) (intoxicated customer of restaurant, on being asked to leave, threatened doorman of restaurant). See generally, Colaurn' v. Franklin, 439 U.S.379,395 (1979) ("This court has long recognized that the constitutionality of a vague statutory standard is closely related to whether the statute incorporates a requirement of mens rea"). Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 44 Harassment laws that lack any "fighting words" restriction were the most vulnerable to constitutional challenge. But telephone harassment laws were not required to have such a limitation because of their focus on punishing invasions of privacy. For much the same reason, telephone harassment and threat laws commonly focus on the intent of the caller to harass or threaten, rather than the victim's response to these messages; a few states do not require actual fear to result. Harassment and threat laws also apply to situations where a third party intermediary to the communication is the one who informs the victim of the threat or harassing communication. Statutory Construction. The review of court decisions identified two statutory interpretation issues: the interrelationship between the stalker's reckless behavior and victim's reasonable fear, and cyberstalking. Statutory interpretation of threat laws has led some courts to - - equate reasonable fear with reckless behavior. Hence, specific intent to create fear is not required under this interpretation, merely a general intent to do the acts constituting reckless behavior, such that intent can be legally imputed ("should have known" analysis). Since a reasonable or prudent person test is used to judge reckless behavior, any resultant fear is also el reasonable. Despite the growing popularity of electronic communication, there are very few reported cases involving these mediums. Media reports of e-mail stalking cases are, however, growing.'04 Although there are a few cases ruling that cyberstalking behavior is not covered by the state telephone harassment law, the basis of such rulings is the explicit limitation in these laws to communication by telephone. Hence, the laws do not permit judicial expansion of the specific statutory language to other forms of communication. No case was found limiting stalking laws to non-electronic communications. In view of the broad language typically used in stalking laws, the case review did not, therefore, lead to any conclusion calling for amending stalking laws to explicitly include electronic or cyberstalking. See UNITED STATES DEPARTMENT OF JUSTICE, CYBERSTAUUNG: A NEWCHALLENGE FOR LAWENFORCEMENT. A REPORT FROM THE ATTORNEYGENERAL TO THE VICE PRESIDENT (1999) [hereinafter CYBERSTAWUNG]. See also case example supra. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 45 Continuing Legislative Action State legislators are constantly amending their anti-stalking laws, usually to increase the 0 penalties for stalking, although a few states have had to change their laws as a result of court rulings. In toto, 46 state legislative bodies enacted stalking-related laws in the period 1998-2001 (only Alabama, Alaska, Missouri, Wyoming, and the District of Columbia did not enact stalkingrelated legislation in that period). In 1998, leg'islatures in 11 states passed laws amending their stalking and related criminal laws, including two states that passed new stalking injunction laws. In 1999, legislatures in 26 states passed laws relating to stalking. In the legislative year 2000, legislators in 20 states enacted 27 stalking-related laws. As of August 2001,27 states had passed over 40 separate laws relating to staking and related crimes. Exhibit 2 provides a state-by-state summary of new stalking laws in this four-year period by type of law. Capsule descriptions of the laws are provided in Appendix 1. - - It should also be noted that many laws directed at helping victims of domestic violence may also be applicable where stalking behavior is related to domestic violence. For example, laws providing for full faith and credit to out-of-state protective orders may apply either to orders ' prohibiting stalking as an element of domestic violence or to anti-stalking orders themselves. Similarly, laws providing for address confidentiality for victims of domestic violence may be used by stalking victims where the stalker is a former domestic partner under the state domestic violence law. Hence, this list of new stalking legislation is not all-inclusive. It is striking, however, that notwithstanding all this activity, only a few of the enactments are directed at the basic probfem of the inadequacy of the penalties provided for stalking. Nor have most state legislators directed their attention to related laws, such as civil orders of protection and their enforcement, arrests without warrants, or training requirements for law enforcement and prosecution. Perhaps not surprisingly, since it was the first state to enact a stalking law, California has the broadest set of anti-stalking laws, including felony penalties, warrantless mest, civil orders of protection, and stalking training availability. California has also stressed stalking laws' implementation, especially through its use of federal STOP funds under the Violence Against Women Act. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 46 No other state has acted as extensively as California. In some stat&, it is possible' that the failure to implementation these laws has limited even the advocates' awareness of the problems posed by the laws themselves. Where there are no significant efforts being made to implement existing laws, changes in the laws may well have a lower priority than prekng for implementation. In other states, where enactment of a stalking law was in reaction to specific incidents involving stalking, there may be a general inclination to think the problem is fixed. Advocates for legislative action may well find it dificult to convince legislators otherwise in the i absence of either new horror stories or empirical data such as is presented here to show that the problem of stalking has not been fixed. Exhibit 2. 1998-2001 Stalking,Legislation by Type of Law and by State I Type of Law Stallcingcrime defmitiodpenalty (24 states) State and Year of Enactbent AZ (1998,2001), CO (19991, FL (1999), GA (1998), IL (2000), IN (2001), IA (1998), KS (1999), KY (1999), LA (1999,2001), MS (2000), NE (1998), NV (1999,2001), NH I (2000), NJ (1998,1999), NY (1999), OH (1998,1999,2000), PA (1999), SC (2001), TX (2001), UT (2000), VA (1998,2001), WA (1999), WV (2001) CA (1998), CO (2000), GA 2ooO), IL (1999,2001) LA C2001hME (?QOl),MI~1999), MN (2000), NH (1999),-NJ (2001), NC (1999,2000), ND (1999), OK (2000), OR (2001), PA (1999), RI (2001), SD (2001), TN (2001), TX (2001), VT (2000), WA (1999) Cyberstabg 721 states) ~- Harassment crime (11 states) AZ (1998), HI (1999), IL (1999), ME (2001), MA (2000), MN (2000), MS (2001), NV (2001), OR (1999,2001), PA (1999) SC (2001) Civil injunction authority AZ (1998,2000,2001), AR (2001), CA (1999,2000), CO (1999,2000), GA (2001), HI (15 states) (1999), IN (2001), ME (2001), NE (1998), NV (2001), OH (1998), UT (2001), VA (1998, 1999,2001), WA (1999,2000,2001), WI (2000) Criminal protection order CN (1998), GA (1998), IA (1998), RI (1998), SD (2000), UT (1999) (6 states) Criminal procedure I (10 states) Nameladdress confidentiality program (5 states) Offender treatment (2 states) I CA (1999), IA (1998, 1999), LA (1999), ME (2000), M D ( 1998), NV (1999), N H (1999), VA ( 1998) CA (2000), MI (2000), NJ (2001), VT (2000,2001), W A (2001) GA (1998), LA (2001) --1 -~ Other related crimcs [ 10 states) DE (2001), ID (1999), IL (2001), IN (2001), KY (2001), OK (1999), PA (1999), SC (2001), TN (2000), TX (2001), W A (2000) %her laws IL (2001), KS (2001), LA (1999), ME (1999,2000), NE (1999), MI (1998), NM (2001), RI (2001), SD (1999), UT (2000), VA (1998,2001) ;11 states) Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 47 B. e Implementation of State Stalking Laws Two sources of information were used to determine the extent of anti-stalking efforts. First, ILJ twice conducted a national survey of police and prosecution agencies. The first survey was conducted in late 1998 and early 1999. The second survey took place two years later, 20002001. Second, ILJ surveyed STOP-funded agencies to try to identify additional anti-stalking I1 agencies, especially among non-justice system practitioners. Because of time limitations, state agencies disbursing hnds under other federal aid programs, most conspicuously the Victims of Crime Act,'" were not surveyed. National Surveys of Police and Prosecution Agencies J Two national surveys on stalking were conducted. The first survey of 204 law enforcement agencies and 222 prosecution offices in jurisdictions with a population over 250,000 was conducted by mail in November 1998. The survey briefly asked what special efforts the agencies had undertaken against stalking, including special units, training, or written policies and procedures.'06 The survey had about a 60 percent response rate to the first mailing. A second mailing was sent out to the non-respondents, resulting in a final response rate of over 80 percent. 1998 Survey. The survey found the following: All but seven police agencies assign stalking cases to either their detective unit or a specialized unit, usually the domestic violence unit, or to a combination of crimes against persons detectives and domestic violence inve~tigators.'~'A few agencies assign stalking cases to their sex crimes unit. Only one law enforcement agency had a specialized stalking unit. Most prosecution offices similarly assign stalking cases to their domestic violence unit. A significant minority (1 5 percent) split stalking case duties between the domestic violence unit and another unit, usually the general trial unit. Another important pattern was for stalking to be handled by a special unit that is 'Os '06 lo' 42 U.S.C. 8 10601 etseq. The short, six-question survey was printed one a single sheet of paper (front and back) and was designed to elicit a high response rate (which it did). This finding indicates there have been significant changes in the way law enforcement agencies respond to stalking since stalking laws were first adopted. A survey of police agencies conducted in the early 1990s conducted by the Police Executive Research Forum reported that "[dlomestic violence and crimes against persons units are rarely involved" in investigating stalking incidents. MODEL ANTI-STALKJNG CODE,supra note 4 at 39. This change probably reflects the greater emphasis now placed on domestic violence by law enforcement rather than any increase in their perceptions of the seriousness of stalking. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 48 I < responsible for prosecution of domestic violence, sex crimes, and specialized cases such as child or elder abuse. Seven offices have either a specialized stalking unit or an assistant or deputy prosecutor who specializes in stalking cases. Stalking training for police recruits is typically part of $omtstic violence training. About 13 percent of the agencies had specialized training in stalking that was independent of domestic violence training, although several offered both types of training. Less than 15 percent of the police agencies offered no stalking training to recruits. Significantly, over one-third provided no in-service stalking training to their officers. Slightly more than half reported in-service training on stalking is provided to all detectives or to special unit detectives. Most prosecutor offices (82 percent) provide some training on stalking. About 25 percent of the offices provide in-service stalking trdning to all their attorneys, and 17 percent provide stalking training to new attorneys; most of the latter agencies provide both types of training. Over one-third of the offices limit their in-service training to special unit prosecutors. Ten percent of the prosecution offices said that the only stalking training their attorneys get is from outside training sources. Fifty-seven percent of police agencies have Written policies and procedures for handling stalking cases, most often as part of their domestic violence protocols. Only 11 agencies have separate stalking protocols. A slightly smaller proportion (50 percent) of prosecutor offices siid they had Written policies for pr6sZuting stalking cases. Only six ofices have separate stalking protocols, including one office that also had a domestic violence stalking protocol. The written comments provided by the respondents were very illuminating. They indicated, for example, that prosecutors in several states have significant problems with the statutory "credible threat'' requirement. At the same time, other prosecutors in the same states did not report such problems. The reasons for this difference are not clear but may be related to different methods of police/prosecution coordination in stalking cases. The need for training was expressed by many respondents and is implicit in the comments of others. Among the several comments provided, especially notable was one prosecutor's comment that his state's stalking law required a considerable degree of proof but provided only a misdemeanor penalty for stalking. This disparity between effort and reward meant that his office would rather charge the constituent elements of stalking, including protection order violations, where the aggregate sentencing would far exceed that available under the stalking law, yet the case would be far easier to prove. Many other prosecutors made similar comments. A second trend in these comments was the increased awareness among law enforcement agencies that nonStalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 49 I intimate stalking was different than stalking directed at intimates or former intimates. This seemed to be the reason that nearly a dozen agencies shifted to shared investigative responsibilities between the domestic violence detective unit and other detective units. Conversely, many prosecutor comments suggested that experience in prosecuting intimate stalking cases was very relevant to prosecuting non-intimate stalking cases. Nonetheless, it might also be inferred that many law enforcement and prosecutor agencies do not see that these two types of stalking cases have different dynamics and may require different handling strategies. The likely reason is that the agencies see few non-intimate stalking cases, typically because they are not looking for them. 2000 Survey. A replication of the first national survey was conducted in November I 2000. The survey mailing was identical to that in 2000, except that the municipal prosecutor agencies that had reported no responsibility for handling stalking cases were dropped from the survey. One hundred sixty-nine (of 204) law enforcement and 183 (of 224) prosecutor agencies responded to the survey, for a combined response rate of 82 percent. Thirty-five agencies - 0' respondingjn 1998did not do so in 2000. In comparison to the 1998-99 findings, Law enforcement agencies continue to assign stalking cases to non-stalking specialist units, most commonly the investigative division and secondarily to the domestic violence unit. Only three agencies reported that they rely on patrol officers to investigate stalking cases; however, another 19 agencies report that they split responsibilities in stalking cases between patrol and an investigative unit, with patrol officers usually handling either the preliminary investigation or low threat cases entirely. At the same time, there was increased reliance on having domestic violence unit detectives investigate stalking directed at intimates or former intimates, and on other detectives handling stranger and acquaintance stalking (22 percent of agencies split stalking case responsibilities in 1998 and 25 percent in 2000). In toto, nearly 40 percent of law enforcement agencies assign stalking cases to their domestic violence units, either exclusively or in conjunction with other detectives. Between 1998 and 2000, the number of prosecutors with a specialized stalking unit or prosecutor increased to 10 offices. Most continue to assign these cases to their domestic violence unit (70 percent). The number of stalking specialists in the domestic violence units increased, however, from two in 1998 to four in 2000. One other office reported having a stalking specialist prosecutor in another division, making a total of 15 agencies with stalking prosecutors, with a few Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 50 other smaller offices reporting that their sole domestic violence prosecutor also was trained to handle all stalking cases. This is a significant increase from the seven such offices reporting stalking prosecutors in 1998. Surprisingly, 38 offices said they had no special unit or staff for handling stalking cases, up slightly from two years ago. Training on stalking showed slight improvement. Indeed, law enforcement agencies providing no stalking paining to recruits actually increased (3 1 agencies in 2000 without such training versus 23 in 1998'08). There was a slight proportional gain in law enforcement agencies that include stalking training as part of their domestic violence training for recruits, from 71 to 73 percent. The proportion of agencies providing specialized stalking training did not change (13 percent). Prosecutor training actually worsened in some ways. The number of offices reporting no stalking training increased to 36 (2 1 percent versus 18 percent in 1998). The proportion of offices training new prosecutors on stalking remained constant, 17 percent. Twelve percent of prosecutors trained their staff on stalking issues only when external funds were available to go to conferences and the like; compared to 10 percent in 1998. Sixty-two percent of law enforcement agencies reported having policies and procedures related to stalking, most commonly as part of their domestic violence protocols, an increase from 1998 when 57 percent reported having such policies. Fifty-three percent of prosecutors reported having stalking policies and procedures, again a small increase from the 50 percent two years earlier. For both types of agencies, only a small number had stalking policies and procedures separate from their domestic violence protocols (nine law enforcement and seven prosecution agencies). The 2000 survey also asked about funding of special unit or staff operations. Twenty-two percent of the prosecutors said they had received federal funds for anti-stalking operations; only 5 percent of the law enforcement agencies reported receiving such funds. Prosecutors (27 percent) were also more likely than law enforcement agencies (1 3 percent) to fund special antistalking staff with their own funds. An unanticipated finding from this question is that the number of law enforcement agencies reporting funding special stalking units or staff is much higher than reported directly. Thus, 36 agencies said they had funded special stalking IO8 A yet unpublished ILJ survey of state Police Officer Standards and Training agencies that regulate recruit training standards showed that in 2000,35 states required such training. Of these, only six states devoted any significant amount of time to this training (1 hour or more). The remaining POST agencies included stalking as an element of some other training, e.g., domestic violence. The survey fmdings for in-service training are even more dismal; only 17 states offer in-service stalking training to law enforcement officers in their states. See also Graham Farrell, David Weisbud& Laura Wyckoff, Survey Results Suggest Needfor Stalking Training, 67 POLICECHIEF (at. 2000 at 163), who report that only 18 percent of police officers surveyed in a large Northeastern city defined stalking in a manner consistent with the state criminal law definition. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 51 I investigative staff, more than twice the number responding to the survey question about which unit handles stalking cases. Conversely, 1OS prosecutor offices indicated that they had funded a stalking prosecutor position, whereas when asked about which unit handled these cases, 143 prosecutors indicated that stalking cases go to a specific unit. It is likely that this difference reflects the near absence of any stalking cases in many of the prosecutors' offices; hence, their statements about which unit handles stalking cases is more theoretical than real. It is also quite likely that some significant proportion of the 108 prosecutor and 36 law enforcement agencies that said they had hnded a stalking position were not referring to dedicated staff but to staff that would handle such cases should they occur. I The written comments that the survey respondents provided often reiterated the 1998 survey complaints about the difficulty of meeting the statutory defmitior, of stalking. However, it seemed as if increased experience with the stalking laws had broadened the prosecutors' concerns about their states' laws. Of particular concern were the statutory requirements to prove specific intent, a pattern of conduct linkage to specific intent to cause victim fear, and the level of victim fear required (serious bodily injury). Several prosecutors added their voices to the 1998 e complaint that the stalking law penalties are too weak in view of the difficulties of prosecuting the cases. One law enforcement agency added that the resource demands for investigating stalking were too high to justifj investigating a misdemeanor offense. Another voiced a similar complaint when referring to prosecutor practices in plea negotiations. Other comments included the need for training law enforcement, prosecution, advocates, and especially the judiciary. Law enforcement was said also to need special training on identifying stalking cases. In sum, the 2000 survey responses did not show any great increase in either law enforcement agencies' or prosecutor agencies' concern for stalking crime. Indeed, the lack of concern for stalking can best be inferred from the report that only 58 of the 152 law enforcement agencies responding to the survey even had statistics on the incidence of stalking in their jurisdictions. But even where statistics are gathered, that is no guarantee of aggressive responses to stalking. Thus, two major jurisdictions in the same state with populations approximately equal said that the number of stalking complaints received in 2000 went from a low of 22 to a high of Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 52 i 200. A third jurisdiction in the same state with three times the population of the other two *e jurisdictions reported receiving 260 stalking complaints in 2000. l The bottom-line conclusion that comes from these surveys is twofold: There is increased awareness among law enforcement and prosecutors of the significance of stalking crimesi To some degree, prosecutors have been better able than law enforcement agencies to develop staff expertise with stalking cases. Much more needs to be done by law enforcement and prosecutors. Only a small number of agencies have staff dedicated to stalking case investigation and prosecution. Training on stalking issues is badly lacking. A significant number of agencies equate stalking with domestic violence, failing to recognize that acquaintance and granger stalking is common. Other Research By and large, the most significant evidence available about local law enforcement actions is the negative evidence stemming from the low official statistics on stalking presented supra.'09 Inferences about the lack of official responses to stalking in most jurisdictions are further reinforced by the failure of most federal, state, and local jurisdictions to collect (or require 0 ' collection of) statistics on stalking, as reported in the 2000 national practitioner survey. This inference is supported by at least one research study. Tjaden and Theonnes reviewed 1,785 domestic violence complaints taken by police in Colorado Springs, Colorado, from April to September 1998. The review found that 16.5 percent of the police reports indicated on their face that stalking was a part of the domestic violence being complained of. Nonetheless, only one of the 285 complaints alleging stalking facts resulted in the filing of a stalking charge. Instead, police typically filed charges of harassment or violation of a protective order."' IO9 'lo See supra notes 37-43 and accompanying text. Tjaden & Thoennes, supra note 37 at ii-iii. Since that report was prepared, the department's multi-jurisdictional DVERT team, responsible for handling the most dangerous domestic violence cases, made a policy decision to stress stalking cases and made over 40 stalking arrests in 2000. In 2001, DVERT expects to make about 70 arrests for stalking. Personal communication,Howard Black, DVERT supervisor. DVERT, however, only accepts domestic violence cases involving the most serious threats to the victims; nondomestic violence and lesser threat cases that have a stalking component still may go unrecognized. Moreover, the research study was not designed to look at the incidence of stranger and acquaintance stalking. Since the police department makes few arrests for stalking outside of DVERT, there may also be problems with patrol officers recognizing these latter stalking cases. Farrell et aL, supra note 109, report that the likelihood of an officer handling a stalking case increases threefold when that officer has previously handled a stalking case. Whether this is because the oficer is now more sensitive to stalking cases or there is some other causal factor operating is not clear. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 53 Federal Enforcement Actions 0 Federal jurisdiction in stalking cases arises fiom the Interstate Stalking Act of 1996, as amended."' The law makes it a federal offense to cross state lines with the intent to place another person in fear of death or serious bodily injury, or to use the mail or any other method of communicating across state lines for that purpose. Until 2000, the federal law was limited to physical movement cases,"* limiting the num6er of possible interstate stalking cases. Since 1996 there have been 43 indictments under the act; the recent amendments to the law that took effect only nine months ago have not yet affected the filing rate.'13 STOP Funding: A Survey The STOP block grant program established by the Violence Against Women Act of 1994 explicitly provides for fbnding of stalking projects; stalking is one of seven legislative purpose areas specified in the act. Stalking has not been a priority for most of the state offices administering the STOP funds. A review of the financial reporting forms fiom the state STOP - projects. agencies identified only 18 subgrants that had possible stalking 0' There is good reason, however, to believe that the reports significantly underestimate the number of STOP-funded projects that deal with stalking cases. The reports are based on subgrantee project proposals; project activities are likely to vary considerably once they begin operations and have to meet victim demands. Because stalking cases are, in fact, much more numerous than many subgrantees understood when submitting proposals, they are seeing many more stalking cases than originally estimated. The federal reporting program does not, however, track changes in project design or objectives. 'I' 18 U.S.C.5 2261A. The interstate-stalkinglaw was amended in 2000. See Victims of Trafficking and Violence Prevention Act of 2000, P.L. 106-386,114 STAT.1464 (2000). Section 1 107 of the Act amended 18 U.S.C.8 2261A to add the latter prohibition. Personal communication,Margaret Grobun, VAWA Specialist, Executive Office of the United States Attorneys and Assistant United States Attorney, District of Maine. These statistics are based on an informal hand count of interstate stalking indictment cases, since the computerized information system for the Department of Justice may be inaccuratewith respect to low-volume cases. The recent VIOLENCE AGAINSTWOMENOFFICE, STALKING AND DOMESTIC VIOLENCE REPORT TO CONGRESS 42 (2001), reported that as of October 2000 there had been 35 prosecutions against 39 stalkers brought by the Department of Justice. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 54 As a supplement to the agency survey, ILJ undertook a limited telephone survey of state STOP offices in about 40 states to Verify that stalking was a project component and I Identify other projects that contain a stalking element, even if not officially reported as such. All but two of the offices called were cooperative in identifying anti-stalking initiatives. Once a stalking project was identified by state officials, further telephone calls were made to verify that stalking was an important project component. Not all state STOP offices were able to identify stalking fbnded projects. Hence, the information reportedthere is not a census of STOP funded stalking projects. i The telephone survey identified a total of 38 STOP-funded projects directed at stalking in 16 states. These include seven projects to improve investigation of stalking, nine projects to improve prosecution of stalking crimes, 12 projects to help victims of stalking, and 10 projects primarily providing training or developing protocols on stalking. Only a few of these projects were already identified in the mail survey of large jurisdiction law enforcement and prosecutor agencies. See Appendix 2 for a complete list. C. Summary All 50 states and the District of Columbia have enacted anti-stalking legislation. Although there are great inconsistencies in these laws' definitions of stalking and in their sentencing provisions, the laws provide an important innovation in the criminal law. Unfortunately, many of the laws lack important components, most significantly penalties commensurate with the seriousness of the crime. Furthermore, most local jurisdictions have not established special anti-stalking units and indeed often do not even track stalking incidents to determine their fiequency. Nor are law enforcement officers trained to recognize stalking cases when complaints constituting stalking are reported. Thus,in many states, the stalking laws are of little practical value for most stalking victims. Even greater problems exist with respect to civil stalking laws, specifically those authorizing the issuance of court orders of protection against stalkers. As the Oregon statistics Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 55 indicate, such orders, where available, can be widely ~tilized.”~ As of January 2001,21 states a did not authorize issuance of such orders. That is not to say there are no positive developments. In the past qve years, a number of agencies have established specialized anti-stalking units; these include law enforcement, prosecution, and victim advocatdservice agencies. The next section of the report discusses the lessons to be learned from these units, especially as they constitute a model anti-stalking 0 ‘I4 Supra note 45. See also Dussuyer, supra note 45. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 56 c IV. Evaluating- Stalking Laws' Effectiveness: What Works? This study originally intended to examine the effectiveness of the new anti-stalking laws to determine whether stalkers were being arrested and convicted and whether victims felt safer. As the study progressed, that objective was changed to one of documenting best practices among anti-stalking practitioners. This section of the kport explains why the change in research focus was made and how best practices can be used to measure effectiveness at the local level. A. Determining Effectiveness of Stalking Laws and Programs The effectiveness of the new stalking laws has not been studied. Although a few law il review articles have suggested that the laws are faulty, their conclusions are based primarily on anecdotal reports rather than empirical studies.'15 Thus, it would seem that there is a significant need for such a study. Unfortunately, a study of the impact of the anti-stalking laws cannot be directly done for three reasons: The absence of any legislative consensus on what a stalking law should be like (and what behaviors it should criminalize) The lack of any uniformity in the implementation of stalking laws across and within states The absence of agreement on quantitative performance measures that can be used to evaluate stalking laws' effwtiveness. In addition, even a qualitative assessment of anti-stalking law implementation cannot be done because performance standards, such as those used in other areas of the criminal law,'I6 do 'lS '16 See, e.g., Gene Barton, Taking a Byte Out of Crime:€-Mail, Harassment and the Ineficacy of Existing Law, 70 WASH. L. REV.465 (1 995); Susan E. Bernstein, Living Under the Siege: Do Stalking Laws Protect Domestic Violence Victims? 15 CARDOZOL. REV. 525 (1 993); Wayne E. Bradburn, Jr., Stalking Stahrtes:An Ineflective Legislative Remedy for Rechfiing Perceived Problems With Today's Injunction System, 19 OHIO N. U. L. REV. 27 1 ( 1992); Jennifer L. Bradfield, Anti-StalkingLuws:Do They Adequately Protect Stalking Victims?2 1 HARV. WOMEN'SL.J. 229 (1 998); Nanette Diacovo, Calfornia's Anti-Stalking Statute:Deterrent or False Sense of Securiy, 24 S.W.U.L. REV. 389 (1995). See also James T. Tucker, Stalking the Problems with Stalking Laws: The Effectiveness of Florida Statutes Section 784.048,45 FLA. L. REV.609 (1993) (reporting on a survey of law enforcement agencies that describes their response to the newly enacted stalking law, which was found to be deeply flawed). As the review of state legislationsupra indicates, many state stalking laws do have significant flaws. This does not exclude the possibility, however, that the better drafted laws have had positive effects. This includes the since-amended Florida law that was the subject of Tucker's research. E.g., the American Bar Association's volumes, CRIMINALJUSTICESTANDARDS. See more generazly, NEAL MILLER & PETER OHLHAUSEN, COMPENDIUM OF STANDARDS FOR INDIGENT DEFENSE SYSTEMS (2000) Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 57 not exist. The absence of performance standards does, however, present ah alternative evaluation c strategy. Stalking Legislation Variations I Evaluation of stalking laws' effectiveness is constrained by the fact that there is no nationwide anti-stalking law. Instead, there are 52 different laws (50 states, the District of Columbia, and the federal law). Of necessity, evaluation of stalking laws must be at the state level. But conclusions about a single state's laws must be limited to that state's laws. Generalization from one state to another, even if the laws are identical, is inappropriate because laws are not selfexecuting. Even identical laws have very different implementation1patterns that determine how the laws are used and, ultimately, hbw effective they are. - - ImplementationVariations The same qualifications are true within any single state. No state's laws are implemented uniformly across the entire state. Some local jurisdictions enforce the law aggressively, while others hardly Wforce it at all. The question, then, is which sites should be selected foran evaluation of the state law. One strategy is to select jurisdictions with aggressive enforcement. 0 The reason is that aggressive enforcement can best inform policymake; of the maximum effectiveness of the new law; failures are to be expected and are usehlly studied only when the law's effectiveness is already known and information is needed on why the law is not uniformly effective. Selection of aggressivejurisdictions also increases the probability of there being a sufficient number of cases to allow statistical conclusions to be drawn about important process factors, such as law enforcement-prosecutor coordination. This strategy does not necessarily tell what barriers need to be overcome for broad-scale implementation to occur. It does suggest whether efforts to overcome those barriers would be worthwhile. Generalization of findings from this evaluative approach would, however, require simultaneous studies in several states. Furthermore, the practicality of cross-jurisdictional evaluation of several states' stalking laws is highly problematic. It is impossible to make before-and-after comparisons of the incidence of stalking and of the way the local justice system responded to complaints of stalking (presenting a review of nearly two dozen separate sets of standards, including detailed prescription of the Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 58 behavior before there was a stalking law. Until the stalking law was enactkd, there was no "before" counting of either measure. Performance Measures of Success I The most important barrier to evaluating stalking laws' effectiveness is that there are no agreed-upon measures today of agency performance in dealing with stalking cases. Conventional evaluative measures to test program success or failure include process measures such as Jncidence of stalking reports, Number of arrests, Number of stalking cases filed by the prosecutor, ahd Number of civil protection orders ordered by the court, and outcome-related measures such as Number of convictions and Incidence of related crimes (e.g., stalking ending in homicide). These latter evaluative criteria may be supplemented by qualitative reports on victim . . e - perceptions of improved quality of life or increased safety. These measures are incomplete in the stalking context, however. The most important measures, the case "outcome" measures, are difficult to interpret. Even the traditional measure of prosecutor performance, the case "win" ratio, is difficult to use because there are no similar cases that can be used as a baseline. It is impossible to know, for example, whether an 80 percent win rate represents creaming of the simplest cases, while rejecting hard cases, or is the result of indepth investigations and dedicated prosecution. The nearest types of cases, harassment and threat, require, on average, much less pretrial investigative effort or other case preparation. Most significantly, some stalking cases are not filed, much less prosecuted, because the case was resolved informally or the danger to the victim was so great that other measures had to be taken (this alternative is especially applicable in states with low penalties for stalking). Other statistics, such as those for stalking-homicides, are similarly difficult to interpret because these are low-probability cases. As such, variations in their numbers are just as likely to actiyities expected of defense counsel). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 59 be the result of copycat crimes as of any other factor. Even victim reports on quality of life or perceptions of safety have significant threats to their validity beyond the obvious argument against using subjective indicators. The real problem with these reports is the absence of any defined universe fiom which a sample of victims can be selected. Obviously, stalking victims who are not known to the police or prosecutor are not available to be sampled. Furthermore, even among those who are known, follow-up to find them after their case has been completed is a major task and one that often leaves major gaps in completeness. Most importantly, impact evaluation requires a base for comparison to understand the meaning of both the process and outcome statistics. But as already noted, time series comparisons are not possible because of the lack of "pre" statistics."' That leaves only comparisons across jurisdictions. Such comparisons are highly suspect since differences between jurisdictional demographics and agency policies and procedures can easily affect the validity and reliability of any differences in reporting statistics."* Effectiveness Evaluation Alternative - . 0 - -- _ _ - -_ - .. - __ - __ -_ Efforts to implement the new stalking laws are still few in number, and those that do exist _. .. . . . . . - have only a limited life span. There has been no time for practitioners even to know in any detail about what other agencies are doing. There has been no opportunity for them to reach agreement on what they should be doing. This study has, however, is able to describe for the first time what stalking practitioners are doing across the country. As such, the research is able to identify many areas of common agreement among the diverse practitioners about their practices and what they recommend that others emulate. Together, these essentially descriptive case studies can form the basis of future evaluations. In other words, the best practices identified by this research constitute a model anti-stalking initiative against which jurisdictions can be measured. Such a procedure also sets the basis for hture research that matches statistical measures of performance with the degree to which the agencies match the ideal model of anti-stalking efforts. Such 'I7 'I8 It is likely that cases now charged as stalking were previously charged under harassment,threat, or even trespass laws. But there is no way to know the degree to which this occurred. For example, case filing statistics in a jurisdiction with aggressive policing of stallung may undercount the true filing numbers because the prosecutor is able to obtain consecutive misdemeanor penalties in lieu of a low-level (as they learn what the felony charge. Over time, law enforcement will also begin to file similar charges prosecutor's policy is). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 60 I / matching might be used to determine which elements of the model prograin are most important e to anti-stalking efforts' success. Such research is not possible at present, however, because many agencies are still experimenting with their anti-stalking efforts; there is no clear "treatment" being used that would match up with available performance statistics. I 1 B. Implementing Anti-Stalking Programs: Toward a Best Practices Model The effectiveness evaluation was refocused on identieng best practices among jurisdictions with aggressive anti-stalking initiatives."' Fieldwork to examine how well stalking laws are being implemented was conducted in eight sites: three prdsecutor offices, three law enforcement agencies, one combined law enforcement and prosecution multi-agency unit, and one victim services agency. At each site, researchers interviewed experienced investigators, prosecutors, and advocates in the specialized unit. In addition, several specialized training sessions on stalking intervention and prosecution were visited, allowing for discussions with both the trainers and other stalking-experienced attendees. Additional telephone discussions were heldwith numerous practitioners during the two national surveys-and in response-to inquiries -- a from practitioners who had learned about the study from other sources,,such as the Internet.120 This section of the report first summarizes the fieldwork findings and then sets out the inferential basis for them through a detailed description of what are the best practices used by the agencies studied and by other agencies from whom training materials and practice manuals were gathered. The detail with which these findings are presented can be used by agency managers, other practitioners, and especially trainers to guide improvements in how stalking cases are 'I9 I2O Compare, J. HARRIS, AN EVALUATlON OF THE USE AND EFFECTIVENESSOF THE PROTECTION FROM HARASSMENT ACTOF1997 (Home Office Research Study 203) (2000), which also takes a process evaluative approach in selectjurisdictions to what is a nationwide anti-stalking law. As used here, "best practices" means that there is general consensus among practitioners that the specific activities described constitute desirable actions. This is, of course, a far different standard thanjudging best practices on the basis of empirical study. A somewhat different approach to evaluation w a s taken by Dussuyer, supra note 45. Her evaluation of the effectivenessof stalking laws fust used police and magistrate responses to a survey to l e a how the criminal justice system has responded to the new stalking law and then asked for their opinions on the lads effectiveness. Recommendations for changes in the law were also obtained. The study's key statistical fmding was that judicial intervention was thought to have been a significant factor in 40 percent of all cases where the stalking stopped and that in only 12.7 percent of the cases did stallcing not cease. Id. at 7.1. The Institute for Law and Justice has considerable information posted about stalking, as well as other violent crimes against women, at its website (www.ilj.org/stalking/index.htm). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. e 61 , handled. For this reason, the findings are presented according to the way in which stalking cases e progress through the justice system, from case identification to victim safety planning through correctional custody or supervision. I Findings: Implementation Overview Research findings from these sites included the following: 0 Special stalking units develop the necessary expertise in identifling, investigating, and prosecuting stalking crimes by working ongoing crimes. Staffing of special units is still experimental. Often, a special unit shares jurisdiction over stalking crimes with other agency units, taking only the most serious cases. Special unit staff ark highly qualified and motivated, often working unpaid overtime to handle both their caseload and community education and training. The special units have become highly expert at investigating and prosecuting stalking cases and helping victims. The many new practices they have developed provide models for other agencies to copy. . 0 0 Special unitsme more likely to join-with other-justice-andvictim-services- .agencies in a coordinated community response. Such coordination enhances the unit's problem-solving capabilities and provides critical wsources for ensuring victim safety and well-being Failure of non-special unit agency personnel to identify stalking behavior is a continuing problem. All the special units devote considerable resources to training other criminal justice personnel and to educating the community. The field review also showed that expertise with stalking cases is critical because such cases often present unique elements. These include the following: Stalking cases are hard to identify at the outset. Because stalking involves a course of conduct, complaints to law enforcement about a single incident often do not reveal that stalking is occurring. Often, responding officers must probe the victim's description of what she is concerned about before the stalking nature of the complaint becomes clear. Stalking is a prospective or future-looking crime, while most crime investigations deal with past crimes. Investigation of stalking typically requires collection of evidence of stalking from the point when the victim reports the stalking to law enforcement; in most cases, the victim's report of prior stalking behaviors cannot be confirmed or corroborated by independent sources. Hence, proof of the Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 62 stalking behaviors must come from hture actions of the stalker. This further implies that the victim and the investigators must try to manipulate the stalker in his behaviors to facilitate the collection of evidence. The victim's testimony is usually not enough to prove stalking. Corroboration is needed. Yet, because the victim is often alone when the stalking occurs, direct corroboration may not be available. Hence, law enforcement often depends on the victim for evidence collectipn. This could include taping phone messages or conversations or retaining letters or presents from the stalker. Corroboration is also needed to prove the victim's actual fear. Corroboration of her state of mind includes evidence that shows that the victim asked others for help in dealing with the stalker (such as having coworkers screen her calls at work or notifying apartment building personnel about the stalking) or proof of a change in telephone number. Threat assessment and management to protect victim safety are parallel concerns. At the same time that the investigation and prosecution are occurring, officials must also ensure victim safety. Thus, threat assessment and management are an integral part of the agencies' stalking response. This task is made especially complicated where the stalking suspect displays signs of mental illness or personality disorder (e.g., pathological jealousy). . .. - . . -- ~ .., . - -- -- -- ---- a False victimization reports are becoming more and more common, yet such cases may be difficult to distinguish; common indicia of false reports, such as diminishing victim cooperation with the investigation, are not as reliable in stalking cases. Whether the victim is seeking attention or trying to shift the blame, false victim reporters have significant incentives to keep telling their stones. Since all stalking cases are highly dependent on the victim to collect evidence, the lack of corroborative evidence may not become apparent for some time. * '' Stalking cases cross jurisdictional boundaries, such as when the victim works in one jurisdiction, lives in another, and shops in a third. Hence, agency coordination is especially important. Because stalking is an ongoing crime, steps must be taken to coordinate investigations across jurisdictional lines and to ensure that all agencies are made aware of the existence of the ongoing investigation. Stalking cases do not necessarily end upon conviction. Stalkers may continue their stalking behaviors while on probation and even while incarcerated. In addition to the classical unfounded "victim"complaints, there are numerous anecdotal reports of stalkers, especially those who have committed prior domestic violence, filing false stalking reports against the victim. Because the motivations for such false claims are usually apparent (e.g., - to muddy the waters at trial), such false claims are usually not difficult to identify. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 63 - - .-, . - -. Conversely, stalking may not be prosecuted if prosecuting'the stalker may result in extreme danger to the victim; other, non-criminal law alternatives may be required (e.g., victim moving). A final research finding takes note of the fact that investigative and prosecutor experience I in dealing with these stalking crime features is limited. Most agencies have yet to set policies or procedures for stalking cases. For law enforcement, this results in the need to make up procedures and policies for evidence collection and to adapt methods used in other crime investigations, especially homicide and sexual crimes. However, as not'ed above, most investigations look at past events, not future actions. Hence, investigators must often create new investigative approaches to stalking. I Findings: Stalking's Differences from Other Crimes , Stalking is often an elusive crime. It starts, stops, starts again, and ends, at least temporarily, again. Similarly, the locations where stalking occurs vary, h m home, to business, to shopping mall, to simply passing in a car on the street. While in most instances the identity of the stalker may be knownproving identity, especially in cyberstalking cases,- can be dHicult. 0 Stalkers' methods may change constantly, from simple following or telephone calls, to leaving "gifts," to wiretapping telephones, to yet more ominous behaviors. Finally, the reactions of the victim may also fluctuate over time, from unawareness or bemusement, to terror, to surrender, and even to aggression. All of these stalking attributes make it an especially difficult crime for criminal justice agencies. These multiple changes in stalking behavior underscore the essential way in which stalking differs from other crimes: its persistence into the future. Most crime investigations are historical in nature; they attempt to determine what happened.'22 Because of the difficulties in proving past stalking, investigation and prosecution of stalking rely on prospective evidence collection. It is far easier to collect evidence of stalking when it occurs than it is to obtain evidence that corroborates the victim's testimony about past stalking. lzz Although there are a few crimes for which evidence may be collected as the crime is committed, these are a h s t always non-personal injury crimes. Such forward-looking investigations are, however, common in many economic crime investigations, police "sting" operations, and conspiracy investigations. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 64 I I < Further, the crime of stalking is more than prohibited behavior. AS Hargreave points out, stalking is "[aln offense that is defined not by the actions of the offender alone, but by the social and environmental context in which the behavior arises."'23 Context issues exist in almost all stalking cases. I A third way in which stalking differs from other crimes is the mutual dependence of justice agencies and the victim. In virtually no other crime are the investigation and prosecution so dependent on the victim for evidence collection. Nor are there many other crimes where victim safety is so threatened over such a long period of time. Hence, victim support from justice agencies is a unique responsibility in stalking cases, at least in scope if not in kind.'24 I For all these reasons, criminal justice agencies must adopt a problem-solving approach. Such an approach includes the following elements: - I - Identification of stalking cases Case investigation and management Prosecution and sentencing - ..- - - _ _ _._ _ . Protection of the victim, even after sentencing and incarceration. For each area of responsibility-case identification, investigation and management, prosecution, and victim safety-old methodologies must be adapted and innovative approaches implemented. Most significantly, agency management must recognize and encourage a problemsolving approach to stalking crimes. They must recruit and work with community-based advocates who can help the agency, especially in protecting the victim and ensuring her wellbeing. The review below presents research findings on best practices to provide both prescriptive and descriptive information about what agencies are or should be doing. This combination of perspectives is intended to encourage and inform problem-solving behavior among anti-stalking practitioners. Hargreaves, supra note 8 at 3. Victim advocates who work with police and prosecutor agencies provide help to victims of many different crimes. However, stalking victims often present a unique set of problems that last for an extended period. While some domestic violence victims present similarly long-lasting demands for aid, such demands are less common among domestic violence victims than among stalking victims. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. a 65 Findings: Case Identification Few victims complain of being "stalked," that is, being a victim of a stalking crime. 0 Instead, they complain to law enforcement about specific behavior that may be as minor as petty vandalism or as serious as implicit death threats. The fact that there is a pattern to the complaints may not even be noted by the victim. Furthermore, few victims even know that there is a crime called stalking. Thus, the first difficulty that criminal justice agencies face with stalking is identifjlng potential stalking complaints from among all complaints they receive and doing so as early as possible to minimize victim injury. The key to such identification is in the repeated behavior that constitutes stalking. Policies and procedures must be in place to allow for identification of cases where possible stalking patterns exist. Two primary approaches for this purpose exist. In San Diego, the City Attorney's Office has developed an interview checklist for first responders to use whenever there are any indications that repeat criminal behavior may be ___-- . -- - -_ -- - - - _.. - - - _ . _ _ . - - - - The San Diego District Attorney's Office and the Dover (NH) Police Department try to 0 review all police reports to identify cases where there are multiple complaints filed by the same victim or from the same (or nearby) addresses. Both agencies use trained stafT to review victim complaints. San Diego uses victim advocates, and Dover uses investigators.'26 A supplement to "naive" case review is to identify specific cases for monitoring for multiple stalking acts where only a single act has occurred. In Dover, the department puts all cases involving orders of protection into its computerized information system containing wmant information; any officer query after a police stop will tell the officer about outstanding orders against the person stopped, the name of the order protectee, and the locations protected. In Colorado Springs, all cases that are assigned to the special domestic violence investigative team, DVERT, are similarly red-flagged by the computer system, to alert patrol officers to i d o m the DVERT investigators of all police contacts with the suspects or convictees. Iu Personal communication fiom Gael Strack, Deputy City Attorney, San Diego City Attorney's Office (Domestic Violence Unit supervisor). Personal communications. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 66 . . The specific types of criminal reports that the complaint reviewers look for include these: e Assault e Abduction e Violation of court order e Burglary/criminal trespass /I 0 Theft of personal clothing e Vandalisddestruction of property e Cruelty to animals (pet mutilation or killing) e Wiretapping or mail tampering e False reports to police e Weapons violations. - - Some of these offenses are relatively serious in and of themselves. Others appear to be relatively minor. The more serious stalking-related o f f a e s will, of course, be treated appropriately by law enforcement and prosecutors who are informed of them. However, unless . ___ 0 - , - - - - - - - - ihebficer or prosecutor is thinking about the possibility of stalking, the lesser offenses may not be given due attention. Findings: Patrol Response Patrol is usually the first criminal justice representative to respond to calls fiom stalking victims (although only a small proportion of cases are so identified by the victim). In a few jurisdictions, patrol is encouraged to identify stalking cases. In San Diego, the City Attorney's Office has developed a stalking questionnaire to be used by patrol first re~ponders.'~~ The questionnaire is divided into five parts: victim's background, suspect information, relationship information, suspect's conduct, and victim impact. While much of this information will be sought by detectives (or advocates), many of the questions may be used by patrol officers whenever they suspect that they may have a stalking case. For example, one important series of questions that asks about suspect behavior includes violence or threats against others. '*' Casey Gwinn, Gael Strack, Paul Cooper & Kurt Mechals, Stalking Questionnaire (August 1996) (unpublished manuscript fiom San Diego City Attorney's Ofice). Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 67 - - - In any case where stalking may potentially be involved, patrol officers should document as fully as possible the nature of the complaint and file their report for future reference in case @ stalking is determined to be occurring. Those steps should be taken even if no arrest was made because no suspect was named or if probable cause to arrest was lacking.lps Patrol will also be responsible for responding to 911 calls fiom stalking victims whose cases are being actively investigated by detectives. Agency policies and procedures should require that the patrol responders inform detectives of what occurred by providing a copy of their written report; personal notification should be encouraged, if not mandated. Copies of the patrol I report should also be provided to the victim for inclusion in her own file. Findings: Investigation Assipment Once a case is identified as a stalking case, it is usually referred to an investigator for follow-up. For several reasons, investigative responsibility is typically assigned vertically; in other words, the assigned investigator is responsible for that case and that victim. Such an approach ensures that the victim has a single point of contact for the indefinite future, an - - --- - -- - -- -- __ __ important concern where cases go on for extended periods. Similarly, patrol officers responding . - - - -- _._. _. -. - to any new complaints of stalking or related crimes will be told to whom to refer the case (victims are told to inform patrol of the case investigator and case number). An important corollary to this point is to require that all subsequent reports involving the stalking victim be assigned the case number assigned to the original complaint so that important paperwork is not lost.'29 Concern about file completeness also leads to having a single person responsible for case file management. The investigative follow-up presents a second opportunity to provide information to the victim about available community services. Although not yet often seen in the stalking context, a number of law enforcement agencies around the country (e.g., Sacramento County Sheriffs Department) have enlisted victim advocates in "ride-alongs" that bring domestic violence investigators and advocates into a teaming relationship. Several of these agencies (e.g., Colorado '21 See REGIONAL SEMINAR SERIES, supra note 5 at 18. Chicago Police Department, Department Special Order 92-5, Procedures in Stalking Cases IV (C) (1999). Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 68 - * Springs, Colorado) handle significant numbers of domestic violence-based stalking cases with these teams. Anecdotal reports of the ride-alongs have been quite favorable. Fiqdings: Special Uniflnvestigator Case Screening Effective case identification can lead to too many cases to be handled effectively by the stalking unit or specialized investigator. Hence, case screening may be required to identi@ those cases most in need of the unit's expertise. Any case not assigned to the special stalking unit may nonetheless develop into a more serious stalking case. The Los Angeles Police Department Threat Management Unit requires that the officer assigned to the case monitor the case and personally contact the victim every 30 days for an update on the stalking behavior. If the stalking behavior has ceased for a two-month period, the case is closed.'30 Many other special stalking - -seriousness of the stalking behavior units also use periodic victim call-backs to check that the and threat has not escalated. Findings: Case Investigation . .. - - The-two most-important-tasks inxase investigation-are-determin-Ing~~identitpofthe-- - - stalker and obtaining suficient evidence to arrest and convict. In both instances, understanding 0 the dynamics of stalking can be critical for the investigation and can also reduce the duration of the stalking and the seriousness of its consequences. Several agencies with anti-stalking units have sought to apply research findings on stalking behaviors to such tasks as investigative strategies and threat assessment. Commercial applications of research findings are also seen. However, few agencies are able to keep abreast of the latest research findings.. One important tool for problem solving in stalking investigations is a knowledge of stalker typologies. These include the following: The Abnormal Stalker. One of the first typologies was developed by Zona and colleagues and was based on case files fiom the Los Angeles Police Department's Threat Management Unit.131This typology focuses on the psychological underpinnings of the stalkerI3O a Los Angeles Police Department, Threat Management Unit,Threat Management Unit Guidelines (Feb 1999). Michael A. Zona, K. K.S h a m & John Lane, A Comparative Study of Erotomania and Obsessional Subjects in a Forensic Sample, 38 J. FORENSlC ScI. 894 (1993). See also Michael A. Zona, Russell E. Palarea & John Lam, Psychiatric Diagnosis and the wender-victim Typology of Stalking, in THEPSYCHOLQGYOF STALKING: CFICAL AND FORENSICPERSPECTIVES 70 (J. Reid Meloy ed., 1998). A review of the relevant literature on this Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 69 victim relationship. Thus, the typology distinguishes between three types of psychological motivations for stalking: Simple obsessional. Stalker and victim had a prior relationship (e.g., former intimate partners). The motivations for the simple obsessional relationship include a desire to lure the other person back into a relationship, anger at loss of control or feelings of mistreatment, and revenge for perceived wrongs. 8 Love obsessional. The stalker and the victim have no prior relationship but the stalker, nonetheless, focuses on the victim as the object of love and adoration. Some stalkers suffer from a psychiatric disorder such as schizophrenia, while others are simply socially maladjusted. Stalking of public figures is a common subgroup of this category. Erotomania. The d'efining characteristic of this type of stalking is that the stalker delusionally believes that the victim is in love with him. Moreover, the stalker may perceive other parties as responsible for the victim's failure to acknowledge this love. Hence, spouses of the erotomanic's victim can also become stalking victims because the stalker believes that the spouse is interfering with the victim's love for the stalker. - 0 A recent-addition-tothis typ_ologyhkesnote of a small number of repofid-stalking cases that involve false victimizations: no one is stalking the "victim." This is sometimes called "false ' victimization syndrome." Motivations for that behavior range fiom psychiatric disorders to simple seeking of attention from another person or the authorities. When stalking laws were first implemented, most false stalking reports seemed to reflect a variety of causes ranging h m the "victim's11desire for attention to more serious psychological disturbances. More recently, as stalkers have become more familiar with these laws, false stalking reports have become part of the behavioral pattern of stalking itself whereby the stalker countercharges the victim with stalking him.'32 Mixed Psychological and Other Factors. Harmon and colleagues also based their stalking classification scheme on a review of criminal case files, in this instance cases refmed to ~~ 13* typology as of 1997 is Joseph Davis & Marcella Chipman, Stalkers and other obsessional types: A review and forensic psychological ~ p o l o g of v those who stalk, 4 J. CLINICAL FORENSICMED.166 (1997). Personal communications &om prosecutors and victim advocates fiom New York City to Austin, Texas, to Sacramento, California. MULLEN et al.,supra note 9 at 19 1-92, discuss a number of reasons for false victimization claims; their listing does not, however, include reasons for false victimization claims based upon a legal defense strategy to rebut the stalking criminal charges. Tbey do make reference, however, to "malingerers" Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 70 the Forensic Psychiatry Clinic of the Criminal and Supreme Courts of New York City.'33 This typology uses two factors: (1) prior relationship: personal, professional, employment, media, acquaintance, and none; and (2) the nature of the stalking motivation: aff'ectionate/amorous or persecutory/angry. The researchers also noted that amorous/affectionate stalkers were also likely to victimize third parties that they viewed as barriers to the relationship between the stalker and the object of affection. They also pointed out that stalker motivations can change fiom seeking romance to seeking revenge when rejection occurs. A third classification scheme was developed by Wright and colleagues at the Federal This typology uses a number of factors, including whether the Bureau of Inve~tigation.'~~ stalker-victim relationship grew out of a domestic relationship (including coworkers) or some other relationship; whether the communications are delusional or non-delusional; whether the - stalker is motivated by infatuation, possessiveness, angedretaliation, or some other motive; and how aggressive the stalker's behavior is. Wright's final typology factor involving case outcomes is relevant to protecting the victim but is not relevant to case investigation issues. - . a , - Gavin de-Becker; wh-0-hadevelopEd a comFuterized-threZ&sessment-proe %r law enforcement, classifies stalkers according to their differing motivations. 135 These include attachment seekers, identity-seekers, rejection-based, and delusion-based. While the other categories are not unfamiliar, identity-seekers is a new term. By this, de Becker is referring to stalkers whose motivation is to gain fame or attention (e.g., Mark Chapman, who killed John Lennon in 1980). As thus described, this type of "stalker" may not be engaged in behavior covered by most states' stalking laws, which require victim fear. Another typology is that developed by Mullen and colleagues in A~stra1ia.l~~ Like several of the more recent typologies, it is multi-axial. The typology focuses on the stalker's motivation and the context in which the stalking OCCUTS. The researchers also consider the prior '34 a 13' as a group of false stalking claimants, who do so to avoid prosecution for other offenses by claiming an unknown person is stalking them ld. at 198-202. Ronnie B. Harmon, Richard Rosner & Howard Owens, Obsessional Harassment and Erotomania in a Criminal Couri Population, 40 J. FORENSICScr. 188 (1995); Sex and Violence in a Forensic Population of Obsessional Harassers, 4 PSYCHOL.,PUB.POUCY & LAW 236 (1998). James A. Wright, Allen G. Burgess, A.T. Laszlo, Gregg 0.McCrary & John E. Douglas, A Typology of lnterpersonal Stalking, 11 J. Interpersonal Violence 487 (1996). Reported in MULLEN et al., supra note 9 at 74. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 71 - relationship with the victim and the psychiatric diagnosis. Their primary classifications k e the rejected, intimacy seekers (reacting to loneliness), the resenthl (perceived insult or injury), the predatory (seeking sexual gratification and control), and the incompetent (poor suitors or courters). Prior relationships in this typology include former intimate pahers, professional contacts, work-related contacts, casual acquaintances and fiiends, the famous,and strangers. Psychiatric status is divided into psychotics and nonpsychotics (primarily personality disorders). Finally, Spitzberg and Cupach have developed a typology of stalking behavior based on a meta-analysis of the stalking research literature. They categorize stalking behaviors as including these characteristics: I Hyperintimacy (agbessive or inappropriate romantic gestures) Pursuit and proximity (increased contact including collection ofinformation by such means as surveillance) Invasion (escalated surveillance) Intimidation (coercion in response to rejection) - - e Violence (last-reswt or ragei~ponseto--rejection). - - - - These researchers have also developed a typology using the dimensions of love versus hate and behavior fiom controlling to expressive. This leads them to posit four types of stalkers: the the Intrusive Pursuer, who loves and tries to control, posing a moderate risk of ~iolence;’~’ Annoying Pursuer, who loves, uses expressive behaviors, and is low risk; the Organized Stalker, who hates, is controlling, and is high risk; and the Disorganized Stalker, who hates, uses expressive modes of behavior, and is also high risk.13* Syntbesis. The several researchers studying stalking fiom a variety of perspectives (psychiatric, behavioral science, legal) have identified five critical variables: ~~ 13‘ 13’ ~ MULLENet al., supra note 9 at 80-8 1. Among others, this category includes the classic domestic violence batterer who uses stalking as a mans of continuing prior efforts to control the former intimate. See R. F. DOBASH & R. P. DOBASH, WOMEN, VIOLENCE AND SOCIAL CHANGE ( 1992) for a discussion of the controlling behavior paradigm Brian H. Spitzberg & William R. Cupach, What Mad Pursuit? Obsessive Relational Intrusion and Stalking & VIOLENT BEHAVIOR (in press, 2002). See also Spitzberg and Cupach, Related Phenomena, AGGRESSION Paradoxes of Pursuit: Towarris a Relational Model of Stalking-Related Phenomena, in STALKING CRIMES, supra note 1; The Inappropriateness of Relational Intrusion, in INAPPROPRMTE RELATIONSHIPS (R. Goodwin & &can cramer e&., 2001) Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. e 72 i Prior relationship Motivation for stalking Mental health status of stalker Stalking behaviors Background explanatory factors. t Prior relationship includes spouses, former spouses, and dating intimates; family members; acquaintances such as coworkers, neighbors, or those with whom one has a business relationship; and strangers. To this one might add "stalker unknown," to include false victimization cases. Motivations include two primary categories, love and hate (revenge), with a third, less common category of predation. Motivation subcategories include love-pursuit, love-regain, and love-turned-to-hate. Furthermore, these three "love" motivation categories may change over time from love-pursuit to love-hate. Relatively uncommon motivations include attention seeking for - @ ' - false victimization claims and "white knight" savior hopes as part of an effort to appear the hero. - _ _ _ __ - __ __ _ _ _ -- - - - - - - - - - -Mental health status includes both clinical disorders (such as depression and . . .__ schizophrenia) and personality disorders (such as narcissistic, antisocial, compulsive and hi~trionic).'~' Behaviors may be characterized as pursuance, surveillance, intrusion, control, intimidation, threat, and violence. They also include revenge-motivated acts such as harassment and attempts to demean the victim. Backaound factors are often important in the case analysis as an aid for explaining why certain behaviors occur and for threat assessment. These include stalker's substance abuse, stalking in the context of a divorce or child custody battle, prior criminal history, prior domestic violence, escalating behaviors and boundary probing. This simple list of stalker distinctions shows how extensive data collection about stalkers can be and thus how important are sophisticated information management techniques. It also '39 a A more complete review of mental health issues of stalkers than that found here is in J. Reid Meloy, Stalking (Objessive Following) in J. REID MELOY, VIOLENCE RISK AND THREAT ASSESSMENT, 167,174-75 (2000). Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 73 __ shows the reason for widespread use of threat assessment scales and proghns.lm One of the most commonly mentioned programs associated with threat assessment is MOSAIC. However, @ MOSAIC does not claim to predict future violence; it rates cases on a scale of l-to-10, with 10 being assigned to those situations that contain factors associated with violknce escalation. As such, MOSAIC'S data requirement is designed to lead the user in an information gathering process for hrther individualized threat asse~sment.'~' Exhibit 3 integrates these several typologies from the perspective of an investigator with only limited case knowledge. Thus, the summary begins with the prior relationship since that is the most common bit of information known. For each of the three,categoriesof prior relationship, the table sets forth the most common motivations and any special issues associated with that prior relationship. More detailed information such as specific psychiatric diagnosis is - omitted because of the difficulty in gathering such information. - Exhibit 3. Stalking Typologies Summary I -__ __ I I Motivation Prior Relationship -- -- - -- -- - - - - __ - Psychiatric Diagnosis _- I Other Issues -- - I-nhcy regain Revengelcontrol Cjealousy common) Personality disorder Alcoholldrug dependency Acquaintances/ Friends Intimacy seeking Revenge Personality disorder Social incompetence Psychotic Danger to third party Stranger Intimacy seeking Identitylfame Psychoticldelusional Erotomania Danger to third party Celebrity targets Past Intimates - ' Motivation changeable over time Prior domestic violence '40 See JAN ROEHL & KRISTIN GUERTPJ,CURRENT USE OF DANGEROUSNESS ASSESSMENTS IN SENTENCING 'I VIOLENCEOFFENDERS(September 1998) (reprinted in 2 1 JUSTICE SYS. J. 171 (2000) (identifying ten DOMESTIC "dangerousness" instruments). Unlike some dangerousnessinstruments, MOSAIC does not claim to be a predictor of violence in specific cases. Instead, it is described by its creator, Gavin de Becker, as a "training system that teaches an assessment method" (personal communication, April 2001). From this perspective, its usefulness lies in the fact that the MOSAIC computer program leads users to consider variables related to threat assessmentthat they might not have thought about or gathered information on. It does not, therefore, provide correlation statistics to show what propohon of stalker behavior is accounted for by its 10-point scale. Even if such statistics were available, it is not clear that its practitioner users would find them useful. Many practitioners have also favorably commented in interviews on the fact that MOSAIC is designed to allow them to quickly provide a threat assessment report to victims, thereby underscoring how serious their cases are and emphasizing that they need to take actions to reduce that threat. On the other hand, the absence of validation data means that use of MOSAIC should not extend to its citations by expert witnesses as evidence relevant to proving victims' reasonable fear. Other instruments, such as the Spousal Assault Risk Assessment (SARA),that have been subject to validation studies are,more appropriate for testimonial purposes. Personal c o d c a t i o n fiom Dr. J. Reid Meloy. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 74 I Attention seeking "victim" White knight protector Other unknown -~ ~ ~ Vanes or none available ~ ~~~ ~ -~ Of course, these categories (especially the category of prior relationship) oversimplify reality. Of all stalking relationships, stranger or'casual acquaintance stalking is probably the most underreported. For example, one experienced stalking prosecutor assigned to a government benefit fraud unit found that agency officials who were seen by the applicant as denying benefits were later stalked by the applicant in revenge for the benefit denial.142 These cases had not been identified as stalking until then. Another category of unreported stalking is stalking conducted by A gang members of youth who rejected an "invitation" to join the gang.143 Practitioner Uses of Typology Research Findings. Case investigation may use these typologies in a number of ways.lU For example, informal intervention without arrest or evidence collection may be most successhl with those characterized as "incompetents," Le., acquaintances - _ _ _ _ -- 0 011strangers w h d o n __ -- __ __ - _ _ _ --- - ---- d h o w howto engage in d%ng behaviorsT14'%competents are also among the least likely to engage in extended stalking (more than one year in duration), to abuse drugs or alcohol, or to have prior criminal records. They also typically engage in simple stalking ' (not creating victim fear), as compared to rejected stalkers, who engage in many more types of stalking b e h a ~ i 0 r . IIn ~ ~comparison, while predator stalkers have background characteristics similar to the incompetents, predators are three times more likely than the incompetents to have a prior criminal re~0rd.l~'For these stalkers, criminal justice intervention is an imperative. Investigators may also find usefid the research findings on predatory stalkers suggesting that voyeurism is a not uncommon early stalking behavior.14* Similarly, research shows that some stalkers file false claims against the victim, such as filing for orders of protection or alleging wronghl behavior by the victim against her employer, insurance company, etc. The former may personal communication. Iu See REGIONAL SEMINAR SERIES,supra note 5 at 18 (discussing stalking by gang members in public housing). Threat assessment may make even more use of this information. See inpa notes 208-22 1 and accompanying I*' MULLENet al., supra note 9 at 78. Id, Id. kXt. e Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 75 be motivated by an intimacy seeker seeking to get close to the victim, while the latter typically is a rejected or resentful stalker seeking revenge.’49 e Case investigators may also find demographic data useful in determining who the stalker is. Male victims, for example, were found by Mullen and colleagues to be most likely to be stalked by another male, usually a ~tranger.”~ I ( Findings: Victim Behaviors Investigators must also take into account victim behaviors. One obvious reason is the need to exclude false victimization reports, which victim behavior may signal. In addition, a small proportion of stalking cases that involve former intimates may be terminated when the stalker and the victim reconcile; reconciliation is a common occurrence in domestic violence - case^.'^' - Most commonly, however, the investigator has to rely on victim cooperation in keeping a record of the stalking events to help in building a prosecutable case. At the same time, the victim __is experiencing-stressand fear as the stalking and the investigation continue. During this interim- 0 period, the victim may have to cope with ongoing stalking behavior as best she can, often ’ without oficial support or advice. As a result, many victims develop coping behaviors that may, on the surface, appear to undercut the seriousness of the threat faced by the victim and her fear of the stalker. Victim behavior in coping with this stress needs to be monitored and assistance provided as needed, both to ensure evidence collection and to preempt any later defense claim that the victim invited the stalking. Hence, research on victim reactions to being stalked is a second tool for case investigators. However, there are only a few studies of victim behavior. One study of 128 ~ Is’ ’” Id at 105, 1 1 1. Id at 177, 179. Idat 161-165. Questions of the voluntariness of reconciliation may be often asked, however, since fear of the stalker may be the real motivation, especially where there is a history of domestic violence. Nonetheless, reconciliation for whatever reason undercuts the prosecution of a stalking case that by its very nature requires victim testimony about fear of the stalker. Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 76 stalking cases by a researcher working with the Sacramento District Attorney's Office found that victims' responses to stalking by former intimate partners consisted of four types of behavior:I5* 0 Active resistance Help seeking Coping to reduce danger Coping by complying with the stalker's demands. Victim's active resistance (i.e., self-help in facing the stalker) included (in declining / order of frequency): Not letting defendant in I Threatening to Cali 91 1 - Fighting or struggling - Logging or recording the stalker's behavior. Help seeking behavior included: _ - .- - -. Calling policxdinsisting on arrest/iffsis~ing-orrpros~~~i~~ -- - Getting an escort - - - . Screaming. Victim coping strategies to minimize danger included: Screening phone calldchanging phone number Leaving the scendmoving within the area Staying with family or fiiends, or hiding Taking other security measures. The most important of Dunn's findings for the investigator was the degree to which victims engaged in compliance behavior in an effort to appease the stalker in order to reduce the threats. Nearly one in five victims who had been stalked by former intimates exhibited some form of compliance behavior as a survival strategy. Such behaviors included: Requesting that the case be dismissed, or recanting Jennifer Dunn, Forceful Interaction: Social Construction of Coercive Pursuit and Intimate Stalking (1999) (unpublished Ph.D. dissertation, University of California at Davis) (scheduled for commercial publication in 20.02). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 77 Visiting defendant in jail Going places with the stalker Continuing to have sex with the stalker. 1 Compliance behavior can complicate case outcomes by making it harder to prove that the victim is fearful of the stalker. Indeed, compliance can suggest to the naive observer that the victim is encouraging the stalker or leading him on. Moreover, victims of stalking by former intimates often have conflicting emotions toward the stalker. Behavior ,reflectingboth fear and love can muddy the image of victim innocence for a jury. I Findings: Other Investigative Tools and Techniques d Investigative responses to stalking complaints are typically tailored to the specific facts of the case: who the victim is, what she does, what types of stalking behavior are occurring, who the stalker is, what the relationship is (or was) between the two, etc. Nonetheless, common problems among groups of cases may be resolved by using similar methods. Sometimes these methods are drawn from - - othg types_ofcrime investkations. For example, provingstalkmgis occurring may. require surveillance. In some cases it may be possible to place video cameras or trained personnel outside the residence of the victim to await the appearance o h h e stalker. In other cases, it may be necessary to watch the stalker until he or she contacts the victim. In cases where stalking is being done without personal contact, it may be necessary to perform surveillance on a mailbox, a telephone booth, or even a computer terminal in a college laboratory. In one case where the suspect could not be found, the LAPD Threat Management Unit staked out his automobile, to which he did in fact return with evidence of the talking."^ Other common investigative methods include obtaining security videotapes from businesses where a stalking incident occyred, using phone traps, and seizing suspect’s phone records. Search warrants are especially useful once a suspect has been identified. Anne ODell, a former stalking investigator with the San Diego Police Department,recommends looking for non-obvious items of evidence such as the following: Books and other writings on stalking techniques Is’ Personal communication fiom Greg Boles, formerly supervising detective, Los Angeles Police Department, Threat Management Unit. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 78 I Photos of victim (if non-intimate stalker) Photos or diagrams of victim’s home or place of work Diary or log of stalking kept by stalker Personal items belonging to victim Keys to victim’s home or car Equipment that might have been used to stalk the victim, such as a camera or binoculars. 54 ’ The Metropolitan Police (Scotland Yard) reminds investigators that stalkers often are serial stalkers. Investigators should always check local records to see if there have been similar complaints or cases. Similarly, friends and relatives of the victim should be contacted to determine whether they too have been stalking targets.’” In domestic violence-related stalking, - - this advice should extend to past intimate partners of the suspect. Victim-Generated Evidence. Evidence collection begins with the initial victim interview. Even the initial police report detailing the victim‘s complaint and her demeanor may be used in evidence to refresh thememory of a police officer witness. The investigator assigned 0 to the case will also begin with an interview of the witness. This interview has several motivations: to gather evidence, to obtain leads for additional evidence gathering, to protect the victim from any threat (including safety planning and referral to services), and to enroll the victim as an additional aid to evidence gathering. To accomplish all these tasks, the Canadian Department of Justice advises investigators as follows: Do not minimize the situation. Be sensitive to the personal situation of the victim, including any distress the victim is experiencing. Explain the seriousness of the offence, especially any threat potentials. Obtain a detailed chronology, including words and gestures used by the suspect and other communications. Find out where and when the conduct occurred. Determine whether the victim has directly or through others informed the suspect that the conduct is not welcome. IE( Anne O’Dell, Stalking (n.d.) (unpublished paper on file). Hamish Brown, METROPOLITAN POLICE (London), STALKING 4 (2000) (wwv.scotlandyard.plice.uWstalking/gui (hereinafter METROPOLITAN POLICE). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 79 Find out whether there are witnesses to any of these events. Obtain relationship infomation. Obtain information about the impact of stalking on the vicqim and what the victim has done in response, especially to protect her safety. Ask about legal actions, such as a pending child custody action. Ask about restraining orders in effect and whether the suspect is under court supervision. I Ask about weapons owned or possessed by the suspect.'56 The most common innovation in stalking investigations is toI have the victim keep a log ofall stalking incidents. In the log will be noted the time and date of the incident, where it occurred, the presence of any witnesses, and the details of the incident. , The victim may also be asked to write how she reacted to the incident, including specific behaviors and psychological re~ponses.'~'When it is also used as a diary, the log may help to disprove counterclaims of stalking pressed by the stalker. Victims are also asked to retain any corrQborative evidence they have, including audiotapes from a telephone answering machine (time and date stamped), receipts from businesses at the location where the stalking incident occurred, etc. Several @ jurisdictions have prepared pamphlets for victims that detail what role they are asked to play in the investigation and that contain the log books to be used.ls8 Victims may also be asked to take photographs of property damage caused by the stalker and immediately seal unwanted letters or gifts in plastic bags when investigators are not available. Suspect Interview. Investigators may (when deemed safe) also ensure that the stalker is told that his behaviors (such as following, telephoning, leaving gifts, and the like) are unwanted (often called a "Knock and Talk" interventi~n).'~~ By personally informing the stalker of this CANADIAN DEPARTMENT OF JUSTJCE, CRIMINAL HARASSMENT: A HANDBOOKFOR POUCE AND CROWN PROSECUTORS (n.d.) (http://canada.justice.gc.ca/en/dept/pub/hpcp/table.html) [hereinafter CRIMINAL HARASSMENT HANDBOOK]. "' See, e.g., Los Angeles Police Department, Threat Management Unit,Stalking Victim's Handbook (nd.). Other 15* items recorded in the log include information about the stalking suspect, outstanding restraining orders, and police information, such as name of officer taking the report. Id. Knock and Talks are typically used in stalking cases where there is no "credible threat"or its equivalent and the state law requires such a threat. It is precisely because no arrest is imminent that the stalker may feel fiee to discuss the stalking behaviors complained of. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 80 fact, the oficer will be able to testifi that the stalker's actions were "knowhgly" done, a critical element of the crime under many states' anti-stalking laws.'6o The Dover Police Department recommends that investigators gather as much information as possible about the suspect I (including motor vehicle and criminal record checksI6') before interviewing him. Interviews with family, fiends, neighbors, etc. are also part of the suspect pre-interview data gathering. All interviews should be hlly documented. The types of information about the suspect sought at this time include the following: History of violence, especially domestic violence (including controlling I behaviors) Violations of court,orders Tendency toward emotional outbursts or rage Homicidal or suicidal behavior or threats Major stress such as loss of employment History of extreme jealousy History of mental illness Substance abuse problems Prior refusal for f i r e m s license.162 When the suspect is finally interviewed, he should be given an opportunity to explain how his actions may have been misinterpreted by the victim (or others). Before the interview is completed, the suspect should be asked about prior similar behavior (toward other victims).163 An important consideration in interviewing stalkers is their tendency to use self- justification to explain their stalking behaviors. As Mullen et al. put it, they have a unique ability to "deny, minimize and rationalize." These medical practitioners suggest that questioning in their context be "nonjudgmental, if not collusive."164They further found that "intimacy seekers in I6O 16* e 16) The CRIMINALHARASSMENT HANDBOOK,supra note 157, discourages multiple warnings, saying these may even be counterproductive. HARASSMENT HANDBOOK,supra note 157, suggests further that additional databases be checked, The CRIMINAL includq child protection authorities, firearms registry, and immigration records (where applicable). Id. Dover Police Deparhmnt, Anti-Stalkiug Unit Investigative Guide and Protocols 26 (2000) hereinafter Dover Protocols]. MUWENer al., supra note 9 at 282. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 81 particular respond well to reframing stalking in terms of a quest." This allows answers that do not require justification of actions.'61 0 As one law enforcement practitioner described it, they need to be questioned as child molesters: "Tell us how your acts were misunderstood."'66 Cyberstalking Evidence Collection. Other investigative techniques are much more sophisticated, especially where cyberstalking is involved. In these cases, it may be necessary to serve search warrants on Internet Service Providers (ISPs) to help identify who is sending the cyberstalking messages or simply to prove that the suspect was responsible (where identity is already known). In most instances, the suspect is not notified of service of a search warrant. However, where the ISP provides Internet service through a cable system used to deliver television services, federal law requires that notice be given by the ISP.l6' In some California jurisdictions, the prosecutor routinely requests that the court issuing the warrant also enjoin the required notice until the investigation is complete.'68 It should also be remembered that cyberstalking cases require great speed in gathering electronic evidence. Many ISPs routinely erase their service records within 12 or 24 hours of when an e-mail or web link is provided. Other Actions to Gain Corroborative Evidence. The state of Connecticut ha3 0 developed training materials for stalking investigators. These materials provide suggestions about additional steps investigators can take to obtain evidence corroborating the victim's statements. Investigators are encouraged to do the following: Determine the suspect's place of work since stalkers often do their stalking while going to or returning fiom work. This shows opportunity and may rebut any alibi. Conduct drive-by patrols of the suspect's and victim's homes to track suspect movements. In cases where the victim lives near a school, notify crossing guards to call police if they see the suspect or his vehicle in the area.169 '61 '61 la Id. at 283. Personal communication. 47 U.S.C. 9 551(c), (h). Edward Messinger & Richard Goldstein, Cybersrulking Issues, in CALIFORNIA DISTRICTATTORNEYS ASSOCMTION, STALKING SEMINAR (2001). See also, ELECTRONIC CRIME SCENE INVESTIGATION: A GUIDEFOR FIRSTRESPONDERS (July 2001). CONNECTICUT OFFICE OF POLICY AND MANAGEMENT, "STALKING TRAINING MODULE" (ad.). Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 82 I I Interviews of coworkers, friends, neighbors, family members, or even persons living in 0 the same multi-family building as the victim may provide important corroborative evidence. The interviews may also uncover additional stalking behaviors that the victim was unaware of (e.g., I lurking in the area).”’ Other types of corroborative evidence may be gathered by obtaining the suspect’s telephone records for calls to the victim and by using the media (where the case has unique features) to get reports of similar victimization^.'^' Investigators are also reminded that because stalking investigations are time-consuming, victims may stop reporting stalker contacts or incidents. That does not mean they are uninterested in having the stalker akested; they are simply fatigued.”* This problem, identified by the state trainers, is likely to be most acute where the victim has no single point of contact at - the law enforcement or prosecutor‘s office to call for support. Case File Management. The history of the stalker’s behavior is the heart of any stalking investigation. This history is, of course, contained in the unit or investigator‘s case files. How _. . those files are maintained is critical to successful investigations and prosecutions. The LAPD 0 Threat Management Unit requires that each stalking case file be maintained in a separate, casespecific three-ring binder that is maintained chron~logically.”~The Colorado Springs DVERT program has adopted a similar requirement for its investigators handling stalking cases.174The stalking case file typically includes the following: Case summary profile, including victim and suspect identifiers (names, addresses, employers, birth dates, etc.) and name of detective assigned to case Copies of all incident and arrest reports Interviews with the suspect, witnesses, and victim Suspect criminal records e no Deirdre Bialo-Padin, Analysis of the Stalking Law (May 2000) (materials prepared for Kings County (N.Y.) District Attorneys Office). Interviews may also, as noted supra note 155-157 and in accompanying text, identirjl other cases of stalking involving the suspect. METROPOLITAN POLICE,supra note 156 at 4. Id. Los Angeles Police Department, Threat Management Unit,Threat Management Unit Guidelines, Addendum # 5 ”Guidelines for Maintenance of Files” (February 1999). Personal communication. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 83 Motor vehicle agency records Other police department contacts Media reports. I Other infomation that may be contained in the file is as follows: 911 tapes Suspect telephone records I ISPrecords Searchwmants Suspect's military record Suspect's mental health information Child welfare agency investigative records Photograph of suspect. Selected data from the file is also entered into the unit's computerized database. All files - are kept in a locked file cabinet in the TMU area. Computerized data about stalking caies is maintained indefinitely. Depending on whether the case was considere4 "active" or simple information only, hard copies of the files are kept for three years before being transferred to archives or destroyed. Agency Collaboration. Agency collaboration is a necessity in many stalking cases where stalking crosses local jurisdictional areas. For example, the victim may be stalked at her home in one city, at her workplace in another town, and while shopping in a third jurisdiction. Evidence from all the stalking locations must be collected, yet no single law enforcement agency has jurisdiction over all the stalking locations. Even the county prosecutor may not have authority over all the sites involved in the stalking. TO remedy this problem, a number of agencies have entered into agreements that assign control of the investigation to one agency's stalking officers. If a stalking incident occurs in another jurisdiction, the victim is told to inform Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 84 the local investigators of the name of the lead agency investigator and the case number. Copies e of all reports of the incident will then be sent to the lead in~estigator.'~' A second type of agency collaboration is discussion of stalking case issues at regular meetings attended by different agency investigators and prosecutors assigned to stalking cases and by other persons interested in stalking issues. In San Diego, for example, a multi-agency Stalking Case Assessment Team (SCAT) meets monthly to discuss stalking cases that have presented problems to the investigators. These problems might call for discussing how best to identifjl who the stalker is or whether the case involves a false victimization claim. Attendees at these meetings include representatives from the District Attorney's Stalking Unit, the City Attorney's Domestic Violence UniJ, the San Diego Police Department, other local law enforcement agencies in the county, a mental health specialist who treats stalkers, court security personnel, local university police officers, and academic researchers. Representatives from victim services agencies may also attend, often to inform the assessment team members of the services they provide to victims. Federal agency investigators may also participate. In addition 10 brainstorming about active cases, the SCAT meetings may be used as a forum for-training participants on such topics as threat assessment. 9 A final agency collaboration is the assistance provided to local agencies by the federal government. The Behavioral Analysis Unit of the Federal Bureau of Investigation's National Center for the Analysis of Violent Crime will, upon request, provide local agencies with assessments of communicated threats, dangerousness assessments of known offenders, profiles of unknown offenders, crime scene analysis, and investigative and interview strategies. In addition, center staff provide training on these For example, the center's analysis of threat stylistics may be useful in a case where the stalker's identity is unknown. Such an analysis may suggest the stalker's probable level of education, criminal sophistication, race, use of English as second language, and sex. Where a suspect is identified, comparative examination of other suspect writings may help in ascertaining whether the suspect is the person sending written "' See O'Dell, supra note 155 (describing the "Key Case Concept"used in San Diego County). The Chicago Police Department has a similar requirement for instructing the victim to notify other investigators that hers is a stalking case that is being handled by the investigator first assigned to the case, and that the case number is specified. Chicago Police Department, Department Special Order 92-15, Stalking Procedures IV (f)(2). a Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 85 threats. The Secret Service provides similar help through its National Threat Assessment Center staE They have developed protocols for handling threat cases"' and also provide training for state and local law enforcement agency staff who have protective responsibilities, including those associated with stalking cases. The Secret Service's forensic unit also provides technical assistance to local law enforcement agencies in specific cases. The assiitance includes document comparisons, handwriting analysis, and informdtion from the Secret Service's database of celebrity stalkers and persons who have threatened public Referral to Prosecution. When an arrest is made, the case is then referred to the prosecutor's office. At that point, the arresting officer should summarize the key elements of the case for the prosecution. The summary should describe the following: Stalking behavior - - Reasons for victim's fear Victim's responses to fear (e.g., moving, taking self-defense course) Evidence of intent to stalk or recklessness to victim fear.'79 Law enforcement development of a case summary would be especially usefid to the ' prosecutor at bail hearings where there has been little time to interview the victim or gain other information about the seriousness of the case. Findings: Stalking Prosecution Stalking prosecutions are often problematic because of staff inexperience with stalking cases and the absence of agency policies and procedures that might otherwise provide guidance in lieu of personal expertise. The primary responsibility of prosecutors is, of course, to prove that the defendant committed the crimes charged. While the defendant will plead guilty to the charges in many instances, in a significant number of cases a trial will be required. It is unclear, at this point, whether stalking cases are more likely to go to trial than other types of criminal cases. There is some reason to suspect that this may be the case, at least for some types of See Mission Statement for the National Center for Analysis of Violent Crimes at its website, "* a www.fbi.govlhqlisdcirglncavc.htm. See the National Threat Assessment Center website at www.treas.gov\usss/ntac.htm. see ROBERTA. FEW& BRYAN VOSSEKUIL, PROTECTIVE INTELLIGENCE AND THREAT ASSESSMENT INVESTIGATIONS: A GUIDEFOR STATE AND LOCAL LAW ENFORCEMENT OFFICIALS (1998) (available fiom National Institute of Justice) Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 86 stalkers, such as those seeking fame. In any case, prosecutors must always prepare their cases as if they will have to convince a jury that the defendant stalked the victim. a Prosecutor Investigators. Because most law enforcement agencies do not have specially trained investigators to handle stalking complaints, stalking prosecutors may need to have their own investigative staff help gather the evidence necessary to prove stalking. Since stalking is an ongoing crime, prosecutor investigators are especially critical in the management of evidence collection, even where local law enforcement agencies have investigators available. In many jurisdictions, however, caseload pressures are such that the prosecutor's investigator may be the only person assigned to the case on a permanent basis. I Pretrial Release. Prosecuiors' traditional responsibilities begin after the suspect is arrested and appears before - - the court at a bail or pretrial release hearing. While in many jurisdictions, bail is a routinized procedure for which there may even be a bail schedule, routine bail should never occur in a stalking case where the threat of violence is the basis of the arrest. Prosecutors will typically stress the uniqueness of these cases to the official who sets bail and - release conditions, especially the dangers that may be presented to the victim by the stalker. Law enforcement experts on stalking can help educate the hearing officer about what stalking is and about its dangers for victims. In some cases, pretrial detention may be requested on the basis that it is needed to prevent intimidation of the victim or other witnesses. Some prosecutors will also charge the stalker with all possible crimes committed while stalking. This is intended, in part, to educate the bail hearing officer on the scope and seriousness of the stalking. In appropriate cases, preventive detention or referral to psychiatric evaluation may be requested. In other cases, intensive pretrial supervision (including electronic monitoring) may be needed. The court should also be asked to issue a no-contact order forbidding the suspect from engaging in any stalking behaviors; this order should be specific to the facts of the case. As appropriate, a curfew may be ordered. The order should also forbid the suspect to obtain any dangerous weapons and to surrender any weapons already in his possession. When called for, substance abuse testing should be required. The prosecutor should also seek to ensure that if bail is denied, the victim will be notified by the jail when the stalker is later released. Where ~ CRIMINAL HARASSMENT HANDBOOK, supra note 157. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 87 available and needed, victims should be provided with a means to contact 91 1 wherever they are, including panic buttons to alert neighbors, passersby, etc.'*' Among the types of evidence that the prosecutor may use to support objections to release are the following: History of violating court ordep History of probation violations Threat assessment findings, such as explicit threats against the victim or threats of suicide Testimony fiom a mental health expert or an experienced detective to educate the judge about risks of violence Victim fear. 1 Victim Interview. The heart of the prosecution's case is the victim's story. It is critical that this story be as complete as possible. In many instances, prosecutors should not rely on the police investigation to obtain all the facts known by the victim. Police investigations, especially where there is no specialized staff or unit, do not require a fbll debriefing of the victim; they only .. need enough information to support a probable cause determination that a crime has o c c d . @ , For this reason alone, prosecutors will have to re-interview the victim early in the process to gather evidence that the police investigation did not uncover.'8' Several points should guide this interview: Victims may have dificulty remembering every stalking incident, they may feel some incidents are not important, or they may believe the prosecutor will discount the significance of certain events. Patient discussion with the victim can bring these incidents out. A checklist of stalking behaviors can be a usefhl prompt for the victim's memory. The victim may be embarrassed or feel partially to blame for the stalker's conduct. Questioning should never minimize the seriousness of the stalking or ask the victim what she did to bring on the stalking.'82 0 See Dover Protocols, supra note 164, at 53-62 (Role of Prosecution in Stalking and Stallung Related Cases). See also CRIMINAL HARASSMENT HANDBOOK, supra note 157. The San Diego District Attorney's Ofice recommends that this interview include the prosecutor, the prosecutor investigator assigned to the case, and the investigating detective fiom the referring agency. Greg Peters, Prosecution Focused Investigative Techniques, in CALIFORNIADISTRICT ATTORNEYSASSOCIATION, STALKING SEMINAR (2000). Deirdre Bialo-Padm, WHATEVIDENCE Is NEEDEDIN ORDER TO PROVE STALKING? 3 (May 2000) (materials prepared for Kings County (N.Y.)District Attorney's Office). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 88 The victim may be reluctant to admit her fear. The reason may be cultural or personal. Admitting fear may make the fear more real and may constitute an acknowledgment that the stalker has succeeded in intimidating the victim. Some victims may conceal their fear simply out of self-~ontrol.'~~ The prosecutor's interview with the victim is also an opportunity to provide the victim with information about what she can do to enhpce her personal safety and how public safety agencies can assist. For this reason, prosecutors may wish to have a victim advocatejoin the victim interview to help with safety planning and referral to community services. Prosecutors may also at this point become involved with the victim's civil court efforts to obtain a stalking protection order. It is common for prosecutors to suggest that victims consider * seeking such an order, with due consideration being given, of course, to victim safety issues. It is also becomingly increasingly common for stalkers to counteract (even preemptively) with their own filing for a court order of protection. Because they have been involved in numerous cases where the stalker tried to manipulate the court system by falsifying the facts, staff in the District Attorney's Ofice in Kings County (Brooklyn), New York, routinely intervene in the civil court - proceedings to present the facts as they know them to the court. Doing so serves to prevent 1 conflicting orders and removes potential confusion for jurors when the case is tried in criminal court. I84 Filing the Case. The first important tactical decision in a stalking case is the filing of formal charges. Decisions must be made about the scope of the charges to be filed. For example, prosecutors may have to choose between charging all stalking acts as one crime or charging several crimes. Charging all acts as one crime shows the full extent of the stalking behaviors, while splitting up the behaviors into two or more charges may increase the defendant's sentencing exposure.'81 The prosecutor must also determine what other non-stalking charges to file. These can include serious felonies, such as aggravated assault, rape, or residential burglary; lesser misdemeanors, such as criminal mischief or trespassing; and violation of a court order of protection. Again, sentencing considerations play a significant role in this decision. In some I83 IS4 a Machaela Hoctor, Victim Issues, in CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION, STALKING SEMINAR (2ow. Personal communication. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 89 jurisdictions (e.g., New York), charging lesser crimes may be important because lesser crime convictions may increase the penalties for stalking should there be subsequent recidivism. 186 e other states (e.g., California), the law authorizes consecutive sentencing in misdemeanor cases so that the actual exposure to incarceration may be greater for multiple misdeheanors than for a stalking felony charge.Ig7 At the same time, these filing decisions must take into account any potential double jeopardy issues relating to twin convictions for the same crimes.’88 Finally, court venue may i play a role in some states where the stalking behavior occurred in several different locations. Most states, however, provide venue in both the locality where the crime occurred and the location where the crime was p l q e d (i.e., where the intent to commit a stalking act arose).’89 Another concern may be the victim’s ability to cope with an extended wait for a felony trial; misdemeanor cases can typically be closed in half the time of felony cases.19o A final filing decision regards what charges to bring where the victim says she is not in fear of the stalker, yet the applicable statute requires victim fear as an element of the crime. - While there is only one court decision that directly supports charging defendants with attempted stalking,’” there are also adogous decisions holding that attempted terroristic threats may be charged where there is an intent to instill fear, but the victim was not fearful.’92 Preparing the Case. Trial preparation is critical to any successhl prosecution. A stalking prosecutor in Orange County, California, provides the following checklist of preparation actions: a Jane Shade, Stalking, in CALIFORNIA DISTRICT AITORNEYS ASSOCIATION, STAWNGSEMINAR (training materials) (March 2000). Iw Bialo-Padin, supra note 183 at 12. I” CAL. PENAL CODE 5 19.2 See United States v. Dixon, 113 S . Ct. 2849 (1993). See also, People v. Kelly, 52 Cal. App.4th 568 (1997) and other cases described in Appendix 4. See, e.g., CAL.PENAL CODEQ 778a(a). CRIMINAL HARASSMENTHANDBOOK, supra note 157. I9l State v. Rooks, 468 S.E.2d 354 (Ga. 1996). 19* See People v. Toledo, 96 Cal. Rptr.2d 640 (Ct. App. 2000); People v. Benitez, 104 Cal. Rptr2d 718 (Cal. Ct. App. 2001). The only article written on the topic of attempted stallung opposes such a crime on the basis that stalking is an inchoate crime, that is, it is a prelude to other crimes such as murder or rape. See Nick Zimmerman, Attempted Stalking: An Attempt to Almost Attempt Act, 20 N. ILL. U. L. REV. 219 (2000). As the review supra demonstrates, stalking by itself is a serious personal crime without regard to any other crimes that it nyy lead to. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 90 Review statute and case law. (Stalking law is still unfamiliar to most prosecutors.) Organize evidence per the KISS motto. 0 File trial brief to educate the judge on key stalking issues (e.g., reasonableness of fear). Prepare witnesses on details of stalking and fear. (Some victims may be reluctant to admit fear before their stalket; this is seen as "giving in." Witness preparation should address this by explaining the importance of such testimony.) Anticipate defenses (e.g., that the defendant did not perform the acts or that the victim overreacted). Develop a theme to present to the jury. Prepare exhibits (e.g., use a timeline). $ Obtain certified copies of court orders of protection and supporting declarations. Organize case "cast" for jury to understand. Prepare for a voir dire that includes the "He never laid hands on her" defense, and address the difference between a credible threat and joking.'93 Trying tbe Case. Because the statutory elements making up the crime of stalking typically include reasonable victim fear, stalking is one of a very few crimes where the victim's state of mind is an element of proof. Hence, evidence will be required to prove that the victim @ was indeed fearful and had a reasonable basis for being afraid. Proof that the victim had a reasonable fear for her safety due to the stalking begins with the victim's testimony. It, too, must be corroborated by such evidence as the following: Law enforcement oficer testifying about the victim's calls for help, her demeanor when explaining the reason for the calls, and the officer's evidence collection efforts Victim's fiends and co-workers relating changes in victim's behavior (e.g., asking for an escort to go shopping or to the parking lot when leaving work) Security officials at the victim's workplace who had been informed of stalking occurrence Record of victim statements that are not limited by the hearsay rule (e.g., 91 1 tapes, police incident reports) Answering machine tapes and audiotapes of phone calls '93 Ray Armstrong, investigation and Prosecution of Stalking Cases, in CALIFORNIA DISTRJCTAITORNEYS ASSOCIATION, STALKING SEMINAR (training materials) (March1999). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 91 Pictures of stalker taken by victim (date and time stamped) Evidence gained through search wanants, including computer, stalker's diary, property of victim found at stalker's residence, pictures of victim taken by stalker, etc. Videotaped interview with stalker. , The crux of the prosecution's story should usually be the impact of the stalking on the victim, however bizarre the facts of the case may be. In rebuttal, the defendant may claim that there was no threat expressed or implied or that the stalking behaviors exhibited were simply acts of love. The victim may even have exhibited behaviors, as described above, seemingly inconsistent with being a victim, especially to one unfamiliar with the dynamics of domestic violence and stalking. However, the prosecutor has several potentially important tools to work - - with. First, the prosecutor will have corroborative evidence that backs up the victim's testimony. This includes all the evidence detailed above that makes up aprima facie case of stalking. Identity evidence may come fiom victim testimony, videotapes -or cameras, fmgerprints a on gifts or letters, or paper (similar to that used for notes) found under defendant's control during a warrant search, etc. In some cases, the facts may not be clear. One common problem is proving victim fear. Victim testimony and collaborative evidence fiom other witnesses can address direct factual items such as behavior changes, locks changed, etc. The victim can also detail the time and effort expended in keeping safe, such as the time involved in filing for civil orders of protection and the number of trips required.'94 Such detail is intended to lead the jury to infer that the fear described must have been a major motivator for such extraordinary efforts. In addition, the prosecutor can call expert witnesses to explain to the jury that stalking has occurred and that the victim was fearful.'9' Thus, a psychiatrist, psychologist, or other treatment expert may be used to prove both the reasonableness of the victim's fear and its reality. Behavior seemingly inconsistent with being a stalking victim can be shown to be a common adaptive response to the '94 Shade, supra note 186. Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 92 stress of being a stalking victim at high risk of violence for a long period. Building a pool of expert witnesses qualified to testify on stalking may be difficult, but it probably is one of the first non-case specific tasks a special prosecution stalking unit must do. Proving reasonableness of the victim's fear requires leading the finder of fact to understand the importance of the context in which the stalking occurred. The significance of implied threats can best be understood in light of the defendant's history, especially prior incidents of violence (including violence directed at the victim or violence against others that is known to the victim). Not all states permit entry into evidence of the defendant's prior acts, on the basis that it is likely to be more prejudicial than probative. However, many do, and where it is permitted, prosecutors must make an effort to obtain corroborative evidence to support the victim's testimony about prior history. This, of course, is anothei. important reason for the prosecutor's ofice to have its own investigative staff in stalking cases. Stalker intent may be the hardest fact to prove. Some state laws require proof of the stalker's specific intent to stalk and terrorize the victim; others merely require a general intent to do the acts that resulted in terror and fear. One commonmethod for proving general intent is to show that the stalker was informed by the victim, the police, or even the court of both the victim's desire to have the stalking behaviors end and the negative impacts those behaviors have had on the victim. Letters, police testimony about intervention, and court orders of protection are used to document such warnings. Where specific intent is required, the defendant's continued actions after such notification may be subject to the proposition that one is presumed to intend the natural and probable consequences of one's actions.'% One problem in a small proportion of cases is that the victim may become uncooperative. Typically this occurs when former intimates become reconciled, although a few cases may involve a victim so terrorized that she cannot effectively cooperate with the prosecution. Depending on when in the course of investigation and prosecution this occurs, it may be This may be more easily said than done. There are apparently few credentialed experts to explain stalking victim coping behavior. In the absence of qualified academic experts or researchers, one possibility is to use victim advocates who have worked with a significant number of stalking victims as experts. United States v. Beltran-Garcia, 179 F.3d 1200 (9th Cir. 1999). See also Chasson v. Rivera, 459 U.S.1162 (1983) (dissent) (explaining that the presumption about natural consequences of one's actions must not be phrased in a mandatory manner, but simply one of allowing the jury to make such an inference). Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 93 i impossible to proceed without victim testimony; such testimony is usually critical to proving actual victim fear, as many states' stalking laws require. Not all states have such a requirement; e even though fear itself cannot be shown, proof that victim fear would have been a reasonable reaction may be all that is needed. Participants in the regional seminar series sponsored by the Bureau of Justice Assistance favored a modified no-drop policy in stalking cases where the victim is uncooperative. They pointed to the pdssibility of using prior victim statements under the spontaneous utterance exception to the hearsay rule, for example. The participants also suggested that prosecutors have the victim testify at bail hearings and probable cause hearings in any case where they suspect victim cooperation may become an issue.19' The participants did not discuss either how a no-drop policy might affect victim safety or what to do if the victim testifies I for the defendant. Finally, although most stalkers do not testify at trial, when they do, adroit crossexamination can make them the best witnesses for the prosecution. Cross-examination should focus on getting the stalker to acknowledge committing the various behaviors that make up the stalking. In some cases, the prosecution may let the stalker talk; his "explanations" may simply make the jury as fearful as the victim. In other cases, a stalker's "explanations" should be cut off, I) since they are often both clever and manipulative, and if only one juror buys his answer, a hung ' jury may result. One reason defense counsel may permit the stalker to testify is to show that his claimed mental illness negates the necessary specific intent requirement of many states' stalking laws. When this occurs, prosecutors should press the defendant to acknowledge the length of time over which the stalking occurred and the complexities of the behavior involved (e.g., tracking the victim). The prosecution should also point out on cross-examination that the defendant was otherwise fully functional (e.g., works, drives without accidents). This dual approach to countering any claim of debilitating mental illness will show that the planning that went into the stalking is inconsistent with any serious mental defect that could undercut specific intent. '91 19' ' 98 REGIONAL SEMINARSERESsupra note 5 . Shade, supra note 186; p e r ~ 0 communication ~1 fiom Rhonda Saunders, Deputy District Attorney, Los hgeles - County District Attorney's Office. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 94 Sentencing and Supervision. Unless foreclosed by a plea agreement, once a conviction has been obtained, the prosecutor will make a recommendation to the court about the most appropriate sentence. In many cases, the threat to the victim is so great that the sentencing recoinmendation is self-evident: incarceration for as long as possible. When the threat is not as great, the court may favor a probation sentence, or a plea agreement may specify probation. In either case, the prosecution will want conditions that help guard victim safety attached to the probation sentence."' Just as the prosecutor argued for restrictive conditions upon pretrial release, so too will the prosecutor seek intensive supervision, electronic monitoring, and nocontact orders, violation of which will result in revocation of probation. Furthermore, where new stalking occurs in violation of the probation conditions, prosecutors will press the new criminal charges rather than simply requesting the court to resentence the stalker based on the probation revocation. These are separate proceedings, and victim safety often requires that both cases be prosecuted. Regardless of whether a sentence of incarceration or probation has been issued, prosecutors will want to maintain periodic contact with the victim to determine whether there 0 have been any new incidents of stalking. One of the unique features of stalking is that ' . incarceration does not necessarily end it. Inmates may call or send letters to the victim directlJm or through third parties, or they may ask released inmates to continue their stalking efforts?" Furthermore, in almost all cases, incarceration eventually ends. Prosecutor contacts with the victim during the incarceration period reassure the victim that there is someone to go to if the stalking should resume after the stalker's release. In cases where the stalker is sentenced to probation, assignment to an intensive supervision caseload is often found appropriate after a threat or dangerousness assessment is 199 200 201 a Victim suggestionsfor probation conditions should be solicited at this timeto ensure that the conditions to be imposed by the court are complete. For this reason, prosecutors may wish to contact corrections staff directly, asking them to monitor mail and telephone privileges to ensure that the no-contact order is not violated. In somejurisdictions, the court order of commitment may include a directive to that effect. In yet other states, correctional agency policies and procedures include monitoring for violation of orders. Prosecutors may also ask corrections staff to keep track of any evidence suggesting that the stalker continues to obsess about the victim, including keeping a diary, pictures of the victim, etc. A number of states' stalking laws explicitly state that incarceration is not a defense to a stalking charge. See, e.g., CAL.PENAL CODEQ 646.9(g). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 95 - - conducted. Typically, intensive supervision caseloads involve no more thdn 30 probationers per officer. That ratio allows for at least one face-to-face contact each month, plus unscheduled visits to determine whether the probationer is at work and obeying all other conditions of probation. It also allows the probation officer to meet the victim and encohrage her to call the officer should stalking resume. It hrther enables the officer to call the victim periodically to check on how things are going and to reinforce the earlier message that probation is a resource for help. In practice, however, only the most serious cases are eligible for intensive supervision because the staff needed for this function are overworked. Priorities will need to be set; periodic victim contacts are probably the minimum task requirement to protect victim safety. Such contacts should be coordinated with the prosecutor, and procedures should be set forth so that each notifies the other when information about a potential danger to the victim is discovered. Where possible, the intensive supervision caseload should be supervised by a probation officer experienced in dealing with stalkers because stalkers are generally a "better" class of criminal, with higher intelligence and education?" The very nature of stalking, moreover, is one of manipulation, using their intelligence and often pleasing personalities to direct the probation 0 supervision in ways that undermine its effectiveness. One experienced probation officer reports that because stalkers are generally hostile to supervision, she sets firm boundaries on their behavior to emphasize the control relationship underlying intensive probation. For example, there should never be open-ended or vague requirements or promises to end supervision by a set date. Just as stalkers do not "hear" the victim's "no," so too they do not hear the probation officer's qualifications in their relationship. Another tip for handling stalkers is never to let them set times for supervision meetings, since doing so goes against the officer's authoritarian role in the relationship. A second reason for using stalking-experienced probation officers is their increased ability to monitor stalker recidivism through the victim. By helping the victim with *02 While this view of stalkers was anecdotally expressed by both researchers and practitioners, it obviously is an overgeneralization that does not apply to all types of stalkers. It does, however, probably describe! the most serious and dangerous stalkers, who often demonstrate great planning abilities in carrying out their stalking. These, of course, are the ones that the justice system is most likely to see. See Meloy & Gothard, supra note 12, and Harmon,Rosner & Owens,supra note 134, for two studies finding high stalker intellectual achievement. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 96 i needed services and providing a prompt and sure response to victim complaints, the strengthened relationship between the officer and the victim can be critical to effective supervision.2o3 , In a few jurisdictions, the convicted stalker may be required to attend a stalker-treatment program.2o4 Because there are so few such programs known, no generalized description of them is possible. Known programs use a psychologist or psychiatrist and a group therapy approach to ,I instill behavioral change. More intensive pharmacological services may be used for stalkers exhibiting serious mental illnesses. In addition, some stalkers may also need instruction on life skills, such as acquiring and maintaining friendships and improving social networks. Research on successful treatment of stalkers is limited?05 Hence, linking probation and stalker treatment is still a problematic exercise today?06 Findings: Victim Safety and Well-Being Victim safety and well-being are critical responsibilities for both law enforcement and prosecution. The victim is undergoing tremendous stress from the stalking. At a minimum, -and psychological support is critical to her well-being. Referrals for counseling, support groups, other victim services may also be needed. Threat Assessment. The most important question in a stalking case is, "How dangerous is the stalker likely to be to the victim?" Protecting the victim is a higher priority than a successfbl prosec~tion.~~' Hence, both law enforcement and prosecution will try to assess the ~~ '03 '04 'Os '06 20' Personal communication from Anna Guwnan, San Diego County Probation. Officer Guzman also suggests that the order of probation include multiple provisions, such as warrantless search and seizure, restrictions on computer use, polygraph requirements, mandated counseling, and stay-away orders. If probation conditions arc violated, prosecutors should ask the court for rearrest and other sanctions. Laws requiring or permitting the court to order offender treatment include CAI-. PENALCODE4 646.90); GA. CODE5 16-5-90(d); MICH. STAT. 750.41 lI(4Xc); N. MEX.0 30-3A-3(D); S.C. 8 16-3-1740; W. VA. REV. STAT.6 6 1-2-9a(h). See generally, MULLEN et al., supra note 9 at 285-288. REGIONAL SEMINAR SERIES,supra note 5 , presents a recommendation for mandating counseling for stakm on the basis that such counseling can help some stalkers even though one cannot identi@ which ones will be helped. This ignores the possibility that mandated counseling may in some situations worsen the threat to the victim. Virtually every stalker prosecutor we spoke with volunteered this statement in our discussions. The Nashville Metropolitan Police Department's Guide to Domestic Violence Risk Assessment, Risk Reduction and Safety Plan (ad.) (www.police.nashville.org/bureaus/investigative/~o~stic/sta~.h~), states, "In some cases, the most appropriate suspect intervention (fkom the point of view of enhancing the safety of a given victim) is to leave it alone because any system-based intervention directed at the sUspect/offkndm will dramatically escalate victim risk.. .." By and large, however, these comments may be reflecting the speaker's recognition of the constitutional limits on the justice system's response to stalking threat cases, including the inability to provide Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 97 degree of danger that exists both at the initial complaint and as the case continues. Typical factors considered in threat assessment include the suspect's history of mental illness or violence; 0 history of domestic violence; explicit threats of violence; vandalism or pet abuse; and increase in stalking activity. Much of this information can be gathered fiom official sources. Where there has been a prior relationship, investigators will often be able to obtain additional information from the victim about prior domestic violence; 'other prior violence, weapon possession, substance abuse, and mental health. Victims should also be asked about their assessment of potential violence. As noted earlier, research on threat assessment is still rudimentary. Nonetheless, some typology studies do provide indicators or con-elates of dangerousness. Zona's research found that "simple obsessional" stalkers were the most likely to present a threat of violence, especially those who had had a prior relationship with the victim?'* Other researchers have also found that erotomanics, who typically have not had any prior relationship with the victim, can be dangerou~,"~especially to third parties viewed as blocking successfbl pursuit of the stalking Many other researchers have focused onrelationship factors. Schwartz-Watts-and colleagues confirmed Zona's finding that the greatest risk of violence came from stalkers who @ had a prior relationship with the victim?' ' ' Similarly, Harmon and colleagues found that prior relationship was a predictor of violence against the victim. Nearly two-thirds of stalkers who had had an intimate relationship with the victim showed violence; only one-third of those who had been acquaintances showed violent behavior; and less than one-quarter of stranger stalkers were Looking at other stalker characteristics, the Hannon research team found that the greatest likelihood of violence was with stalkers diagnosed with both a personality disorder and '09 'Io 'I' 2I' preventive detention and the length of time until trial. In some jurisdictions, inadequate penalties upon conviction might also be added. Zona, supra note 132. Paul E. Mullen & Michele Pathe, The Pathological Extensions of Love, 165 BRITISHJOURNAL OF PSYCHIATRY 614 (1994); Paul E. Mullen & Michele Pathe, Stalking and the Pathologies of Love, 28 Ausn. & N.Z.J. PSYCHIATRY 469 (1994). See, e.g., R. Menzies, J. P. Fedoroff, C. M. Green & K. Issacson, Prediction of Dangerous Behavior in Male Erotomonia, 166 BRIT. J. OF PSYCHkmY 529 (1995). Donna Schwartz-Watts & Donald W. Morgan, Violent Versus Nonviolent Stalkers, 26 J. OF THE AMER.ACAD. OF PSYCHIATRY& THE L A W 241 (1998); Donna Schwartz-Watts, Donald W.Morgan & Cheryl J. Barnes, Stalkers: The South Carolina fiperience, 25 J. OF THE AMER. ACAD.OF PSYCHIATRY AND M E LAW541 (1997). Harmon (1998), supra note 134. Note, however, that violence as defined in this study included both physical - . assaults and properly damage. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 98 substance abuse or mental disorder. Most significantly,they found that most stalkers who threatened the victim acted on that threat. In comparison, only 20 percent of those who did not 0 threaten acted ~iolently?'~ Harmon's principal findings were replicated by Kienlen and I colleagues, who also found that stalker violence was most likely among those with a personality disorder or substance abuse and who had a former sexual relationship with the ~ictim.2'~ In the largest of these studies, Mullen and colleagues found that one-third of 146 stalkers attacked their victims; 6 percent attacked a third party. While most of the violent episodes were minor, nearly 20 percent involved sexual assaults or attempted assaults. Following their typology, the researchers found that rejected suitors were most likely to be violent (59 percent); these stalkers were also likely to threaten their victims. Predatory stalkers were also likely to both threaten and carry out their threats. Although resentful stalkers were most likely to use threats (87 percent), they were far less likely to actually use violence (29 percent); they were, however, likely to commit property damage (50 percent). Intimacy seekers were also prone to threats (50 percent), but far less likely to commit violence (24 percent). The researchers also found that violence was associated with personality disorders and substance abuse. Prior criminal record was also highly - correlated with stalking violence. Interestingly, the correlation between prior threat and violence was not present for former intimates; nonetheless, fonner intimates were most likely to commit violence (64percent), and stranger stalkers were the least likely to do so (24 percent). Mullen et aZ. conducted a regression analysis to determine which risk factors were the most useful in predicting violence. They found that the most important predictor was prior criminal record, followed by substance abuse and typology. Other important indicators of potential violence are prior relationship and overt threat^.^" Further, substance abuse of any kind is strongly associated with violent acts. All these factors need to be assessed on a casespecific basis. As Mullen et d.point out, although strangers are the least likely stalkers to commit violence, this group includes predatory stalkers, who are among the most likely to commit sexual assaults against their Mullen and Pathe also cite studies of non- stalking violence that list other indicators such as suicide threats, depression, common bail risk 2'3 2'4 a 2'5 Id. Kristine K. Kienlen, Daniel L. Birmingham, Kenneth B. Solberg, John T. O'Regan & J. Reid Meloy, A Comparative Study of Psychotic and Nonpsychotic Stalking, 25 J. AMER. ACAD.PSYCHIAT. & LAW3 17 (1997) MULLEN et a).,supra note 9 at 213-14. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 99 factors such as unemployment or social isolation, and case-specific clinical issues such as having high anger levels directed at the victim, having an intense sense of entitlement, or fantasizing about an attack. 217 Another, more recent study of 187 former intimate stalking victims found that for this victim subpopulation, prior violence is a moderate predictor of future violence; the author speculates that the stalker's reduced access to the victim moderates the value of this predictive factor?'8 The study also supported'other research findings that a stalker's use of verbal threats is the most powefil indicator of future Other research, however, finds that verbal threats are a weak predictor of future violence compared to profile information such as a prior intimate relationship between the stalker and victim?20 In sum, threat assessment begins with characterizing the stalking according to typology, since the research clearly shows that different risk factors are associated with different types of stalkers and stalking. The next step is to particularize the threat assessment by examining the specific behaviors, as well as background factors such as prior criminal history and incidents of violence. Thus, using the studies above as a guide, it is possible to roughly divide stalkers into . 0 low, medium, and high-risk offenders. Two problems with this approach remain, howw~. First, even low risk does not mean no risk. False negatives are not uncommon because ' assessment of risk potential may change over time as new information becomes available, e.g., overt threats are issued or information about prior convictions becomes available from other jurisdictions. Risk assessment is therefore a continuing process. Second, false positives (mistaken predictions of violence) are also of concern. Safety Management. Once the threat is assessed, the question arises as to how best to protect the victim. Each case must, of course, be assessed on its individual merits. In some cases, a simple intervention or warning interview will 216 217 218 219 220 221 a in others, a court injunction or Id. at 217. Id. at 220 See, e.g., Mary Brewster, Stalking by Former Intimates: Verbal Threars and Other Predictors of Physical Violence, 15 VIOLENCE AND VICTIMS 4 1 (2000). Id. J. Reid Meloy, Beth Davis & Jon Lovette, Risk Factorsfor ViolenceAmong Stalkers, 1 J. THREAT ASSESSMENT 3,8-9 (2001). Agency practice in "intervening"vanes. Some simply have the investigator make an informal house call to inform the suspect that his actions, if continued, may constitute stalking and result in an arrest. Others use a formal, handdelivered letter procedure to warn the stalker. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 100 ' protection order may be sought. In yet a few other cases, obtaining a civil order of protection may have the reverse effect of increasing the level of danger to the victim.222Other common tactics used by law enforcement include providing the victim with a home alarm system that will trigger police action. Where this is done, more advanced systems will also ensure that the 91 1 dispatcher has access to descriptive information about any suspect and his vehicles. Victims will t also be advised to take other actions, such as changing phone numbers, varying routes to work, or renting a post office box for mail. In extreme cases, the victims will be aided in relocating their residence, even out of the jurisdiction. In a number of states, laws now permit victims to protect their personal information on driver's licenses and even social security numbers.223 A number of law enforcement and prosecutor agencies provide victims with an informational booklet that details measures they can take to protect themselves. The LAPD Threat Management Unit handbook, for example, prefaces its recommendations with the statement that police cannot guarantee safety and thus the victim is encouraged to take steps on her own. Among other measures, the booklet advises victims to do the following: Inform friends, family, neighbors, and employer of the stalking. Improve security at the residence by installing dead bolts, change keys if not all keys can be accounted for, positively identie visitors before opening door, install adequate lighting on porch and outside, install loud alarm, keep fuse box locked, and have battery lanterns available. . ' Maintain unlisted telephone number. Extend security precautions to any outside domestic help. Prepare an evacuation plan and test it periodically. Maintain all-purpose fire extinguishers in residence and garage. 8 2 2 223 This is a common warning. See, e.g., OFFICE FOR VICTIMS OF CRIME, NATIONAL VICTIM ASSISTANCE ACADEMY (1996) ("Chapter 2 1, Stalking") (1998 Supplement) (www.ojp.usdoj.gov/ovc/assist/nvan/ch12-2st.htm).See also Gavin de Becker Inc., "Intervention Decisions: The Value of Flexibility. A Confidential White Paper Report."(n.d.) (citing Judge Watson, a prime sponsor of the 1990 California stalking law, for the view that temporary restraining orders do not always work; hence, the need for the law). But see J. Reid Meloy, Patricia Yim Cowctt, Stephen B. Parker, Brad Hofland & Aaron Friedland, Domestic Protection orders and the Prediction of Subsequent Criminality and Violence Toward Protectees, 34 PSYCHOTHERAPY 447,453-56 (1997) (mutual orders of protection found to be significantly correlated with reduced levels of domestic violence). One major cause of the ineffectiveness of orders of protection is the common failure of police to arrest when order violations occur and of prosecutors to press charges in these cases. Where arrests are made and charges filed by the prosecutor, there is anecdotal evidence to indicate that orders of protection are effective. See, e.g., CAL.CIVIL PROC. CODE 8 1277,78, GOV'T CODE 6205.5; IOWACODE $8 236.3,236.10; WASHREV. STAT.c40.24.010. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 101 Vary routes taken and time spent walking. Park in secured area at home, work, and shopping. Do not leave name on any reserved parking spot. I Have another employee screen all calls or mail at work. Equip car with locking gas cap. Visually check the passenger compartment before entering vehicle. i Keep doors locked while vehicle is in use. Select a reliable service station for vehicle service. 0 When traveling by vehicle, plan ahead to detennint location of police or fire stations and busy shopping centers along the way. Use private mailbox service; have all mail fiom fiiends, creditors, businesses, etc. sent to the mailbox; change address with U.S.Postal Service to mailbox. Remove home address fiom personal checks. Destroy discarded mail. Install telephone at another location and use call forwarding to residence. e Place residence rental agreements in another person's The Dover Police Department protocol suggests additional actions regarding the family's children. For example, children need to be instructed to keep all address and telephone information confidential. The protocol also raises the question of whether the children's school should be notified, but it does not provide an a n ~ w e r . 2 ~ ~ Other actions to offer victims of stalking, suggested by a victim services agency, include the following: Get or borrow a dog. Seek out self-defense training (to build assertiveness). Rehse flowers or deliveries from anonymous people. Require identification of repair persons before admitting them into the household. Install a peephole in fiont door. Los Angeles Police Department, Threat Management Unit,Victim Handbook (n.d.). Dover Protocols, supra note 164 at 4546. - Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 102 If there are children in common, find out which child-related records the expartner has a legal right to and minimize personal information in those records. If necessary, ask court to take away those rights.226 Victim Well-Being: Other Services. Stalking victims require noA-criminal justice assistance for at least two reasons. First, being stalked is stressful. Victims often need support and counseling. Medical and psychiatric or psychological treatment services may also be required to help the victim deal with past or ongoing ~tress.2~'Second, the criminal justice process itself is often stressful, especially when the victim must see the stalker in court ("meeting" is precisely the goal of many stalkers) and may have to hear repeated threats or references to past threats. Third, the safety precautions described above may have other Y unintended consequences that need to be mitigated. For example, informing employers of the stalking may put the victim's job at risk. - - Victim advocates and similar service providers can deliver some limited services themselves and refer the victim to other, more specialized service providers. Many special antistalking units have victim advocates assigned to help the stalking victims. For exgnple, virtually all the special stalking prosecution units in the several California county prosecutor ofices with such units have a victim advocate assigned to the unit. In part, this may be due to the availability of state funding for advocate units in the prosecutor offices?28such h d i n g reduces the financial costs of the stalking unit advocates, although it does not explain why prosecutors have made that position a priority. In contrast, only a few victim service agencies direct special attention to stalking victims, even in the context of domestic violence. Again, h d i n g issues may explain, in part, why this is so. The types of services needed by stalking victims include these: Therapeutic services, including counseling, pea' group support, and even psychological or psychiatric treatment Relocation assistance within the local jurisdiction Help in applying for victims' compensation 226 a 227 Legal Aid Services of Oregon, Staking Protection Orders: Training Manual for Law Enforcement and Advocates (n.d.) (unpublished training materials on file). See MULLENet al, supra note 9 at 239-247. CAt. PENALCODE 8 s 13835-13835.10. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 103 Help in applying for name or address confidentiality program, including issuance of new social security number Finding short-term shelter space Advocacy with public benefits agencies Advocacy with employers Legal advocacy in filing for civil orders of protection Court support and accompaniment to appearances in either criminal or civil Since stalking victims may also be victims of other crimes, such as sexual or physical assaults, victim services that relaterto those crimes should also be available. Similarly, when stalking victims have also been subjected to domestic violence, additional victim services may be appropriate. Finally, while all crime victims may be nervous about testifying in court, fears of testifjlng are especially large for stalking victims who have been trying to avoid face-to-face contacts with their stalker. Special attention to these fears needs to be displayed by victim advocates.230 0 Victim Involvement. Victim involvement in the investigation and prosecution of stalking cases is often critical to completion of these cases. This involvement may also be beneficial to the victim since it allows the victim to feel that she is retaking control over her life. Not coincidentally, regaining control increases victim cooperation with law enforcement and prosecution. Another way agencies can help victims regain control (or not lose control) is to help them live their lives as normally as possible. The Legal Aid Service of Oregon advises victims of stalking to do the following: Keep a sense of humor. Ask for support and reach out to others. Get enough sleep. Exercise. The San Diego District Attorney’s Office recommends that the victim report to the District Attorney’s offices, not to the court. The District Attorney’s Office provides transportationwhen needed. The victim should always be escorted to and fiom the courtroom and the courthouse by a victim advocate. She should never be left alone. Peters, supra note 182. Sce Dover Police Department, Dealing with Anxiety Prior to Testifying: A Handout for Victims, in Dover Protocols, supra note 164. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 104 Eat nutritious foods. Talk to someone supportive. Call a crisis line. Try a support group. I Get information on stalking and know what to expect. Do not avoid intimacy or withdraw from others. I Do not self-medicate with drugs or al~ohol?~' Agency Collaboration. Providing services for stalking victims generally requires collaboration between criminal justice agencies, victim service agencies, and such service providers as the following: Family violence coalitions or service providers, including victim advocates Shelters Mental health agencies and professionals Child protection services Medical services (hospitals and professionals) Schools Civil legal services. Collaborative relationships are developed and maintained differently in every community. In some jurisdictions, collaboration is more or less ad hoc. In others, formal agreements are reached. The Colorado Springs DVERT program, for example, is a joint venture involving local criminal justice agencies and both public and private service agencies, including mental health, social services, child protective services, and the local victim services agency. Each agency assigns staff to work with the other agencies' staff at the DVERT offices, which are located apart from any of the sponsor agencies. Findings: Special Unit Management Stalking cases are different fiom other types of crime cases. These differences are reflected in the organization and operation of the special anti-stalking units. The most important difference lies in the relationship between the victim and the investigator or prosecutor assigned m Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 105 , I to the victim's case. Stalking cases last a long time and rely on the victim for important evidence 0 gathering. By themselves, those two factors lend themselves to a relationship between the agency staff and the victim. Such relationships are to the advantage of both parties: the victim I knows whom to call when a problem occurs, and the agency obtains increased victim cooperation in evidence gathering and testimony. The investigative or prosecuting agency, therefore, has a significant interest in promoting strong victim-staff relationships. One agency policy that fosters such relationships is assigning one investigator or prosecutor to handle all aspects of the case?32 Unitary or vertical case assignment of staff means, however, that the investigator or proseoutor assigned to the case must be able to respond to a stalking call fiom a victim at all times. While many issues may be handled by telephone, not all can be, and an on-scene presence may be needed. An unusually high demand for staff overtime to handle victim calls for assistance or evidence collection (e.g., f b m stakeouts) is a second management Nonetheless, such calls are the cost of doing business as an anti-stalking unit. They can be budgeted for to some extent, while alternatives such as compensatory time maybe used where perhiiffed. a Staff caseloads are a third management issue that must be addressed. Stalking cases are labor-intensive due to the long period during which evidence must be collected. For example, one domestic violence investigator estimates that only 1 percent of his cases involve stalking, but those cases take up 10 percent of his time?34 While that may be an extreme case, managers should expect stalking investigators and prosecutors to have lower caseloads than more generalized staff and domestic violence unit staff. Further compounding the staff caseload issue is that most special unit supervisors and staffare also responsible for non-case specific duties. Because stalking is not yet well understood, the demand for information about stalking is high. Hence, special unit staff are responsible for training other agency staff about stalking, training related agency staf€(e.g., Legal Aid Service of Oregon, supra note 227 (no page number available). This is the uniform practice of virtually every agency studied. See also METROPOLITAN POLICE, supra note 156 ("Try to keep the same investigating officer for the case, especially if incidents are ongoing. 233 See generally, David H . Bayley & Robert E. Worden, Police Overtime:An Examination of Key Issues,in NATIONAL INSTITUTE OF JUSTICE, RESEARCH IN BRIEF (May . - 1998). a P ~ ~ S O I Mcommunication. I Dl D2 ...'I). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 106 I prosecutors training police) on stalking, and providing community education to encourage reporting of stalking. Experience suggests that as much as 10 percent of supervisor staff time 0 and 5 percent of other unit staff time may be spent on these activities. Managers, especially law enforcement managers, may also be expected to develop an operations manual that sets out written policies and procedures to guide staff actions. In several places in this report, references have been made to different aspects of such manuals, including case file management and case eligibility screening. A unit manual might also include agency policy on overtime, procedures for referrals to other service agencies, and guidance on victim safety planning assistance. C. Summary A substantial body of experience with anti-stalking initiatives has been gained among the few law enforcement, prosecution, probation, and victim advocate agencies sponsoring such efforts. Interestingly, this experience is consistent with the efforts of agencies in other countries, - such _as the United -Kingdom and Australis to implement their-anti&alking laws-Among-the _ --key managerial lessons learned is the need for specialized staff, vertical handling of cases, and multi-agency/community coordination. Lessons for practitioners include the importance of victim-gathered evidence (and the need to work better with victims and victim advocates), corroborative evidence, problem-solving approaches, and the use of research on stalking and stalkers to inform threat assessment and safety planning. The research uncovered numerous examples of how these principles are being implemented and can be emulated. a Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 107 V. Summary,Conclusions, and Recommendations e Examination of the wealth of material available on stalking confirmed in great detail that stalking is a serious crime. Stalking's toll on victims is insidious and pervasive. More importantly, the research on the incidence of stalking suggests that it is a far more common occurrence than previously recognized. The enactment of anti-stalking laws is amply supported. The review of state anti-stalking laws and their implementation found both good and bad news. The good news is that every state has enacted an anti-stalking law, and those laws are becoming progressively more strict, even though significant gaps in state anti-stalking laws are I still common. The bad news is that programs to implement the stalking laws are currently a limited to relatively few jurisdictions. Where these programs exist, they are generally doing an outstandingjob, especially where they use specialized staff-to-handlethe most serious stalking cases. Special unit staff also serve as a resource for other agency personnel who handle spillover stalking cases that are not handled by the core unit staff. By and large, a problem-solving, casespecific approach to these cases is used by the best programs. However, a number of routinized . ._ procedures have been developed to ensure that records are maintained in full and that important questions do not go unasked. A. Legislative Issues Summary of Key Findings Anti-staking efforts begin with laws that make staking a criminal offense. Such laws can deter some potential stalkers from stalking and keeping others fkom stalking during a period of incarceration or supervision. The great majority of these laws were adopted in a short period, 1990-1993. At that time, comparative information about the effectiveness of differing approaches to anti-stalking legislation was totally lacking; indeed, relatively little was known about the extent and seriousness of stalking itself. As a result, virtually no state's laws dealt with the myriad of issues that a comprehensive anti-stalking legislative package would include. As experience with these laws' shortcomings has come to light, a number of states have amended and added to their original anti-stalking laws. Almost every state's stalking laws need significant Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 108 I change, such to increase the penalties for stalking, provide civil remedies, or make other adjustments. 0 States should review and update their anti-stalking laws to take adyantage of what has I been learned in the past decade about effective legislation. This review should begin with comparisons to the Model Anti-Stalking Code developed by the National Criminal Justice Association for the National Institute of J~stice.2~' Recommendations for Legislators Legislative review should include consideration of the following: I - - - __ - - Increasing the penalties provided for stalking. Many states continue to treat stalking as a misdemeanor crime. However, stalking is a serious crime, just as dangero-usandharmful to the victim as many felony offmses, including aggravated assault. Stalking should be treated as a far more serious offense-a felony, not a misdemeanor. Furthermore, where stalking is classified as a felony, it should call for a tern of extended incarceration. At least one state provides a presumptive probation sentence for stalking rather than a prison sentence. Such _ _ that laws lead prosecutors to ignore the stalking law in favor of lesser charges --236- - will result inajail siitence. ._ . . _.- Elimination of definitional language that restricts application of the stalking laws to situations involving physical ~resence.'~'These changes should make it clear that stalking may be conducted by any means, including electronic communication (cybersta~cing).~~' Improving coordination of stalking laws with related offenses, such as harassment, terroristic threats, or invasion ofprivacy The review of state laws found several instances where a state law implicitly adopted an anti-harassment provision by creating a two-level stalking law, the first of which is essentially a pre-stalking misdemeanor crime?39 This lesser stalking offense includes all the 235 236 237 a 239 Supra note 4. Personal communicationfrom a Kansas prosecutor. See also discussion supra of prosecutor comments to the National Surveys. Dussuyer, supra note 45, presents recommendations based on police and magistrate experiences in Australia that focus on the inadequaciesof present law to deal with serial stalkers. These include amending the stalking law to permit police to charge stalking in cases where the victim is yet unaware of the stalking but the stalker has a history of stalking different victims, often as a prelude to sexual misconduct. One possibility is to expand the definition of "course of conduct" to include multiple single incidents of stalking against different victims. She also presents a suggestion that the civil laws authorizing orders of protection be amended to pennit court orders against a stalker that would cover multiple unknown victims. See infia note 243 for a more detailed discussion. E.g., NEV.REV. STAT. 8 200.575, N.Y.PENALLAW8 120.45 etseq. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 109 elements of stalking except a threat to the victim's safety. These laws fill a gap in the state criminal code where there had not been any effective harassment laws. In these states, stalking that includes a threat is a felony offense. 0 Authorizing civil orders ofprotection against stalking (in states where no such provision exists) and statewide registration of these orders in the state registry used for domestic violence orders. States' Full Faith and Credit laws may also need to be amended to include these orders?4o In addition to strengthening the civil and criminal code provisions for stalking and related offenses, other amendatory issues include the following: e Clarifying the stalking law to explicitly include offenses committed while incarcerated and to increase penalties for this type of continued stalking 0 Providing for warrhless arrests in misdemeanor stalking cases where probable cause to arrest exists 0 Authorizing use of civil commitment upon completion of a prison sentence in appropriate cases where stalking results from serious mental illness (using procedures similar to those used for sexual predators) - - e Authorizing the sentencingjudge in appropriate cases to include a requirement for registiation as a sexual offender e Forbidding persons subject to a stalking order of protection to possess firearms or explosives e Providing for issuance of no-contact orders in release hearings, violation of which would be a s e p k t e crime subject to warrantless arrest e Requiring training for law enforcement on stalking issues, including stalking dynamics, impact of stalking, and stalking investigation 0 2)o Establishing name and address confidentiality programs and related aid to victims, including fhding for moving relocation expenses where local law enforcement finds this necessary to protect victim safety Needless to say, implicit in this recommendation is the assumption that the stalking orders will be enforced. Not surprisingly, much research shows that unimplemented laws are not effective in deterring stalking. There are few studies of the effectiveness of stalking orders of protection where the orders are enforced by law enforcement and prosecution. See also, Mindy Mechanic, Mary H. Uhlmansiek, Tem L. Waever & Patricia A. Resick, The Impact of Severe Stalking Experienced by Acutely Battered Women: An Examination of Violence,Psychological Symptoms and Strategic Responding, 15 VIOLENCE & VICTIMS 443,455 (2000), whose findings on stalker use of visitation orders as a stalking tool suggest the need for stalking orders of protection to take precedence over coqflicting family court orders. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 110 0 Creating a civil law tort for stalking.24' Other stalking law amendments that should be considered include these: 0 Increased penalties for stalking of minors , I 0 Authorization for employers to seek orders of protection on behalf of employees while at work 0 Authorization for law enforcement officers to apply for emergency orders of protection on behalf of stalking victims 0 Confidentiality of communications between stalking victims and counselors or other treatment professionals I 0 Creation of new crime of ~ y b e r s t a l k i n g ~ ~ ~ 0 Creation of new crime of stalking by group or gang members?43 _. - 24' "* 243 See generally Victoria O'Brien, Civil Legal Remediesfor Crime Victims,OVC BULLETIN (December 1992) (Officefor Victims of Crime, United States Department of Justice). See also, Kristin J. Bouchard, Can Civil Legal Damage Suits Stop Stalkers? 6 B.U. PUB.INT.L.J. 55 1 (1997). For an example of a stalking civil tort law, see TEX.CW.PRAC.& REM.$5 85.001-.006. Dr. J. Reid Meloy in a personal communication,however, wams that engaging stalkers in civil lawsuits may actually result in increased stalking by providing the stalker with a new forum for stalking and providing an opportunity for the stalker to obtain personal information about the victim through the discovery process. See also Alexina Baldini, Stalking: Ramifications and Preventive Strategies for Professionals, in AIC Conference Papers, who reports on how stalker self-representation in criminal proceedings acts to revictimize the victim by forcing her to interact with her stalker in the court proceedings. The utility of a civil tort remedy may also be undercut by the fact that many stalkers are effectively "judgment proof," without resources to pay any judgment. This is because stalking can be a full-tirnejob on its OW. Cyberstalkingis implicitly included in the stalking criminal law in virtually all states because their laws prohibit any pattern of behavior or conduct that harasses and threatens the victim. Only a few states' laws do not include either specific mention of electronic communicationsor language that could so be interpreted. From this perspective, amendments to the state stalking laws that explicitly state that stalking may be committed by electronic means are redundant, although such amendments can cut offnuisance litigation. But see CYBERSTALKING, supra note 105, and Joseph C. Merschman, The Dark Side of the Web: Cyberstalking and the Need for Contemporary Legislation, 24 HARV. WOMEN'S L. J. 255,278 (2001) (36 states' laws can be interpreted to fit cyberstalking) for a different conclusion. The more serious problew is that many states' stalking laws do not provide adequate penalties for stalking of any kind, including cyberstalking. See supra, notes 76-82 and accompanying and preceding text. The variation in the seriousnesswith which stallung and cykrstalking are treated in the 50 states can affect cooperationbetweenjUrisdictionsin enforcing out-of-state subpoenas. See HOUES STAMBAUGHet al., ELECTRONIC C W E NEEDSASSESSMENTFOR STATE AND LOCAL LAW ENFORCEMENT, 26-27 (2001). cf.WA. REV. CODE $ 9A.46.120. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 111 I B. 0 Implementation Issues Summary of Key Findings The most significant finding relative to implementation of state stailking laws is that relatively few jurisdictions have acted to enforce the state stalking laws by assigning staff to that purpose. Hence, the immediate need is to expand the number and responsibilities of specialized units handling stalking cases. I Perhaps the greatest banier to the establishment of new stalking units is the lack of understanding of the nature and seriousness of stalking among local policymakers who fund and manage criminal justice agencies. ,Specifically, those policymakers need to understand that stalking cases 0 - Are more common than they think, Are more dangerous than they appreciate, and Require specialized staff skills for investigation and prosecution. Stalking Cases Are Widespread. Studies on the incidence of stalking indicate that there are 2 to 6 million stalking cases annually, depending on the definition of stalking used. However, convincing local policymakers that stalking cases are numerous in their jurisdictions is not simply a matter of showing a few research numbers. Because of the often widespread skepticism of research, national estimates of the number of stalking cases are not especially persuasive. Instead, policymakers must be pointed to the large number of serious stalking cases that special stalking units are presently handling in jurisdictions similar to the one where these policymakers reside. For example, DVERT, in Colorado Springs, Colorado, expects to have in 2001 up to 70 serious stalking cases involving domestic violence. The San Diego District Attorney’s Office handles about 100 serious stalking cases annually, divided almost equally between domestic violence and stranger-related cases, with perhaps another 100 less serious cases handled by prosecutors outside the special unit. In Queens County,New York, Safe Haven advocates respond to between 250 and 300 stalking victims annually. In none of these jurisdictions are the justice agencies aggressively seeking out stalking cases. In Dover, however, the police department stalking unit is aggressive in looking for stalking cases and handles as many as 30 Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 112 annually, in a town whose population is less than 30,000.244The statistics from Oregon of over 1,400 stalking civil petitions filed annually are especially instructive in demonstrating how few stalking cases are recognized by law enforcement. Extrapolating from the experiences of the special anti-stalking units we have looked at and talked with, there are, at a minimum, 40,000- 50,000 serious stalking cases each year. This statistic is not insignificant; it is three times the annual number of homicides and more than half of the number of forcible rapes reported in the United States. In sum, one does not need to cite victim surveys alone to prove how common stalking is; one needs merely to point to the experiences of several jurisdictions that have made an effort to deal with stalking, experiences that show that "if you build a stalking unit, they will come." I Policymakers, especially agency managers who often place responsibility for stalking - - cases with their domestic violence unit, need also to be made aware that less than half of all stalking cases involve intimate or former intimate partners. The National Violence Against Women Survey found that 40 to 45 percent of all stalking cases involved domestic violence.245 The review of court decisions discussed supra reached similar conclusions. Thus, my stereotype 0 of stalking that solely links stalking with domestic violence is simply wrong in many instances. Stalking Is Serious. Comparison of stalking cases to homicide and rape is not unjustified. At one level, many homicide cases, especially domestic homicides, often have a stalking component. This is the reason that stalking cases are so common among special units that are set up to deal with only the most serious threats to personal safety. At another level, the disruption in life that stalking can create for the victim can be just as serious as that fiom other personal injury crimes. Furthermore, because stalking is a continuous crime, its effects can continue to escalate until the victim requires extensive therapy, is forced to move fiom the jurisdiction, spends thousands of dollars on safety equipment, etc. By and large, policymakers understand that stalking can be a serious crime. Indeed, it is precisely that understanding that prompted the enactment of anti-stalking laws. To the extent that more needs to be done to explain how serious stalking can be, the court decisions reported 2u @ '" The statistics cited above are based on summary statistical reports provided to the author by agency officials at each site and are on file. Discussed supra note 38 and accompanying text. Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 113 above can be usefully cited, as can the numerous stories in the daily press and first-person stones in popular or mass-market magazines. 0 , Specialized Staff Skills Are Needed. Stalking cases are unique in their complexity, duration, and level of threat. Often they require extensive victim involvement in evidence collection and a level of agency staff-victim cooperation that is new to most practitioners. State stalking laws place new demands on investigators in gathering evidence and prosecutors in moving these cases forward. Innovation must be matched with routinization of these new methods and procedures. Experienced personnel are required. Without such personnel, many stalking cases will go unrecognized and without any justice system response. Other cases will fail for lack of adequate evidence cbllection or the prosecutor's inability to explain stalking to - juries. Victims will go unprotected and some will either be seriously injured (or even killed), - .while others will lead lives of quiet desperation while their stalkers continue to haunt them. Models of how to develop staff expertise are available, however. How these specialized staff and units operate is fully documented supra. These models need to be implemented in jurisdictions around the country. a' Recommendations for Agency Managers Specialized stafT should be assigned to handle stalking cases. Stalking laws do not enforce themselves; investigators and prosecutors enforce them. Furthermore, the unique prospective character of stalking cases, the high resource demands they place on stalking case investigators and prosecutors, and the specialized expertise required all suggest the establishment of specialized staff or units. Recommendations for Funding Sources Agencies should commit adequate resources for specialized stalking staffor units. Funding for victim services agencies' units for helping stalking victims is especially important, but often overlooked. In many instances, non-agency funding sources should support the new anti-stalking a initiatives until they demonstrated their worth. Because of the prospective nature of these cases. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 114 investigating and prosecuting stalking cases requires low staff caseloads; estimates of how labor intensive stalking cases are range upward of 10 times the time spent on the average domestic 0 violence case. Establishing a special stalking unit is an important commitment of agency resolirces. Because of the normal skepticism surrounding any new resource investment, agencies may seek first to use funds available under the Violence Against Women Act of 2000 (VAWA) The act specifically includes stalking to test the effectiveness of new anti-stalking initiati~es.2~~ as a program focus area. A number of jurisdictions have used their STOP and other federal dollars for this purpose. In other instances, the development of STOP-hnded specialized domestic violence units has resulted in the unit staff being exposed to stalking cases for the first time. Federal funding under VAWA is likely to be critical to improved anti-stalking efforts. Although a number of anti-stalking initiatives have already been hnded under the STOP program, they are small in number compared to domestic violence or even sexual assault initiatives. More needs to be done by the state STOP offices responsible for allocating these hnds. For example, in 1999 the California STOP agency issued a request for proposals for 0 special prosecution anti-stalking units, awarding three such grants.247STOP agencies in ' Colorado and Oregon have also funded multiple anti-stalking initiatives, although many of these programs are directed at helping women obtain civil orders of protection rather than funding justice agency operations as such. Other state STOP agencies need to be encouraged to do more about stalking in their states. STOP funding should include, in addition to investigative and prosecution positions, support for victim advocates and the development of linkages to community-based agencies to provide stalking victims with services and safety planning. Recommendationsfor Technical Assistance Technical assistance should be provided to help agency managers develop antistalking initiatives. Especially needed is technical assistance on these topics: - Stalking case identification 246 *" Case management policies and procedures Victims of Trafficking and Violence Protection Act of 2000,P.L. 106-386,114 Stat. 1464, 1495-96; 42 U.S.C. §$3796gg,3796gg-1,3793(aX18). See Appendix 2 for a list of agencies h d e d by the California STOP ofice. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 115 - Management of specialized staff and units - Enhancing victim safety and well-being. Because stalking is a new crime and agencies have little or no qxpdrience with it, they will need help in setting up new anti-stalking initiatives. One obvious type of encouragement is offering technical assistance to both STOP agencies and their subgrantees on stalking-related topics. Technical assistance is, of course, just another way of saying information transfer. The first "next step" must be to more fully inventory existing anti-stalking efforts and then to build upon the lessons gained from these efforts, regardless of b d i n g source. Building such a knowledge base will be critical to expansion and improvement of &-stalking efforts. The specific areas of most concern in bhilding the knowledge base include identification of stalking cases, case management policies and procedures, special unit staff, and victim safety policies-and procedures.248 Stalking Case Identification. By and large, most stalking victims are not receiving help from the justice system. Numerous stories from all over the country tell of police officers - 0 refbsing to takestalking complaints, even in jurisdictions where there are special stalking units or officers. Patrol officers are simply unable to recognize stalking cases even when a complaint lays out all the elements of the crime. Looking for hidden cases of stalking is totally beyond their training. The objective should be to develop a computerized method for identifylng these cases that does not depend on officers' expert response to victim complaints of stalking or less definitive victim concerns about multiple other crimes. Enough is known about how to do this that a few test sites might profitably be used to demonstrate what works and what does not work for improved case identification. Case Management Policies and Procedures. Agencies need to develop stalkingspecific policies and procedures on case assignment, staff caseloads, record keeping, and investigation. The existing policies and procedures developed by a few agencies can be used as initial models for emulation and adaptation, but they are far from complete in detailing the many informal policies and procedures in use in these same agencies, much less in those without The Violence Against Women Office of the U.S.Department of Justice has recently funded the National Center for Victims of Crime to establish a Stalking Resource Center that can provide technical assistance to local agencies receiving federal assistance finds. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. e 116 1 formal manuals. None of these manuals, for example, provides any guidance on threat assessment and agency collaboration to improve victim safety. a Managing Specialized Units and Investigators. It is critical for any anti-stalking initiative to have specialized staff handle stalking cases. One important element of specialized units is vertical handling of the stalking cases, in which the person assigned to the case is responsible for its future handling. It is the ongoing relationship with the victim that vertical case handling brings that is critical to victim cooperation in collecting evidence, victim reporting of fbture stalking incidents (even after the case is closed), and maximization of agency efforts to protect the victim. Creation of special anti-stalking units also permits the development of special policies and procedures for stalking cases, such as the stalking case book for record keeping or overtime policies that recognize the off-hours pattern of much stalking. More importantly, the development of specialized units allows the fostering of a problem-solving approach to investigating and prosecuting stalking crimes. Special stalking units can also lead to enhanced victim safety and well-being through victim advocates assigned to the unit and through collaboration with community agencies. The development of staff stalking expertise may have several important collateral effects. ' For example, law enforcement officers may be used as expert witnesses to testifL about the impact of stalking on victims at both pretrial release and trials. They may also be usefbl at trial to explain stalker behaviors (e.g., collecting souvenirs) and victim coping behavior.249 Prosecutors in a special stalking unit are in a better position to argue for a bail schedule and related release policies that recognize the danger to victims fiom their stalkers. Similarly, antistalking prosecutors can become a powerful voice in recommending changes to strengthen existing stalking laws. Recommendations for Training Training for specialized expertise in investigation and prosecution of stalking cases should be provided by federal, state, and local agencies. Training should be provided for agency staff to help them better assist stalking victims in safety planning and in obtaining needed services. 0 249 See State v. Schenck, 2000 Wash.App. LENS 650 (Wash. Ct. App. 2000). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 117 I , Expertise in investigating and prosecuting stalking cases cannot be developed simply through handling these cases or through technical assistance to agency managers. The personnel handling stalking cases must know fiom the start how dificult these cases can be and how dangerous they can be to victims. Mistakes made by stalking personn’el CLliterally be life- threatening. The stakes are simply too high for a “sink or swim” approach to preparing staff to handle these cases. Nor should managers assume that expertise in one area of the law, such as domestic violence, is easily transferable to stalking cases. The two types of cases are different and require different means for making the case, dealing with victims, and interviewing suspects. Indeed, the extent to which stalking cases are different can best be illustrated by the difficulty I many agencies have in identifjmg these cases. Although many domestic violence cases, J especially those involving separated former intimates, have a stalking component to them, domestic violence investigation units rarely identi@the stalking. This problem is even more acute with stranger stalking that has not yet reached the stage of dire threats. For reasons relating the manipulation abilities of many stalkers, specialized expertise is also needed by probation staff and other court officials, ranging fiom the judiciary to pretrial release agency staff. a Training in Investigation and Prosecution. At all level^^^^ the need for training is almost totally unmet. Meeting this need begins with state legislation requiring stalking training, yet only two states have such laws. While a few other state agencies such as California’s Peace Officers Standards and Training Commission (POST) have developed training programs for specialized officers, the largest need is for training ~ a t r o l . ~ ” Based on the many training program materials reviewed to date, virtually no training focuses on the problem-solving view of stalking investigation and prosecution. Instead, training 2so 25’ - A common practitioner and advocate complaint is the need for judicial training. Existing efforts seem to have been inadequate. For example, although California law requires judicial training on domestic violence, GovT. CODE5 68555, law enforcement, prosecutors, and advocates alike continue to report that such training has not affected judicial awareness of the dynamics of domestic violence. Compare the specificity provided by the state legislature in specifying the training required of law enforcement on domestic violence, CAL.PENAL CODE0 13519. Needless to say, no such legislation exists in any state for judicial training in stalking issues. The California POST has recently updated its stalking training materials. Personal communication from Ray Bray, Director of California POST. The earlier stalking training module is CALIFORNIACOMMISSION ON PEACE OFFICERSTANDARDS AND TRAINING, STALKING: TELECOURSE REFERENCE GUIDE(June 1996). California’s response to stalking training need is still uncommon. See Farrell eful., supra note 109 at 162. But see, North Carolina Justice Academy, Stalking and Stalking Behaviors, Course # 3328, published at Stalking Laws and Implementation Practices: A National Review a 118 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. I for non-specialist agency staff is largely focused on what the law ~ays.2’~ In view of the changes in law that occur in many states, this is not without merit, especially for patrol officers. Even 0 with specialized staff, training is often limited to replicating the policies and procedures approach that has been used successfully with other crimes. Stalking is not completely subject to routinization of effort; stalking investigation is not limited to looking for evidence related to past crimes. Hence, techniques that work for investigating crimes committed before law enforcement involvement are not sufficient. Not only must there be increased training on stalking, the stalking training must also focus on the problem-solving approach to investigation. Training must go back to basics: How do I find out who is the stalker? How do I prove X is the stalker? This entails a mindset that is willing and eager to innovate. Existing training must be improved. Research findings such as those discussed above must be made part of the stalking cumculum. Training in working with victims includes important issues such as victim evidence collection, victim support, and victim safety. The close relationship between investigators or prosecutors and the victim is distinct from that in other types of investigations, especially domestic violence, where evidence-based prosecutions that do not rely on victim testimony 1 dominate. Training in Victim Services and Safety. As already noted, law enforcement agency written policies and procedures relating to stalking investigations and case management uniformly limit discussion of victim issues. Training for these same victim issues is also limited. In part, this is because relatively little attention has been paid by either researchers or fimding agencies to better understand stalking victim needs or improve the capacity of agencies to respond to these needs. Again, federal and state assistance efforts directed at improving antistalking efforts should do more to stress victim safety and service needs. 252 www.jus.state.nc.us/NCJA/stalking.gif,describing a two-session training course offered in February and June, 2001. Where such training is provided to law enforcement personnel, it is often accomplished at roll call training. n e Dover, New Hampshire,department uses computerized training modules that permit individual department officers to receive the weekly training at different times. Use of the computer also permits testing of learning. Stalking training is part of the training curriculum. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 119 Recommendations for the Judiciary Judges should receive training on stalking. Stalking training should be an independent topic, not part of a larger training on domestic violence. Little attention has been paid to the role of the judiciary in criminal stalking proceedings. I Yet judges play a vital role at such important decision points as pretrial release, issuance of orders of protection, and sentencing. Unfortunately, judges are rarely provided training on stalking law, much less stalking dynamics or the impact of stalking on victims. As a result, judges may be prone to accepting arguments such as, "He hasn't hurt her," or viewing the defendant's manipulative and likable personality as proving credibility. Judges may also be inclined to order stalkers to attend domestic violence counseling or anger management on the illfounded theory that it could not hurt. Judges clearly need stalking training. In the absence of such training, prosecutors must make every effort to teach judges informally about stalking through pretrial briefs, use of expert witnesses at trial and at sentencing, and use of victim impact statements at sentencing. The , absence of such training to date remains a critical failure and one that was highlighted in this research's two national surveys of law enforcement and prosecutor agen~ies.2'~ Recommendationsfor Researchers Research on stalking should focus on these topics: - Improving threat assessment - Treating stalkers - Treating victims - Minority group victims of stalking. Threat Assessment. The largest hole in our knowledge about stalking lies in the issue of threat assessment. The discussion supra lays out the complexity of this issue, especially the multiple ways in which stalkers can be categorized, and indicates the difficulties associated with threat assessment. The most important of these is the inability of many researchers to develop 253 Indeed, it is virtually impossible to attend training or any other meeting involving stalking practitioners where the topic of judicial training is not raised. Stalking Laws and ImplementationPractices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 120 methodologies that capture the complexity of the issues.254This is largely'due to the small 0 number of cases that researchers are able today to identi@ as stalking cases. To capture the association between many different types of stalkers and violence outcomes requires a much larger number of cases than is typically available in most stalking research! To overcome this problem, researchers often combine otherwise heterogeneous categories of either stalkers or violence outcomes. This has not proven satisfactory, resulting, for example, in an absence of uniformity across research studies in defining violence. It also means that meta-analysis that combines studies to increase the total number of subjects studied cannot be done. This is an especially serious problem in trying to study stalking-related homicides and rapes, which despite small numbers are precisely the violent behaviors that practitioners are most fearful of. Of course, it may be that these latter occurrences are such rare events as to be statistically random, for which prediction studies are not appropriate. But it is much too early to give up on threat assessment without first trylng better methods that permit examination of multiple studies' findings. Monitoring and Treating Stalkers. Research on monitoring stalkers, especially through probation, is virtually nonexistent. The "best practices" suggestions above should, therefore, be 0 taken as only preliminary suggestions based on limited experience. Much more knowledge is needed about how differing probation agencies respond to the challenges posed by stalkers assigned to their supervision. Very little is known about treating stalkers. Clearly, stalkers who are delusional need to be treated for their delusions. Presumably, treating the underlying disease will also reduce the stalking?" However, most stalkers are not delusional. They may suffer fiom a variety of psychiatric diagnoses. As Mullen et al. point out, they are especially dificult to treat because of their capacity to "deny, minimize, and rationalize."256 Furthermore, in the experience of the present researchers, mental health and correctional practitioners do not believe stalkers should be sent for counseling such as that provided to domestic violence offenders. Because of their higher 254 e "' 256 This comment is not limited to threat assessment in the context of stalking. See Joseph Davis, The Assessment of Potential Threat and Future Prediction of Violence: A Second Look, 15 J. POLICE & CMM.PSYCHOL.31 (2001), for a more expansive discussion on this point. MULLENet al.,- supra - note 9 at 280. Id. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 121 levels of intelligence and tendency to manipulate others, they gain little from such sessions and diminish the value of the counseling for the non-stalker participants. Thus, it is not surprising 0 that the research identified only two stalker treatment programs in the country. More needs to be done in this field, especially in determining what works for which stall~ers?~'One interesting possibility for evaluators is to validate the forthcoming protocol for stalker treatment now in preparation by a group of San Diego pra~titioners?~'This protocol is expected to emphasize personalized treatment using cognitive behavior approaches in preference to group counseling, which their experience showed reinforced stalking behaviors and presented logistical problems in adding new members to preexisting groups?59 The protocol will also call for periodic reassessment of the stalker for possible modification of the treatment plan, done in conjunction with probation or parole supervisors. Treating Victims. It is notable that there is only limited research on treating victims. One of the few exceptions is the work of Collins and Wilkas, who examined the issue of victim trauma from stalking, akin to other post-traumatic stress syndromes.260One area for research is - to suryey treatment practitioners through the state victim compensation hoards that may certifL treatment providers for state payment. Another area for research is to examine stalking victims ' who are disabled?61 Minority Group Victims. While prior research has demonstrated that stalking affects all societal groups, little is known about possible differences in how stalking affects victims of 257 I "* 259 260 a 26' See Barry Rosenfeld, Assessment and Treatment of Obsessional Harassment, 5 AGGRESSION& VIOLENT BEHAV.529 (2000), who states that "no treatments for obsessive harassment have been either proposed or systematically studied." See also, Danah Westrup, Stalking in the US:Time to Focus on Treatment, in AIC Conference Papers, supra note 9, who presents some treatment guidelines based on experiences with treating stalkers at the Stanford Medical Clinic. Personal communication Anna Guzman, San Diego Department of Probation. Personal communication from Anna Gu~nan.One alternative to a specialized stalker treatment program that has been suggested is to use sex offender treatment programs; the similarities between stalkers and sex offenders have already been noted. However, fears of legal liability may affect treatment provider willingness to adopt this approach. Melissa J. Collins & Mary Beth Wilkes, Stalking Trauma Syndrome and the Traumatized Victim,in STAUUNG CFUMES, supra note 1. In contrast, Sophia F. Dziegielewski & Albert R. Roberts, Stalking Victims and Survivors: Identification. Legal Remedies, and Crisis Treatment, in CRlSlS INTERVENTION AND TWE-LIMITED COGNITIVE TREATMENT (Albert R. Roberts, ed., 1995), focus on the short-term crisis intervention needs of stalking victims. See also Emily Spence-Diehl & Miriam Potocky-Tripode, Victims of Stalking: A Study of Service Needs os Perceivetiby Victim Services Practitioners, 16 J. INTERPERSONAL VIOLENCE 86 (2001). Cf:Crime Victims With Disabilities Awareness Act, P.L.301-105 (1998); 42 U.S.C. 5 3796gg(bX10) (STOP gr0nt program); 42 U.S.C. 6 3766hh (8) (pro-arrest policies grants). Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 122 color. Nor do we really know with much certainty about the prevalence of stalking among smaller immigrant groups such as those of Indian-Asian backgrounds, southeast Asia, or the 0 former Soviet bloc countries. Other Recommendations Community agency collaboration should be encouraged to better serve stalking victims. Community education should be included among the responsibilities of agency staff assigned to handling stalking cases. Agency Collaboration. Victim needs for services go far beyond those provided by victim advocates. For example, victims may need medical and sometimes even psychiatric treatment. Victim advocates and service agencies do not typically provide such services themselves. Instead, they may have to identifjl medical specialists who have experience with stalking and domestic violence; often that expertise will initially come fiom training provided by the advocates or victim services agency. Ideally, medical practitioners with experience in - _- 0 worlung with traumatized patients of all sorts would be available,since theyare-familiar with the anxieties and stress-caused problems that typify stalking victims' needs. Although community ' collaboration is a priority under the VAWA, more might be done in enlisting national professional and other associations in encouraging local affiliates to join in such collaborations. Community Education. While television and the movies may vividly illustrate the dangers of stalkers, dramatizations about how the justice system handles these cases are missing. If few law enforcement officers know about stalking crimes, virtually no stalking victim understands that what is being done to her is a crime. The result is that only a small proportion of stalking cases are reported by victims. Instead, they might complain of harassment or violations of an order of protection. The stalking component is only revealed when a homicide results. In most jurisdictions, nobody, other than a few domestic violence service agencies and shelters, is telling victims to file stalking complaints. In a few jurisdictions, these agencies are very aggressive and the authorities might see dozens or even hundreds of stalking cases. But such success is the exception, not the rule. The number of justice agencies that handle a significant number of stranger stalking is very low. Yet these cases are far more c o m o n than e S U P P Q S ~ based ~, on the experience of several specialized stalking units that aggressively respond Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 123 to such cases. Victims need to be made aware of the stalking laws, and it is the responsibility of 0 the justice agencies to take on the task of community education about stalking. One special area of concern here is stalking among underserved populations. As the experience of the Dover Police Department shows, size of jurisdiction is irrelevant; stalking occurs in small towns as well as big cities and their suburbs. Substantial evidence from a variety of sources indicates that black women victims of domestic violence are often stalked, although less is known about other types of stalking against blacks. Anecdotal evidence also shows that stalking occurs among immigrant populations and in rural areas. However, special efforts will need to be made to reach those populations. Special efforts also need to 'be directed at educating employers about stalking. A number of states, such as California, have recently enacted legislation that permits employers to file on behalf of their employees for court orders of protection against stalking at the workplace. These laws show a growing recognition of how stalking in the workplace is a significant policy problem. Although a detailed discussion of this topic is beyond the scope of this report, Hoffman and Baron have summarized the kinds of actions employers might take to mitigate worrplace 0 stalking.262 Justice system responses to stalking were nonexistent a decade ago. Today, there are a few jurisdictions that might be cited as having exemplary responses; in others, significant efforts are underway to improve their response to stalking. Even in the "best" jurisdictions, many gaps remain, especially in providing counseling and services to stalking victims. Despite these problems, steady improvement is evident. The threshold of success in the effort to effectively help stalking victims has not yet been reached, but it is in sight. In sum, anti-stalking efforts have come a long way since 1990. Considerable policyrelevant research now exists to help agencies start anti-stalking initiatives. While few agencies have established special stalking units, those that have can also provide important assistance and guidance to their colleagues. However, availability of information is not enough. Agency leaders need to be told about the information base and its importance to their work. One way to Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 124 i , , get the word out is for federal funding to place a greater priority on stalking issues. Finally, some limited research on practitioner needs also should be conducted, especially on better identifjmg stalking cases. - 262 ~ ~~ ~~ ~ Suzanne Hoffman & S . Anthony Baron, Stalkers, Stalking. and Violence in the Workplace Setting, in STALKING CRIMES, supra note 1 at 139. See also Regina A. Petty & Lois M.Kosch, Workplace Violence and Unwanted ptlrsuit: From an Employer's Perspective, in STALKING CRIMES, supra note 1 at 459. Stalking Laws and Implementation Practices: A National Review This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 125 I Appendix 1: 1998-2001 Stalking Legislation by State , I This chart briefly summarizes legislative enactments that involve stalking and related issues in the past four years in the 50 states. Full legislative cites may be found at www.ilj.org/dv/index.htm by scrolling down on the left side of the page to the yearly compilations of violence against women legislation. These charts provide a state-by-state listing of relevant legislation, and include both state code and session law citations. State 1998Laws I 1999~aws I 2000 Laws ~ AZ Creating felony crime of aggravated harassment Authorizes employers to seek stalking injunction against harassment of employees Increased penalty for stalking; expanded types of threats covered Strengthens laws setting waiver of filing fees withlpetition for antiharassment court order Expanded behaviors covered by the harassment law Authorizes issuance of a harassment injunction against a juvenile AR This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. , I I 2001 Laws definition of stalking to be fear of death; eliminating "physical injury" $ear Eliminates court fees for persons seeking protection order against harassment - - , Authorizes issuance of employee harassment orders of protection upon employer petition - Appendix1 1 CA Amends stalking law to include threats through electronic mediums (cyberstalking). 4dds stalking to list of :rimes where :ontinuances may be granted if prosecutor has a conflict with other proceeding 3stablishes procedures for victims if domestic violence to keep :onfidential rime change Sheriff to notify prosecutor in stalking cases where defendant released on bail. Prosecutor shall give notice of bail hearing to victims Court shall issue protective order, violation of which shall result in a no-bail warrant Provides for establishment of training of parole officers to supervise stalkers upon release fiom prison Authoiizes court to issue ex parte protection order against stalking when requested by member of community college police department Consolidates all civil restraining orders issued by courts into one order Amends telephone harassment law to include harassment by computer Increases felony penalties for stalking and repeat stalking Increases penalties for menacing for display of or representation that article is a deadly weapon Appendix1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 2 Zourt may issue :riminal nestraining Irder after :onviction for stalking Adds new felony crime of privacy violation by secret filming of another for purposes of viewing the body or undergarments of another DE FL that applies to aggravated stalking offenses GA Amends definition of stalking by using term “safety” for “fear of death or bodily harm,” and adds requirement for a pattern of harassing or intimidating behavior Amends stalking law to include acts undertaken by electronic communication$ and causing a third party to harass or intimidate the victim where order of protection issued assessed of victim of stalking for issuance of order of protection or filing of protective orders Appendix1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 3 Sentencing court may order evaluation of offender, issue order of protection, and to require treatment as a condition of non-jail sentence I ( Knowing violation of temporary restraining order against harassment is a crime Creates new misdemeanor offense of trespass of privacy Amends harassment b telephone and electronic harassment laws to protect person under the age of 18 Stalking law to includes threats against a family member; incarceration is 'not a bar to prosecution for stalking and that stalking threats may be implicit in part or whole Amends law making it a crime to take unauthorized picture of another person 1 Creates new Grime of cyberstalking Adds stalking to list of violent crimes under Victim Compensation law; adds provision authorizing payments for temporary lodging or relocation necessary as result of crime Appendix1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 4 Amends law making unauthorized picture taking of a person. Authorizes filling of foreign orders of protection and prohibits collection of court fees for registration of foreign stalking orders of protection or motions to enforce such an order Amends definition of stalking to include violation of pretrial order of protection or of probation or of foreign order of protection Creates new requirement for -reporting of threat or intimidation of school employee Amends threat statute to make it a Class D felony to use school or government computers or fax machines to issue a threat IN IA Requires local agencies to collect information about stalking incidence and report to state Restricts availability of bond for persons appealing a felony stalking conviction Amends telephone harassment laws to include all forms of electronic communications Rewrites the offense of stalking in violation of a court order Appendix 1 - This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. a 5 IA cont. Ks Magistrate may issue a no:ontact order at stalking or harassment arraignments; reissued for five years at conviction. Mandatory arrest where offender violates order. Minimum seven day sentence unsuspended penalty. Prior stalking of victim is a factor in determining whether aggravating circumstances exist for sentencing guidelines Amends stalking law to provide for electronically communicated threats Provides that orders of protection shall be entered into national database, and defines abuse to include stalking ~~~ KY ~ Amends stalking law to expand the Creates felony crime of terroristic threatening types of protective orders, violation of which results in an increased penalty for stalking Creates civil action for stalking Appendix1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 6 ~ LA tedefines the crime of stalking to lelete fear requirement in place of seasonable person standard ,adds :yberstalking to definition of iarassment, and adds a minimum ail penalty for its commission and mandatory psychiatric evaluation. Probation may not be imposed without court-ordered counseling hthorizes court to n-ovide notice of ;talkingconviction to :mployer hcreases age where enhanced penalty for stalking of a minor applies to under age 18 from previous 12 years of age Requires court at pretrial release for defendant charged with stalking to consider threat or danger to victim ME Requires employers to provide leave for specified crime victims from work to attend court, or obtain services needed because of or stalking Warrantless arrests in misdemeanor stalking and related crimes where tlie arrestee and victim are members of same family -- Amends laws authorizing issuance of stalking protection orders and provides explicit criminal penalties for their violation Amend requirement that employers grant employees leave from work to viptims of stalking tc obtain services to remedy a crisis caused by that qrirne Amends definition of course of conduct to include cyyberstalking .. ~ ~~ Appendix1 \ This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 7- lictim compensation law include Makes editorial changes to :overage for psychological injuries definition of stalking and increases lue to threats of bodily harm the penalty for stalking where defendant has 2 or more prior convictions Amends definition of harassment to delete requirement that convictions be within 5 years of present offense Forbids appointment of referees in cases where order of protection from harassment sought ,Reenacts criminal procedure code, including authorization for warrantless arrests in stalking cases, and exclusion of psychological injury from coverage under victim compensation law Creates crime of criminal harassment for actions that seriously alarm victim and result in substantial emotional distress Prohibits use of the Internet or a computer system to communicate for purposes of stalking a minor .. - Amends harassment law to include communication by electronic means Appendix1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 8 Limits applicat!on of harassment law to instance8 where there is a substantial adverse effect on victim; petitio4 for order must so allege MN 'cont. MS Expands the types of orders of protection, violation of which increases the penalty for stalking Reduces potential penalties for telephone harassment Amend law requiring notification of victim upon release of stalker upon bail MT * NE Expands iefinition of stalking Forbids persons convicted of violating a stalking protective order to obtain permit to possess explosive materials Authorizes antiharassment protection order and warrantless arrest for violation of order. Law provides for full faith and credit to out-of-state anti-harassment orders. NV Increases felony penalties for aggravated stalking and second stalking conviction Amends laws providing for orders oi protection against stalking and harassment to eliminate court fees Appendix1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 9 e NV Creates new crime of harassment in public schools Requires peace officer certification training to include instruction on stalking :out. Authorizes employers to obtain order of protection against harassment for its employees Amends definition of crime of stalking and clarifies that venue for stalking includes the place where the victim was located NH Makes Court may impose zonfidential any protective detention or communication electronic monitoring s between a for persons charged stalking victim with stalking or order and a crime violations where danger counselor to victim is found Adds new situations to definition of stalking, and amends authorization for issuance of civil orders of protection Establishes addyess confidentiality Amends definition of program for vidtims of stalking harassment to include and other violence against women electronic communication generated by computers NJ Increases the penalty for staling and harassment if stalking occurred while offender was incarcerated or on probation or parole Replaces requirement for actual fear as element of stalking crime with requirement that defendant act knowingly that actions would place reasonable person in fear of bodily injury or death Amends stalking law to include cyberstalking Permits voter registration by stalking victims without any street address Appendix 1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 10 I keates new crime of ,talking, providing for nisdemeanor and klony penalties Amends crime victim compensation act to make victims of aggravated stalking eligible for coverage, in lieu of former limitation of second stalking victimization 1 Makes technicdl changes to new stalking law 4dds electronic mailto aw for threatening :ommunications by elephone ND OH 4dds clarifjing language that harassment may be ione by electronic zommunication Authorizes issuance of a civil antistalking protection order Amends stalking law provisions Deletes provision limiting second stalking relating to mentally ill defendants conviction for felony enhancement to stalking involving same parties Limits increase in penalty for second offense of stalking or telephone harassment to where crime is against same person Authorizes felony penalties for stalking where threat of harm is made, victim is a minor, weapon possession, violation of protective order and a single repeat offense. I I Appendix 1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 l? e gews crime of false :lectronic :ommunications, that iides message origin or :ontains information :hat is false, and which injures a person Amends stalking law to increase penalties when stalking occurs in violation of pe+anent order of protection and clarifies that harassing behavior under the stalking law cafi include harassing or obscene phone calls and makes other language changes Provides authority for court to issue orders against stalking as part of domestic violence order of protection and creates crime of falsely seeking order of protection for purposes of harassment and other purposes OR Amends telephone harassment law to include calls made despite order from telephone owner not to make such calls PA Adds electronic communication to definition of terroristic threat Adds cyberstalking to definition of stalking and of haksment (awaiting governor's action) Authorizes wadantless arrests based on probable cause in cases involving misdemeanor harassment or stalking or terroristic threats against a family or household member ~~ Makes editorial changes in harassment law; adds to definition of a course of conduct, use of threatening or obscene words, language, or actions Appendix 1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 12 PA Definition of harassment by communication includes electronic communications; increased penalties for stalking where there has been a prior I incident of violence eont. RI Amends definition of stalking to include cyberstalking, and providing penalties for cyberstalking in violation of protective order Authorizes bail commissioner to issue nocontact order against persons charged with domestic violence Adds provision foF civil liability of stalkers Amends definition of stalking crime, of telephone harassment, and of unlawful eavesdropping, peeping tom or voyeurism sc ~~ SD Includes stalking in definition of violent crime under victim rights act TN Amends definition of stalking to Restricts contact between victim and defendant Arrested for stalking include electronic stalking Creates crime of invasion of privacy Adds electronic communication to definition of stalking Appendix1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 13 e Adds electronic communication to definition of stalking crime, expands scope of protection against threats to all members of household, and increases penalties for first stalking conviction from Class A misdemeanor to Felony of third TX degree UT VT Violation of a stalking Makes technical correction to stalking law injunction is stalking crime. Second stalking conviction is felony. Court may issue a permanent stalking injunction when it holds in abeyance any conviction or plea; violation of order is a third degree felony i Stalking victims included in new address confidentiality program _____ Creates new felony crime of unconsented photographs or videotape to gratify sexual desire Expands scope of protection against threats to all members of household. Creates new felony crime of unconsented photographs or videotape to gratify sexual desire Amends address confidentiality laws to provide access to address information by law enforcement for reasons other than arrest ~~ Telephone harassment or threats includes comminication by electronic means; jurisdiction where such a cqme is coMmitted includes where sent and received Appendix1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 14 VA hends anguage of itatute iuthorizing ssuance of ;talking wotection order Quthorizeselectronic registration of ;talking and other orders of irotection by clerk of court with state criminal information network system ;talking protection rder may specifically rohibit contact of any :ind with victim or rictim's family ~ WA hcrease 3enalties for stalking and violation of a stalking protection order Creates civil cause of action for stalking, including punitive damages Authorizes a mest without a warrant of persons alleged to have violated an anti-stalking order of protection Amends definition of stalking crime to include cases where defendant "knows or reasonably should know" that his actions places another person in reasonable fear. Prohibits purchase or transportation of a firearm by person subject to stalking order of protection Amends law authorizing antistalking order of protection to extend hearing date requirement - Authorizes district court to transfer civil antiharassment cases to superior court in specified instances Adds stalking to crimes for which a Crime to knowingly use false victim may be provided with address identity to sendjundesired mail to another for puaoses of harassment confidentiality. or intimidation;;civil damages provided , I Appendix1 -\ This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. - 15 Adds stalking and violation of court order to sentencing guidelines Category V offenses Decreases filing fees for petitions to obtain court ,order against harassment Amends laws authorizing issuance of stalking protection order at request of parents of child being harassed to include cases where harasser is under age 18. Amends harassment and stalking laws to include acts involving electronic communication 1 Amends authorization for antiharassment order by establishing procedure for ex parte order and further provides that final order not required to be served where final order is not materially different and respondent served with temporary order Increases penalties for stalking Provides that cpurt fees in civil harassment order proceedings are paid by respondent if convicted for violating the order Appendix 1 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 16 Appendix 2: STOP Subgrantees Identified by Survey, Listed by State State ' AZ CA Grantee Mt.GrahamSafeHouse DescriptiodActivity Provides services to domestic violence victims, including those who have been stalked by their abuser; advocates attend state POST training on stalking. Stalking prosecution unit includes one attorney and San Diego District Attorney one investigator assigned to vertically handle all domestic violence-related stalking cases; complements existing unit staff assigned to stranger stalking cases. Stalking prosecution unit includes two attorneys and Los h g e l e s District Attorney one investigator assigned to vertically prosecute most serious stalking cases in county. + Stalking prosecution team vertically prosecutes Alameda County District stalking cases in county and coordinates state efforts Attorney - to collect data about stalking protection orders. Part-time stalking prosecution unit and one probation Sari Joaquin District Attorney officer assigned to intensive supervision of stalkers on probation. San Francisco District Attorney Stalking prosecution team to verticallyprosecute all stalking cases in county. California District Attorneys Offers multidisciplinary training program, including stalking seminar and training on stalking as part of Association domestic violence. Peace Officer Standards and Training of law enforcement using previously Training Commission developed multimedia stalking training unit as part of training for first responders (40 sessions), detectives (5 sessions) and sexual assault first responders (20 sessions). Ending Violence Against Coalition of state prosecutors, sheriffs, and coalitions Women against domestic violence and sexual assault. Sponsors statewide training on violence against women issues, including stalking. AMEND Statewide training. Project PAVE Provides group and individual counseling to domestic violence and stalking victims. Prevention education in schools includes stalking in curriculum. Violence Prevention Coalition Developing protocols for risk assessment, victim logs, employers, and other system professionals. @urango) Project Safeguard (Denver) Assists with gaining orders of protection for domestic violence victims, including stalking victims (30 percent estimate) and provides related services such as name change and safety planning. ~ CO Appendix2 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 1 I Domestic violence investigative unit also handles all Douglas County Sheriff stalking cases. 18th Judicial District Fast Track Stalking included in fast track prosecution program; special emphasis on training for CJ personnel, Prosecution volunteers, and community in recognizing stalking and implementing new stalking law and in tracking splking defendants' location through pretrial release. Emergency Protection Program using beepers and mandatory call-backs. Developing sexual assault and stalking training Sexual Assault Coalition & materials. POST delivers training. POST Provides advocate services to victims of violence Wilmington Police Department against women, including stalking. Special investigative unit for domestic violence crime5 Athendclarke County eolice where no arrest was made, including protective order Department violations and stalking. Improved investigation of stalking related to domestic Richmond County Sheriffs violence or sexud assault offenses through Office enhancement in staffing of special investigative unit. Developed a protocoVform for victims to fill out for Iowa State Police police or prosecutor; held saies-of workshops. _- -Multidisciplinary domestic violence training that Prosecuting Attorneys includes stalking component. Association of Michigan Provides help to women seeking court protection Council Against Domestic orders against stalking and domestic violence; Assault (Ingham County) coordinates with prosecutor's victim witness unit and receives police reports on order violation complaints where no arrest made. Lamar County District Attorney Prosecutor assigned to handle domestic violence and stalking cases; also provides technical assistance to other prosecutors. Purchased surveillance camera to help in stalking Slko County Sheriffs Office -'I GA i- . NY OH -.. _. . New York City Police Department Huron County Department of Human Services Southeast Inc ' Specialunits for stalking investigation established in two precincts. Developed protocols for investigation and prosecution of stalking and for providing assistance to stalking victims; provides training and community materials on stalking prevention. Provides advocate services for victims of stalking to help with evidence collection, assists in gaining protection orders, provides short-term counseling, and arranges referrals for psychiatric assessment and counseling. Appendix2 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 2 I 8 OK OR , Rocky River Municipal Court Established support group for stalking victims, Youngstown Police Department Hired full-time investigator for stalking cases. District Attorney for District 10 Victim advocate helps domestic violence and stalking victims with orders of protection. Assists victims with applications for orders of Lane County Prosecutor protection against domestic violence and stalking. protective order clinic Funds court advocate who assists domestic Clatsop County Women's violence/stalking victims in obtaining stalking orders Resource Center of protection. Provides legal advocacy and other services to stalking Sexual Assault Support victims, presently numbering about 16 per month. Services Works with legal services agency and law school clinic to assist with civil protection orders and university hearing process. Assigned prosecutor to domestic violence and stalking Chesterfield County District cases. Attorney Developed stalking kits for victims, including cell Winchester Women's Shelter phones, tape recorders, etc. Held workshop on stalking. Roanoke County Police Department Special domestic violence unit has one officer H e ~ c County o (Richmond) assigned to all stalking cases (about 20 per year). Police Department Oficer also does training for own (recruit, in-service), local, and regional agencies. Cabell County District Attorney One attorney assigned to violence against women violence against women cases spends 25 percent of time on stalking; conducts prosecutor training. - . I VA - wv Appendix2 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 3 Appendix 3: Bibliography 0 “Annotation: Validity, Construction, and Application of Stalking Statutes.” American Law Review Sh(29):487+. “Anti-Stalker Device.” Law and Order 40( 10) (October 1992): 4+. “Beware of CyberstalkinLThe Latest Workplace Threat,” HR Focus 77(4) (April 2000): S3. “Cellular Phones Handed Out to Domestic Violence Victims.” Community Police Digest 1(16) (August 24, 1995): 7. “Comment: The Formation and Viability of Anti-Stalking Laws.” VillanovaLaw Review 39 (1994): 1387+. J “Electronic Waming Alerts Victim: Leads to Probationer’s Arrest.” Alternatives to Incarceration 2(3) (May-June 1996): 8+. “Five Steps To Take IfYou’re Worried About Being Stalked.” Glamour, June 1994,90. “For Some, E-Mail Becoming a Form of Harassment.” Black Issues in Higher Education 12(24) (January 22, 1998): 9. a “George Mason University Stalking Policy” [Effective February 1, 19991. http://www.gmu.edu/facstaWsexual/ffstalkingcode.html(December 4,2000). ‘‘Investigations.’’ Law and Order 42(5) (May 1, 1994): 89. ‘Wational Violence Against Women Survey Results Released.” Police Chief 65(7) (July 1998): 78. “One Woman’s Nightmare.” Essence 24(6) (October 1993): 72+. “Protecting the Victims.” The Los Angeles Daily Journal, January 24, 1996,6. (fiom the Klamath Falls, Oregon Herald and News)(Editorial). “Research Roundup.” Spectrum: The Journal of State Government 7 l(4) (Fall 1998): 20. “Right or Wrong?” Managing Ofice Technology 41(9) (September 1996): 10. “Stalking: It’s More Than Just a TV Star’s Gag Material.” Security Management Bulletin 2416 (August 25, 1995): 1-3. “Study Shows Stalking Is Serious Problem.” Jet, December 22, 1997,24. “The Defenders.” People, October 19, 1998, 145-151. “Typical Stalker Rarely Prone to Violence,” Psychotherapy Letter 7(9) (September 1995): 5. a This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Appendix3 1 Abraham, A. ‘‘Introduction to the Electronic Communications Privacy Act and the Privacy Protection Act.” In Cyberstalking Workshop,prepared by National District Attorneys Association, 2001. 0 Abrams, K.M., and G.E. Robinson. “Stalking. Part I: An Overview of the Problem.” Canadian Journal OfPsychiatry 43(5) (June 1998): 473-6. I Abrams, K.M., and G.E. Robinson. “Stalking. Park II: Victims’ Problems with the Legal System and Therapeutic Considerations.” Canadian Journal OfPsychiatry 43(5) (June 1998): 477-481. Ackerman, E.,and D. Whitman. “When Obsession Turns Ominous.” US News & World Report November 24,1997,43. Ali, L. “Stalkers.” Rolling Stone, November 14,1996,29+. Alldridge, P. “Threat Offenses-A Case for Reform.” Criminal Law keview 1994(3): 176-186. 1 Allen, M.J. “Look Who’Stalking: Seeking a Solution to the Problem of Stalking.” Web Journal of Current Legal Issues 4 (1 996). http://www.newcastle.ac.uk/-nlawwww/l996/issue4/allen4.html - American Prosecutors Research Institute. “Cyberstalking: Collection of Online Evidence.” In Cyberstalking Workshop,prepared by National District Attorneys Association, 2001. American Prosecutors Research Institute. Mission Possible: Stopping StaZkers (a comprehensive &ning curriculum). (Alexandria, VA: Author, 1997). American Prosecutors Research Institute. Stalking: Prosecutors Convict akd Restrict. (Alexandria, VA: Author, 1997). Anand, S. “Stopping Stalking: A Search for Solutions, A Blueprint for Effective Change.: Saskatchewan Law Review 64(2) (2001): 397+. Anderson, S.C. “Anti-Stalking Laws: Will They Curb the Erotormaniac’s Obsessive Pursuit?” Law and Psychiatly Review 17 (1 993): 171 - 1 85. 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Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 2 I Baker, D. “When Cyber Stalkers Walk.” ABA Journal (December 1999): 50-54. A. “Stalking: Ramifications and Preventative Strategies for Professionals.” Presented at the 0 Baldini, Stalking: Criminal Justice Responses Conference, Sydney, Australia, December 7-8,2000. I Bane, V. “By Love Obsessed.” People Weekly 48(2) (July 14, 1997): 65+:. Banks, M.A. Web Psychos, Stalkers. and Pranksters. (Albany, NY: Coriolis Group Books, 1997). Barton, G. “Taking a Byte Out of Crime: E-Mail, Harassment and the Inefficacy of Existing Law.” WashingtonLaw Review 70 (April 1995): 465+. Baty, J.A. “Alabama’s Stalking Statutes: Coming Out of the Shadows.” Alabama Law Review 48 (Fall 1996): 229. I Batza, D.M., and M. Taylor. “Stalking in the Community and Workplace.” In Violence in Our Lives: Impact on Workplace,Home, and Community, E.K. 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Lane. “Psychiatric Diagnosis and the Offender-Victim Typology of Stalking.” In The Psychology of Stalking, J.R.Meloy, ed., 70-84. (San Diego, CA: Academic Press, 1998). Appendix3 . . This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. ~ 40 ........, ’ - . Appendix 4: Stalking and Related Court Decisions 0 This table summarizes the status of state cases filed through mid-March 2001. For each state, the cases are listed in the following order based on the nature of the offense: stalking, threat, telephone threat, harassment, and telephone harassment. Constitutional decisions are presented before statutory con&uction cases. Decisions of the highest state court precede decisions of intermediate courts of appeal, which are followed by trial court decisions. Finally, the most recent decisions are listed first except if they simply cite an older leading case decision. Case Culbreath v. State Type of Law Stalking State v. Randall Ivey v. State Stalking -~ Hayes v. State Stalking Morton v. State Stalking -- Citation Issue/HoIding Vagueness, overbreadth claims rejected (intent requirement ameliorates any vagueness problem; reasonable person standard is inferred from assault law antecedents). 669 So.2d 223 Vagueness, overbreadth claims (Ct. Crim. App. rejected (terns “repeated”and ”series”are not vague). 1995) Vagueness and overbreadth 698 So.2d 179 claims rejected under (Ct. Cfim. App. Culbreath. Prior conviction for 1995) affd 698 So.2d 187 (Ala. contempt of court is not double jeopardy 1997) Intent to carry out threat is not 717 So.2d 30 (Ct. Crim. App. 1997), required, but ability to carry out reh denied, threat is required; 12/19/97, cert substantial emotional distress standard is used, rather than fear uending 1/6/98; released for of death or serious bodily injury. publication 10/6/98. Violation of criminal order 651 So2d 42 (Ct. Crim. App. 1994) issued at bail hearing can be basis for aggravated stalking charge. Civil orders are not the only basis for increased penalties under the statute. Prior burglary is admissible to show defendant’s pattern of behavior in harassing multiple victims 667 S.2d 156 (Ct. Crim. App. 1995), reh ’g denied, 5/26/95, cert. denied 8/4/95 Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 1 Tanner v. City of Hamilton Telephone threat Ex parte N.W. Harassment Brooks v. City of Harassment Binningham Conkle v. State Harassment a T.W. v. State Harassment B.E.S. v. State __ Harassment 668 So.2d 157 (Ct. Crim. App. 1995) 748 So.2d 190 (1999) 485 So.2d 385 (Ct. Crim. App. 1985) 677 So.2d 1211 (Ct. Crim. App. 1995) 665 So.2d 987 (Ct. Crim. App. 1995), reh denied, 5/5/95 629 So.2d 761 (Ct. Crim. App. 1993) South v. City of Telephone Mt. Brook harassment 688 So.2d 292 (Ct. Crim. App. 1996) Donley v. City of Mountain Brook 429 So.2d 603 (Ct. Crim. App. 1982), rev'd on Telephone harassment other grounds, 429 So.2d 618 (1 983) , Harassment must include "fighting words" language. Harassment is not lesser included dffense of menacing because' conviction for the latter does not require fblfilling elements of crime of harassment. Vagueness and overbreadth claims rejected ("fighting words" used). Vqrbal threat not constituting "fighting words" is not harassment. Harassment may include obscene gestures that constitute fighting words to ordinary person. Fighting words are not present to support harassmentcharge (no threat nor "probability of physical retaliation"). First Arhendment claim rejected (harassing communication crime does not involve face-toface contact; "fighting words" doctrine inapposite). Vagueness and overbreadth claims rejected (intentional acts of telephoning undercut vagueness and overbreadth issues). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 2 AK ~ Petersen v. State Stalking Wyatt v. State Threat Allen v. State Telephone Vagueness, overbreadth, and substantive due process claims rejected (tern "repeated" means more than once, citing Konrud. "Knowing" conduct requirement defeats claim of potential for inadvertent violation; substantial core of covered cases much larger than any overbreadth potential). Statute only reaches telephone calls made solely to threaten or harass; reasonable person standard used. Victim's fear from threat must 778 P.2d 1169 be reasonable; reckless behavior (Ct. App. 1989) standard implies reasonable fear. Overbreadth claim rejected 759 P.2d 541 (Ct. (defendant acts constituted App. 1988) reckless behavior, knowing falseness of report). Statute bars reckless acts taken with knowledge of falseness of reports; victim fear is required. Vagueness and overbreadth 763 P.2d 1369 claims rejected (tem "repeated" (Ct. App. 1988) means more than once). -~ 857 P.2d 358 (Ct. Vagueness and overbreadth claims rejected (statute bars App. 1993) only calls having no legitimate communication purpose where only purpose is to annoy). 754 P.2d 275 (Ct. Vagueness and overbreadth claims rejected (intent test is App. 1988) used, rather than subjective response of victim). Overbroad (lawful threats 954 P.2d 1053 included in statute's scope; law (Ct. App. 1997) covers threats made during call made by victim, minimizing invasion of privacy element of crime) 930 P.2d 414 (Ct. App. 1996) ~~ 1 ~ y_ a( I threat ~ AZ State Telephone harassment Anchorage harassment State v. Musser Telephone ~~ ~ ~ ~ ~~ m This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Appendix4 0 3 Telephone1 898 P.2d 513 (Ct. threat Telephone harassment Telephone threat -Stalking App. 1995) 558 P.2d 750 (Ct. App. 1976) reh ’g denied, 5/9/76, rev. denied, 1/4/77 ~ 494 P.2d 68 (Ct. App. 1972) I I 5 S.W.3d 41 (1999) d Stalking 896 SW2d 874 17 S.W.3d 505 (Ct. App. 2000) Stalking evidence I Threat 1 613 S.W.2d 97 (1981) Threat 2000 Ark. App. LEXIS 770 (Ct. App. 2000) 2000 Ark. App. LEXIS 483 (Ct. App. 2000) Threat 2000 Ark. App. LEXIS 235 (Ct. App. 2000) I Overbroad (law covers common I business Dractices) Vagueness and overbreadth claims rejected (by specifying intent and nature of prohibited behavior, lstatute does not violate First Amendment; I of intent to harass or threaten). I I Condition of probation byishing defendant from state for period of 7 years violates state constitution. Immediate ability to cany out threat is not required under terroristic threat and stalking laws. Evidence of fireaxm and ammunition purchase-isrelevant to capacity to carry out threat Overlap with assault law (imminent injury threat versus protracted threats) is not unconstitutional. Threats need not be over long period of time. Threat may be communicated by third party, but proof of victim receipt of h a t is Victim testimony about prior criminal acts of defendant to prove victim fear is not relevant to whether threat made or with what purpose. Evidence of intent to threaten may be inferred fiom victim’s reasonable fear. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 4 I I AR Hagen v. State Threat cont - - Knight v. State Threat State v.Musser Telephone harassment State v. Hagen Telephone harassment Stalking People v. Borrelli _-. People v. Ewing Stalking Threat against fetus is necessarily threat against the woman. Threat must be intended to 758 S.W.2d 12 instill fear; threat to third party (Ct. App. 1988) did not do this (boasting). Overbreadth claim rejected 977 P.2d 131 because of lack of real and (1999) substantial danger of h a t to protected speech, especially in context of law regulating, in part, conduct. 558 P.2d 750 (Ct. Intent to harass must exist at time call is made. App. 1976) 91 Cal. Rptr.2d Vagueness, overbreadth, and First amendment challenges 851 (Ct. App. 2000) (rev. denied rejected (threats are not protected speech and term April 19,2000) "safety" is widely and commonly used, including multiple statutory uses). Nineacts over 15-month period is sufficient to show a single course of action rather than being nine isolated acts. Vagueness challenge rejected 90 Cal Rptr2d (terms "alarms," "annoys," 177 (Ct. App. "torments," and "terrorizes" that 1999) constitute "harassment" have clear dictionary definitions.. Severe and substantial emotional distress" requires evidence of degree, fiequency, and duration of victim distress). 886 S.W.2d 889 (Ct. App. 1994) Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 5 People v. Falck 60 Cal. Rptr.2d 624 (Ct. App.), rev. denied, 4/16/97, 1997 Cal. LEXIS 1974 (1997) Stalking ~~ People v. Halgren Stalking 61 Cal. Rptr2d 176 (Ct. App. 1996) ~ ~ People v. Kelley Stalking Stalking order 60 Cal. Rptr.2d 653 (Ct. App.), rev. denied, 4/23/97, 1997 Cal. LEXIS 2366 (1997) People v. Gams Stalking Stalking order 60 Cal. Rptr2d 423 (Ct. App.), rev. denied, 4116/97, 1997 Cal. LEXIS 2032 (1997) 54 Cal. Rptr. 2d 650 (Ct. App. 1996), rev. denied, 10/16/96 ~~~ People v. Tran Stalking Vagueness and overbreadth claims rejected (statute provides fair warning to offender and guidelines for police enforcement. Term "safety" in 'fear for sdety' is not vague. Intent requirement refers only to intent to create fear. Intent to cause fear may be infened from continuation of communications despite victim acts to avoid him and warnings fiom police and cotlrts. Vagueness and overbreadth claims,rejected (term "credible threat" is not vague, since intent to create fear is also required. No inhibition of protected meech exists). Double jeopardy is not violated where acts in one course of conduct occur after contempt violation found. Section of law defining stalking in violation of protection order is sentencing enhancement, not element of crime. Due process claim rejected (victim can not consent to violation of order; hence, there can be no entrapment by victim). ~~ Vagueness claim rejected (phrase "conduct serves no legitimate purpose" is not vague). a Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 6 I - - - People v. cont McClelland CA ~ Stalking Stalking order 49 Cal. Rptr.2d 587 (Ct. App.), rev. denied, 4/17/96, 1996 Cal. LEXIS 2160 (1996) I 30 Cal. Rptr. 2d 422 (Ct. App. 1994), rev. denied, 8/25/94 89 Cal. Rptr.2d 806 (Ct. App. 1999) 67 Cal. Rptr. 2d 872 (Ct. App. 1997) rev. denied, 1/14/98, 1998 Cal. LEXIS 52 (1998) People v. Heilman Stalking People v. Noman Stalking People v. McCray Stalking People v. Cmon Stalking 44 Cal. Rptr. 2d People v. Butler Stalking Civil commitment 328 (Ct. App.), rev. denied, 12/14/95, 1995 Cal. LEXIS 7521 (1995) 88 Cal. Rptr.2d 210 (Ct. App. 1999) People v. Gudger Threat 34 Cal Rptr. 2d 5 10 (Ct. App. 1994) People v. Fisher Threat 15 Cal. Rptr.2d 889 (Ct. App. 1993) 3 ' Vagueness claim rejected (terms "harasses" and "credible threat" are sufficiently d e f ~ t eterms ; "willfully" and 'maliciously" are defined in penal code). Felony penalty requires violation of both stalking bar and protective order. Vagueness claim rejected (term "repeatedly"is not vague in conjunction with intent requirement). Victim fear from stalking need not occur at the same time as the stalking threats were made. Term "repeated" refers to only - following, since harassment definition requires proof of a course of conduct (there is no need to show repeated acts of harassment). Intent to commit harm is irrelevant; intent is to create fear. Reasonable fear test is used Stalking is an offense subject to civil commitment as mentally disordered offender, since amended law covers crimes involving threat of force. Overbreadth claim rejected (specific intent requirement limits overbreadth problem) Conditional threat is covered by statute (contra Brown). Overbreadth claim rejected (there is no constitutional requirement that only intent to cany out threat can be penalized; not protected meech). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 7 People v. Hudson Threat In re David L. Threat People v. Mirmirani Threat Overbreatlth claim rejected (intent to carry out threat is not required by constitution or by statute; third party to threat passing op threat to victim covered bv law. 286 Cal. Rptr. 398 Overbreadth claim rejected (Ct. App. 1991), (statute does not reach rev. denied, substantial amount of protected speech). Threat can be 1/16/92 communicated by third person. Statute void for vagueness 636 P.2d 1130 (threats made with intent to (1981) tehorize defined as for political or social goals leave too much I discretion as to its scone). 102 Cal. Rptr.2d Threat does not need to s p m precise time or method of 269 (Ct. App. 2000) execution, since surrounding circumstances give meaning to words used. 89 Cal. Rptr.2d Jury may infer that defendant 683 (Ct. App. intended that third party would 1999) inform victim of threat. 956 P.2d 374,402 Threat is not required to be (1998) unconditional. 71 Cal. Rptr.2d Threat does not require that 644 (Ct. App. defendant saw or knew victim was home at time threat made 1998), rev. denied, 5113/98 outside home. 25 Cal. Rptr. 2d Conditional threat not covered 76 (Ct. App. by statute; construing explicit language of unconditional threat 1993) (overruled 3y Bolin) to include conditional threat raises constitutional issues. 50 Cal. Rptr. 2d Conditional threat is covered by statute (contra Brown). t43 (Ct. App.), -ev.denied, 4/16/97, 1997 Cal. LEXIS 2152 (1997) 6 Cal. Rptr.2d 690 (Ct. App. 1992), rev. denied, 7/23/92 ~ People v. Butler I ’ I I Threat a Andrews People v. Bolin Threat iGGTz&r People v. Brown Threat I ! Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 8 ~ CA People v. 0 Threat 69 Cal. Rptr. 2d 728 (Ct. App. 1997) Threat 62 Cal. Rptr.2d 303 (Ct. App. 1997), rev. denied, 6/25/97 38 Cal. Rptr.2d 328 (Ct. App. 1995), rev. denied, 611I95 40 Cal. Rptr.2d 7 (Ct. App. 1995) cont Mendoza People v. Martinez Stanfield a r People v. Allen Threat People v. Brooks Threat People v. Garrett Threat People v. Melhado Threat ’eople v. roledo Attempted 1 31 Cal. Rptr2d 283 (Ct. App. 1994), rev. denied. 9/29/94 36 Cal. Rptr. 2d 33 (Ct. App. 1994) 70 Cal. Rptr.2d 878 (Ct. App. 1998) 36 Cal. Rptr.2d 540 (Ct. App. 1000) 105 Cal Rptr.2d 242 (2001) Ambiguous words may constitute threat when context taken into account, such as history of gang involvement. Threat meaning of ambiguous words is gained fiom surrounding circumstances. Conditional threat is covered by statute (apparent condition, but condition is illusory). “Sbstained fear” element of threat statute met (sustained means,more than momentary; 15 minutes until police anived sufficient). Conditional threat is covered by statute (contraBrown). Evidence of prior abuse is relevant to questions of intent to threaten and victims “sustained fear.” The term “immediate” modifjmg threat refers to the immediacy of the victim’s response in understanding the prospect that a threat will be carried out in the future. Attempted threat can occur where threat made but not communicated to victim or victim not fearful where reasonable person would be. Overbreadth challenge rejected (an attempt requires threat which is not protected speech). Attempted threat occurs when victim is not in fear, although defendant intended to create fear. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 9 el- I Threat v. cont. Lopez People v. Hernandez I CO Peoplev. Baer I 88 Cal. Rptr.2d Civil commitment 252 (Ct. App. 1999) Telephone harassment 283 Cal. Rptr. 81 (Ct. App. 1991), rev. denied, 1013191 973 P.2d 1225 I I Stalking People v. Hines Threat 780 P.2d 556 (1989) (en bunc) People v. Smith Harassment 862 P.2d 939 (1993) (en bunc) 1-v. Peoule -rPeopie V. Norman Van Meveren v. county I I Disorderly conduct Harassment 1 I 886 P.2d 725 (1994) (en band 703 P.2d 1261 (1985) (en bunc) Harassment Threat of future violence is predicate offense under mentally disordered offender law authorizing civil commitment. Vagueness and overbreadth claims rejected (there is no real danger of compromising First Amendment protections). Vagueness and overbreadth claims rejected (statutory language is interpreted to means that credible threat can occur before, during or after stalking behavior; as interpreted overbreadth claim is inapposite, since protected speech is not reached. Reasonable person test of threat undercuts vagueness. Ex post facto objection rejected (although one element of crime occurred before law change increased penalty, crime was only completed after act became effective). Conditional threat is covered by statute where contingency is controlled by defendant. Overbroad (law lacks "fighting words" limitation, nor is it limited in application to privacy protection). Overbroad (law lacks "fighting words" limitation). Void for vagueness ("annoy or alarm" bar goes to core of law, but terms are undefined and without limiting standards). Vagueness and overbreadth slaims rejected ("repeatedly" is not vague due to common usage; fighting words limitation Westricts law's application). I Appendix 4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 10 a Bolles v. People Harassment 541 P.2d 80 (1975) (en banc) People v. Weeks Telephone harassment 591 P.2d 91 (1979) (en banc) 3 a People v. McBumey Telephone harassment 750 P.2d 916 (1988) (en banc) State v. Jackson Stalking 742 A.2d 812 (App. Ct. 2000) State v. Marsala Stalking 688 A.2d 336 (App. Ct.), cert. denied, 690 A.2d 100 (1997) Statev. . Cummings Stalking Harassment 701 A.2d 663 :App. Ct.), cert. ienied, 702 A.2d. 545 (1 997 Overbroad (anti-abortion mailing is protected speech; adding phrase "without legitimate purpose: would be void for varmeness). Vagueness and overbreadth claims rejected (statutory bar against use of "obscene" speech does not require Miller threepart instruction, since content is not core of crime, but invasion of privacy is; court can only speculate on whether other persons deterred from protected Overbreadth claim rejected (terms 'annoy" and "alarm" must be readin context with intent requirement and law's limitation to telephone messages). Vagueness and overbreadth claims rejected (citing Marsala and Culmo). Vagueness and overbreadth claims rejected (statute on its face implicates speech, quoting Culmo. Facts of case p m i t stalking law application). Vagueness claim against stalking law rejected (citing Marsala) Vagueness claim against harassment law rejected [citing Snyder). Appendix 4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 11 Stalking 3 Champagne v. Gintick Stalking order State v. Mail harassment Right to travel, vagueness and overbreadth claims rejected (statute in its entirety gives sufficient,warning. Claims that terms "physical safety," "willhl," "repeatedly," "following," and "lying in wait" are vague are vitiated by intent requirement). Law'sreasonable man standard has both objective and subjective elements. No First Amendment rights are implicated, since speech used to prove crime, not as crime itself. There is no infringement on right tb travel, since intent requirement limits application of law.871 F. Supp. 1527 Overbreadth claim rejected in (D. Conn. 1994) denying injunction (right to associate with friends does not reach substantial amount of protected conduct under statute.). 757 A.2d 1125 First Amendment challenge overruled (content of letters (2000) admissible to prove intent to harass, even where content of letters is not admissible to prove harassment itself'). Vagueness and overbreadth 717 A.2d 240 claims rejected (statute (App. Ct. 1998) proscribes abusive conduct not speech; prior judicial interpretation saves law fiom vagueness in "annoyance" language). Scope of law includes third 672 A.2d 535 party communications. Direct (App. Ct.) ,cert. communication is not required denied, 676 A.2d where intent to harass exists. 1375 (1996) 642 A.2d 90 (Super. Ct. 1993) ~~ Mail harassment Mail iarassment ~ Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 12 State v. Marsala Telephone harassment Gomley v. Director Telephone harassment State v. Anonymous Telephone harassment 684 A.2d 1199 (1996), cert. denied, 688 A.2d 329 (1997) 632 F.2d 938 (2d Cir.), cert. denied, 449U.S. 1023 (19bO) 389 A.2d 1270 (App. Sess. COM. Super. 1978) > State v. Martino Telephone harassment 762 A.2d 6 (App. Ct. 2000) State v. Lewtan Telephone harassment Stalking 497 A.2d 60 (App. Ct. 1985) 677 A.2d 33 (1996) Williams v. State Stalking 756 A.2d 349 (2000) State v. Knight Stalking 1994 WL 19938 (Super. Ct. 1994) Snowden v. State Bumham v. 761 A.2d 830 State Vagueness claim rejected on procedural grounds. Overbreadth claim rejected (riskof chilling Free Speech isremote and minor compared to evil addressed bv statute). Overbreadth claim rejected (law regulates conduct not speech; there is no need to limit terms "annoy" and "alarm" to fighting words as was required for disorderly conduct statute in same case). Double jeopardy contention rejected where contempt of court conviction based on other acts distinct from telephone harassment calls. Evidence from victim's tape of phone calls properly admitted. Vagueness claim rejected (term "repeatedly" refers to one series of acts, not two or more series for "harassment") Following on public roads is not constitutionally protected activity. Enactment of new stalking law includes implied saving clause, maintaining old criminal charge. Victim feeling of hopelessness from continued harassment meets requirement of "substantial emotional distress." No expert testimony required to prove this. Claim that act of "love" cannot be "malicious" act reflects an inability to separate fantasy from reality. Harassment is lesser included Dffense of stalking. ~~ Appendix 4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 13 _ _ _ ~ ~ Threat Washington v. United States Stalking 760 A.2d 187 (1999) Postell v. United States U.S. v. Baish Threat 282 A.2d 551 (1971) 460 A.2d 38 (1983) Stalking Telephone threat ~ 462 A.2d 409 (1983) 685 A.2d 380 (1996), cert. denied, 118 S . Ct. 152 (1997) Bilinski v. State United States v Smith Bouters v. State Stalking 659 So.2d 235, cert. denied, 5 16 US 894 (1995) State v. Kahles Stalking 557 So.2d 897 '1995), a f g , 644 io.2d 512 (Ct. 4pp. 1994) 554 So.2d 128 :1995), a f g , 638 30.2d 591 (Ct. 4pp. 1994) Folsom v. State - ~ Terroristic threat is lesser offense under extortion. Vagueness, overbreadth claims rejected (intent requirement in conjunction with 'repeatedly" and "emotional distress" are constitutionally sufficient.) Objective "reasonable" fear test is required. T m s 'repeatedly" and "course of conduct" do not require two series of acts, merely one. Evidence of prior order of protection properly admitted as relevant to stalking charge. "Unanimity" instruction not required because jury not asked to convict if either following or harassing occurred, only the latter component of stalking was charged. Conditional threat is covered by statute. Jurisdiction lies in District where recipient of threatening call received call. Vagueness and overbreadth claims rejected (conduct described by statute is not protected, clearly criminal. Reasonable person standard avoids vagueness fault). Vagueness, overbreadth claims rejected (citing Bouters). Overbreadth claim rejected (citing Bouters). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 14 a I FL I Gilbert v. State Stalking cont. Hufine v. State Stalking Stalking State Stalking Domestic violence order Perez v. State Stallring Salatino v. State Stalking Stalking State v. Baugher State v. Tremmel Vameyv. State Stalking Stalking Stalking 659 So.2d 233 (1995), u f g , 639 So.2d 191 (Ct. App. 1994) 655 So.2d 103 (19951, QfgY 648 So.2d 783 (Ct. App. 1994) 654 So2d 127 (1999, a f g , 636 So.2d 1358 (Ct. App. 1994) 658 So.2d 665 (Ct. App. 1995), a f d , 673 So.2d 486 (1996) (citing Johnson) 656 So.2d 484 (19951, afg, 648 SoZd 784 (Ct. App. 1994) 660 So2d 627 (1995)Y a r g , 644 So2d 1035 (Ct. App. 1994) 637 So.2d 384 (Ct. App. 1994) 637 So.2d 384 (Ct. App. 1994) 644 So2d 102 (Ct. App. 1994) 659 So.2d 234 (1999, a f g , 638 So2d 1063 (Ct. App. 1994) 659 So.2d 692 (19951, afg, 649 So.2d 943 (Ct. App. l"994) t L-2 Altingeyik v. State Stalking Vagueness and overbreadth claims rejected (citing Bouters). I Vagueness and overbreadth claims rejected (citing Bouters). Vagueness and overbreadth claims rejected (citing Bouters). Vagueness and overbreadth claims rejected (citing Bouters). - - Overbreadth claim rejected (citing Bouters). Vagueness, overbreadth claims rejected (citing Bouters). Vagueness and overbreadth claims rejected (citing Bouters). Vagueness, overbreadth claims rejected (citing Bouters). Overbreadth claim rejected (citing Kahles). Vagueness, overbreadth claims rejected (citing Bouters). Vagueness, overbreadth claims rejected (citing Kahles). Appendix 4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 15 i 658 So.2d 927 (1999, alfg, 639 So.2d 624 (Ct. App. 1994) 659 So.2d 232, cert. denied, 1116 S . Ct. 245 (1995), a d d on other grounds, 689 So.2d 1229 (Ct. App. 1997) 658 So.2d 1038 (Ct. App. 1995) 654 So.2d 127 (1999, a f g , 636 So.2d 695 (Ct. Api. 1994) 660 So.2d 1384 (1995), a f g , 651 So.2d 1205 (Ct. App. 1995) 651 So.2d 185 (Ct. App. 1995) Stalking Stalking Stalking Stalking Ratcliffe v. Stalking Stalking I I rlI Stalking Statev-Foster Blount v. State Stalking Saiya v. State Stalking 661 So.2d 58 (Ct. App. 1995) 654 So.2d 126 (1999, cert. denied, 5 16 US 849 (1995) 654 So2d 128 (1995) 644 So.2d 531 (Ct. App. 1994), cert. denied, 1648 So.2d 724 (1994) 656 So2d 483 (Ct. App. 1995) 706 So.2d 1374 (Ct. App. 1998) I wcing Higgins v. State Marinelli v. State italking ;talking I Overbreadth claim rejected (citing Bouters). Overbreadth claim rejected (citing'Bouters). ~ Vagueness, overbreadth claims rejected (citing Kahles). Overbreadth claim rejected (citing Bouters). Overbreadth claim rejected (citing Bouters). Vagueness, overbreadth Claims rejected (citing Kahles, Bouters). Overbreadth claim rejected (citing Bouters). Overbreadth claim rejected (citing Bouters). Overbreadth claim rejected rejected (citing Kahles). Vagueness claim rejected (citing Bouters). Double jeopardy for two convictions for stalking exists where there was one course of action. Appendix 4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 1 16 n State v. Jones Stalking 678 So.2d 1336 (Ct. App. 1996) State v. Johnson Stalking protective order 676 So.2d 408 . (1996) rehk deni'ed, corrected, 21 Fla. L. Weekly S311 (Fla. 1996) 712 So.2d 1259 (Ct. App. 1998) cont Acquittal of stalking in one case does not constitute double jeopardy for second charge of stalking based on first case postarrest behavior; the two cases involve different events. Double jeopardy following contempt of court order claims rejected (separate crime elements for both crimes). State need not prove intent to cause fear, only that fear occurred as result of intentional acts. Stalking Repeated videotaping of Goosen v. 714 So.2d 1149 neighbors is not conduct within (Ct. App. 1998) Walker - constitutionallyprotected activity exception of statute. 715 So.2d 339 Reconciliation between Butler v. State Stalking (Ct. App. 1998) harassing events goes against "continuity of purpose" element of stalking definition 708 So.2d 1015 Waldowski v. Stalking Jury is not permitted to State (Ct. App. 1998) speculate that defendant was the unknown source of false complaints of child abuse as part of stalking pattern of conduct 650 So.2d 10, Telephone Gilbreath v. Vagueness claim rejected (terms State harassment cert. denied, 5 14 "offend" and "annoy"are deleted fiom law as too vague; terms U.S. 1112 (1995) "abuse," "threaten," and "harass" are not vague). State v. Elder 382 So.2d 687 Telephone Overbreadth claim rejected (law harassment [1980) is aimed at conduct, not content of sueech). State v. Keaton Telephone 371 So.2d 86 Overbroad (statute's bar against harassment [ 1979) obscene calls is not limited to calls where intent is to harass). I Stalking McKinnon v. State -71 Appendix 4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 17 ~ Johnson v. State Stalking 449 S.E.2d 94 (1994) Flyv. State Stalking Kinneyv. State Stalking 494 S.E.2d 95 (Ct. App.), cert. denied, 1998 Ga. LEXIS 329, cert. denied, 119 S . Ct. 125 (1998) 477 S.E.2d 843 (Ct. App. 1996), cert. denied, 1997 Ga. LEXIS 205 (1997), u f d , 506 S.E.2d 441 (Ct. App. 1998) ~~~ S i t e V. ROO~S Stalking I_ ~ 168 S.E.2d 354 1996) : Vagueness and overbreadth claims rejected (intent requirement overcomes any potential ,vagueness in nonconsensual contact language. Constitution does not require that threat produce substantial emotional distress, merely fear). Vagueness and overbreadth claims rejected (citing Johnson for holding that conduct is not protected by First Amendment). Vagueness claim rejected (phrase "to contact" is well understood and in conjunction with intent requirement law passes muster). Doublejeopardy is violated when state charges stalking after conviction for violation of protective order involving same acts. Stalking is not the same as common law assault; attempted stalking can be a crime although attemDted assault can not. Showing similar course of conduct is valid basis for witness testimony about prior similar harassment by defendant Phrase "to contact" is readily understood. ~ Crenshaw v. Stalking evidence 5 15 S.E.2d 642 :Ct. App. 1999) Robinson v. State Stalking Adkins v. State Stalking 156 S.E.2d 68 (Ct. lpp. 1995, cert. ienied, 1995 Ga. ,EXIS 619 1995)) 171 S.E.2d 896 Ct. App. 1996) ~~ Otherwise innocuous act such as delivery of letter in public place may nonetheless be part of pattern of conduct constituting stalking. Appendix 4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 18 GA I Jagat v. State I Stalking Masson v. Slaton Threat I I I Constantinov. I Telephone I I State harassment Harris v. State Telephone harassment I Aggravated stalking law does not require victim awareness of surveillance where defendant knowingly violated pretrial release order based on simple stalking be conducting surveillance of victim. Telephone harassment may be 498 'k.E.2d 142 lesser included offense of (Ct. App. 1998) terroristic threat except where there is no evidence raising lesser charge. Evidence of prior rape is admissible as showing intent and victim fear reasons, and as part of course of conduct Corroboration needed to support 484 S.E.2d 780 victim's testimony of threat is (Ct. App. 1997) provided by actions that followed threat, including wounding 218 S.E.2d 771 Vagueness and overbreadth claims rejected (term "threat" is (1975) commonly understood; threats are never Drotected sDeech) 274 S.E.2d 49 (Ct. Victim terror is not required, focus is on conduct of making App. 1980) threat; conditional threats that are not covered by law are those "made merely to preserve the status quo." 320 F. Supp. 669 Vagueness and overbreadth Y.D. Ga. 1970) claims rejected (threats are not protected speech). Vagueness claim rejected (intent 155 S.E.2d 710, to harass is crux of law; hence, :ert, denied, 444 %S. 940 (1 979) no vagueness in subjective response of victim as showing harassment). 380 S.E.2d 345 Message left on machine is (Ct. App. 1989) sufficient to constitute harassment, since law bars intent to harass plus calls. 525 S.E.2d 388 (Ct. App. 1999) I Appendix 4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 19 ~ Troncalli v. Jones State v. Snell Civil stalking sui1 Stalking State v. Chung Threat State v. Klinge Threat ~ 513 S.E.2d 478 (Ct. App. 1999) 2000 Haw. App. LEXIS 222 (Ct. App. 2000) Civil suit for stalking is not authorized by criminal law Police officer may testifL as expert that stalkers typically take "trophies" from their victims Threats are not protected by First Amendment. Actual communication of threat is not required where threats made "in reckless disregard" if likelihood exists that communication through third party will occur. Due process claim that statute defines two separate crimes, both independently requiring unanimous verdicts rather than a single verdict rejected (citing Schad v. Arizona, 501 U.S. 624). Threat via third party need not be communicated to victim (victim terror not required; statute merely requires that acts be made in "reckless disregard" of terror resulting). Threat requires proof of intent or reckless disregard, rather than likelihood of threat being c a n i d out. Jurisdiction lies in Hawaii where telephone call made to Hawaii resident. Free speech rights violated (harassment is a fom of disorderly conduct, but aimed at single person. Police training precludes violent response to harassment acts in most incidents. Hence, higher standard required of police). ~ 862,P.2d 1063 (1993) I 994 P.2d 509 (2000) - - Threat 865 P.2d 157 (1994) h a t 650 P.2d 603 (Ct. App. 1982) State v. Meyers relephone heat 825 P.2d 1062 (1992) In re John Doe Harassment 869 P.2d 1304 (1994) State v. Alston InreDoe ' 1 Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 20 - Bailey v. Sanchez Harassment injuncttion 990 P.2d 1194 (Ct. App. 1999) State v. Taliferro Harassment 881 P.2d 1264 (Ct. App. 1994) In re Doe Harassment 788 P.2d 173 (Ct. App. 1990) Telephone threat Harassment 896 P.2d 357 (Ct. App. 1995) People v. Bailey Stalking 657 N.E.2d 953 (1995) People v. Nakajima Stalking HI cont ID ~ ~~~~ State v. Richards - - IL Equal protection violation claim rejected where statute provides for alternative bases for civil harassmerft injunction, but requirks intent only where lesser degree of threat exists State must show harassment acts likely to provoke violent response. Objective test to be used in determining if "harassment" likely to provoke violent redponse. Vagueness and overbreadth claims rejected (law is directed at conduct not speech; use of telephone solely to inflict injury is not protected. Terms "obscene." "lewd," "lascivious," and "indecent" connote language with vulgar sexual overtones; term "profane" means abusive cursing language. Terms "harass" and "offend" are commonlv used words.). Vagueness, overbreadth claims rejected (tern "following" is construed to require additional intent to advance threat to victim; threat is not protected speech when part of unlawhl conduct). Vagueness and overbreadth challenges rejected (while Bailey is not dispositive because challenge here is to new law, defendant failed to preserve claims). Due process claim over absence of mens re is rejected (citing Cortez for implied culpability requirement). ~ -~ 691 N.E.2d 153 (App. Ct. 1998), appeal denied, 699 N.E.2d 1035 (1 998) Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 21 a People v. Cortez Stalking 676 N.E.2d 195 (App. Ct. 1996), appeal denied, 684 N.E.2d 1338 (1997) People v. Rand Stalking People v. Zamudio Stalking 683 N.E.2d 1243. (App. Ct. 1997), appeal denied, 1998 ni. LEXIS 1832 (1998) 689 N.E.2d 254 (App. Ct. 1997) , i - - People v. Holt Stalking 649 N.E.2d 571 [App. Ct. 1995) People v. Daniel Stalking People v. Sowewimon Stalking 570 N.E.2d 861 ‘App. Ct. 1996), rppeal denied, i77 N.E.2d 967 1997) i57 N.E.2d 1047 App. Ct. 1995) 0 Vagueness and overbreadth claims rejected (statute proscribes only culpable conduct ryquiring intent. Terms ”follotvs”and “surveillance”are not vague). Vagueness and overbreadth claims rejected (citing Cortez). Vagueness, overbreadth and due prbcess claims rejected (citing Cortez). Stalking is nothing more than one type of common law assault. Requirement for two separate acts inhibits discriminatory enforcement. Vagueness, overbreadth claims rejected (explicit objective standards in law include reasonableness and intent components of stalking; there is no substantial infiingement of protected rights). Statutory prohibition of stalking outside a building does not foreclose stalking within the same building. Surveillance under law was shown although building that is in 2 parts separated the two ndividuals. Zonfinement of victim by iefendant can be basis for inding “enforced surveillance” where surveillance occurs within a separate portion of a arger structure. I Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 22 ~~ IL Peoplev. cont. Soto Stalking 660 N.E.2d 990 (App. Ct. 1995) People v. Krawiec Stalking 634 N.E.2d 1173 (App. Ct. 1994) t 727.E.2d 386 (App. Ct. 2000) People v. Young Telephone threat People v. Peterson 715 N.E.2d 1221 (intimidation) (App. Ct. 1999) Letter threat Telephone harassment Klick relephone harassment 396 N.E.2d 22 (1979), appeal dismissed, 446 U.S. 901 (1980) 362 N.E.2d 329 (1977) Prior protective order issuance can not by itself prove earlier threats because higher level of proof reqyired in criminal case. Acts in furtherance of a threat do not require violence or even intent to commit violence. "Under surveillance" requires only that there be remaining in the vicinity, regardless of whether victim is present (e.g., "lying in wait"). Prbof of location to determine court's jurisdiction uses reasonable doubt standard First amendment challenge rejected (threats are not protected speech). Testimony about victims' response to letter threats is admissible since it tends to show reasonableness of letters' tendency to create fear. Intent to cany out threat is not element of crime. Overbreadth claim rejected (terns "abuse" and "harass" take restricted meaning from word "threaten" also in statute). Overbroad (statute applies to any call made with intent to annoy; no "unreasonable manner"limitation to save law can be inferred, since crime occurs when call made regardless of subsequent conversation content. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 23 - - People v. cont. Karich IL - People v. Reynolds Telephone harassment Order violation 687 N.E.2d 1169 (App. Ct. 1997) Domestic violence protection order 70dlN.E.2d 49 (App. Ct. 1999) 3 IN - ___ Johnson v. State Stalking ____~ Johnson v. State 648 N.E.2d 666 (Ct. App. 1995) ~ Stalking 721 N.E.2d 327 (Ct. App. 1999) Violation of protection order based on numerous telephone calls requires evidence of telephone call content intended to be harassing, notwithstanding statutory presumption that calls resulted in emotional distress. Vagueness and overbreadth challenges to law’s use of t e m “harassment” rejected notwithstanding that complained of acts differ fiom examples in statute where harassment presumed, since listing not exhaustive and defendant’s intent to intimidate wai not a proper purpose. Vagueness claim rejected (intent requirement militates against vagueness). Due Process challenge to sentencing enhancement rejected where he stalked victim while a prior stalking complaint was pending; there is no need for first charge to have resulted in conviction. Hence, there is no denial of right to jury trial on issue. Further,it was reasonable for legislature to enact enhancement; this is not an equal protection violation. Defendant’s actions over a five or six hour period were sufficient to constitute a course of action under the stalking law. Jury could infer fear where no direct victim testimony given; evidence of prior acts is not double jeopardy when used to prove victim state of mind. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 24 1 Garza v. State Stalking 736 N.E.2d 323 (Ct App. 2000) Landis v. State Stalking 704 N.E.2d 113 (1998) Burton v. State Stalking Stalking order Privacy invasion Stalking - - 665 N.E.2d 924 (Ct. App. 1996) Waldon v. State Haynes v. State Hott v. State IA Harassment Intimidatio n Telephone harassment Leuteritz v. State Telephone harassment State v. Beecher Stalking 684 N.E.2d 206 (Ct. App. 1997) 656 N.E.2d 505 (Ct. App. 1995) 4 0 0 N.E.2d 206 (Ct. App. 1980), transfer denied, 409 N.E.2d 1082, Yert. denied, 449 U.S. 1132 (1981) 534 N.E.2d 265 :Ct. App. 1989) 616 N.W.2d 532 (2000) Jury could have inferred reasonable fear fiom victim statements of unease fiom 2 years of unwanted comunidations Proof of prior similar acts may be admitted into case-in-chief, but prior convictions are admitted only into sentencing hearing Double jeopardy claim rejected for stalking and privacy invasion convictions (charging facts for both offenses overlapped, however). Jury could infer intent to threaten and fear fiom victim description of six encounters in public places within one year period. Double jeopardy claim rejected since intimidation and harassment are distinct crimes. First Amendment claim rejected :obscene telephone calls violated victim’s privacy and are lot protected). relephone harassment law is lot applicable without intent of mly nonlegitimate reason for :all; reasonable man test of ntent. louble jeopardy does not attach tntil trial begins; violation of Irotective order is not a lesser ncluded offense of stalking, ince provision in stalking tatute making stalking in iiolation of order a felony is a entencing enhancement, not lement of crime. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 25 State v. Limbrecht Stalking 600 N.W.2d 316 (1 999) State v. Bellows Stalking 596 N.W.2d 509 (1 999) State v. Neuzil Stalking 589 N.W.2d 708 (1999) I The several acts complained of constitute a threatening course of conduct even if individual acts in isolation could be seen as only harassing. Violation of out-of-state stalking protection order may be used to enhance penalties for stalking in state. This is not enforcement of order under full faith and credit clause. Stalking is general intent crime (mean to commit act without regard to sDecific results\. Vagueness and overbreadth challenges rejected (threats not protected speech even when directed at public official under claim of political speech. Speech was within “hard core” of prohibited acts). First degree harassment is not lesser included offense of stalking where stalking may be proven without harassment. Overbreadth claim rejected with statutory interpretation (statutory requirement that communication have no legitimate purpose eliminates overbreadth objection. Offensive language can not however take away legitimate purpose of protesting to government action. “Fighting words” exception has especially high standard when police officers are target). Vagueness claim rejected (phrase “obscene, lewd or profane” is not vague due to wecific intent element of law\. ~~ arson - 571 N.W.2d 7 (1 997) - a’ State v. Mulvany Harassment 600 N.W.2d 291 (1999) State v. Fratzke Letter harassment 446 N.W.2d 781 (1 989) State v. Jaeger Telephone harassment 249 N.W.2d 688 1977) : e Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. e 26 State v. Whitesell Stalking 13 P.3d 887 (2000) State v. Rucker Stalking 987 P.2d 1081 (1999) State v. Bryan Stalking 910 P.2d 212 ( 1996) ~ ~~ State v. Zhu Stalking 909 P.2d 679 (Ct. App. 1996) State v. Gunzelman Threat 502 P.2d 705 [ 1972) Vagueness and overbreadth claims rejected (citing Ruckr; otherwise valid law not directed at protected speech does not violate 1'' Amendment). Intent to place victim in fear may be inferred from circumstantial evidence. Defendant's prior acts may be used to prove credible threat. News articles saved by defendant about spousal murders admissible to show intent. Victim's testimony use of term stalking not legal conclusion, but representation of her fear. Vagueness claim rejected where legislative amendments now provide objective standard and include statutory definition for harassment, course of conduct and credible threat. Phrase "repeated course of conduct" is not vabe, but is one of common understanding. Phrases "apparent ability" and "legitimate purpose" are based on objective standard and not vague. Void for vagueness (undefined terns "alms," "annoys," and "harasses" are vague without objective measure; tern "following"however is sufficiently comprehensible). Telephone calls can be both part of a campaign of "following" and acts of harassment under law providing alternate methods of stalking. - Vagueness claims rejected [terms "threat" and "terrorize" are adequately defined by Code and dictionary). ~ Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 27 KS State v. Miller cont. Threat 629 P.2d 748 (Ct. App. 1981) State v. Knight Threat 549 P.2d 1397 (1976) State v. Thompson Telephone harassment 701 P.2d 694 (1985) Poindexter v. commw. Stalking a KY 1996 Ky. App. LEXIS 156 (Ct. App. 1996) 988 S.W.2d 506 (Ct. App. 1999) Welch v. commw. Stalking Probation violation Thomas v. commw. Threat 574 S.W.2d 903 (Ct. App. 1978) Musselman v. commw. Harassment 705 S.W.2d 476 (1986) U.S.v. Sturgill Harassment 563 F.2d 307 (6th Cir. 1977) Yates v. C. Telephone harassment 753 S.W.2d 874 (Ct. App. 1988) e Cross buniing is physical act that constitutes threat; speech not required. Threat may be implied; third person invplvement in carrying out threat permitted where intent to terrorize exists. Overbreadth claim rejected (intent to harass is element of crime, not missing from law). Vagueness and overbreadth claims rejected. Violation of no-contact provision occurs where defendant makes continued harassing hang-up calls without any conversation. Overbreadth and vagueness claims rejected (tenns "threat" and "terrorize" well understood; threats not protected speech). Threat may be conditional; victim &ar of immediate h a m not needed; intent to complete threat not relevant. Void for vagueness and overbroad (law lacks fighting words limitation that can not be added by judicial interpretation). Overbroad (citing Gooding v. WiZson, 405 U.S. 518 (1972) and Acker v. Texas,430 U.S. 962 (1977)). Vagueness and overbreadth claims rejected ("fighting words" doctrine is inapplicable to private communications by telephone; law regulates harassing conduct, not speech). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 28 State v. Rico Stalking 741 So.2d 774 (Ct. App. 1999) State v. Meunier Telephone harassment 354 So.2d 535 (1918) harassment 491 So.2d 458 (Ct. App. 1986) I u ~~ State v. Porter Threat 384 A.2d 429 (1 978) State v. Thibodeau Threat 686 A.2d 1063 (1996) State v. Lizotte Threat 256 A.2d 439 (1969) ~~ State v. Ilsley State v. hpley State v. Hills Following victim from one location to another and then to another is one continuous act, rather than a pattern of conduct involving at least two separate acts. Vagueness and overbreadth claims rejected (terns "annoy," "harass," and "embarrass" "take color" from surrounding words, limiting their scope). Specific intent to harass may be inferred from voluntary act that rationally may be expected to annov or harass. Overbreadth claim rejected (threats not protected speech). Statute is interpreted to apply only to person who made threat or third party who adopts threat in repeating it. Objective reasonableness of victim fear is not essential element of threatening, since intent to place in fear is sufficient. Intent to carry out threat and actual fear are not required; the crime committed is causing fear to ordinary person. Letter to third party in same home violated harassment order. Letter threat Harassment order Harassment 595 A.2d 421 (1991) Harassment order 574 A.2d 1357 [ 1990) 544 A.2d 302 (1988) Overbreadth claim rejected (harassing conduct is not protected speech). Vagueness claims rejected (temi "harassment" is commonly understood). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 29 Streater v. State Stalking protective order evidence 724 A.2d 111 (1999) Piper v. Layman Stalking protective order 726 A.2d 887 (Ct. Spec. App. 1999) Caldwell v. State Harassment 337 A.2d 476 (Ct. Spec. App. 1975) Pall v. State Harassment 699 A.2d 565 (Ct. Spec. App. 1997) Galloway v. State Letter harassment 744 A.2d 1070 (Ct. Spec. App. 2000) Von Lusch v. State relephone harassment commw. v. Kwiatkowski Stalking Stalking order ~~~ ~~ I 387 A.2d 306 (Ct. Spec. App. 1978), cert denied, 283 Md. 740 (1978) 637 N.E.2d 854 (1994) Prior criminal acts evidenced on face of protective order that was admitted into evidence is not admissible to show intent without hkaring by trial judge on possible prejudice. Validity of protective order is not moot where permanent order recorded; order may have hture repercussions. Vagueness claims rejected (intent requirement saves statute fkom vagueness). Statute requires waming to cease and desist harassing conduct. Vagueness and overbreadth challenges rejected (terms "alarm" and "serious annoyance" are not vague where law requires specific intent to harass; there is less need for notice where words are in common use and defendant has been asked to stop his behavior. Law regulates conduct not speech). Evidence shows invasion of victim privacy: the objective of the law. First Amendment claim rejected (harassment is not protected speech). Harassment purpose need not be sole intent of actor. Void for vagueness in instant case (statute could be interpreted to require more than 2 patterns of conduct). For Future, only single pattern or series of events will be needed to be shown. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 30 - Stalking 657 N.E.2d 467 (1995) Commw. v. Bibbo Burglary (stalking predicate) 20001 Mass.App. LEXIS 2 (App. Ct. 2001) commw. v. Delaney Stalking protecfive order commw. v. Alphas Stalking Order violation 682 N.E.2d 61 1 (1998), cert. denied, 118 S . Ct. 714 (1998) 762 N.E.2d 575 (1999) commw. v. Butker Harassment order 661 N.E.2d 666 (App. Ct. 1996) commw. v. Basile Abuse prevention order 712 N.E.2d 633 (App. Ct. 1999) commw. v. Richards Electronic harassment 590 N.E.2d 4 19 1998) commw. v. Wotan commw. v. strahan relephone iarassment relephone iarassment 565 N.E.2d 976 ' 1996) 570 N.E.2d 1041 :App.Ct. 1991), -ev.denied, 576 rJ.E.2d 685 (1991) MA Commw. v. cont. Matsos - " ~~ ~ I Kwiatkowski not applied retroactive to convictions before decision made where vagueness claim not raised at trial; defendants behavior came squarely within statute's bar). Jury in resolving burglary charge based on intent to commit stalking may consider prior acts as part of required course of conduct crime element. Intent is not required for violation of protective order. Constitutional issue was raised but nut argued. Stay-away order in divorce decree is equal to order of protection for purposes of enhancement of stalking law for violation of order. Overbreadth claim against nocontact order rejected (term "contacY is clear) Anonymous sending of flowers violated order. Violation of no-contact provision of court order may be violated by mere presence in vicinity of victim; jury must infer whether contact was intended. Fax is not covered by law against annoying telephone calls. Term "repeatedly" requires three or more harassing calls. purpose of calls to sustain Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 31 People v. Coones Stalking 550 N.W.2d 600 (Ct. App. 1996) ~ People v. White Stalking 536 N.W.2d 876 (Ct. App. 1995) J People v. Ballantyne Stalking 538 N.W.2d 106 (Ct. App. 1995) Staley v. Jones, Stalking 239 F.3d 769 (6* cir. 2000), reversing in part, district court decision, 108 F. Supp 2d. 777 (W.D. Mich. 2000) Double jeopardy not violated by state punishing both stalking and contempt of court for order violation. Violation of protective order and bond conditions make contact acts per se "illegitimate" notwithstanding defendant's "endsjustify means" argument that acts were to preserve marriage. Vagueness claims rejected (statues provide fair notice; terms' meanings can be easily ascertained and possess common and generally accepted meaning). Statutory rebuttable presumption of stalking after being asked to discontinue contacts provides due process since connection to victim's state of mind and fear is reasonable. It is not double jeopardy for defendant to first plea to misdemeanor charge with different dates fiom later felony plea dates. Vagueness and overbreadth claims rejected (Citing white). Vagueness and overbreadth challenges rejected (state court rulings limiting law's application per statute does not limit constitutionallyprotected "legitimate conduct" activities to illustrative examples in law; fair notice of proscribed conduct is provided by law) Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 32 - 108 F. Supp. 777 Stalking MI Staley v. Jones cont, (W.D. Mich. 2000) I 542 N.W.2d 339 (Ct. App. 1995) 551 N.W.2d 206(Ct. App. 1996), appeal denied, 564 N.W.2d 37 * --*-.---- Harassment civil liability (emotional distress) Haverbush v. Powelson -1Piople v. Taravella (1 997) I Telephone 350 N.W.2d 780 (Ct. App. 1984) harassment M N State v. Orsello 554 N.W.2d 70 (1 996) Stalking ~ 565 N.W.2d 714 Double jeopardy claim rejected for lack of standing (only charged with one crime). Vagueness challenged accepted in part (phrase "includes, but not limited to" is read to modi@ statute's concern with unconsented contact; phrases "constitutionallyprotected action" and "legitimate purpose," as interpreted in White, are overbroad, infringing upon both press rights and right of petition government). Stalking is not limited to faceto-face contacts. Intentional emotional distress injury award is affirmed (extreme and outrageous behavior was proven; reasonableness test far intent is same as reckless behavior). Vagueness and overbreadth claims rejected (statute provides clear warning; law punishes maliciously intended conduct, not sueech). Vagueness claims rejected ( law is interpreted to require specific intent to harass or stalk with adverse effects). Orsello rule retroactive. ' (Ct. App), rev. granted, 1997 Minn. LEXIS 685 State v. Romans I Stalking I 1997WL600455 Kt. ADD.1997) Orsello rule retroactive (citing Loewen). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 33 - M N I State v. Bowen e 560 N.W.2d 709 (Ct. App. 1997) Prell v. State Harassment State v. Davisson Stalking 1998WL2408 (Ct. App. 1998), rev. denied, 3/26/98 1997 WL 292159 Orsello ruling requirement is met. (Ct. App. 1997), vev’d on other grounds, 1998 WL 747135 (Ct. App. 1998) 1997WL259946 Orsello requires reversal of conviction for engaging in (Ct. App. 1997), rev. denied, 8/5/97 pattern of harassment, but not stalking. Threat statute is not limited to 545 N.W.2d 909 [ 1996) oral or written threats. Implied threats to commit hture violence are covered bv law. 1001 Minn. App. Circumstantial evidence of LEXIS 30 (Ct. intent can be drawn h m 4pp. 2001’) victim’s reaction and prior relationship as evidenced by cont + Stalking Harassment Threat State v. Murphy e I Orsello specific intent rule is applied retroactively to require new trial to prove intent for harassment conduct. It is not double jeopardy for felony conviction based on predicate misdemeanor on different dates. Orsello intent rule is not applicable to harassment pattern, only underlying acts. Stalking Threat State v. Dolgalevsky I 545 N.W.2d 909 ‘1996),on remand, 1997 Minn. App. LEXIS 1236 (Ct. App. 1997) 2000 Minn. App. LEXIS 341 (Ct. I App.2000) I Physical acts alone may I constitute threat. History of hostility and victim reaction provide circumstantial I evidence of intent to create fear. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 34 MN State v. Kehren Threat 2000 Minn. App. LEXIS 15 (Ct. App. 2000) Sykes v. State Threat State v. Marchand Threat, 578NW.2d 807 (Ct. App. 1998), remanded, 1997 Minn. App. LEXIS 1236 (Ct. ADD.1997) 410 N.W.2d 912 (Ct. App. 1987), rev. denied, October 2, 1987 State v. Schweppe Threat 237 N.W.2d 609 (1975) state v. Tellinghuisen Threat 1998 Minn. App. LEXIS 558 (Ct. fQp.), appeal denied, July 16, 1998; 1998 Minn. LEXIS 432 (1998) cont. - 1 Instructions on elements of crime were sufficient to allow trial judge to rehse instruction on transitory anger where 1 arguments permitted during ' trial; victim fear helps show intent. Court has jurisdiction over threat originating in England where received in state. Terroristic threats include threats of future actions. A continuing tirade in face of victim's evident fear is circumstantial evidence of intent and negates any claim of transitory anger. Intent may be established through reasonable inferences from circumstances of the incident including victim reaction. Defendant may terrorize or cause extreme fear through third party where defendant knows or should know threat likely to be passed on to victim. Conditional threats are covered under statute. Threat context is relevant where defendant had history of violent abuse towards victim. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 35 - I 354 N.W.2d 29 ~~ M N State v. Fisher Threat (1 984) cont. ,I - I ~ State v. Idowu Threat State v. Spencer Threat, harassment order State v. Jones Threat State v. Lavastida Threat State v. Machholz Harassment 574 N.W.2d 415 (1998) State v. Schmidt Harassment Stalking 612 N.W.2d 871 (2OOO), afing 1999 Minn. App. LEXIS 958 (Ct. App. 1999) I 2000 Minn. App.LEXIS 36 (Ct. App. 2000) 1998 Minn. App. LEXIS 856 (Ct. App. 1998) 7 451 N.W.2d 55 (et. App. 1990) 366 N.W.2d 677 (Ct. App. 1985) Defendant knew or should have known that threat to third party would be communicated to victim. Evidence of prior threats is admissible to show intent and motive; transitory anger defense was rebutted by evidence of prior threats and continuing tirade for 6 hours. Direct communication of threat to victim is not required. Evidence that victim applied for protection order after threat issued is probative of meaning of threat even if victim's reaction not an element of the crime. However admission of order itself is prejudicial since it tends to show that judge already found a threat to have been made. Transitory anger is not covered by threat law. Instruction on transitory anger defense not required when instructions submitted covered all elements of the crime. Overbroad, (statute not limited to non-expressive conduct and offensive conduct in a public meeting not directed at any individual did not constitute fighting words). Conviction voided under MachhoZz is not a bar to new charges under stalking section of law not affected by ruling, since there was no final decision in case on merits. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 36 ~~~ ~ Harassment 577 N.W.2d 505 (1998) State v. Anderson Harassment 1996 WL 722099 (Ct. App. 1996) Robbinsdale Clinic v. ProLife Action Ministries Harassment 515 N.W.2d 88 (Ct. App. 1994), rev. denied, 1994 Minn. LEXIS 445 (1994) M N State v.Mullen cont. 3 State v. Egge Harassment protection order 61 1 N.W.2d 573 (Ct. App. 2000) Hamlin v. Banett Harassment protective order 1999 Minn. App. LEXIS 733 (Ct. App. 1999) Asgian v. Schnorr Harassment protective order 1996WL557410 (Ct. App. 1996), rev. denied, 12/4/96 State v. Badiner Telephone harassment 412 N.W.2d 810 (Ct. App. 1987) Orsello intent rule does not require proving intent to commit pattern, just underlying crimes. Double jeopardy protection violated in use of earlier plea involving same acts to prove pattern for enhanced penalty. Constitutionality of underlying order may be collaterally attacked on appeal of contempt conviction. Order was overbroad because harassment injunction was not content neutral. There is no presumption that Clinic acts on behalf of patients not desiring to hear message. Protection order of no-contact was violated when defendant instigated third-party harassment. Single instance of harassment may be basis of' order issuance even without finding that conduct likely to reoccur. First Amendment protection is not infringed by order that places narrow limits on communication and is content neutral. Statute does not require that intent to harass be sole purpose of call. Overbreadth claim rejected (there is no realistic danger of substantial compromise of First Amendment protections). -1 ~ ~ ~ l ~ c k e l f o v.r d relephone heat I MO I Statev. Stalking rider riolation 948 F.2d 935 (5th Cir. 1991) 924 S.W.2d 269 (1996) Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 37 MO State v. cont. Cartwright State v. Dawson Stalking 17 S.W.3d 149 (Ct. App. 2000) Stalking 985 S.W.2d 941 (Ct. App. 1999) ( 1 1 I State v. Martin 969 S.W.2d 380 (Ct. App. 1998) Stalking protection order Wallace v. Van Pelt 1 Stalking - - 940 SW.2d 6 (Ct. App. 1997) Alexander v. State Harassment 864 S.W.2d 354 (Ct. App. 1993) State v. Koetting (I) Telephone harassment 616 S.W.2d 822 (198 1) (en bunc) State v. Koetting (II) Telephone harassment 691 S.W.2d 328 (Ct. App. 1985) State v. Creech Telephone harassment 983 S.W.2d 169 (Ct. App. 1998) ’ Victim’s delay in calling police does not nullifL defendant’s intent to cause fear Similar transaction evidence that was not proven to be committed by defendant can not be used to prove e r n e of conduct acts The context in which vague threats were made of a reasonable conversation to workout problems belies likelihood of reasonable substantial emotional distress. Expert medical testimony is not needed to prove substantial emotional distress; this is not akin to “substantialemotional injury” requiring such evidence. Overbreadth claim rejected (threat made in civil lawsuit pleading is not protected speech; relevancy is required for privilege to attach). Vagueness and overbreadth claims rejected (phrases “for the purposes of frightening or disturbing another person” and “uses coarse language offensive to one of average sensibility” use common words and are not vague. Invitation to prostitution is offensive language. Statute applies only to protect privacy interests in own home and is not overbroad). Overbreadth claim rejected (citing Koetting I). Intent to harass need not be sole aim. State need not prove victim asked defendant to stop calling before counting of “repeated” calls begins. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 38 Telephone harassment 905 SW.2d 516 (Ct. App. 1995) State v. Placke Telephone harassment 733 S.W.2d 847 (Ct. App. 1987) State v. Patterson Telephone harassment 534 S.W.2d 847 (Ct:'App. 1976) MO State v. Rafaeli cont, - ~ MT State v. Cooney Stalking 894 P.2d 303 (1995) , - Specific intent to frighten or disturb is required; may be one of several purposes. Messages left on answering machine fall within purview of law. Repeated calls means more than one. Statute requires that sole purpose of call be to harass victim. Free Speech claim rejected (telephone "love" calls inflicted injury and lacked social value; they are not protected speech). Venue lies in any county where any act occurred, including receit>tof letter. Vagueness and overbreadth claims rejected (phrases "repeatedly" "harassing," and "intimidating" are well understood; terms; "reasonable apprehension" and "substantial emotional distress" are subject to reasonable person test. Intent requirement reinforces this conclusion. Conduct, not speech, is prohibited by law; no showing of infringement here). Term "repeatedly" means more than once, not more than twice. Communicating through a third party can be part of a pattern of stalking behaviors. Challenge to mental illness verdict disallowed, since no conviction is being appealed. Overbreadth claims rejected (threatening speech is not protected). Overbreadth claim rejected (threats to take a hostage are not Protected meech). State v. Martel Stalking 902 P.2d 14 (1995) State v. McCarthy Stalking 980 P.2d 629 [ 1999) State v. Kaplan State v. Ross 2 10 P.2d 240 11996) ntimidatio 389 P.2d 161 1995) : xtter threat L State v. Lance (1986) I Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 39 MT Wurtz v. Risley cont. Overbroad (there is no requirement that threat produce victim fear; threat to"commit any criminal offense" could apply to minor victimless offenses).'Threats need not be intended to be carried out; create fear is crux of crime. Intimidation requires proof that Intimidation 948 P.2d 209 State v. Hawk threats were made to influence (1997) another's actions. Vagueness challenge to order Order State v. 2000 Mont, violation LEXIS 151 (2000) violation law rejected (tern Baugatz "knowing" has generally understood meaning when used as prerequisite for criminal enforcement of order). Vagueness and overbreadth 502 N.W.2d 463 Threat NE State v. Schmailzl claims rejected ("threats" and (1993), appeal "threatens" are terms of dismissed, 534 common usage; threats to N.W.2d 743 commit violent crime are not (1995) (lack of protected speech). appellate. jurisdiction) State v. Bourke Threat Vagueness claim rejected 464 N.W.2d 805 (phrase "reckless disregard of (1991) the risk of causing such terror..." is defined by prior cases defining reckless). State v. Mayo Threat Vagueness claim rejected (citing 464 N.W.2d 798 Bourk). (1991) Void for vagueness (term 340 N.W.2d 397 "threat" is undefined; Model (1983) Penal Code language requiring intent to terrorize fatally omitted). State v. Fisher Threat 343 N.W.2d 772 Void for vagueness (citing Hamilton). l1984) Threat 719 F.2d 1438 (9th Cir. 1983) ' I I Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 40 ~- ~~ ~ state v. Saltzman State v. Kipf NJ Telephone threat 458 N.W.2d 239 (1990) 450 N.W.2d 397 (1990) -~ Langford v. City of Omaha NH - Threat Harassment 755 F. Supp. 1460 (D. Neb. 1989), appeal dismissed without op., 978 F.2d 1263 (81hCir. 1992) Stalking Harassment 595 A.2d 262 :App. Div. 1997), :ert. denied, 700 9.2d 881 (1997) There is no requirement in statute for intent to act on threat. Vagueness and overbreadth claims rejected (intent to harass without any communication permissible purpose is object of law. Plirase "indecent, lewd lascivious or obscene" has sexual connotation but does not require Miller v. California definition). Void for vagueness (tenn "annoy" is vague; providing no standard for measuring whose sensitivity to use to determine annoyance; terms "legitimate" and "obscene" communications are not defined by ordinance). Vagueness claim is rejected for subsection making unlawhl repeated anonymous communications (specific intent to harass saves ordinance). NO cases No cases State v. Saunders I 3verbreadth and vagueness :laims rejected (nonverbal zxpressive behavior such as 'following" can be banned; law ioes not reach substantial mount of protected acts. Terms 'annoy" and "alarm"must be :onstrued together as xohibiting serious harassment mly; term "following" is :omonly understood. Specific ntent requirement M e r :larifies law). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 41 - ~ State v. Cardell Vagueness and overbreadth Stalking 723 A.2d 111 challenges rejected (Change in (Super. Ct. 2000) law fiom specific to general intent law does not significantly increase scope of law's coverage to protected conduct, nor does statute limit defendant's ability to go where he wishes where such behavior will not result in behavior creating fear of injury or death. Term "visual or physical proximity" is not vague where statute makes clear what type of conduct is prohibited). Prior conduct before law's 670 A.2d 5 1 Stalking implementation date can be - (App. Div. 1996) Domestic considered in injunction violence proceedings. order Tort of intrusion on seclusion Intrusion on 649 A.2d 853 (as fiom stalking) is governed (1994) seclusion by two-year statute of limitation tort as action for personal injury, not injury to rights of others (emotional not economic harm). Single act does not meet Harassment 536 A.2d 3 19 (App. Div.), certif: statutory requirement for "come of alarming conduct" or denied, 546 A.2d "repeated acts." 493 (1988) Vagueness and overbreadth 695 A.2d 236 Letter harassment (1997), re& 676 claims rejected as statute interpreted (mailing oftom up A.2d 565 (App. Protection court order to estranged wife is Div. 1996) order insufficient annoyance for harassment or contempt of court using invasion of privacy test, but may constitute harassment for victim of domestic abuse. Mailing Violated protective order against "contact."). ~ D.C. v. F. R. Rumbauskas v. Cantor Grant v. Wright State v. Hoffhan ~~ Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 42 ~~ 676 A.2d 565 (App. Div. 1996), a f d in part, rev2 in part, 695 A.2d 236 (Sup. Ct. 1997) 683 A.2d 1166 (App. Div. 1996) State v. Hoffman Letter harassment State v. J.T. Harassmenl protection order Peranio v. Peranio Harasspent protection order 654 A.2d 495 (App. Div. 1995) Harassment protection order Harassment protection order Stalking Harassment 657 A.2d 440 (App. Div. 1995) Telephone harassment 730 P.2d 497 (Ct. 4pp. 1986) ~~ Corrente v. Corrente Roe v. Roe State v. Duran 601 A.2d 1201 (App. Div. 1992) 966 P.2d 766 (Ct. App. 1998) ~~~ State v. Gattis ~ Harassment law covers communication by mail. Term "annoyance" means causing alarm or serious annoyance, not merely nettlesome. Evidence of positioning self to be seen on exit from house was "contact" violating order; course of conduct may arise h m single incident of remaining in a single location with intent to harass. Harassment protection order is not warranted where there is no intent to harass, notwithstanding alarminn statements. Non-violent harassment is not domestic violence warranting issuance of protective order. Preponderance of evidence standard is used for proving violations of court order. Double jeopardy occurs where same acts prove both stalking and harassment, because same social policies underlie both laws and no significant intent requirement exists. Void for vagueness challenge to harassment law is rejected $person of ordinary intelligence would know acts were unlawful). Vagueness and overbreadth :laims rejected (intent nequirement excludes innocent :alls frpm law's scope; law iirected at conduct, not speech. ntent requirement also negates my vagueness problems. vloreover, law uses words of : o m o n knowledge). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 43 Stalking People v. Starkes 2000 N.Y. Misc. LEXIS 31 1 (Crim. Ct. N.Y. City 2000) Statute'daesnot require victim fear for 3d degree stalking, only that defendant intend to act in way as likely to result in fear. Information must allege all elements bf stalking crime. Course'of conduct defined to mean a series of acts over a period of time, however short. Intention to place victim in fear is an element of stalking (menacing) crime. Course of conduct may last for short time (6 or 8 minutes) where there is continuity of Dumose in series of acts. Harassment statute covers threats posted on Internet newsgroup. Overbroad (law against annoying statements is not limited to "fighting words"). Outburst without more is not a serious threat covered by law. Course of conduct must be more than isolated act. Citizen band radio harassment is not covered by law directed at telephone or written communication harassment. Harassment requires course of conduct that is more than isolated acts. Protective order to %voidharassment refers to Penal Code; expanded definition would be constitutionally vague :failure to give notice). ~ People v. Payton Stalking People v. Murray Menacing 612 N.Y.S.2d 815 (Crim. Ct. N.Y. City 1994) ~~~ I People v. MLUUI Harassment Threat People v. Dietze Harassment People v. Wood People v. Viau Harassment ~~~~ ~~ Harassment ~~ 635 NY.S.2d 928 (Crim. Ct. N.Y. City 1995) 688 N.Y.S.2d 384 (Crim. Ct. N.Y. City 1999) 549 N.E.2d 1166 (1989) 164 N.Y.S.2d 738 [ 1983) 109 N.E.2d 1376 :1980) ~ People v. Hogan 564 N.Y.S.2d 204 :Grim. Ct. N.Y. Jity 1997) Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 44 People v. FOllIlan ~~~ ~ People v. Lamb Harassment protection order 4 Harassment People v. Tralli Harassment People v. Shack Telephone harassment People v. Caldwell Telephone harassment People v. Smith relephone harassment 546 N.Y.S.2d 755 (Crim. Ct. N.Y. City 1989) 384 N.Y.S.2d 929 (City. Ct. Rochester 1976) 387 N.Y.S.2d 37 (App. Term 1976) 86 N.Y.2d 529 (1995) Due process claim that defendant has right to hearing before issuance of criminal nocontact order as a condition of bail release is rejected (emergency nature of order precludes pre-issuance hearing as long as prompt appeal available. Danger of intimidation or injury standard is not vague. Order to "refrain from offensive conduct" is too vague for contempt enforcement. Vagueness claim rejected (citing People v. Harvey, 123 N.E.2d 81 (1954). Course of conduct does not require repeated harassing acts. First Amendment, overbreadth, and vagueness claims rejected (law regulates only conduct and excludes "legitimate communications;" phrase "without legitimate purpose" is commonly understood to mean without expression of ideas other than threats). Free speech claim rejected (citing Shack). . ~ 661 N.Y.S.2d 436 (App. Term. 1997), appeal denied, 89 N.Y.2d 1033 (1997) 392 N.Y.S.2d 968 :App. Term), cert. Ilenied, 434 U.S. 320 (1977) ~~~ Vagueness and overbreadth claims rejected (defendant's behavior fits within hard core of statute's bar; telephone harassment is a form of trespass, lacking constitutional protection). Statute construed to prohibit only acts likely to annoy or alann done with intent to harass. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 45 Peoplev. cont. Wood NY Telephone harassment Protection order I I Peoplev. 600 N.Y.S.2d 900 (Crim. Ct. N.Y. City. 1993) Telephone harassment 650 N.Y.S.2d 926 (Dist. Ct. Nassau Cnty. 1996) 556 N.Y.S.2d 231 (Crim. Ct. N.Y. City 1990), u f d , 590 N.Y.S.2d 156 (App. Term 1992) Telephone harassment 7 Family Court civil findihg of contempt provides Double Jeopardy bar to City Court criminal contempt proceeding where same actions underlie both prodeedings. Charging five different acts of telephone harassment is okay even where calls made close in time. A pattern of repeated calls is only means of infening harassment intent, no pattern in instant case with only four calls irq two weeks. Single isolated incident not suficient to constitute harassment. Oveibreadth claim rejected (law bars private not public communication; Dietz not controlling). Messages left on answering machine constitute communication under statute. Communicating in a manner likely t& cause annoyance or harm may be proven by either one or several calls over time. Single call can constitute harassment where there is no legitimate purpose for call, only threats and intimidating utterances. Aggravated harassment requires communication; telephone calls must be completed calls. While course of conduct is needed for simple harassment, single alarming communication can be aggravated harassment. ~~ Telephone harassment I People v. Miguez 698 N.Y.S.2d 122 (App. Div. 1999) People v. Telephone harassment 556 N.Y.S.2d 441 (Crim. Ct. N.Y. City 1990) People v. Liberato Telephone harassment 689 N.Y.S.2d 363 (NY City Crim. Ct. 1999) People v. Rusciano relephone harassment 656 N.Y.S.2d 822 (Just. Ct. Westchester county 1997) ~~ Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 46 - Stalking 529 S.E.2d 686 (Ct. App. 2000) State v. Roberson Threat 247 S.E.2d 8 (Ct. App. 1978) Radford v. Webb Telephone threat and harassment 446 F. Supp. 608 (W.D.N.C. 1978), a f d , 596 F.2d 1205 (4th Cir. 1979) 295 S.E.2d 766 (Ct. App. 1982), appeal dismissed, 299 S.E.2d 216 (1982) 210 S.E.2d 84 (Ct. App. 1974) NC State v. Ferebee State v. Camp Telephpne harassment In re Simmons Telephone harassment State v. Boone Telephone harassment Svedberg v. Stamness Stalking protection order state v. Olson Threat i52 N.W.2d 362 1996) State v. Carlson Threat 5 9 N.W.2d 802 1997) 340 S.E.2d 527 [Ct. App. 1986), :ert. denied, 347 3.E.2d 442 (1986) 525 N.W.2d 678 1994) : 5 State v. Touche Threat 49 N.W.2d 193 (1996) Stalking law making warning to desist an element of crime is not complied with by en-onmus entry into evidence of acts occurring before warning Conditional threat is covered by law where condition was without legal authoritv. Overbroad (laws bars not only obscenity, but also merely vulgar or profane communications). I Overbreadth and vagueness claims rejected (law prohibits conducf, not speech; law adequately warns). Vagueness and overbreadth claims rejected (appropriate and sufficiently narrowed law). Term "repeatedly" does not require more than one call per day. Disorderly conduct order is not First Amendment violation ("fighting words" when used to 14 year old boy). Phrase 'reasonable grounds" is equated with probable cause standard for issuing order. h t was made to third party n reckless disregard of iossibility it would be :ommunicated to victim. ntent relates to putting fear nto, rather than intending to ictuallv carry out threat. ~restimony about protective rder may be used to show rictim fear. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 47 506 N.W.2d 404 (1993) 560 N.W.2d 878 (1997), a f d , 584 N.W.2d 859 (Ct. App. 1998) Cave v. Wetzel Harassment protection order 545 N.W.2d 149 (1996) Williams v. Spilovoy Harassment protection order 536 N.W.2d 383 (1995) J State v. Monson OH City of Toledo v. Emery Probation no-contact order 518 N.W.2d 171 (1994) Stalking 2000 Ohio App. LEXIS 2880 (Ct. App. 2000) Assault’ispot “lesser included“ offense of terrorizing. Disorderly conduct protection order fails for failure to show pattern of ’ntimidation;two f instances of meeting by happenstance is not enough. Phrase “reasonablegrounds to believe” is equated with probable cause in determining whetherliniunction should issue. Conclusory claims of threats or harassment without factual debail showing harassment do not support issuance of nocontact order. Term “contact”is defined to exclude attendance at public forum; contact means communication or coming together, Free speech claim rejected (liberty rights to videotape victims are superseded by latter’s right to privacy). Direct threat of harm is not required; it is enough to show series of acts likely to result in fear of hann. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 48 OE State v. Smith Stalking 709 N.E.2d 1245 (Ct. App. 1998) con * - State v. Schwab Stalking State v. Francway Stalking State v. Dario Stalking - 695 N.E.2d 801 (Ct. App. 1997) ~ 1995WL491104 (Ct. App), also, 1995 Ohio App. LEXIS 3384 (1995, rev. denied, 659 N.E.2d 3 13 (1996) 665 N.E.2d 759 (Ct. App. 1995) First Amendment challenge rejected (law regulates conduct not speech). Vagueness and overbreadth claims rejected (term "pattern of conduct" is simple and easy to understand; Scienter requirement vitiates any other claim of vagueness. Whatever First Amendment protection for picketing exists, defendant crossed the line in uttering threats). Picketing activity can be acts constituting statutory "course of conduct. Explicit threats are not required. Expert testimony is not required to Drove mental distress." Vagueness claim rejected (phrase "mental distress" sufficiently clear). Expert testimony is not needed to prove mental distress. Vagueness and overbreadth claims rejected (phrase "mental distress" is sufficient to put defendant on notice; no unconstitutional restriction on right to travel). Vagueness and overbreadth claims rejected (knowing or intent requirement results in defendant being aware that conduct will result in another's fear; stalking is not protected behavior) (phrase "pattern of conduct" is defined by statute while phrase "closely related in time" was sufficiently clear to ordinaw Demons). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 49 Stalking OH State v. cont. Fleming 0 -r I State v. Benner Stalking State v. Bilder Stalking Y e I City of Dayton v. Smith Stalking State v. Hart Stalking State v. Halgrimson Stalking 1 1996WL100962 (Ct. App. 1996), dismissed, appeal not allowed, 669 N.E.2d 856 (1996 644 N.E.2d 1130 (Ct. App. 1994) 651 N.E.2d 502 (Ct. App. 1994), dismissed, 649 N.E.2d 278 (1999, stay denied, 651 N.E.2d 1013 (1999, cert. denied, 5 16 U.S. 1009 (1995), reafd, 1996 Ohio App. LEXIS 4837 (1996) 646 N.E.2d 917 (Mun. Ct. Dayton 1994) 2000 Ohio App. LEXIS 5796 (Ct. App. 2000) 2000 Ohio App. LEXIS 5 162 (Ct. App. 2000) 558 N.E.2d 16 :Ct. App.), appeal iismissed, 654 VJ.W.2d986 1995) Vagueness claim rejected. (citing Francway) I Vagueness claim rejected (not facially void and conduct is not Drotected sDeech). Overbreadth claim rejected (stalking is not protected conduct). Two confiontations closely related in time copstituted "pattern of conduct" under law. Expert testimony is not needed to prove mental distress. - - Vagueness and overbreadth claims rejected (phrase "pattern of conduct" is adequately defined by statute; no substantial infiingement Shown). Evidence of psychological treatment is not required to prove mental distress. Prior acts admissible to prove stalking where they "tend to show" intent, motive etc., since hey show the factual 3ackground needed to inderstand what occurred. Mental distress may be proven without expert testimony. : Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 50 ~ 0 94 WL 476462 (Ct. App. 1994) Law requires awareness that conduct will cause harm and fear and that actions were directed at the victim. Due process challenge to 2000 WL Stalking Lindsay v. procedures used before issuance 1268810 (Ct. App. order Jackson of protection order upheld (one 2000) day notice of hearing insufficient to prepare defense and failure to inform defendant of right to cross examine undermined "full hearing" requirement of statute). Preponderance of evidence standard applicable in protection order cases. -1992 WL 113246 Threat may be made to third State v. M m y Threat party where defendant "knows" (Ct. App. 1992) that it will be communicated to victim. 678 N.E.2d 996 Threat Proof of victim fear is required. State v. Denis (Ct. APP.17 afd7 1996 Ohio App. LEXIS 5498 (1996) Court may issue protective order Felton v. Felton Harassment 679 N.E.2d 672 even where divorce decree (1997) protective already orders no harassment, wder since new order gains more protection from police. Preponderance of evidence standard used for issuine order. relephone 730 N.E.2d 1027 State v. Gibbs Overbreadth claim rejected on privacy grounds where statute iarassment (Ct. App. 1999) makes criminal a telephone call made despite request not to call, regardless of any legitimate nature of call content. 456 N.E.2d 1269 Vagueness claim rejected State v. Telephone (statute gave sufficient notice). Mollenkopf harassment (Ct. App. 1982) 632 N.E.2d 531 Intent to harass, not subjective State v. Bonifas Telephone annoyance of victim; it must be harassment (Ct. App. 1993) proven. Stalking OH State v. cont. Wasmire I + P 7 a' ~~ I I I I Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 51 State v. Saunders Stalking 886 P.2d 496 (Ct. Cnm. App. 1994) State v. Range1 Stalking 977 P.2d 379 (1999) State v. Maxwell Stalking Stalkihg protection order 998 P.2d 680 (Ct. App. 2000) Hanzo v. deParrie Stalking irotection 953 P.2d 1130 (Ct. App. 1998) >rder Shook v. Ackert italking brotection rder $52 P.2d 1044 :Ct. App. 1998) e This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Vagueness claim rejected (intent "triggers" law; rebuttable presumption of intent fiom victim request to discontinue behavior ,is rational). Overbreadth claim rejected (law focuses on effects achieved by speech: a threat, although not directly specified, is permitted by First Amendment where law also requires ability to carry out threat, expression of intent to cany out threat, and reasonable Derson standard for fear). Vagueness challenge to terms of protection order rejected (phrase "visual or physical presence" has plain and ordinary meaning). Defendant knew when entering a room where victim was that he was capable of being seen by victim. Words are required to prove threat where simple presence results in fear. Order violation does not require evidence of threat. Overbroad as applied (abortion protester "contacts" involved expression that do not constitute a threat and were not "unwanted" under statute that requires "threat"). Overbreadth claim rejected (statute authorizing protection order is not facially overbroad in its specification of what the order contents may be, since zourt will determine on case-byEase basis what communication IS constitutionallypermitted). Appendix4 52 1 934 P.2d 1132 (Ct. App. 1997), rev. granted, 943 P.2d 633 (1997) 894 P.2d 1221 (Ct. App.), rev. denied, 900 P.2d 509 (1995) Stalking protection order St a1king protection order 904 P.2d 179 (Ct. App. 1995) Stalking protection order Contempt ~~ Stalking protection order 900 P.2d 1068 (Ct. App. 1995) Stalking protection order 12 P.3d 1003 (Ct. App. 2000) Stalking protection xder 902 P.2d 1209 (Ct. App.), rev. denied, 907 P.2d 248 (1995) 956 P.2d 1063 (Ct. App. 1998) ' Vagueness claim rejected (terms "contact," "alarm," and "personal safety" are not vague). Statute does not abridge right of travel. Void for dagueness (phrase "without legitimate purpose" is not self-explanatory and lacks suficient warning of what is barred). Void for vagueness (phrase "without legitimate purpose" for judging post-issuance behavior is vague, citing Norris-Romine). Collateral bar doctrine does not defeat claim that order provision is va@e. Void for vagueness (citing Norris-Romine for ruling that "legitimate purpose" phrase is vague). Rangel dictum about expressive contacts raising 1 Amendment issues i s not present where record Shows 3 non-expressive contacts justieng order issuance. Reasonable fear shown where defendant had histow of violence. ~Right of counsel does not apply to appeal of protection order violation proceeding (civil, not criminal, prosecution). Police oficer did not indicate contacts were unwanted to meet statutory requirements for injunction. Menacing law use of tern "imminent"threat does not require actual immediacy, but may be merely %ear at hand.," within next few hours. ~ Stalking irotection irder VIenacing 171 Or. App. 692, 2000 WL 1874106 (Ct. App. 2000) Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 53 - State v. Moyle Telephone threat OR cont. - - State v. Hanington Harassment State v. Sanderson Harassment State v. Hanington Harassment State v. Ray Telephone , harassment 1 Vagueness and overbreadth claims rejected (threats not protected speech as statute is interpretatively limited: there must be reasonable fear and intent to provoke this fear; fear of violence against family limited to felonious acts. Term "alarm" interpreted to mean fear from danger due to threat of felony violence; other terms are defined in Code. Intent implied in law.) There must be actual threat to exclude protected hyperbole, rhetorical excess, and impotent expressions of - anger. 680 P.2d 666 (Ct. Overbroad (statute punishes App.), rev. denied, speech regardless of intent or effect on listener, it goes beyond 685 P.21d 998 fighting words to "likely to (1984) provoke a disorderly response." Void for vagueness (terms 575 P.2d 1025 "alarms" and "seriously annoys" (Ct. App. 1978) are vague; latter is a "dragnet" provision not subject to judicial limiting). 680P.2d 666 (Ct. Overbroad (statute punishes speech regardless of intent or App. 1984) effect on listener, it goes beyond fighting words that are "likely to provoke a disorderly response." Void for vagueness and 733 P.2d 28 overbroad (law reaches too far, :1987) even to recipient of call if he is the one using annoying language. Use of Miller-three part definition of obscenity delegates to jury to be used to determine what is forbidden). 705 P.2d 740 (1 985) (en banc) Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. a 54 - OR State v. Blair cont. State v. Hibbard Telephone harassment 601 P.2d 766 (1979) (en banc) Telephone harassment 823 P.2d 989 (Ct. App. 1991) ,I State v. Lowery Telephone harassment State v. Larsen Telephone harassment 693 P.2d 1343 (Ct. App. 1985) (Der curium) 588 P.2d 41 (Ct. App. 1978) State v. Zeit Telephone harassment 539 P.2d 1130 (Ct. App. 1975) State v. Sallinger Telephone harassment 504 P.2d 1383 (Ct. App. 1972) State v. Norgard Telephone harassment ~~ I State v. Wilson relephone iarassment Telephone harassment - ~ - Void for vagueness (phrase "likely to cause alarm" is too broad. Statute lacks any requirement of actual harm or fear.). Overbieadth and vagueness claims rejected (law focuses on telephoning conduct not speech; dicta that call must have no purpose to communicate. Law is not vague (citing Lowery). Vagueness claim rejected (no merit to claim). Vagueness claim rejected (law is directed at specific conduct of using telephone with intent to harass). Vagueness claim rejected (person of common intelligence would know law was violated). vagueness claim rejected (statute provides adequate notice of prohibited conduct. Law is intended to cover batteries). Use of answering machine to replay messages meets statutory requirement that defendant 'cause" victim to answer call. '1999), 967 P.2d i99 (Ct. App. 1998) (en bunc), e m . denied, 1999 3re. LEXIS 436 '1999) 949 P.2d 1237 Husband answering telephone (Ct. App. 1997), fix victim does not meet rev. denied, 326 Statutory requirement "caused" I rrictim to answer call. Or 465 (1998) 724 P.2d 840 (Ct. Law requires victim to be App. 1986), rev. ictually placed in fear. denied, 732 P.2d 915 (1987) Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 55 commw. v. Schierscher Stalking Harassment 668 A.2d 164 (Super. Ct. 1995), appeal denied, 688 A.2d 171 (1997) commw. v. Roefaro Stalking 691 A.2d 472 (Super. Ct. 1997) Commw. v. Miller Stalking Domestic violence order 689 A.2d 238 (Super. Ct. 1997), appeal denied, 695 A.2d 785 (1997) commw. v. Davis Stalking 737 A.2d 797 (Super. Ct. 1999) commw. v. Leach Stalking 729 A.2d 608 (Super. Ct. 1999) commw. v. Un-utia Stalking 653 A.2d 706 [Super. Ct. 1995), zppeal denied, 561 A.2d 873 11995) ~~ 1 e This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Vagueness and overbreadth claims rejected (harassment law upheld, citing Duncan. Stalking is not protected behavior: "speech dksigned to coerce through fear and intimidation" is not Drotected). Double jeopardy claim rejected (evidence of prior convictions is admissible to prove course of conduct element of stalking crime since otherwise defendant wpuld get one "fiee stalk" following stalking conviction). Overbreadth claim rejected (intent requirement obviates such a finding). Order does not violate constitutional right to travel (no intrastate right to travel). Intent to cause "substantial emotional distress" may be inferred from defendant's conduct. Testimony about prior attempt to hit victim with car is admissible as evidence of pattern of behavior and not excludable as "prior bad act." Each act involved in the stalking may be a separate count of stalking in an indictment even where each act is part of course of conduct making up stalking, since each new act creates a new course of conduct. Proof of no legitimate purpose is not required, contra harassment law. Evidence of civil protection order may be used to show intent and course of conduct. Appendix4 0 56 Commw. v. Johnson cont. PA Stalking 0 0 ' commw. v. Reese Stalking Harassment Commw. v. Green Threat Commw. v. Bunting COImiW. v. Kelley Threat commw. v. Tizer Threat 1 commw. v. Camilla beat commw. v. Campbell heat 2001 PA. Super. 60,2001 Pa. Super. LEXIS 193 (Supoer. Ct. 2001) A following that was interrupted and a separate surveillance on the same day constitute a course of action involving 2 separate acts. Harassment is lesser included offense of stalking. 725 A.2d 191 (Super. Ct. 1999), appeal denied, July 9, 1999, 1999 Pa. L M S 1947 (1999) 429 A.2d 1180 Vagueness claim rejected (Super. Ct. 1981) ("terrorize" activity is described with requisite precision. Vagueness claims rejected 426 A.2d 130 (SuDer. Ct. 19811 (statute gives fair warning). 664 A.2d 123 Evidence is not needed to prove (Super. Ct. 1995), victim was actually fiightened. appeal denied, Threat to third party was done in reckless disregard of risk of 674 A.2d 1068 causing terror; intent to terrorize (1996) may be inferred. 684 A.2d 597 Neither ability to carry out (Super. Ct. 1996) threat nor victim belief that threat will be carried out is essential element of terrorizing. Spur of the moment defense for threats made in anger is fiot applicable where no argument in progress an? victim made no threats of anv sort. Threats through thirdparty (91 1 I 649 A.2d 991 (Super. Ct. 1994) call) were done in reckless disregard of risk of causing I terror. Threat through third party was 625 A.2d 1215 done in reckless disregard of (Super. Ct. 1993) causing terror. Intent to cause terror is controlling, not whether threat fully understood. I ~ Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 57 - - PA Commw. v. cont, Hudgens Threat 582 A.2d 1352 (Super. Ct. 1990) commw. v. Anneski Threat Commw. v. Kidd Threat 5251A.2d373 (Super. Ct.), appeal denied, 532 A.2d 19 (1 987) 442 A.2d 826 (Super. Ct. 1982) ~ 3 Spur of momenVexcited utterance defense that threat made in anger during dispute is not available where victim made no threats of any kind and weapon brandished. Ability to cany out threat is not required. Neither ability to act nor actual victim fear is required by statute. Spur of moment threat made in transitory anger is not covered by law. Spur of moment anger leading to threat may undercut actual intent to cause fear. ~Intent to cany out threat is not part of crime, only intent to terrorize is needed. Threat to commit crime of violence may be inferred fiom speech. Statute does not require that there be a present ability to cany out threat. Vagueness and overbreadth claims rejected (no political content to speech in instant case. Statutory requirement for intent undercuts claim). Speaking can constitute course of conduct under harassment law. Harassment is not lesser included offense within assault, where the former requires intent, but the latter crime does ~~ 445 A.2d 796 Commw. v. Hardwick Threat Commw. v. Ferrer Threat 423 A.2d 423 (Super. Ct. 1980) commw. v. Ashford meat 407 A.2d 1328 (Super. Ct. 1979) Commw. v. Duncan Harassment 363 A.2d 803 (Super. Ct. 1976) commw. v. Townley 3arassment (Super. Ct. 1982) ~ 722 A.2d 1098 (Super. Ct. 1998) , not. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 58 PA C0mmw.v. cont. Hendrickson RI Harassment I 724 A.2d 3 15 commw. v. Lewis Telephone harassment 30 Pa. D. & C.2d 133 (1962) state v. Fonesca Stalking 670 A.2d 1237 (1996) State v. Breen Stalking 4 Stalking 1 673 A.2d 75 (1996) 5 17 S.E.2d 229 Ct. App. 1999) State v. Brown Telephone harassment 266 S.E.2d 64 (1980) State v. McGill Stalking 536 N.W.2d 89 (1995) State v. Hoxie Stalking 963 S.W.2d (1998) Vagueness and overbreadth claims rejected (statute directed at conduct, not content of speech; intent requirement limits ovekbreadth possibility; common meanings of statutory terms sufficient to give warning, especially where intent requirement to harass is part of law). Vagueness and overbreadth claims rejected (obscenity is not Drotected sDeech). Vagueness claims rejected (phrase "repeatedly follows or harasses" is not vague and does not potentially require two series of harassing acts). Constitutionality challenge rejected (citing Fonseca). Acts of property damage are acts of violence for purposes of enhanced aggravated stalking charge. Vagueness and overbreadth claims rejected (law is interpreted to require evidence of sole intent to make obscene, threatening, or harassing calls). Vagueness claim rejected (terms "willfid," "maliciously," "repeatedly," "follows," and harass" are not vague because they are in common usage, citing decisions in other states). Rule requiring state to n m w allegations from among numerous claimed actions testimony ("election") that applies to single act charge is not applicable to stalking, which subsumes a series of acts. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 59 State v. Hauge Letter harassment Protection order 547 N. W.2d 173 (1996) State v. Diede Telephone harassment 319 N.W.2d 818 (1982) State v. Lakatos Telephone harassment 900 S.W.2d 699 (Ct. Crim. App. 1994) State v. Carter Telephone harassment 687 S.W.2d 292 (Ct. Crim. App. 1984) Long v. State Stalking 93 1 S.W.2d 285 (Ct. Crim. App. 1996) Clements v. State Stalking 19 S.W.3d 442 (Ct. App. 2000) 1 1 Escobedov. State 1 ;talking 2000 W 795307 I (Ct. App. 2000) First Amendment and overbreadth challenges rejected (protection orders serve valid purpose of protecting the vulnerable. If order were potentially overbroad, proper challenge was to seek order modification, not its violation). Vagueness, overbreadth claims rejected ("repeated" means more than one call; iem uanonymousm is not vague). Vagueness and overbreadth claims rejected (phrase uwithout a legitimate purpose of communication" is limited by intent and a l m requirements. Law regulates conduct not speech). Vagueness claim rejected (words "lewd, lascivious, and obscene" are sufficient descriptions). Void for vagueness; (statute needs reasonable fear and knowing clauses, predicate act nexus to stalking is missing). Vagueness and overbreadth claims rejected (law specifies what conduct is prohibited and includes intent provision. Attempt to "save" maniage is not constitutionally protected :onduct requiring close scrutiny 3f law). Events occurring before law's enactment are admissible B showing victim state of mind; his does not constitute element If crime. vagueness and state due process :hallenges rejected (person of Irdinary intelligence knows what law means). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 60 Poteet v. State violation Order Threat I 957 S.W.2d 165 (Ct. App. 1997) Gonzales v. State Threat 2000 Tex. App. LEXS 5555 (Ct. App. 2000) bues v. State Threat 634 S.W.2d 304 (Ct. Crim. App. 1982) Gonzales v. State Threat 2000 Tex. App. LEXIS 5555 (Ct. App. 2000) Cook v. State Threat 940 S.W.2d 344 (Ct. App. 1997) Bryant v. State Threat 905 S.W.2d 457 (Ct. App. 1995) George v. State Threat Webb v. State Retaliation (threats) 841 S.W.2d 544 (Ct. App. 1992), a f d on discretionary review, 890 S.W.2d 73 (1994 Ct. Crim. App.) 991 S.w.2d 408 (Ct. App. 1999) 1 Service of order presumed where defendant in court when order issued and had waived court reporter where only record of service would come fiom court record. Threat intent may be inferred from actions. Uncertainty about when threat would be carried out does not undercut “imminent threat” language. Present inability to cany out threat is irrelevant and victim fear irrelevant to defendant intent to terrorize. Victim fear is not an element of crime; only defendant intent to create fear. Victim fear may be relevant to immediacy of threat, an element of crime. Intent is inferred from acts, words, and conduct; conditional threat is covered where there is proximity between condition and threatened ham. Conditional threat based on fbture acts is not within statute’s requirement for fear of “imminent”danger. Defendant intent can not be inferred fkom victim response, since actual fear is not required. Ability or intention to carry out threat is irrelevant. Vagueness and overbreadth claims rejected (threat is not protected speech; conditional threat based upon position as potential witness is reasonable interpretation of statutory t e m “retaliate”). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 61 TX Puckett v. State - Claim of rirst Amendment protection as applied to facts of cont. case rejected (threats are not protected speech). Void for vagueness (texms & - m e rv. Price Harassment 712 F.2d 174 (5' Cir. 1983), on reh, "annoy" an'd "alarm" have not been construed by state courts 723 F.2d 1164 that would limit their scope; (5th Cir. 1984) hence, it is unclear what (per curium) standard to use to measure (vacating panel annoyance). opinion on other grounds and affirming decision) -~ Void for vagueness (crime Telephone 765 S.W.2d 438 May v. State depends upon sensitivity of harassment (Ct. Crim. App. victim, rather than use of 1989) (en banc) - reasonable person; tenns "annoys" and "alarms" are not defined). Vagueness and overbreadth Telephone 1999 Tex. App. Townsend v. claims rejected (citing harassment LEXIS 9561 (Ct. State De Willis). App. 1999) Vagueness claim rejected (new Telephone DeWillis v. 951 S.W.2d 212 law specifically defines the harassment (Ct. App. 1997) State conduct necessary to harass; (habeas denial), reasonable person standard is direct appeal implied in use of term "another." a r d , 1998 Tex. App. LEXIS 431 (Ct. App. 1998) Vagueness and overbreadth 773 S.W.2d 769 Telephone Bader v. State claims rejected (phrase "what harassment (Ct. App. 1989) a l m s people" is adequately defined; use of reasonable standard provides measure for law). - Retaliation ~~~ 801 S.W.2d 188 (Ct. App. 1990) ~ Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 62 - ~ 433 S.W.2d 440 (Ct. Crim. App.), cert. denied, 393 U.S. 943 (1968) Manemann v. State Telephone harassment 878 S.W.2d 334 (Ct. App. 1994) harassment 605 S.W.2d 861 (Ct. Crim. App. 1980) 935 P.2d 1259 (Ct. App. 1997) ' ' State v. Spainhower Threat 988 P.2d 452 (Ct. App. 1999) Equal protection claim denied (claim that statutory exception to its application for legitimate communications discriminates by permitting one class of callers to use obscene language, but not another, misreads statute; challenged phrase refers to harassing communications only). Objective test to be used to measure threat. Threats may be implicit. Ability to act is not required by law. Vagueness and overbreadth claims rejected (terns "coarse" and "offensive" are not vague since core of law is intent to harass thus preventing subjective standard of blame. Law does not deal with public communication.). Vagueness and overbreadth claims rejected (phrase "emotional distress" is defined by tort law to mean outrageous and intolerable behavior. Law is directed at threatening, not innocent associations. Victim fear is not an element of crime, although it can be considered bv iurv. Validity of scope of protective order based on stipulations of fact may not be collaterally attacked in criminal trial. Intent to harass must exist when telephone call is made rather than rising during conversation, although intent to harass need not be sole purpose of call. ~~ V" State v. Goyette Harassment protection order 691 A.2d 1064 [ 1997) ~~ State v. Wilcox Telephone harassment 528 A.2d 924 1993) : Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 63 VA Parkerv. commw. Stalking 485 S.E.2d 150 (Ct. App. 1997), cert. denied, 118 S.Ct. 1510 (1998) Woolfolk v. commw. Stalking 447 S.E.2d 530 (Ct. App. (1994) I / ~ Bowen v. commw. Stalking 499 S.E.2d 20 (Ct. App. 1998) Perkins v. Commw. Jones v. commw. Threat Threat (arson) Wyatt v. commw. Threat (arson) 402 S.E.2d 229 (Ct. App. 1991) 1999 Va. App. LEXIS 127 (Ct. App. 1999) 1998 Va. App. LEXIS 167 (Ct. App. 1998) Henry v. commw. Threat (arson) 1997 Va. App. LEXIS 404 (Ct. App. 1997) Saunders v. commw. Letter threat 523 S.E.2d 509 (et. App. 2000) Johnson v. Marcel Harassment 465 S.E.2d 815 (Ct. App. 1996) Walker v. Dillard Telephone harassment 523 F.2d 3 (4* Cir.), cert. denied, 423 U.S. 906 (1975) Vagueness, overbreadth claims rejected with reasonable fear and knowing provisions (adequately inform of law's proscription). Vagueness and overbreadth claims rejected (reasonable, great distress meaning given to "emotional stress" language. Statute construed to include "having no legitimate purpose"). Statute requires actual knowledge of victim fear, rather than reasonably should have known. Vagueness challenge rejected. It is for the jury to determine credibility where victim delays report of threat to police. Victim delay in reporting threat goes to credibility of testimony about fear, rather than proving unconcern. Evidence of prior bad acts subsequent to threat is admissible to show reasonableness of victim fear. Statute requires proof of mens re, not malice, for criminal intent. Harassment by landlord in violation of protective order is equated to common law trespass as a cause of action. Overbroad (application of statute is not limited to caller; use of terms "vulgar" and "profane" is undefined). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 64 ~ State v. Lee Stalking 957 P.2d 741 (1998), a f g , 917 P.2d 159 (Ct. App 1996) State v. Ainslie Stalking 11 P.3d 318 (Ct. App. 2000) State v. Petz Stalking 1999 Wash. App. LEXIS 1565 (Ct. App. 1999) State v. Partowkia Stalking State v. Terry Stalking 1999 Wash. App. LEXIS 1228 (Ct. App. 1999) 2000 Wash. App. LEXIS 1886 (Ct. App. 2000) ~ State v. Wilson 99 Wa. App. 1049; 2000 Wash. App. LEXIS 352 (Ct. App. 2000) Vagueness and overbreadth claims rejected (there is no constitutionally protected right to travel under First Amendmbnt. Tern ”follows”is not vague; no right to follow another: “without lawful authority” is a valid application to following). Void for vagueness challenge rejected (person of ordinary understanding would have Mown that he was stalking). First Amendment claim of protection for posting of flyers rejected (non-traditional political conduct, not speech, is regulated; any potential overbreadth may be dealt with on case-by-cases basis). Vagueness and overbreadth challenges rejected (citing Lee). Defendant’s knowledge that behavior would create fear and knowing violation of protective order constitutes stalking. Defendant knew or should have known of wife’s fear fiom his erratic behavior in appearing in locations where she was despite court order. Evidence was sufficient to show a specific person was target of the stalking behavior. Court is not obligated to require defendant to plead not guilty by reason of insanity. ~~ ~ State v. C1emonts Stalking State v. Taylor Stalking 1 2000 Wash. App. LEXIS 220 (Ct. App. 2000) 2000 Wash. App. LEXIS 643 (Ct. App. 2000) ~~ Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 65 ~ Stalking sentencing 1999 Wash. App. LEXIS 1654 (Ct. App. 1999) State v. Alvarez Threat 904 P.2d 754 (1995) (en banc) State v. Maciolek Threat 676 P.2d 996 (1984) (en banc) Statev. J.M. Threa( 6P.3d 607 (Ct. App. 2000) City of Seattle v. Allen Threat 911 P.2d 1354 (Ct. App. 1996) State v. DavilaMendez Threat City of Seattle relephone threat 2000 Wash. App. LEXIS.2461 (Ct. App. 2000) 767 P.2d 572 (1989) (en banc) State v. Emery position as employee to gain information to facilitate stalking iustifies enhanced sentence. One qct df harassment threat is sufficient without pattern of conduct required. Vagueness claim rejected (definition of "weapons" and weapoq "use" is understandable to average person. Even if "deadly weapon" is potentially vague in its outer limits, no such Droblem exists in this case). State need not prove defendant knew threat said to third person would be transmitted to victim nor that victim fear would result. Defendant charged under statute directed at threat of hture injury may instead have actually committed assault by threat of immediate iniurv. E-mail threats are prosecuted under general harassment law, not telephone harassment law Vagueness and overbreadth claims rejected (non-public forum speech over telephone may be regulated even where non-fighting words involved and are viewpoint neutral. Terms "intimidate," "harass," and "torment" are narrowly defined; intent requirement makes law even less vague). State need not prove victim fear fkom threat. ~ ~ v. Huff State v. Pierce Telephone threat State v. Savaria Telephone threat 1999 Wash. App. LEXIS 1231 (Ct. 4pp. 1999) 219 P.2d 1263 'Ct. App. 1996) Victim fear need not be of precise threat. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 66 - State v. Smith Harassment 759 P.2d 372 (1988) (en banc) State v. Williams Harassment 991 P.2d 107 (Ct. App. 2000) State v. Costello Harassment 2000 Wash. App. LEXIS 5 (Ct. App. 2000) State v. Ragin Harassment evidence 972 P.2d 519 (Ct. App. 1999) Sate v. Klinke Harassment 1999 Wash. App. LEXIS 1614 (Ct. App. 1999) City of relephone harassment 992 P.2d 496 (1999) (en banc) relephone iarassment 888 P.2d 175 (Ct. App. 1995) WA coni ~~ ~ ~~ ~~ Bellevue v. Lorang itate v. Alexander Vagueness claim rejected (phrase "without lawful authority" is valid, because one can look to readily ascertainable sources of law to test conduct). Vagueness and overbreadth challenges rejected (law does not reach substantial amount of protected speech due to intent, "malicious" acts, and "reasonable fear" provisions. Phrase"menta1 health" when read in context of law gives adeauate notice. Evidence of offer to immediately fight does not satisfy future harm element of harassment law. Evidence of prior bad acts is relevant to proving reasonable fear element of harassment crime. Evidence of violation of protective order is admissible to prove element of crime, reasonable victim fear. First Amendment and vagueness challenges upheld (tern "profane"to describe harassing speech has religious connotation which is not content neutral. Language is no guide to law enforcement responding to :omplaint). Vagueness and overbreadth :laims rejected (terms 'embarrass and "profane" are not werbroad. Statute is not iverbroad in toto because it megulates conduct not speech. I'erms "anonymously" and 'repeatedly" are in common isage). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 67 State v. Dyson Telephone harassment 872 P.2d 1115 (Ct. App. 1994) City of Everett v. Moore Telephone harassment 683 P.2d 617 (Ct. App. 1984) Perkins v. State relephone harassment 402 S.E.2d 229 (Ct. App. 1991) City of Redmond v. BWkhart relephone larassment 991 P.2d 717 (Ct. App. 2000) State v. Thome larassment heat 333 S.E.2d 817, :ert. denied, 474 J.S. 996 (1985) 846 F.2d 241 (4th cir. 1988) I I rhome v. 3ailey Harassment Vaguehew and overbreadth claims rejected (intent requirement makes any impact on speech minimal, especially so in view of its focus on "indecentqspeech that is given minimal First Amendment protections. Phrase "extremely inconvenient hour" gives adequate notice.). Void for vagueness and overbroad (law provides no clear line as to what is criminal anp what is not; e.g., always coming late to meetings can be seriously annoying, but not criminal) (statute not limited to telephohe calls; alarming behavior can have legitimate purpose: e.g., fire alarm). Vagueness and overbreadth challenges rejected (statute interpreted to require mens re and limited to obscene language; as such law does not reach substantial amount of protected speech. Intent requirement ensures law provides adequate notice. Law encompasses instances where intent to harass arises during telephone call, in addition to those calls where intent to harass was basis for making call. Overbreadth claim rejected [statutedoes not prohibit :ommunicative speech). 3verbreadth claim rejected :statute criminalizes conduct, lot speech). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 68 - State v. Rapey Stalking 581 N.W.2d 593 (Ct. App. 1998); 1998 Wisc. App. LEXIS 264 (1998) State v. Ruesch Stalking 571 N.W.2d 898 (Ct. App. 1997) d State v. Sveum Stalking Harassment 584 N.W.2d 137 (Ct. App. 1998) Bachowski v. Salamone Harassment protection order 407 N.W.2d 533 (1987) State v. Schordie Harassment xotection wder 3Iarassment mtection xder 3arassment rotection rder 570 N.W.2d 881 [Ct. App. 1997) State v. Clark Katie T. v. Justin R 3meported (Ct. 4pp. 1997) 555 N.W.2d 651 Ct. App. 1996) Vagueness and overbreadth challenges rejected (Statute provides "fair notice," citing Ruesch; protected expression is not reacded by law-aimed at intolerable behavior) There is no violation of right to travel, citing Ruesch. Vagueness, overbreadth, and equal protection claims rejected (overbreadth doctrine is not applicable to right of intrastate trpvel; intent and "reasonable person" standard defeats vagueness challenge; exclusion for labor picketing is rational). Threats made prior to harassing acts may be found by jury to "accompany"harassing acts. Single act provoking fear is sufficient to prove fear from "course of conduct." Vagueness and overbreadth challenges rejected (provisions of law requiring intent and absence of any legitimate purpose, as well as course of conduct element, provide specificity and ensure law does not reach to protected speech). Injunction was too broad where its order included acts not proven at trial. Attempt to run over victim also violated no-contact order. Collateral attack on harassment order is not permitted in ximinal violation proceeding. Student harassment order against another student required appointment of guardians ad 'item to be paid by county. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 69 I i n v. Hudson cont. State v. Nienhardt I Harassment1 555 N.W.2d 41 1 I Evidence of harassment is protection order Harassment protection order (Ct. App. 1996) 537 N.W.2d 123 (Ct. App. 1995) State v. Bouzek Harassment protection order 484 N.W.2d 362 (Ct. App. 1992) Croop v. Sweeney Harasspent injunction 605 N.W.2d 664 (Ct. App. 1999) - - WY Adexman v. Greenwood Harassment injunction 587 N.W.2d 215 (Ct. App. 1998) State v. Greene Harassment injunction 573 NW2d 900 (Ct. App. 1997) (table) State v. Dronso Telephone harassment 279 N.W.2d 710 (Ct. App. 1979) Brockv. State Stalking 981 P.2d 465 (1999) sufllicient for order issuance. Travel condition of probation for violating harassment order upheld where order prohibits entry into town where victim of telephone harassment lives; remove temptation rationale. Collateral attack is not permitted against underlying injunction in criminal proceeding for its violation. Order provision against possession of firearm is not supported by evidence when there was no indication of past ownership of gun. One act of harassment involving force is sufficient basis for order issuance. Violation of no-contact bail condition is bail jumping; restitution to victim employer for costs to protect victim struck down (only victim is eligible). Overbroad (phrase "intent to annoy" is too encompassing, because it includes communicative speech not intended to annoy). Vagueness and overbreadth challenges rejected (statute provides adequate standard of conduct; 2000 Tex. App. LEXIS 5555 (Ct. App. 2000) no infringement of 1St Amendment protected activities). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. - 70 ~ Stalking Stalking 4 Civil liability Stalking I United States v. hterstate stalking (18 U.S.C. 226 1A) Young ~ United States v. Vollmer nterstate ;talking (18 J.S.C. 2261A) United States v. Alkhabaz Electronic threat (18 U.S.C. 875 Vagueness and overbreadth claims rejected (citing Luplow). It is not a, denial of equal protection to increase penalties for stalking in violation of probation condition (valid public purpose in this classification). Vagueness and overbreadth 897 P.2d 463 claims rejected (law is content (1995) neutral; terms “harass” and “substantial”are adequately defined by law and term “emotionaldistress” is defined by prior civil cases). Vagueness and overbreadth 909 P.2d 953 claims rejected (citing Luplow). 1996) Testimony of former wife of 48 MJ 117 (Ct. defendant’s stalking is App. Armed admissible to prove stalking Forces 1998) intent against second wife. Tenth Amendment and 1999 U.S. App. LEXIS 32721 (4th vagueness challenges rejected (statute contains interstate travel Cir. 1999) requirement; defendant lacks standing to claim vagueness, since his acts fall within statute’s scope of conduct prohibit ion). Threatening intent combined 2001 U.S. App. with acts to place victim in fear LEXIS 348 (Sth Cir. 2001) (Per justify Congress’ use of Commerce Clause; Morrison, CUriUm) 529 U.S. 598 (2000) inapposite. Interstate threats by e-mail to 104 F.3d 1492 (6th Cir. 1997), third party are not covered by federal threat law (statute u f g , United requires intimidation element). States v. Baker, 890 F. Supp. 1375 [E.D. Mich. 1995) 910 P.2d 1348 (1996) Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 71 us e cont - - United States v. Kelner United States v. Spruill 1 Threat (18 U.S.C. 875 (c) 534 F.2d 1020 (2d Cir. 1976) Telephone threat (18 U.S.C. 844 (e) 118 F.3d 221 (4th Cir. 1997), cert. denied, 118 S.Ct. 2347 (1998) 108 F.3d 1486 (1' Cir. 1997) United States v. Fulmer United States v. Whiffen Telephone threat (18 U.S.C. 875 e (18 U.S.C. United States v. Bellrichard Letter threat (18 U.S.C. 876) Apollomedia Corp. v. Reno Electronic harassment (47 U.S.C. 223 (a)( 1)(A)) 121 F.3d 18 (1' Cir. 1997) 31 F.3d 550 ( 7 ~ Cir. 1994), a#" zfter remand, 54 F.3d 779 (7mCir. 1995) 394 F.2d 1318 (8* Zir. 1993) 19 F.Supp.2d I08 1 (1 998), a f d , I19 S.Ct. 1450 1999) Erst h i d m e n t challenge rejected ("threat" defined to limit constitutional objections to those which on its face are unequivdcal, unconditional, immediate, and specific so to convey'gravity of purpose and immediate prospect of execution). Federal threat law requires bomb threat be pled and proven even where threat is to an individual. Jury may determine that ambigbous statement is true - threat. Test of threat is reasonable recipient, not reasonable sender. Test of threat, based on general intent requirement, is whether defendant's actions may reason,ablybe construed to be threat by recipient. Subjective (by victim) measure of threatening content is to be used over showing actual intent to threaten. First Amendment claim rejected (conditional threats may be "true threats;" use of outrageous terms does not turn threat into political speech). Vagueness claim rejected (use Bf tern "indecent" and intent quirement is redundant with Ise of term "obscene" to iescribe communications barred )y statute). Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 72 us ~ United States v. cont, Lampley - Interstate telephone harassment and threats (18 USC 875 (c); 47 U.S.C. 223 (a)( 1)(D)) 573 F.2d 783 (3rd Cir. 1978) Interstate telephone and mail threats (18 U.S.C. 875 (c), 876) Interstate telephone threat (18 U.S.C. 875 (c)) 853 F.2d 676 (9th Cir. (1988) ~~ United States v. Twine United States v. Francis 164 F.3d 1-20(2"" Cir. 1999); rev'g, 975 F. Supp. 288 (S.D.N.Y. 1997) United States v. Freeman Interstate telephone threat (1 8 U.S.C. 875 (c)) 176 F.3d 575 (1" Cir. 1999). United States v. Kammersell Interstate threat (18 U.S.C. 875 (c)) Jnited States v. ?opa Telephone harassment (47 U.S.C. 223) 196 F.3d 1137 (1Oth Cir. 1999), a f g , 7 F. Supp.2d 1196, adopting, 1998 U.S.Dist. LEXIS 8712, 8719 (D. Utah 1998) 187 F.3d 672 (D.C. Cir. 1999) 1 Vagueness and First Amendment challenges rejected (law is not directed at mere communication because of intent requirement; there is no requirement that language used be itself harassing. Vagueness claim is vitiated by intent requirement.). Specific intent to threaten is required (contra whiffen, Ffrlmer). Call forwarding service across state lines provides jurisdiction to federal court. Government must show general intent to act; need not prove intent to be threatening. Plea of guilty subsumes claim that pfank calls are not within scope of threatening telephone calls law; standard is whether defendant "reasonablyshould have known" call would be taken as threat. Threatening communication using the Internet to person in same state creates federal jurisdiction under Commerce Clause. Statute violates First Amendment as applied to defendant's calls to U.S. Attorney's Office, regardless of annoying nature. Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 73 * rus I Bakd ~ V. Perez cont. 1999 U.S. Dist. Telephone harassment LEXIS 88 14 (42 U.S.C. (S.D.N.Y. 1999) 1983) 342 F. Supp. 31 1 Interstate (E.D. Pa. 1972) telephone harassment (47 U.S.C. 223 (a)( 1 )(DN Telephone harassment by police officer is not a violation of constitutionally protected privacy rights. Harassing phone call law is not applicable unless harassment sole motive for calls. - - e' Appendix4 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 74 Appendix 5: National Surveys This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 National Survey of Anti-Stalking Prosecution Initiatives - ~ Special StafflUnit for Stalking Cases 1. Do you have any special staff or a special unit to which stalking cases can be referred? (Check all that apply.) a) b) C) d) W e) W0 No jurisdiction to prosecute stalking cases (if checked, end survey) No special staffor unit (if checked, go to Question 5 ) Domestic violence unit staff Threat management (stalking) prosecution Unit Stalking prevention unit (e.g., civil protection orders assistance) Other (specify) 2. If you have special staff or a special unit that handle stalking com&nts, please briefly describe the staff or unit's composition and primary duties. ' 3. If you have a special stalking unit or staff, how were those positions funded at start-up? a) Federal grant (e.g., STOP) b) State grant 4 c) Special local funding d) Regular office budget e) Other 4. Are federal funds currently supporting any special stalking unit staffposition? Yes. No Other Special Activities 5. What training on stalking is provided to attorneys who prosecute stalking cases? (Check all that apply.) a) No stalking training W b) Component of new attorney training (for all attorneys) Part of periodic in-service training for all attorneys C) d) a ~ W e) 0 Component of domestic violence training to stalking unit members Specialized stalking training to stalking unit members (as needed) Stalking trainingkonferences as funds are available Appendix5 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 1 6. What special training on stalking is provided to non-attorney staff (e.g., victim assistance I unit)? (Check all that apply.) a) b) C) d) e) No relevant non-attorney unit(s) or staff No special stalking training for non-attorney staff Component of domestic violence training provided unit members Specialized stalking training for other stalking prosecution staff Stalking traininglconferences as funds are available 7. Does your office have any special written policies and procedures for handling stalking cases? (Check all that apply.) No stalking policies or procedures a) b) Stalking included in domestic violence policies or procedures c) Separate stalking - policies or procedures d) Other I Do you have any comments about your state's stalking legislation, problems in prosecuting these cases, or other related topic? Contact person for additional information: Telephone Number: ~- Thank you for your cooperation. Be sure to provide a contact name and number so that, if needed, we can contact you for further information about your anti-stalking initiatives for our report to Congress. Please return the completed survey in the enclosed, self-addressed envelope to Institute for Law and Justice 1018 Duke Street Alexandria, VA 223 14 OR F A X to Neal Miller 703-739-5533 Appendix5 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 2 National Survey of Law Enforcement Anti-Stalking Initiatives Special Stalking StafflUnit .. 1. Which unit is responsible for investigating stalking cases? (Check all that apply.) InvestigativeDetective division or bureau (no special unit) b) Threat Management unit C) Violence Against Persons investigative unit d) Domestic Violence unit e) Other @lease specify) a) 2. If you have special staff or a special unit that handle stalking complaints, please briefly describe the staff or unit's composition and primary duties. 3. If you have a special stalking unit or staff, how were those positions funded at start-up? Federal grant (e.g., STOP) m b ) stategrant C) Special local funding d) Regular office budget m e ) Other a) 0' . . 4. Are federal h d s currently supporting any special stalking unit staffpositions? Yes. No Other Special Activities 5. Is training on stalking included in recruit training? (Check all that apply.) No stalking training provided b) Separate training unit or module on stalking included in recruit training C) Stalking training included in the domestic violence training provided recruits a) 6. Is in-service training on stalking provided to officers and detectives who handle stalking cases? (Check all that apply.) a) No in-service training on stalking provided b) Annual in-service training for all detectives periodically includes stalking C) ~ .d) Training on stalking provided for detectives or supervisors newly assigned to unit handling stalking cases Training offered to special unit detectives as available fiom outside agency sources and as funding is available Appendix5 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 3 0 7. Does your department have any written policies and procedures governing the handlii of stalking complaints? (Check all that apply.) rn a) No written policies and procedures b) Separate stalking policies and procequres Stalking policies and procedures are part of domestic violence protocol d) Other (please specie) c) 8. Does your ofice collect statistics on stalking or harassment case reports or arrests? No =Yes If yes, please attach. - - Specify $ Do you have any comments about your state's stalking legislation, problems in enforcing these laws, or other related topic of concern? Contact person for additional information: TeIephone Number: Thank you for your cooperation. Be sure to provide a contact name and number so that, if needed, we can contact you for further information about your anti-stallcing initiatives for our report to Congress. Please return the completed survey in the enclosed, self-addressed envelope to Institute for Law and Justice OR 1018 Duke Street Alexandria, VA 223 14 FAX to Neal Miller 703-739-5533 Appendix5 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 4 Appendix 6: Case Studies Dover, New Hampshire, Police Department’s Anti-Stalking Unit 1 The LAPD Threat Management Unit ’ 9 Los Angeles District Attorney’s Stalking and Threat Assessment Team 21 San Diego District Attorney: Stalking Prosecution Unit 36 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Dover, New Hampshire, Police Department's . Anti-Stalking Unit Overview Under a grant from the Community Oriented Policing Services (COPS) Office, the Dover Police Department has established a special Anti-Stalking Unit. The Unit has been in existence for about one year. It is comprised of two detectives supported by a half-time victim advocate. An evaluation of the Unit's performance is being conducted by Dr. Glenda Kauhan Kantor; it is not yet completed. 4 History The Dover Police Department has a relatively long history of concem with both domestic violence and stalking issues. Initially much of the department's attention was directed at improving its response to domestic violence. To that end, the department was a pioneer in requiring arrests for domestic violence when probable cause to arrest existed' and for a victimless prosecution policy. Other domestic violence initiatives included development of a county-wide Family Violence Council, improved collaboration between the department and area hospitals and schools, and use of video taping as evidence in prosecuting these cases. Officers were also instructed to take photographs of victim injuries and the surrounding scene, and a checklist for patrol responders was instituted. With these several initiatives implemented, stalking cases became the next logical priority. Indeed, according to a report prepared by the American Prosecutors' Research Institute, departmental concem about stalking predated the enactment of an anti-stalking law by the state legislator in July 1993.2 An interview with the prosecuting attorney handling misdemeanor prosecutions for the police department confirms that the department played a vital role in the passage of the law. I @ An Attorney General letter issued in March 1996 recommends that law enforcementagencies in the state adopt a presumptive arrest policy. American Prosecutors' Research Institute, Stalking: Prosecutors Convict and Restrict. "Two Innovative Antistalking Programs: Dover, New Hampshire" (1996): 5-1 1. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 1 This long-standing interest in stalking issues was matched by a Request for Proposals (RFP) issued by the COPS Office of the U.S. Department of Justice that specifically mentioned stalking in the general announcement asking for proposals related to domestic violence. The proposal prepared by the department in response to the RFP asked for $229,000 in operational funds to staff the Unit with two detectives, one,victim advocate, and one support s t a . Additional funds were requested for a victim relocation fbnd, equipment, development of a computer program to identify stalking cases using police reports, mental health services for victims, use of a Global Positioning System (GPS) offender tracking system, and to hold a regional conference on stalking. In total, the funding request was for approximately $370,000. > Unit Goals The proposal submitted by the department included a number of ambitious goals. The most significant of these included the following. Increased arrests for stalking will result from better identificationof cases not previously identified as stalking cases Build better cases through enhanced investigations, especially in long-term stalking cases Improved supervision of stalkers in the community, both pre- and post-trial, including enhanced bail for stalking through improved pre-trial check of defendants' histones of prior violence and arrests Improve services to victims, including victim relocation, development of stalking support groups, and provision of counseling services Expand knowledge base about justice system responses to stalking through development of agency protocol for handling these cases, seeking county-wide adoption of the protocol, and sponsorship of regional conference on stalking. Unit Responsibilities The department's Anti-Stalking Unit is responsible for follow-up investigations of Stalkingreports Service of orders of protection and their enforcement Threat cases involving city employees, public officials, and schools. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 2 These three major areas of responsibility are a logical fit. Regardless of the context, 0 threat cases all require threat assessment expertise similar to that used in stalking cases. Enforcement of protection orders through arrest of order violators is essentially a form of stalking prevention since continued violations will ultimately result in the "pattern of behavior" that is at the heart of the criminal law definition of talking.^ Service of process orders is important I 1 because it provides an opportunity for the Unit detectives to get to know which cases are potentially likely to turn into stalking and to provide informal warnings about the consequences of order violations. Unit StafuOperations/Case Procedures Staff - - The Anti-Stalking Unit is supervised by a Lieutenant who also supervises the drug team, legal staff, and the Investigations Unit. While the other units have their own supervisor who reports to the Lieutenant, the Anti-Stalking Unit reports directly to him. The two Unit detectives are experienced officers, one of whom also serves as the ' polygraph operator for the department. The victim advocate works part-time and has a private counseling practice. The Unit works a Monday-Friday shift fiom 8 a.m. to 5 p.m. The detectives are on call, however, for emergency calls (estimated 30 such calls yearly). One detective must always be available for emergency calls, so vacations must be synchronized. As needed, the shift schedule may be adjusted (e.g., night surveillance). Overtime pay is also available. Training for the Unit detectives includes periodic domestic violence training and attendance at the annual conference for the Association of Threat Assessment Professionals. OperationsKase Procedures 0 New Hampshire Statutes 6 633:3-a( l)(d)(5) provides that violation of a protective order may constitute stalking without more (i.e., no need to prove either threat or victim fear). Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 3 Better Identification. Stalking cases are identified either through referral from a patrol officer4 or detective or through daily review of police reports by the Unit detectives.' The Unit 0 also maintains a database of protective order services; this information is rpaintained in the department's "Wanted" file. When an officer comes to the scene of a call, the officer can quickly determine whether there is a protective order in effect so that the state stalking law can be invoked. Although the Unit staff does engage in some limited outreach efforts, community i education has not yet resulted in many "walk-in" cases; the greatest number of victim selfreferrals comes from the department's web site stalking page. The department is also working with a software company to develop a program that will aid in the identification of stalking cases involving repeat low-visibility crime reports to the CAD. The intent is to match calls involving nearby addresses, geographic area, names of victims, or a specific location. - - Better Investigations. Cases are vertically assigned to the detectives, who are the point for future Unit contact by victims. Depending upon the perceived seriousness of the case when it reaches the Unit, initial steps may consist of a simple telephone contact or warning letter to a full-scale investigation. As needed, the detectives and the victim advocate may help victims obtain an'order of protection. Once a case is activated, it will be discussed at weekly meetings of the Unit staff, the prosecutor, probation, and mental health. These meetings are held each Tuesday in the office of the police prosecutor.6 The meetings discuss both new cases and selected old cases where there are still difficult issues remaining. All old cases are reviewed every 90 days. This is the only departmental unit that regularly meets to discuss cases. ' 0 ' The Department provides computer-aided training (CAT) to officers weekly; the training lasts about 10-15 minutes. Officers are graded based upon how well they do in their testing of this training. Changes in the stalking laws are disseminated by a bulletin and then tested using the computer-based testing of the training (CAT). At the initiation of the project, a memo was sent to all sworn personnel about the Anti-Stalking Unit and its policies. For example, in one case the Unit detective saw in the police report of a criminal trespass charge that the victim reported prior domestic violence had occurred. This was confirmed through a check of departmental records which showed prior domestic\violencecalls. The check also found that there was an outstanding out-of-state order of protection in force. It is unclear to what extent the Department's emphasis on domestic violence repsrting has improved reporting of domestic violence incidents in other crime type cases. Although the incumbent police prosecutor is a sworn officer, this is not a requirement of the position. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 4 After the case is assigned to a detective, the first responsibility of the detective is to 0 develop a victim-offender history. Typically the Unit's victim advocate will help the victim go to court with a petition for the protection order. The detective may also send,out a warning letter to the suspect, stating that continuation of the complained about behavior may result in criminal charges being filed.. All active cases are entered into the Department's "Wanted" file that is used by patrol officers to determine the status of any person they stop. If contact with the suspect is made by a police oficer is made, the Unit detectives are notified. The detective may then make a follow-up call to the victim to determine if there had been any new incidents.' Y One common problem with domestic violence-related stalking cases is the loss of victim cooperation. While this does not occur as frequently as with domestic violence assault cases, it does occur in a significant number of cases. Victim cooperation in stalking cases is, of course, critical. The Unit protocol for stalking cases includes evidence collection based on victim cooperation. This includes letters or notes from defendant, gifts from defendant, answering machine tapes recording messages from defendant, photos of damage to victim's property, the 0 use of phone traps, and a log that documents dates/time/location of victim's encounter with defendant. Implicit in the improved investigation objectives are the policy of strict enforcement of court orders of protection and improved prosecutions. The policy of strict enforcement of protection orders is a carryover from the Department's policies regarding mandatory arrest in domestic violence cases. However, this policy has been strengthened by requiring arresting officers to notify the Unit detectives for their follow-up. Because the police prosecutor is a sworn police officer in the department (although his duties are limited to legal tasks), ties between the two hnctions are close. For example, when a victim is to testify at bail or trial, Unit staff will take the victim to the prosecutor's office to await a call from the court. This limits the ability of the defendant to intimidate the witness prior to testifjmg. It also allows the prosecutor and victim to meet and prepare for testifymg. Thus, the victim's memory will be refieshed by examining a copy of the police report section that recounts e what the victim said at the time of arrest. Possible cross-examination questions will be reviewed, Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 5 especially where financial entanglements have necessitated contacts between the two parties, a notwithstanding any order of protection. - Also implicit in the improved investigation objective is improved case management. Case management begins with appropriate case documentation. Unit protocol requires that at a minimum the following documents be included, in each case file: Case profile sheet containing victim and suspect information and narrative of case Police arresthncident reports Motor vehicle records Criminal records ' Local police contact records. Based upon case evaluation whether follow-up actions are required, cases are either active or inactive, or closed. All cases are periodically reviewed every 90 days for appropriate case status. Improved Supervision in the Community. The first opportunity for supervision of a suspect is the bail hearing at which bond may be required and conditions for release can be set by the court. Before the Unit existed, the only information available to the prosecutor arguing for bail conditions was a criminal record check. Based upon a few very serious incidents, this was deemed inadequate. Now the Unit provides the prosecutor with a threat assessment form that looks at dangerousness issues. This includes common factors such as making explicit threats against the victim or of suicide, history of violence or of order violations, mental health or substance abuse problems, and recent stress as fkom loss of job. A common condition of bail release is that the suspects periodically check in with the Unit detectives. Unit detectives may also make spot checks on releasees to ensure that they are in compliance with other bail release conditions, such as no use of alcohol, that are deemed necessary after Unit review of defendant's history. In supervising suspects, the Unit takes advantage of new technologies. These include surveillance cameras as needed; digital cameras to take photographs of both the victim and the a suspect; these photos are sent to all patrol oficers via e-mail (officers are required to check their Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 6 e-mail daily). The Anti-Stalking Unit has also experimented with the use of a Global Positioning a System to track offenders.' Two related efforts are the Unit's pre-arrest stalking prevention practice of issuing warning letters to suspects and its encouragement of victims to obtain orders of protection; the department's reputation for arresting and prosecuting violators increases the credibility of these I orders as a deterrent. Personal service of these orders by Unit detectives also provides an opportunity to stress the seriousness with which order violations are pursued. Although state law limits warrantless arrests based solely upon probable cause in stalking cases to within six hours of stalking occurrence, the department has arranged for a bail commissioner or judge to be available "on-call" to issue warrants at any time. Improved Services to Victims. Once a case is assigned to a detective, two important objectives are to reduce victim anxiety and to undertake a threat assessment. It is at this point that the detective will help with obtaining a restraining order. The victim advocate is also 0 involved in all cases; she calls victims as soon as practicable and follo&s up once a week with phone calls. The advocate also attends arraignments to see if any victims are present and available to meet with her. To date there has been no use of the grant h d s to relocate victims; should relocation be necessary, the Unit has developed a cooperative agreement with the DVERT Team in Colorado Springs, Colorado. The Unit protocol for relocation provides for financial assistance and help with name and Social Security number changes. Victim safety planning is a primary Unit responsibility. The Unit protocol requires victim participation in safety planning; Unit personnel must provide victims with information about the risks they face so that safety planning can proceed. Planning includes an assessment of the risks posed by the victim's home, work, or school environment. Victims are kept informed of case status at all times, including bail status and custody release. A 25-item checklist is used for safety planning. ' The use of a GPS requires that the defendant have a dedicated phone line, without call waiting; residence and work in building structures that do not interfere with signal; cooperation of all local jurisdictions where defendant and victim reside and work; and travel routes that separate victim from defendant. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 7 4 I I Development of a stalking support group has proven to be difficult due to lack of interest a among some victims and staffing changes at the mental health agency that sponsors such support groups. The Unit is also trying to have batterer treatment programs available for stalkers in a 4 domestic violence context. Expand Scope of Department Protocol Use. The department seeks to gain wider use of its protocol, both locally and otherwise, in several ways. First of all, the Department has been I open to visits from other justice agencies who are interested in seeing first hand what they do. Second it has sponsored a regional conference that was attended by personnel from Departments in New Hampshire, Massachusetts, and other states. Third, it has sponsored a rigorous J evaluation by an independent evaluator to report on its successes and problems. Other Activities. The Dover Police Department expends considerable effort on community relations. The Anti-Stalking Unit has developed a video on stalking and pamphlets explaining how the Unit can help victims. Unit staff have also led s e m i n p on workplace violence for city employees and several local corporations. Another seminar that focused on workplace violence, stalking, and safety issues was held at a local college. They have also give talks to widow support groups on dating violence. The department has a web site that includes a stalking page. The department also participates on the county-wide Domestic Violence Council. Statistical Measures of Performance Data was not available at this time to measure the work of the Anti-Stalking Unit, due in part to the on-going evaluation of the project. A preliminary report by Dr. Kantor indicates that for 73 cases reviewed, about two-thirds involved intimates or fonner intimates and that 40 percent involved threats against the victim. The police-prosecutor reports that he handles about 150-200 order violations and stalking cases yearly. Each detective carries a caseload of about 20-25 cases at any one time. summary The Dover Police Department prides itself on being a progressive agency, one that is on a the cutting edge of change. The Anti-Stalking Unit is but one manifestation of that attitude. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 8 While most of its work might best be described as stalking prevention, nonetheless, it does handle both domestic violence-related and stranger stalking cases much more often than one might expect, considering Dover's population of 27,000. The Dover Anti-Stalking Unit experience provides many lessons for law enforcement agencies of all sizes. First and foremost, stalking exists in significant numbers even in small jurisdictions. Second, stalking cases require changes in procedures and adoption of new techniques and technologies. 3 Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 9 I , I The LAPD Threat Management Unit (TMU) California Stalking Law California Penal Code 0 646.9 was adopted in 1990 and was the first law in the United States to provide criminal penalties for stalking. The key elements of the law are: I A course of conduct involving harassing or threatening behavior A credible threat, implicit or explicit, against the victim or the victim's family with apparent ability to carry out the threat I Intent to place victim in fear for his or her own safety or that of immediate family Actual substantial emotional distress by the victim from the reasonable fear created by the course of conduct and threat. Simple stalking as defined above constitutes what in state practice is called a "wobbler" offense. That is, stalking may be treated at the discretion of the district attorney as either a felony or a one-year misdemeanor. Stalking in violation of a court restraining order is always a felony, e with a maximum sentence of up to four years. Because stalking laws are so new in California and elsewhere, only a small number of police departments have established special units to respond to stalking complaints. The first such unit is that established by the Los Angeles Police Department (LAPD). LAPD's Threat Management Unit (TMU) The Los Angeles Police Department (LAPD) Threat Management Unit (TMU) was the first (and until recently, the only) police unit to specialize in handling stalking cases. The TMU was set up in 1990 as a result of meetings between the LAPD and entertainment industry representatives to discuss what to do after the famous Rebecca Schaeffer murder case involving a stalker.* These meetings resulted in a commitment by the LAPD to establish a dedicated unit for responding to threats involving strangers. This was a new approach to an old problem of how to a Rebecca Schaefer was a television actress who was most famous for appearing in a television comedy series. She was called by a stalker who obtained her home address from the state motor vehicle records and who came to her house and shot her. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 10 handle cases involving obsessive behavior that may contain elements of harassment or threatening behavior, often without, however, anypresent injury. As the LAPD notes: “Unless a specific crime had been committed, police agencies have historically remained uninvolved in such cases, leaving the victim to deal with hidher problem. However, by the time such cases escalate, some victims have experienced tragic consequences before police intervention could be initiated.” Threat Management Unit , GuideZines (February 1999) This brief quote includes two key elements of stalking cases: their continuing nature, which will typically continue into the future, and the role of the special stalking unit for homicide prevention. 1 Overview of TMU Responsibilities To fill the void in police services that stalking complaints historically found, the TMU today is responsible for investigating serious threat cases in the city. This includes cases involving Stalking Terroristic threats Public officials Workplace violence involving city workers Other duties include training divisional detectives and other law enforcement personnel. The TMU supervisor spends approximately 10 hours each month providing training. This includes training for LAPD detectives, POST training, and training for other organizations, including the California District Attorneys Association. The TMU has trained the Mayor‘s and other elected officials’ staff about how to assess threats in letters, and it works with the city‘s Threat Assessment Team on employee violence cases not accepted by TMU. The TMU has also contributed to the city‘s a workplace violence policy and to the workplace violence protocol for police department employees. TMU case investigations all involve similar tasks and problems. The most significant of these is threat assessment. It was this factor that led the unit to take over the elected official 0 threat cases from the Criminal Conspiracy Section. The reason for this change in unit responsibility is that assassins rarely make explicit threats; specialized expertise is needed to Appendix 6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 11 I assess the level of danger or seriousness of any implied threats. Other commonalties among TMU cases are the need to conduct surveillance (for some cases) and the need to take a proactive approach to prevent crime, in addition to reacting to crimes already committed. A final I commonality is the use of community resources in investigations, to both prevent and investigate threats and other crimes. TMU Staffing and Caseload I The TMU is composed of eight detectives and one supervisor, a significant expansion from the original three detectives and one supervisor. The TMU detectives range in rank from Detective II (equal to sergeant) to detective trainee. Most have a minimum of 10 years of law 4 enforcement experience; and the TMU supervisor (rank of Detective III) has 24 years of law enforcement experience and has been with the TMU since 1992. Most cases accepted by the TMU involve stalking. While workplace violence cases are increasing, they are still relatively rare (16 cases in 5 years). About 30 percent of the TMU’s stalking cases come fiom the entertainment industry. Each Unit detective typically has10 to 15 active cases. In the c o p e of one year, the Unit investigates about 200 cases. Of these, approximately 70 percent involve citizen complaints, the majority of which are related to domestic violence. Case Referral and Acceptance Cases are referred to the TMU from the Major Assault Crimes (MAC) units, patrol officers,the District Attorney, the City Attorney, the public (including victim service agencies), and the movie studios or other entertainment industry organizations. The TMU’s Officer-inCharge also reviews all police crime complaints involving stalking or terroristic threats to identify other cases for possible TMU involvement. Occasionally, the TMU also handles cases refmed by the Commanding Officer of the Detective Services Group; this can occur where hi& profile cases are brought to the attention of the Commander (whether or not they fit the W S criteria for case acceptance). Cases accepted by the TMU are those requiring the extra investigative and specialized resources available to the Unit. For example, the stalking cases handled by the TMU are “long- @ term abnormal threat and harassment cases.” The Unit also accepts cases that have not yet Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 12 I / I I reached the threshold of criminal behavior (e.g., “credible threat” or victim fear may be lacking). Although the harassing behavior in these cases may threaten to escalate into criminal stalking, a proactive response by the TMU detectives at this point may forestall more serious behavior and I result in case termination without further formal action such as arrest.’ Case Management Process When a case is received by the TMU, a case intake form is filled out. This is used to record such information as Victim information (name, age, DOB,telephone numbers) I Case information (crime location(s), detective name, date referred to TMU) Suspect information (name, address, description, etc.) ’ , Restraining order information (order number, termination date) Vehicle information Type of police report (crime, arrest, property) The intake form is entered into an ACCESS database, permittivg cross checks (e.g., prior stalking cases), case monitoring, and statistical summaries. Once the intake form is completed, the detective assigned to the case interviews the victim by telephone. A decision is then tentatively made by the detective to accept the case pending an in-person interview with the victim to assess victim credibility and willingness to cooperate. The final decision whether to accept the case or not is made by the Unit supervisor. Regardless of whether or not the case is accepted, TMU detectives provide victims with safety information. This may include suggestions about varying their schedules, changing phone numbers, monitoring in-coming phone calls, and informing others so they can also take precautions. Victims whose cases are accepted are also told to keep daily logs of all stalkingrelated incidents to build a paper trail to prove stalking occurred. From case referral to case termination, stalking cases are handled by the TMU detectives on a vertical basis. The only exception to this rule is when a detective is out sick or on vacation; then another detective will temporarily step in to handle the case. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 13 Once a case is accepted, the detective assigned to the case will investigate and call the complainant every 7 days. If a case is designated inactive, detective calls will be made every 30 days. Similarly, if a case involves pre-stalking behavior (designated PEST ,cases, does not reach I the level of serious threatening behavior), the assigned detective monitors the case by contacting the victim every 30 days. Another group of cases is considered ‘‘infomation only.”. These are cases that are outside the LAPDs jurisdiction or do not fit Unit criteria for handling. When a case is closed, the detective sends a letter telling the victim to contact the detective at once if the stalking reoccurs. Cases are closed through arrest, mental health intervention, self-resolved (suspect stops the stalking activity), or where the victim is uncooperative, making it impossibfe to prosecute or to increase victim safety. In all cases where the stalker’s identity is known, the TMU detective checks the suspect’s criminal record, looks for wants and warrants, and reviews the Automated Firearms System for information about gun ownership. The detective will also review the Mental Evaluation Unit files and ask for a hand search of the files in appropriate cases. A copy of the suspect’s driver’s license, booking, or other ID photo will also be ordered. If at all possible, the detectives will also contact the stalking suspect in person. In misdemeanor stalking cases, h e y may send the stalker a letter asking him to contact the detective, or may directly contact the stalker through phone or personal interview. The TMU detectives may also encourage the victim to obtain a court protective order against the stalker or inform the victim’s employer that they may also seek a protection order against work-site stalking incidents. Where an order is obtained, the detective will personally serve the court order on the suspect. If an emergency arises, victims are told to call 911 and inform the operator that this is a TMU case. Police “first responders” have been instructed to contact the TMU detective via beeper, if necessary. The detective then informs the Unit supervisor; however, very few emergencies actually require off-duty detectives to report in. In appropriate cases, detectives may act to divert suspects to a mental health agency for competency and dangerousness assessments. Each stalking case is placed in a separate “stalking book.” The stalking book is kept by e the detective assigned to that case until the case is completed, whereupon the stalking book is Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 14 - - placed in the Unit files. The stalking book contains a chronological record of all case activities and all paperwork associated with the case, including crime reports, evidencdproperty reports, follow-up and progress reports, detective notes, crime scene photos, newspaper clippings, and prosecution materials (See Appendix). Management and Training ,I One purpose of a specialized such as the TMU is to develop expertise among unit members in dealing with the crime of stalking and other threat crimes. This requires that the unit officers stay with the unit for a relatively extended period of time sufficient to both develop and use their expertise. Fortunately, staff turnover is not a major managerial concern with the TMU, since several of the detectives have been assigned to the Unit for an extended period. However, the department does have a policy of rotating younger officers, several of whom may have to move to another unit to receive promotions. A more serious problem is managing overtime. Managers are rated on how well they control overtime use. As a result, whenever special demands such as surveillance, can be scheduled, officers will change their shift hours to minimize overtime. There is no LAPD policy 0 against the use of flex time where the activity is scheduled (e.g., victim interview can only be done in evening). Overtime is permitted, however, for emergency field work, such as looking for a dangerous suspect or completing the paperwork associated with an arrest. Long interviews that run over the scheduled work day may also be an authorized overtime activity. As a result, detectives may telecommute in order to complete the necessary paperwork. To ensure timely handling of case referrals, the first detective arrives at the TMU offices at 7 a.m. The day ends at 5 p.m. Detectives are partnered to ensure officer safety. Thus, whenever a detective is sent on a field assignment (e.g., serve protective order, surveillance), he or she will be accompanied by a partner. This partnering is especially important when interviewing suspects because of their potential for unstable behavior. Partnering detectives also allows for consistency in case handling when a detective is not on duty because of sick leave, vacation, etc. Special managerial approaches are needed in Los Angeles to deal with celebrity stalking. a Each detective in the TMU is responsible for liaison with 3 or 4 different movie-television Appendix 6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 15 I studios. Liaison with shelter advocates is also needed to ensure that victims receive needed services. Training new detectives assigned to the TMU is done through on-*e-job training by assigning the new detective to team with an experienced detective. This is done for a period of six months to one year. At least twice 9 year, the TMU has "training days" when outsiders come in to talk to Unit members. Typically this would include one academic and one tactical training day. The Unit members are all receiving training on the use of the Internet in stalking crimes; this is being provided by SEARCH and a state DOJ course on Internet crime. Staff also attend meetings of the Association of Threat Assessment Professionals. a Other Units Handling Stalking Cases Major Assault Crimes. Major Assault Crimes (MAC) units ire located in each of the LAPD's 18 geographical divisions. Among the duties of detectives assigned to MAC are investigation of less serious or aggravated stalking cases and domestic violence assaults. But ' even simple stalking cases that cross division lines are assigned to TMU. Detectives newly assigned to MAC units receive training fiom the TMU; training is scheduled every quarter. Upon request, the TMU may also provide technical assistance to a MAC detective handling a stalking case. A grant application has been submitted to the state to have two members of MAC in each division responsible for identifjing stalking cases before they escalate. These detectives would try to use shelters for this purpose. The TMU will train shelter staff for this. SMART. The LAPD's System-Wide Mental Assessment Response Team (SMART). SMART pairs a mental health professional and a law enforcement officer to conduct field assessments of suspects who display symptoms of psychiatric disorders. When officers respond to a call where the suspect may be mentally disordered, the officer can call the Mental Evaluation Unit to assist. The Unit will dispatch a SMART team, relieving the officers and allowing them to respond to new calls for assistance. The SMART team will then determine whether the individual should be released, arrested, or be involuntarily sent to a 72-hour holding facility for 0 assessment and treatment. The TMU detectives consider SMART to be a very important resource. Appendix 6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 16 School Threat Assessment Teams. A recent LAPD/TMU initiative is the establishment e of a partnership between the Department and LA Unified Schools create threat assessment teams in the schools that use the assessment techniques pioneered by the TMU. The plan is for each school to establish an assessment team comprised of a school official, a law enforcement officer, a mental health professional, and legal counsel. The purpose of the teams will be to identify and resolve bona fide threats of violence in the schools. The TMU will be responsible for providing technical expertise and training. As of this writing, the school threat assessment teams are being formulated. TMU and other training will be implemented in the near future. TMU Cases 4 To illustrate the investigative and legal issues facing TMU detectives, this section provides summaries of five cases handled by the TMU within the past few years. Case 1. The Threat Management Unit took over the investigation of a residential burglarylstalking case originally handled by the LAPD's North Hollywood Division. The first incident in the case was a burglary of the victim's residence. The burglar bypassed several items . of value in favor of taking undergarments fiom the victim's clothes hamper. Immediately following the burglary, the victim began receiving obscene telephone calls late at night. The caller graphically described his intent to return and rape the victim. Using phone trap records, the TMU detectives and ofhers fiom the North Hollywood Special Problem Unit staked out a pay phone identified by the phone trap. This surveillance led to the identification and mest of a parolee with prior convictions for rape and residential burglary. The suspect was literally caught in the act of placing a call to the victim fiom the nearby pay phone. A subsequent search of the suspect's apartment resulted in the recovery of several items belonging to the victim. The District Attorney's office filed charges of felony burglary, stalking and receiving stolen property. At trial, the suspect was convicted on all counts. He was sentenced to a term of 60 years to life. Case 2. In January 1995, TMU detectives were directly contacted by the father of a female victim, requesting their help in handling an aggravated stalking situation. The victim and the female suspect had maintained a love relationship offand on for four years. During that time, the suspect became increasingly violent, leading to their subsequent breakup. After the a sepqtion, the victim began to receive numerous hang-up and threatening phone calls. These Appendix 6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 17 , I calls then began to include threats to the victim's immediate family. The victim's father was also the recipient of unordered magazines and advertising material from companies such as the Franklin Mint. The suspect also got herself arrested to be with the victim while the victim was in I jail facing a forgery charge. AAer accepting the case, the TMU detectives instructed the victim on what she should do to help gather evidence of stalking (e.g., keep a log). With the evidence obtained from the victim, the TMU detectives obtained an arrest warrant for stalking against the suspect. The suspect subsequently pled guilty to stalking and was placed on probation. Upon release from jail, the suspect again began to harass and terrorize the victim and her family. The suspect was immediately re-arrested by the TMU detectives for violating probation. Probation was revoked by the court and a onyyear prison sentence was imposed. Case 3. In November 1994, the TMU was assigned a case involving the stalking of the director of a then popular television series. The victim was mailed death threats using cut out letters (e.g., "you will die."), mutilated dolls (cocktail swords stuck into the crotch of a Ken doll with its pants pulled down and red paint splashed on the doll), and envelopes full of feces. A possible suspect who had lived at the victim's home for awhile was identified by the victim, but there was no physical evidence linking him to the crime. The detectives began to work off-duty hours conducting stakeouts of the suspect in an effort to link him with the crimes. In May 1995, the detectives conducted surveillance of the suspect's car, because he had no known address. This ultimately lead to seeing the suspect approach the car carrying a package similar in appearance to those previously received by the victim. The suspect was then arrested while attempting to mail another package of feces to the victim. The suspect was charged by the District Attorney's Office with felony stalking and was convicted and sentenced to two years in prison. Case 4. The suspect, a terminated employee of a national television network, was stalking and terrorizing a former co-worker. His behavior became so obsessive that the victim eventually obtained a court order against his behavior. Sometime thereafter, the victim's vehicle was burglarized and her identification badge taken. A few days later, the suspect's psychiatrist notified the TMU and the police mental health unit (see above) that the suspect had reported thoughts of kidnapping and killing the victim, then killing himself. A check of the automated a firearms system showed that the suspect had eight firearms registered to him. Based on this Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 18 I information, the TMU obtained a search warrant for his residence to look for firearms. The 0 suspect was then civilly detained as a mental health risk under 0 5150 of the state Welfare and Institutions Code and the search warrant was executed. During the search, the TMU recovered I 16 weapons and numerous rounds of ammunition. The victim's identification badge, taken in the burglary of her car, was also found. Additional evidence was found that linked the defendant to child pornography. The District Attorney's ofice filed charges of stalking, burglary, and receiving stolen property. The suspect pled to the burglary charge and was sentenced to two I years in prison. Case 5. The TMU was contacted by a male model who reported that he was a victim of stalking by a former companion, a+physicianspecializing in infectious diseases. The victim and the suspect had known each other for 18 months. When the suspect told the victim that his intentions were of a romantic nature, the victim did not want to become so involved. A friendship relationship continued for another year before the victim decided to end their relationship completely because of the suspect's attempts at possessiveness. The suspect began to harass the victim, placing numerous phone calls to the victim and threatening him with great 0 bodily injury. The suspect then began to walk around the victim's nei@borhood.in disguise, enabling him to monitor the victim's activities and visitors. At one point the suspect, dressed as a woman, assaulted the victim outside his home. A restraining order was obtained to prohibit this harassment, but the suspect continued to show up at locations that the victim frequented, sometimes traveling three times in one evening to different locations. The suspect also left cards and mementos at the victim's residence. After entering the case, the TMU detectives arrested the suspect in front of the victim's residence for stalking. At the time of the arrest, the suspect possessed binocular and a flashlight, which he explained he needed to help him find a wallet he lost earlier that evening. The District Attorney's Ofice charged the suspect with stalking and making terroristic threats against the victim. After release from jail on bail, the suspect continued to violate the restraining orders of the court. The victim filed three additional crime reports alleging order violations, and the suspect was again arrested in fiont of the victim's residence. The original complaint was amended to include an additional count of stalking, and a bail revocation hearing was held at which a new bail was set at $500,000. Unable to make bail, the suspect remained in custody until trial. He was found guilty of stalking, but acquitted of 0 terroristic threats. The court sentenced him to a term ofthree years in prison. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 19 Summary and Conclusions 0 In many ways, the TMU is still a work in progress. The unit was established when stalking offenses were still not a criminal offense under the state Penal Code. Its original focus on stranger threats has expanded to include domestic violence stalking, workplace violence, and threats against government officials. It continues to receive ad hoc assignments to investigate criminal cases involving high profile victims that must be balanced against the need to protect many other citizens from serious threats. Most significantly, the TMU now has a parallel unit in the District Attorney's Office, whose existence may be expected to have an impact upon how the TMU operates. J At the same time that it is evolving, the Unit operates within a professional structure. It has investigative and managerial protocols that govern the detectives' activities, while giving them flexibility to deal with a specialized and limited caseload. It is also clear that TMU responsibilities go beyond simple case investigations. Because stalking crimes in Los Angeles far exceed the number of cases that the TMU can handle, the Unit 0 acts as a resource and model for other LAPD detective units. It is also a training resource both for the LAPD and for other criminal justice personnel around the state. Most recently, the responsibilities of the Unit were again expanded to include training for school threat teams. Because of other demands, the TMU does not, however, undertake many community education or public speaking events to foster increased victim awareness of stalking or encourage service agency referrals (as the District Attorney's Oflice does). The "bottom line" is that just as stalking is itself a unique crime, so too the TMU is a unique unit within the LAPD. As the Department, the TMU, and indeed, the entire justice system learn more about stalking and stalkers, the more its responsibilities and its operating procedures will change. The key point is that the TMU has been and continues to be a leader in responding to stalking crimes on a daily basis, while at the same time improving methods for responding to these crimes that can have devastating consequences for the victims unless promptly and effectively responded to by the justice system. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 20 Los Angeles District Attorney’s Stalking and Threat Assessment Team One District Attorney’s Response to the New Stalking Laws The Los Angeles District Attorney’s Stalking and Threat Assessment Team (STAT) is responsible for prosecution of felony cases involving i Stalking 0 Workplace violence (government only) 0 Other high profile or dangerous threats. The STOP-hnded attorney position, however, is limited to cases consistent with the STOP guidelines for services. The unifj.lng principle for the three different case jurisdictions is that each requires threat assessment of the level of danger posed against the victim. ’ History of STAT In 1992, the Los Angeles District Attorney’s Office handled one of its first stalking prosecution cases. At that time, the California stalking law had been in effect for only one year. For the most part, law enforcement was not familiar with the stalking law and did not recognize stalking complaints when they were filed. However, the LAPD’s Threat Management Unit, which was formed in 1990, referred a burgiaqdstalking case to the District Attorney’s Office, and Rhonda Saunders, one of the two deputy district attorneys currently with STAT, was assigned to the case. ~ ~~ The defendant in this case had been stalking the victim in public venues such as shopping malls for over a year after the victim ended their sexual relationship because of the stalkefs violent behavior. The spumed lover then became obsessive, calling the victim at all hours, leaving gifts, and writing letters begging the victim to resume their relationship. A few months later, the victim began to hear strange noises fiom under her house. An exterminator was called and threw poisoned bait into a crawl space, but the noise continued. A few months later, a fiiend who was house sitting for the victim found the stalker inside the house bedroom and ordered her to leave. Within a few weeks, the victim discovered her Rolodex was missing when her fiiends Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 21 and relatives began receiving strange letters from the stalker. Soon thereafter, the stalker broke e into the house while the victim was showering. Police were called, but she had already left. The newly formed LAPD Threat Management Unit was called in and obtained a warrant for burglary against the defendant. Following her arrest, she was released on bail and, obtaining a gun fiom her father's house, went to the victim's home. The victim fled the housi along with two dinner f guests. The police were called and the SWAT team responded. At one point the defendant pointed a weapon at a SWAT team officer, but neither person fired any shots. After the defendant surrendered to the police, security specialists were called to install an alarm system. They discovered that the defendant had been living under the house in the crawl space. There was evidence that she had been able to tap the house telephones from this vantage point, enabling her to track the victim's movements to malls and the like. Despite the long history of stalking, the defendant was convicted only of assault on an officer; no stalking charge was even brought due to weaknesses in the law. The defendant was sentenced to nearly eight years in prison and has twice been released from prison, violating probation both times by renewing the stalking behavior. She is scheduled to be released in 2000, after serving all of her sentence. e' In 1992, as a result of this prosecution experience and the defects in the stalking law that it exposed, the Los Angeles prosecutor's office sought amendments to the stalking law. The new law sponsored by the Office increased the punishment for ordinary stalking to a potential felony offense and made stalking a less dificult crime to prosecute. Over time, Ms. Saunders continued to periodically handle stalking cases, although assigned to other types of cases. Her work and that of other prosecutors in the office handling stalking cases encouraged the District Attorney to set up a specialized stalking unit, based, in part, on the correlation between stalking and domestic violence homicides. This led to the recognition that stalking prosecution needed increased resources and specialized expertise. Additional support for a special unit came from the entertainment industry, which had concerns that could not be met by police responses to stalking complaints. A specialized stalking unit (the STAT) was established in July 1997 with two attorneys, Rhonda Saunders and Scott Gordon, who had considerable experience with domestic violence issues. A STOP grant was obtained from the state agency responsible for allocating STOP funds Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 22 to support one attorney and an investigator. In addition, a victim-witness advocate was assigned to the STAT fiom the state-funded advocate unit in the District Attorney’s Office. Most recently, the STAT was awarded a new STOP grant from the state to expand its operations with two new lawyers. Under this grant the STAT activities have been expanded to include a special focus on stalking and threats in the university environment. This will include a ,I public awareness campaign and the efforts of one prosecutor on university-based cases. In addition, the Los Angeles Commission on Assaults Against Women will provide on-campus victim services and advocacy. In its first 18 months of operation, the STAT prosecutors filed 58 stalking and terroristic threat cases. This included 44 casks filed in the period supported by the STOP grant and 14 cases filed before grant support of- the Unit began. - STAT Staffing/Caseloads/Responsibilities Unit Personnel The Los Angeles District Attorney’s STAT attorneys are both experienced prosecutors. Rhonda Saunders has prosecuted stalking cases since 1992 and was a principal stalking specialist in the District Attorney’s Office before the STAT was established. The other attorney is Scott Gordon, the STAT project director for the STOP grant, who has a total of 20 years experience as a prosecutor and law enforcement officer. He previously served as special assistant to the Director of the Bureau of Special Operations. Mr. Gordon is also the District Attorney’s representative to the Los Angeles Domestic Violence Council, which he has chaired since 1994. The STAT investigator is Edward Messinger, who has 24 years of law enforcement experience. The investigator is assigned to the Special Crimes Office in the Special Operations Division of the Bureau of Investigation within the District Attorney’s Ofice. Mr. Messinger replaces former STAT investigator Brian Hale, who is now a supervisor with the Family Support Unit. Celeste Musick, who is the STAT victim advocate, has two years experience as a victim advocate. JeffreyJonas, head of the Target Crimes Division in the Bureau of Special Operations, e supervises the STAT. Other units in the Bureau include those with responsibility for crimes Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 23 , I against police officers, the career criminal unit, the extradition unit, and the Task Force on auto a theft prevention. Caseload I Scott Gordon, the STAT project director, estimates that the unit receives about 400 referrals yearly. Of these, approximately 125-150 cases are retained for monitoring or filing. A few additional cases may be retained for nontraditional “intervention” by the unit investigator. This typically involves notifying the suspect that his or her actions may be scaring the victim and violating the stalking law, with a warning that such continued behavior will have consequences. No formal prosecution is brought in cases where the stalking behavior then ends. Where the stalking continues, however, a forhal investigation may be undertaken and charges filed; the intervention itself provides evidence that the defendant’s actions were purposehl with full awareness of the impact upon the victim. Attorney Caseloads. Each STAT deputy district attorney typically has an active caseload of 12-14 cases. In addition, the attorneys may be monitoring closed cases where the a defendant is serving a probation sentence and is still at risk for renewed stalking activity. There are several reasons for the low caseload of the STAT prosecutors. Stalking cases require more intensive work than most other crimes because stalking is by definition an on-going series of events. These events continue after the case is accepted for investigation and prosecution. Indeed, because physical evidence of past stalking behavior is often absent, proof of stalking requires extensive documentation of the stalking behavior occurring after case acceptance. This requirement extends the amount of time required before cases can be prosecuted. Thus although the yearly caseload for non-stalking cases is usually calculated by doubling the daily caseload (most cases take an average of about 6 months to go to trial), this is not true with stalking cases. The wide geographic area served also affects STAT caseloads. Cases are refmed to STAT from all over Los Angeles County. In a typical week, the prosecutors might be in as many as five local courts, sometimes for multiple appearances. Because so much time is spent traveling to and from these courts, less time is available for case preparation and management. e Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 24 Investigator Caseload. The STAT investigator is responsible for assisting the prosecutors in identifjmg stalking cases and preparing them for prosecution. Investigator duties 0 include meeting with walk-in or telephone complainants to assess their stones. As noted earlier, the investigator will intervene in some cases to approach the suspected stalker and warn that individual that he/she is close to the line where criminal behavior occurs. This is done in cases ! where such intervention may be expected to prevent escalation. Usually, the investigator has a police officer accompany him on intervention calls. In Los Angeles, the officer will be from the LAPD Threat Management Unit. Investigating stalking cases is paper intensive. As noted above, stalking cases require building a paper record of stalking. Hence, the job requires interviewing and report-writing skills. - - Investigative services &e a high priority with the STAT. The normal ratio of investigators to attorneys in the District Attorney's Ofice is one to three; however, STAT has one investigator for its two attorneys. The STAT investigator normally handles between 8 and 12 cases at any one time. Of these, usually 4 to 6 cases are "hot" (that is, cases scheduled for trial). In comparison, auto insurance fraud case investigators have active caseloads of 9 to12 cases at ' any one time, all of which would be hot. In addition, because stalking cases require proactive investigation, they may often involve emergency situations. In the course of the STAT'S first year of operation, the investigator handled 34 cases. Victim Advocate Caseload. The STAT victim-witness advocate position is funded as part of a state grant to the District Attorney's Office for a victim-witness assistance unit. The STAT advocate's duties include identifjmg possible stalking cases from a review of all felony crime reports referred to her by other advocates, including those in the District Attorney's branch offices; by LAPD's Threat Management Unit; and by other prosecutors. Typically, referrals are based on the most serious charge involved; that is, the STAT advocate would not be referred cases where charges more serious than stalking were involved. A final source of referrals to the advocate is the STAT telephone answering machine, which provides up to 15 calls per month. The advocate calls victims to offer her services for help and to gather more information about the case facts. If she cannot reach the victim by telephone (60percent are reached by Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 25 phone), she will send them a letter asking them to call her and describing the services offered; about 50 percent of these respond. The advocate is thus able to reach about of 80 percent of the 0 victims referred to her. The advocate receives about 80 case referrals per month. Of these, perhaps as many as 50 cases could be stalking related. Cases most f&quently rejected involve telephone harassment complaints where there is no indication of any pattern of calls or there is no former relationship that could have sparked the calls. The advocate reviews the case referrals, prioritizes them for immediate threat issues, and presents this information to the STAT prosecutors. Overall, the screening results in about 5 cases per month being marked for the STAT attorneys' attention. Of these, about 2 cases are accepted for prosecution. At any one time, the advocate has an active caseload of 40 open cases. The advocate tries to talk to each victim once or twice each week. Other duties include supporting victims during interviews with the prosecutors and accompanying victims to court. The advocate may also be asked to handle some stalking related cases (e.g., domestic violence victim cases where the District Attorney's Family Violence unit received from the police a stalking case involving ex- @ spouses). In victim "'walk-in" cases where no police complaint has been filed, the advocate ' requires that the victim file a complaint, so that she can process the victim's claims for compensation under the state's victim compensation law. The STAT victim-witness advocate served 221 victims and 1 14 witnesses in her first year with the unit. The most frequent service provided was crisis intervention, followed by emergency assistance and referral to resources. Assistance was also provided to victims in filling out claims for compensation and assisting victims with preparing a victim impact statement for the sentencing hearing. Case Monitoring Not all complaints of stalking constitute stalking under state law. The state Penal Code specifies that stalking occurs only where the victim has a reasonable fear for hidher safety or that of the victim's family. Not all stalking meets this threshold requirement. In cases where the seriousness of the stalking behavior has been escalating but is not yet stalking under the statutory e definition, the STAT may monitor the case. This monitoring involves periodic checks with the Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. a 26 victim to determine if the threat level has significantly increased. It may also involve an investigator "intervention" as discussed above. At any one time, the STAT may have as many as five cases being monitored for fhture investigation and prosecution. I Case Closures Because stalking prosecution is such an extensive process, the STAT closed slightly less than half of its active caseload, 27 cases, in its first year of operation. As discussed above, this is because stalking cases may take longer than other cases to be tried in court. Sentences imposed in the closed cases included 9 defendants sentenced to prison (average sentence 4 to 5 years) and 17 sentenced to jail. Most of these latter cases involved one-year jail terms as a condition of a five-year probation term. One othkr case resulted in a dismissal where defense counsel was able - - to present exculpatory information. Illustrative Stalking Prosecution Cases Because Los Angeles is the home of the U.S. movie industry, cases involving movie stars and directors are part of the STAT caseload. More common examples of their cases include 0 those that follow. 0 0 Case 1. After Mrs. Y was divorced, her ex-husband began to threaten and stalk Mrs. Y and her mother, including the sending of written death threats to both. He also sent threats and defamatory mail to the victim's place of employment. This resulted in her transfer fiom a job as a nurse to a clerical position. Complaints to local police were not acted upon because there was no physical harm to her and because the threats came fiom out of state. The victim sought help fiom a local rape treatment center. Because a relationship between the center and STAT had already been established, the complaint was referred to the STAT victim advocate. The STAT investigator followed up and a warrant for felony stalking was issued against the ex-husband. The case was also referred to the U.S. Attorney's Oflice, which filed a federal criminal complaint for interstate stalking. As of this writing, the suspect is still a fugitive from justice. Case 2. The defendant had become fixated upon the victim, who refused to engage in a romantic relationship with him. After several years, the defendant began to pose as the victim on the Internet. He placed several sexually graphic "want ads" on Internet bulletin boards and in this way began to correspond with men while posing as the victim. He then solicited the men to rape the victim, by claiming that he/she enjoyed rough sex and rape fantasies. As part of the solicitation, he provided the men with the victim's address, phone number, and other personal information. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 27 i When the victim learned of these events from one ofthe men so solicited, she went to local police and was told there was nothing they could do. Eventually, the Federal Bureau of Investigation (FBI)referred her to STAT. After extensive investigation by STAT and the FBI, a felony stalking complaint was issued. The defendant eventually pled guilty and received a six-year sentence to state prison. 0 0 Case 3. Ms. X, an American-Asian woman attending college, broke up with her boyfnend, also a student, who then proceeded to stalk her. The ex-boyfhend was able to hack into her computer so that whenever her new boyfriend sent her an e-mail message, the ex-boyhend would call her and talk about the e-mail. He also sent e-mail messages that threatened her, her new boyfriend, and the new boyfhend's mother. Pressure was exerted upon her from the Asian immigrant community not to press charges. The district attorney prosecuted the ex-boyfnend for stalking the new boyfhend, ahd she testified to this part of the case. The defendant pled guilty and at the time of this writing is undergoing psychiatric evaluation pending a sentencing hearing. - Case 4. Mrs. Z separated from her husband after he became jealous of her adopted daughter and became physically violent. He was also using drugs. He then began to stalk the victim. He carjacked the wife and daughter, threatening to drive to Mexico and leave the adopted daughter there. He was arrested and pled to a misdemeanor charge. She then obtained a protective order against him. But after release from jail, he asked her to give him a temporary home, which she did despite her daughter's being terrified of him. He became abusive again. She kicked him out again, but he hid in the storage shed in the garage. When she went in the garage, he jumped out with a knife, demanding his clothes. A neighbor heard her screams and called police. The defendant pled nolo contendere and was sentenced to a three-year prison term with a recommendation that he be sent to a psychiatric facility. The court also issued a IO-year protective order. Case 5. Ms.B, a student, was sexually harassed by her supervisor at a telephone marketing company. When she left her employment because of the harassment, he began stalking her and her boyfiiend. Before she left her job, the supervisor had gone through her Rolodex at work to obtain her telephone number and that of her boyfhend. He also hired a co-worker to follow her and report on what she did (part of the compensation paid the co-worker was to stop threatening him). Using the information provided by the co-worker, he left telephone messages on her answering machine for several months. These messages included threats to bash in her face with a baseball bat. The defendant pled nolo contendere and was sentenced to 16 months in prison with a recommendation for psychiatric treatment. A 10-year protective order was also issued by the court. e . . Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 28 I 0 Case 6. The victim, an 18-year-old female, sings in the church choir. She was seen performing with the choir by a total stranger who began to stalk her. Among other things, he sent pornographic pictures and videos to her home. With the pornography, he would add a message saying "this is you and this is me." He also called her at home, making threats and playing the soundtrack from a pornographic movie. When he was arrested, he explained his actions as motivated by his being a "student of human nature." He said he simply wanted to see how she would react to his presents, and he would sit in the back of the church to see how see was holding up to his actions. The defendant was convicted of stalking and sentenced to 16 months in prison. The case was also referred to the U.S. Attorney's Office, which did not, however, prosecute for sending pornography through the mail because of the difficulty of proving a violation of community standards. 3 Stalking Case Handling - - Case Management Procedures Once a stalking case is accepted for prosecution by STAT, all cases are vertically prosecuted by the deputy district attorney assigned the case. The same prosecutor appears in all case proceedings and the victim has a single person to call about case status or new stalking incidents. An exception to vertical prosecution occurs where a suspect has already been arrested for stalking. In those cases, another prosecution unit will have already handled the case preliminaries (e.g., bail hearing) before the STAT takes over. But where no arrest has yet been made, the STAT prosecutor handles all case preliminaries up to and including trial. Even in cases where the case is not prosecuted, instead being the subject of investigator "intervention" or monitoring, the prosecutor to whom the case is assigned for monitoring will also be responsible for case prosecution should that be needed. Not all cases referred to the unit are accepted for either prosecution or monitoring. Probably as many as half the cases reviewed by the STAT are rejected because of lack of evidence, the absence of the needed element of victim fear for own or family safety, or simply because the simple facts of the case do not require the STAT'Sexpertise for prosecution (other Ofice prosecutors will then handle these cases). Cases not accepted may be referred to: 0 Another deputy district attorney in the District Attorney's Ofice 0 Another county's prosecutor's office Law enforcement for investigation Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 29 Victim services CityAttorney Family violence prosecution unit. I When cases are accepted by the STAT, the deputy district attorney assigned to the case meets with the victim to explain what the unit will be doing and what the victim must do to help with the case investigation and prosecution. The latter includes creating a paper trail of stalking I incidents through such means as keeping a written log. Case Intake Cases are referred to STAT by the District Attorney screening units at the Downtown office and the 26 branch offices, from victim service agencies, employer security directors, and - - through walk-ins or call-ins. The highest number of case referrals, however, comes from the Los Angeles Police Department's Threat Management Unit (TMU). Other case referrals come from LAPD branch detectives and other law enforcement agencies, including federal and state agencies. 0 Cases are prosecuted countywide. Although the STAT deputies used to be able to transfer cases to the Downtown court, the presiding judge no longer permits this. The STAT attorneys are now required to attend hearings all over the county. While this results in more travel time per case, it does allow the STAT attorneys to spend more time with the branch ofice attorneys and local police agencies. Case acceptance criteria include: Firearm or other deadly weapon is used 0 Victim or family member is killed or seriously injured 0 Second or third strike cases in which the new charges include stalking (California has a "Three Strike" law that significantly increases the penalties for serious recidivistic crimes as defined by the law, Le., "strikes") 0 0 0 Defendant has a prior conviction for stalking or terroristic threats Complex, serious or long-term stalking cases involving multiple offenses, witnesses, victims, locations andor law enforcement agencies, or cases of widespread public interest Victim is an elected or appointed government official Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 30 0 Any other case involving special preparation and/or investigation where there is a serious threat to the victim’s safety, including cases involving multiple violations of prior restraining orders. Deputies in the District Attorney’s other units are encouraged to call the STAT attorneys for technical assistance, information, or victim service referrals on cases not meeting these criteria. STAT prosecutors try to review all stalking cases filed by the branch ofices as a separate check on whether they should be involved or take over the prosecution of cases being I handled by Branch ofice deputies. Stalking charges may also be filed in more serious cases such as homicide, when there is evidence that stalking preceded the crime. This use of the stalking law takes advantage of the “actual fear’’ requirement for proving stalking, thus permitting evidence of victim impact to be heard by the jury where evidence law would not otherwise allow its introduction because of its potential to be prejudicial or not germane. Threat Assessment Threat assessment is done on a case-by-case basis. The use of threat assessment 0 instruments is largely limited to training exercises to help illustrate the €‘&tors associated with risk. It also gets the trainees to think about risk potential. Furthermore, using the assessment instruments drives the novice to collect information relevant to risk that might not otherwise be collected. This includes information about the exact language used to threaten or the type of weapon displayed or possessed. As needed, the STAT prosecutors are able to call upon the assistance of other professionals in assessing the degree of threat against the victim. This includes the membership of the Stalking Task Force (discussed below). Psychological Review The STAT deputies will not make plea offers until the defendant has been psychologically assessed. Most judges are reported to agree with this policy. In cases where the defendant is not able to form mens re (i.e., intent to commit a crime), the STAT prosecutors will work with the District Attorney’s mental health unit to seek civil commitment. Case Prosecution Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 31 While most cases are resolved by a plea agreement, in cases that do go to trial, the STAT attorneys will use an expert witness to explain how the victim's behavior coping with the stalking threat is consistent with his or her claim of fear. Voir dire examination of potential jurors before the jury is selected will include questions about the juror's experience with either stalking or with civil restraining orders. Sentencing Recommendations The STAT unit does not have a unified policy on sentencing recommendations. Nonetheless, both prosecutors have similar approaches to sentencing. Thus, both prosecutors will seek prison time in some cases and a "split sentence" ofjail plus probation in others. The P latter sentence reflects the fact that in California split sentences are authorized, so that a condition of probation in a typical stalking case can be one year in jail. Probation supervision will ordinarily be for 5 years. Any probation sentence must include a treatment plan, including batterer intervention in domestic violence stalking cases. The judge is asked to include a nocontact provision in any probation supervision order issued. This order includes a provision that bars the use of a third party to contact the victim. If the probation conditions are violated, the 0 defendant can be sent to prison for up to 3 years. In contrast, most stalking sentences to prison are for 12 to 16 months, followed by parole supervision lasting 12 months. In all cases, the deputy will also seek a 10-year protection order to be issued by the court and a requirement that the defendant obtain mental health treatment. The most significant factor favoring one type of sentence over the other is the seriousness and immediacy of the threat to the victim andor her family. Post-Conviction Duties When a stalker is convicted and put on probation, the victim is given the pager number of the investigator to report any recurrence of the stalking. In addition, victims can call the District Attorney's 24-hour command post to report new stalking incidents. The STAT deputy district attorney will also make periodic calls to the victim and to the probation or parole officer supervising the stalker. The deputy will also assist the victim in asking the Parole Board to put restrictions on the defendant's terms of release fiom prison, as authorized by California Penal Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 32 Code 0 646.9.2. The Parole Board is reported to have been very cooperative with victim requests under this law. Related Responsibilities 4 Training. The STAT is specifically encouraged to provide training to prosecutors, law enforcement, the judiciary, and community-based victims' rights organizations. About 20 to 25 percent of the attorneys' time is spent on training, meetings with victim service providers (e.g., shelters), and presentations at community forums. Many of the training h d public information tasks are done on weekends or evenings. As one deputy put it, "Training is a priority." I Training duties include regular training of prosecutors assigned to the Office's 26 local branches. Stalking is now included in training for prosecutors handling,domestic violence cases. The Ofice also had stalking training presented at the monthly Saturday seminars for all personnel, who attend on a voluntary basis. This is expected to be repeated in the near future. Law enforcement are invited to attend these sessions. They also do exclusively law enforcement training with the County Sherips office and the Regional Community Policing Institute h d e d by the U.S.DOJ for domestic violence training (3 sessions). Law enforcement training also 0 includes squad-level roll call training, as the attorneys are available. Other training has been provided to attendees at programs offered by the California District Attorneys Association and the Association of Threat Assessment Professionals. STAT staff are presently providing training on stalking to both probation and parole staff. One result of the training has been improved presentence reports to the court. The STAT has also produced a training manual, which includes copies of all relevant civil and criminal laws, a review of stalking and terroristic threat case law, jury instructions, related materials such as sample motions for expert testimony admission, and security recommendations. The STAT investigator is also involved in training. Outside training requires about 10 to 15 percent of the investigator's time. However, most requests for training and other presentations cannot be met because of casework requirements. Other Duties. One of the STAT deputies also monitors legislative proposals. Her a review comments are then passed on to the District Attorney's legislative deputy for forwarding Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 33 I to the appropriate officials. The STAT deputy may also assist victims with civil law suits filed by their stalkers. Apparently, such suits are now being filed to obtain discovery of information about the victim. I Related Organizations Related organizations include the Stalking Task Force for Los Angeles County, the Domestic Violence Council, the City Attorney’s Office, and the LAPD Threat Management Unit.. I Stalking Task Force The STAT unit hosts a monthly meeting of the county Stalking Task Force. Attending the Task Force meetings are representatives of STAT, City Attorney, FBI, U.S .Attorney’s Office, Secret Service, District Attorney’s Mental Health unit, and law enforceinent agencies, including the LAPD, County Sheriff, California Highway Pat&:U.S. Marshal’s Office, and campus police. The purpose of these meetings is to (1) review problematic cases and suggest new approaches, (2) provide an opportunity for training of attendees, and (3) improve communication and cooperation among local, state, and federal agencies in Los Angeles County. Examples of 0 meeting discussions include a demonstration by the Secret Service of its FISH methodology for assessing the common source of threatening letters through computerized content analysis. Since many suspects write threats to multiple oficials at all levels of government, this will allow sharing of information about suspects rather than cases. Other examples include a discussion led by the stalking specialist at the Parole Board and a presentation by an expert on electronic monitoring. The idea for a Stalking Task Force grew out of the office experience with the District Attorney’s Organized Crime Unit. The work of that unit was a combined federal, state, and local initiative. Stalking presents the same need for coordination of effort. From this idea, the first meeting of the Task Force was held in the summer of 1998. On average, about 12 Task Force members attend each meeting. However, no branch office deputy district attorneys attend these meetings. Meeting minutes are kept by the secretary of one of the STAT prosecutors. e Domestic Violence Council Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 34 * The Domestic Violence Council is an umbrella organization that brings together 40 different agencies in Los Angeles County. The Council was created by the County Board of Supervisors in 1979 to advise the Board on domestic violence matters; it is said to be the oldest such organization in the country. The duties of the Council include liaison with over 100 organizations providing services to domestic violence victims. Presently the Council has two special projects: (1) examining the feasibility and utility of a domestic violence court, and (2) working with the Department of Human Relations on a domestic violence employee policy. The Council meets once a month but conducts most of its business through its committees. Mr. Gordon of the STAT appoints committee chairs. The Council is housed under the Department of Community Services, which funds local shelters. The importance of the Council lies in its ability to publicize the STAT and thereby increase referrals to STAT from service providers. City Attorney Prosecutors The Domestic Violence Prosecution Unit in the Los Angeles City Attorney's Office handles all misdemeanor stalking cases in the city, about two or three per month. This unit was established four years ago with funding fiom the City Council. The attorneys in this unit 0 prosecute all domestic violence and stalking cases vertically, including refilings involving a defendant who had previously been charged with domestic violence. Stalking cases that are referred to the central unit by the Branch offices are prosecuted in the area of the City where the case arose. In the Branch offices, 'the City Attorney's Office may receive "wobbler" stalking cases (stalking may be prosecuted as either a misdemeanor or a felony at the discretion of the District Attorney) that are rejected by the District Attorney's prosecutors. A few of the smaller cities in the county (e.g., Pasadena, Santa Monica) also have City Attorney offices that prosecute misdemeanors, but these are generally too small to have specialists such as Los Angeles does. Office Management Issues A key STAT management question is whether to centrally prosecute all stalking cases or to have a mix of centralization and branch ofices handling these cases. For now, the latter alternative has been selected as the least disruptive of the existing Office structure. a Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 35 I Staff overtime is a significant managerial issue. In addition to the community and training activities that can occur on weekends, stalking cases are prone to major developments occurring at odd hours of the day or on weekends. Case pressures may also require staff to work I in the evenings on case preparation. The STAT investigator reports from 3 to 5 hours overtime per week is required to respond to victim calls, report writing demands, etc. The two STAT deputies indicate varying overtime is needed, but agree that it is substantial. I Summary The Los Angeles District Attorney’s Stalking and Threat Assessment Team is I distinguished by its specialized staff who are committed to prosecuting stalking cases and d protecting the victims of stalking. A significant part of their work is outreach to train law enforcement and to educate the public and agencies serving stalking victims. This work builds increased recognition of stalking when it occurs. Effectiveness of STAT is, however, limited by forces beyond its control. The Los Angeles District Attorney’s Office is the largest prosecutor’s office in the country, with over 1,000 attorneys and 250 investigators. The large geographic area covered by the office, the 0 difficulties of coordinating multiple branch office activities, and the constant need to train other criminal justice professionals as well as the public, at large place great demands on the time of the STAT prosecutors. Geographic problems are especially a drain on resources because the Los Angeles Superior Court does not allow the STAT to centralize its case handling by permitting transfers from outlying areas of the county to the downtown courts. It is unclear where STAT will go in the future. The number of stalking cases filed by the District Attorney’s Ofice has been steadily rising about 10 percent each year since 1994. As a result, increased pressures to improve the work of the branch offices in their stalking cases can be anticipated. This in turn may require that the specialized STAT prosecutors spend more time on training and even monitoring branch office performance. It may be that the District Attorney’s branch offices will be required to appoint staking case specialists to prosecute and manage stalking cases that do not go to STAT. Expansion of STAT to handle all the cases now handled by the branch offices is probably not likely; geographic considerations limit the advantages of a possible centralization of stalking prosecution. Some limited expansion of STAT is warranted, Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 36 - - however, both to increase the number of cases the unit can handle and to better meet the demand for training and public education. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 37 San Diego District Attorney: Stalking Prosecution Unit California Stalking Law California Penal Code 6 646.9 was adopted in 1990 and was the first law in the United States to provides criminal penalties for stalking. The key elements of the law are: A course of conduct involving harassing or threatening behavior A credible threat, implicit or explicit, against the victim or the victim's family with apparent ability to canyout the threat Intent to place victim in fear for his or her own safety or that of immediate family - - Actual substantial emotional distress by the victim from the reasonable fear created by the course of conduct and threat. Simple stalking as defined above constitutes what in state practice is called a "wobbler" offense. That is, stalking may be treated at the discretion of the district attorney as either a felony I or a one-year misdemeanor. Stalking in violation of a court restraining order is always a felony, with a maximum sentence of up to four years. Because stalking laws are so new in California and elsewhere, a number of prosecutor offices have established special prosecution units to respond to stalking complaints. One of the best of these new units is that established by the San Diego District Attorney. The Stalking Prosecution Unit The Stalking Prosecution Unit of the San Diego County District Attorney's Office is responsible for the prosecution of felony stalking cases in San Diego County. In addition, the Unit prosecutes misdemeanor stalking cases outside the City of San Diego. Office policy, however, is that stalking cases that can be prosecuted as either a felony or misdemeanor should in most cases be prosecuted as felonies. Both stranger and domestic violence-related stalking are prosecuted by the Unit.. However, most stranger stalking cases that arise outside the City of San Diego are prosecuted by 0 attorneys in the District Attorney's branch offices. Office protocol requires, however, that the Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 38 Unit be notified whenever a branch office Deputy District Attorney receives a stranger stalking case. This policy permits the Unit to take over the case when appropriate and to provide technical assistance in those cases not taken by the Unit. Unit History and Rationale The Unit was started in 1996 with one ,attorneyand one investigator handling non- The Stalking Prosecution Unit grew out of a review of domestic violence homicide cases in 1996 which showed that a factor common to most, if not all, of these cases was stalking of the victim. This suggested that these homicides might have been prevented by aggressively attacking the stalking precursor. Ms.Wells, the then Chief of the Family Protection Division which handles domestic violence cases, took the& findings to the District Attorney, and he agreed to set up a special stalking unit with her as its head. The District Attorney was especially receptive to the idea of a special unit because he was aware at that time of several fiends of his wife who had been stalked. He also was of the view that only the District Attorney’s Office is in a position to deal with the problem of multi-jurisdictional stalking; otherwise cases would fall through the cracks. As the Unit has continued and provided him with feedback from its cases, his support for , it has grown, especially his view that stalking specialization is required for prosecutors to understand the dynamics of stalking. One example he cited of the unique challenges posed by stalking cases is the dif‘ficultyin identifying the occasional false victimization reports received. These cases typically involve defendants seeking attention from their family, fkiends, or even law enforcement.’ At its inception, the new Unit did not, however, prosecute domestic violence related stalking; it only prosecuted stranger stalking cases. The Family Protection Division handled domestic violence related stalking. But in 1998, a STOP grant was gained for expanding the Unit to handle the domestic violence cases. The grant pays for the domestic violence stalking prosecutor and one investigator. A victim-witness advocate was also added to assist with stalking victims. Prior to this grant, domestic violence stalking was handled by the Office’s Family Protection Division. The Stalking Prosecution Unit estimates that they receive two or three false victimization reports a year, usually in dases involving claimed stranger stalking. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 39 The rationale for distinguishing between domestic violence related stalking and stranger stalking; the dynamics of these two types of stalking are very different. Stranger stalking often involves some form of mental illness on the part of the stalker, who may be easier to control I when on medication. Further, the love obsessional stalker found in many domestic violence stalking cases may put the victim at risk more than do other stalkers. This is because the stalkers know the victim well and know her vulnerabilities. Another problem for prosecutors in domestic violence stalking is that there is always the possibility of victim recantation in these cases, a possibility that is much less likely in stranger stalking. Even where there no recantation, stalking victims may continue to stay in contact with the stalker as a copinF response. Expert testimony may then be needed to explain thej reasons why victims act this way and why it is not inconsistent with the statutory credible threat and real fear requirements. Similar problems of explaining victim coping behavior may also be seen in stranger stalking cases. Another difference between the two types of cases is that many domestic violence stalking cases involve short periods of time during which the stalking occurred (1 to 3 days). Stranger stalking generally occurs over a long period of time before credible threat can be shown. m Organizational Placement and Unit Staffing The District Attorney’s Office in San Diego has 280 deputies, 110 investigators, victim advocates, and paralegals or interns. The Office is divided into a downtown office and branches. Special prosecution units are located at the downtown office, although most specialized units such as Family Protection Division have attorneys in the branch offices. The Stalking Prosecution Unit has two attorneys, two investigators, a victim advocate, and one full time support staff. The Unit is headed by Kerry Wells, who has 19 years of experience as a prosecutor and years in prosecuting domestic violence cases. Fiona Khalil is the second deputy district attorney in the Unit, and she has 10 years of experience as a prosecutor, including the 3 previous years with the Family Protection Division. Wayne Maxey with 15 years in law enforcement and Greg Peters with over 20 years in law enforcement are the investigators who work fulltime with the two attorneys. Wayne Maxey has been with the Unit since its inception. Greg Peters joined the Unit under the STOP grant. Jacqueline Young, the victim advocate, also joined the Unit in 1998 under a separate VictimNitness grant. She has been with Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. a 40 i the Victim Witness Assistance Program for 4 years, although this is her first experience as an advocate. e The Stalking Prosecution Unit is part of the Special Operations Division of the District Attorney’s Office. This Division is also responsible for investigation and prosecution of public corruption, political crimes, organized crime, and other sensitive matters. The two Unit investigators are part of the Special Investigations Division of the Bureau of Investigation within the District Attorney’s Ofice, the counterpart of Special Operations Division. Jacqueline Young is part of the Ofice’s Victim Witness Assistance unit that is funded under a grant from the state. Unit Performance Case statistics are not necessarily the most appropriate indicator of unit performance, for reasons discussed below. With this important caveat, stalking case referral is probably the best indicator of Unit activity and performance. In the first year of the grant, the domestic violence stalking prosecution deputy received 74 cases for review. Of these, 33 cases resulted in criminal charges being filed. Twenty-four cases are being monitored for future prosecution, and 17 cases were rejected or referred to another agency. In the prior year when domestic violence stalking a 1 was handled by the Family Protection Division, 38 cases were received for review; and 16 of these cases were filed. Statistics for the stranger stalking cases during the same year include: 51 cases presented for review; 15 felony cases were issued, 7 were rejected, and 29 were placed on monitor status. Related Organizations Two other agenciedorganizations play key roles in how the Unit operates. These are the Stalking Case Assessment Team and the San Diego City Attorney’s Office. Stalking Case Assessment Team (SCAT):The San Diego SCAT (Stalking Case Assessment Team) meets monthly to review and discuss problematic cases and provide case management advice to the attorneys and investigators responsible for the case. The meetings are chaired by the senior Stalking Prosecution Unit investigator, who also maintains all meeting records. Issues considered by SCAT include assessing seriousness of threat, victim safety, new investigative approaches. Members of SCAT include the DA’s stalking unit, representatives of 0 most law enforcement agencies in San Diego County (including federal agencies), probation, Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 41 court security, law enforcement forensic specialists, victim service providers, and private * treatment specialists. The SCAT is an outgrowth from the San Diego Task Force on stalking, established in I 1994. The Task Force, like the SCAT, contains representatives from all major public and private agencies concerned with stalking and its victims. With the advent of SCAT, the Task Force has only a few remaining responsibilities. The Task Force has sponsored several local conferences on stalking through its training committee and conference committee. These include one-day conferences in 1996 and 1997, and three smaller training sessions in 1998 that were directed at “first responders.” I City Attorney Prosecutors: The San Diego City Attorney handles misdemeanor stalking cases. These include lesser stalking cases and violations of court ordek of protection, especially - - where there is still an absence of credible threat with the violation. One Deputy City Attorney is assigned all stalking cases referred to this ofice. This attorney estimates that she receives about 2 stalking referrals per month and has about 10 cases open at any one t h e (2 are stranger stalking cases at present). She also handles regular domestic violence cases and about 50 percent 0 of her work involves these cases. The stalking deputy prosecutor estimates that stalking cases require 3 to 5 times as much work as a non-stalking domestic violence case: Where a case does not rise to the level of stalking, the Office will work with the victim to gather evidence; once stalking can be shown, they will refer the case to the District Attorney. The Office may also call upon the SCAT to provide suggestions for case building; however, the last two cases where SCAT use was considered were taken over by the Stalking Prosecution Unit before presentation to SCAT. This Deputy may also call upon the services of the investigator or victim advocate assigned to the Criminal Division of the Ofice. The stalking Deputy City Attorney reports to the Head Deputy of the Child AbuseIDomestic Violence Unit, who is also a member of SCAT. Illustrative Stalking Prosecution Cases 0 * Case 1. Ms.X was involved in a dating relationship with Godoy Hale, a fellow student at a university in San Diego. After three months together, Ms.X felt that Hale was trying to isolate her from her fkiends and family, and seemed controlling and demanding. Soon . after Ms.X told Hale their relationship was over, she found her car tires slashed, and a Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 42 I brick thrown through the windshield. The vandalism was followed by threatening phone calls, and messages on her pager (citing the California penal code section for murder “187”). Ms. X went into hiding from Hale. A couple of months later, she was asleep in bed with her daughter, when she was awakened by a loud popping noise - Hale striking her in the mouth with a ball peen hammer. Hale fled the scene, but was arrested days later. Prosecution of the cases was assigned to the Stalking Unit. While awaiting trial, Hale approached a cell mate to hire a “hit man” to kill Ms. X. Upon being informed of this by an informant, the Stalking Uni\ investigators staged a “murder”. A make-up artist was hired to prepare Ms. X to appear k if she had been shot in the head. Polaroid photos were then taken of the “assassinated”Ms. X. An undercover investigator then went to the jail and visited Hale, who after seeing the photo, acknowledged that the murder is what he wanted. Charges were filled by the prosecutors and Hale was convicted of stalking, burglary, assault with a deadly weapon, torture, and soliciting for murder. He received a prison sentence of thirteen years to life. e L 0 - - 0 Case 2. The defendant became fixated on her treating psychologist. After months of harassing behavior, the defendant locked herself and the psychologist into the office and pulled a handgun, announcing that she is going to shoot herself. She then put the gun into her mouth and shoots herself, but was not killed. After recovery from her wounds, she went to Arizona and purchased another gun and began to stalk the psychologist. The assistance of the stalking unit deputy district attorney and investigator is requested by the police’s Psychological Emergency Response Team (PERT), which is comprised of law enforcement oficers and mental health professionals. The defendant was then observed by the victim’s security guard following her car. Police responded to the call for help and upon arrival at the psychologist’s clinic there was another standoff with the defendant threatening to again shoot herself with the gun bought in Arizona. The standoff was resolved and the defendant arrested and prosecuted. The defendant spent time in county jail, and special arrangements were made for probationary supervision when she was released. While on probation, the defendant approached someone to purchase another firearin. The Stalking Prosecution Unit investigated and the defendant was taken into custody for probation violation. The defendant is currently in state prison. The victim, however, has been unable to date to continue in her clinical practice and has moved out of the county. Case 3. Four female students at a university in San Diego received threatening e-mail messages from an unknown stalker. San Diego Police detective came to the Stalking Prosecution Unit and a coordinated investigation, including use of surveillance cameras at the university computer laboratory, revealed the identity of the stalker. Numerous search warrants were then executed on Internet service providers, and additional evidence obtained linking the messages and the suspect. The investigation showed that in addition to over 100 threatening e-mails, the suspect used the Internet to obtain personal information about the victims and their families (which made the e-mails more threatening and believable). The suspect also posted one of the victim’s phone numbers on the Internet urging people to call for phone sex. The suspect, a student at the university, tampered with the victim’s lab experiments and tests causing them to receive . failing grades. The suspect was arrested, and a search warrant was issued for his home. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 43 0 His computer was seized and analyzed for evidence. The suspect pled guilty to five counts of stalking and was given probation. The Stalking Unit continues to monitor the suspect by conducting probationary searches and spot checks of his computer. a a . ’ a , Case 4. The suspect in this case was a mentally disordered person prone to abuse alcohol and not take her medications. She would run naked into the streets, confront neighbors, jump on the hood of the cars as they drove from the cul-de-sac where she lived, and engage in other bizarre behavior. The Stalking Unit personnel met with local law enforcement oficers, including the PERT, and the victims. Suggestions to the victims were made for them to videotape or photograph the incidents for evidence. Law enforcement agreed that the next time she committed a crime, she would be arrested and prosecuted. Within a week or two, the suspet came to the next-door neighbor, and with a hoe in her hand, started to assault the victim. The victim had a disposable 3 5 m m camera, with which he took pictures as the suspect approached. Law enforcement responded and the suspect pas taken into custody. An interesting by-product was when the suspect’s picture was taken; she stopped the assault momentarily, which allowed the victim to get into his house. The suspect pled guilty, and served jail time and was moved - from the neighborhood by her family, as part of her probationary conditions. Additionally, mandatory psychiatric treatment was ordered and she has to report her progress to the court every 60 days. Case 5. The victim and suspect had a lesbian relationship until the victim terminated it. This was followed by several acts of vandalism, threatening calls, and an assault upon the victim. The defendant was convicted of stalking and sentenced to one year in county jail as a condition of probation. The defendant continues to be in custody as of this writing. However, information from the suspect’s letters and communications to others indicate that she is still obsessed with the victim and intends to kill her when released from jail. To respond to this on-going threat, the Stalking Case Assessment Team (S.C.A.T.) continues to review her case and brainstorm to plan interventions and the suspect’s release. In addition, the victim was provided with relocation and other assistance such as safety planning. Finally, coordination plans are developed between jail s@, probation, and the District Attorney’s Ofice Stalking Unit to conduct close probation supervision and surveillance of the suspect when she is released. Case 6. The defendant was employed at a local company as a travelling salesman. After first tendering his resignation, he then decided within the two week notice period that he did not wish to resign. However, the company human resources personnel refhsed to accept his change of mind, informing him that a replacement has already been hired. He then telephoned various executives of the company, threatening to kill his former immediate supervisor. The company’s security consultant then came to the Stalking Unit for help. The immediate problem was in locating the defendant so that he could be arrested. The Stalking Unit investigators were able to identi@ the defendant’s former girlfiiend at the company (who had been keeping him informed of the companys actions) and learned the area of the state where he was located. Telephone traps were used to locate his exact location. The company security informed local police in the area that an , arrest warrant had been issued and the Stalking Unit investigator called the local police to Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 44 e get a detective assigned to the case. The defendant was arrested mcl convicted of making terroristic threats. A sentence of six months in jail as a condition of probation was imposed. Stalking Case Handling Case Management Procedures The District Attorney’s protocol for stalking cases sets out the formal procedures for handling these cases. The protocol includes an intake form that records the relevant facts, such as victim relationship to defendant; whether a TRO was issued and date of issuance; factual synopsis. The intake form also records the status of the case, including whether case is simply 1 being monitored for future developments or a case has been filed. A case disposition sheet is also part of the protocol. This contains information about the progress of cases that have been filed from charges and date of filing through case outcome and sentence. A key element of decisions whether to file or not is the threat assessment of the danger to the victim or to other persons close to the victim. This protocol document includes extensive personal information about the suspect and hidher criminal history. It includes infomation 0 about the suspect’s psychiatric history and history of suicide threats or attempts. It asks about the suspect’s access to weapons and alcohol or drug use. Finally, it reviews the specific nature of the stalking itself fiom how the suspect obtained knowledge of the victim and her whereabouts to describing the nature of the stalking behavior. A final protocol form is the Victim Data Sheet that contains personal history information about the victim. This information includes both psychiatric history and criminal history reports. It also asks whether the victim has ever been stalked before. Finally it asks about victim actions taken for protection against the stalker. The most significant case management requirement set forth by the protocol is for vertical prosecution of these cases. The Deputy receiving these cases is responsible for all elements of the case fiom victim interviewing through trial and post-conviction follow-ups with the victim. This is true for both cases handled by the Stalking Unit and for those handled in the branch offrces. a Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 45 I One important consideration unique to stalking cases is the attention paid to efforts to minimize the threat to victims. This consideration affects every prosecutonal action from filing, to seeking a protective order, to ordering arrest. The concern is that official action may set off the stalker and violence will result. Hence case filing may be delayed in some instances in order to gain sufficient evidence to justify a request for very high or no bail. 1 Case Intake Cases may be referred to the Stalking Prosecution Unit from police patrol, from domestic violence detectives, from shelters and other victim service agencies, walk-ins or call-ins to the county victim hotline by the victims, and from the City Attorneys’ Domestic Violence Unit. 9 Another occasional source of case identification comes from the victim witness screening unit, which receives daily crime reports from the entire county. One of the biggest problems the Unit has is that many stalking cases, especially domestic violence stalking, do not follow traditional “following” paths. Instead, the stalking consists of lesser behaviors such as vandalism, burglary, or order violations. As a result, cases referred to 0 the Unit from the City Attorney’s Office are often cases not identified by the police as stalking ’ cases. In that office, the Assistant City Attorney may note a pattern of behavior among multiple misdemeanor charges that together constitute stalking. Or the stalking specialist may focus on building a case based upon multiple order violations plus encouraging the victim to keep a written log of incidents. Threat Assessment Uniform or formalized procedures for threat assessment do no exist. Instead, each case is assessed separately. The assumption is that they are all serious cases; this is confirmed by threat assessment instruments that cannot provide further stratification of seriousness. The task is to develop a safety plan to reduce the threat. One function of the SCAT is to provide a group assessment of threat seriousness and suggest appropriate countermeasures. The City Attorney uses MOSAIC to impress upon victims the seriousness of the stalking potential and also at sentencing hearings. PsychologicaVPsychiatric Review Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 46 Psychological/psychiatricevaluations may be done on stalking suspects either to determine their competency to stand trial or as part of the sentencing process. These evaluations 0 may be ordered by the court; a special court evaluation unit handles 2 to 3 such referrals a month fiom the court. More commonly, an evaluation may be required as a condition of any plea offer fiom the District Attorney or the City Attorney's Ofice. Even where the defendant has been convicted at trial, defense counsel may ask for'an examination as part of their preparation for presenting a sentencing recommendation to the court. Most psychological/psychiatricevaluations are done by private practitioners from an approved list of qualified expertdexaminers; defense counsel may also request the court evaluation unit to do these reviews. In a few instances, probation may also ask the court evaluation unit to undertake an assessment for purposes of a pre-sentence report to the court. Post-Conviction Duties Because stalkers do not cease their stalking after conviction, even during incarceration, stalking prosecutors continue the victim's case. As with monitored cases, the prosecutor or investigator assigned to the case will telephone the victim periodically (at least once a month) to ' determine if there has been any recent contact from the stalker. If there has been, the case will be reactivated. Where the stalker received an intensive probation sentence, follow-up contact will be even more frequent (as often as once a week). Most stalkers receive intensive probation sentences (family violence and sex offender supervision). This requires the Unit to maintain strong ties with the treatment providers to whom the stalkers are reporting. Related Responsibilities Because stalking is a new crime, it is not well recognized by law enforcement, by victims, or by those aiding victims. Thus, among the Unit staff duties, community awareness speaking and training of criminal justice personnel is a high priority. Staff estimate that they spend up to 25 percent of their time on these tasks. Kerry Wells reports that she has provided training to branch office attorneys handling stalking, including Family Protective Division staff prosecuting misdemeanor stalking. One category of deputies that has not been trained are the intake screening attorneys who review cases that may include unrecognized stranger stalking Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 47 complaints. In part, this is because these positions are filled on a rotating basis. Other training targets are victim groups, especially those represented on the SCAT and its predecessor Task 0 Force. Since June 1998, all four Unit professionals also have provided a 4-hour regular weekly training for 40 law enforcement officers at the Regional Law Enforcement Training Center. For this purpose, a training manual has been developed, a copy of which is provided trainees. Other training includes two one-day courses on stalking for first responders for 120 officers. Nonregular recent training included that to the Ventura County Domestic Violence Council, California Women Police Officers Association, and several trainings offered by the California District Attorneys’ Association, the Association of Threat Assessment Professionals, and shelter groups. d Training is also done on a one-to-one basis when the office investigator works with a city officer or sheriffs deputy on a stalking investigation. ‘For example, in cases that are accepted but need further investigation, the investigators will call the detective and offer to share any additional work that is needed to be done. In other cases where a detective may refer a case to the Unit but there is not sufficient evidence to file, the case will be returned to the detective with an explanation of what M e r information is needed. In both instances, keeping good relations with law enforcement officers is considered critical to fbture referrals. In the same vein, Wayne Maxey reports that he will send letters of thanks and appreciation to patrol officers who identify and refer stalking cases to the Unit. Attending public meetings is another related task. At present, Ms.Wells no longer attends meetings of the Domestic Violence Council. She no longer has the time to do this. Instead, she relies on Pat McGrath from the City Attorney’s Office and SCAT member to keep her informed. In the future, the domestic violence stalking prosecutor may attend these meetings, as time permits. Support Staff Duties The primary support staff for the Unit are the two investigators assigned to the Unit and the victim advocate. Investigative Staff Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 48 I The primary investigator duties are those relating to preparing cases for trial: identifying and interviewing new witnesses; and acting as liaison between victim and law enforcement. An important additional responsibility is to review cases that come in as walk-ins, without any police I referral. In these cases, the investigators will check law enforcement files for prior complaints (e.g., vandalism, missing mail), and then work with other law enforcement oficers on investigation follow-ups of prior complaints. Once a case is verified as involving stalking issues, the case is then brought to the appropriate Unit attorney for review and a decision on how the I case is to be handled. Other duties include testifymg in court, training, responding to victim calls (investigators provide their pager numbers to victims), and checking on offender status, especially release dates if incarcerated. Victim Advocate Duties The victim advocate duties include reviewing crime reports that are distributed to her fiom the Victim Witness Unit screening staff located at the San Diego Police Department assigned.to screen all crime reports to the specialized unit. These referrals from the screening 0 unit include both potential stalking and harassment complaints. The victim advocate will then telephone the victims to obtain more information and provide needed help in identifjhg service needs and providers. Where telephone calls are not possible or unsuccessful, a letter is sent to the victim offering the advocate's services. Once the victim is contacted, the advocate will veri@ the facts of the case, tell victims about safety issues, notie employers (as needed), and provide information on restraining orders. Cases identified as involving stalking after this callback are referred to an investigator for further action. The advocate may also receive complaints of stalking or harassment behavior h m a "Wam line" and fiom calls to the unit fiom victims. About one-quarter of the calls that she receives may be actual stalking cases. The advocate also uses the monthly meeting of all the advocates to remind the screening unit to send her possible stalking cases. Advocates assigned to the Domestic Violence Prosecution Unit also refer cases to her; the elder abuse unit advocates may be expected in the htu~ to be another source of referrals. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 49 Other duties include explaining the court process and providing support at court hearings, 0 including preliminary hearing. This serves to prevent witness intimidation. The time can also be used for additional fact-finding. Yet other duties can include helping with logistics of moving, contacting parole agent, explaining to relatives the reality of danger, assisting in getting property back that was used as evidence, helping with gaining restitution, assisting in preparation of victim impact statements, creditor or employer ‘intervention,assisting .with application for victim compensation Overall, the advocate estimates that while the volume of cases handled in the unit is low compared to other units, the amount of work done per case is much higher (up to 10 times greater). This is because stalking is a crime in progress, not merely a response to crime report or arrest. Even after conviction, victims call in to check on jail status. Other Agencies Relationship with Law Enforcement Liaison with law enforcement is a major staff effort. The Stalking Prosecution Unit e meets regularly with representatives of police and the sheriff through the SCAT. Staff provide in-service training to law enforcement on a weekly basis and through special training conferences. One-to-one training occurs with the District Attorney’s investigators working closely on stalking cases with the detective assigned to the case before it was referred for prosecution. The City Attorney’s Oflice also provides training and recently had a one-day retreat with the San Diego Police Department domestic violence detectives to explain stalking behavior. Special stalking efforts on the part of law enforcement include assignment of two detectives with the San Diego Police Department to provide training on how to handle stalking cases. When the city detectives identify a stalking case they Will usually call the Stalking Prosecution Unit to detail the case facts and be instructed as to which ofice will handle the case, the prosecutor or the City Attorney. The Sheriff’s Department has a special domestic violence detective unit that also handles stalking cases; similar referral procedures are used by this agency. The City Attorney’s ofice has developed a form for use by first .response officers in DV cases that helps in identifjing stalking cases. The form is intended to elicit information about Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 50 possible stalking, beyond the victim's "When are you guys going to do soinething about.'. ." signal. The San Diego Police Department uses what they term the Key Case concept. The key case refers to the case number assigned to each case investigated by the pblice. When a detective is assigned a stalking case or a series of related case incidents, one case is selected as the key case. That number will be used to refer any additional cases written involving the activities of the suspect to the original case for tracking. The stalking victim is given the key case number and told that where there are new complaints in the future and the police called, the victim should inform the new investigative officer about the key case number and to inform the officer who the I key case investigator is. All subsequent case reports will also refer in the report narrative to the key case number. Copies of these reports are to be sent to the Domestic Violence Unit for forwarding to the key case investigator. Relationship with Probation Because of the often serious psychological problems associated with stalking, probation probably needs to have stalking cases assigned to a specialist, especially in preparing sentencing 0 recommendations to the court. In the northern end of the County, one probation officer, Anna Guzman, is assigned to supervise most stalking cases (caseloads permitting); two other officers also have stalking cases on their caseloads. Most of her stalking cases were prosecuted by attorneys in one of the District Attorney's branch offices. Ms. Guzman is part of an intensive supervision team of 10 officers, most of whom handle domestic violence cases. She generally has a caseload of between 50 to 60 cases. Included in this caseload are 5 or 6 stalking cases at any one time. The Probation Unit for the central city courts has a comparable intensive supervision unit, but that office does not have a stalking specialist. Intensive supervision calls for a minimum of two visits per month by the supervising officer. This can be at home or at work. The officer also keeps in contact with the victim. Ms. Guzman provides the victim with her telephone number; she also urges them to call law enforcement if there is any repeat stalking. She has access to all law enforcement crime reports. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 51 I Most probation stalking cases have a requirement that the defendaht attend a treahent @ program. In San Diego this is called the Stalking Treatment Option Program (STOP) and is provided by Dr. Bart Jarvis. The STOP program has no set length of treatment. I The court is reported to revoke probation in only 40 to 60 percent of the cases where revocation is recommended by probation. Ms. Guzman reports that she had 9 revocations in stalking cases last year. Hot Line In San Diego there are several hotlines. These include those for shelters. In addition, the Stalking Strike Task Force has a message machine. The Unit advocate monitors this machine daily. Office Management Issues The most important managerial issue with a stalking unit is the need for flexible time management. Stalking cases demand much more intensive work than do most other cases. Wayne Maxey estimates that the time he spends on a stalking case is two to three times greater 0 than it would be if he were with a law enforcement agency. Even in relqtion to other District Attorney investigators, he spends about 50 percent more time per case than they do. This can lead to "burnout" over an extended period of time. In an effort to reduce burnout and provide better coverage, the Unit investigators work a 7 to 5 schedule, with every other Friday off. This requires, of course, that the Unit have at least two investigators to provide coverage on the alternate Fridays. Attorneys and investigators must also be available outside of normal working hours to conduct interviews and reassure victims. Most commonly, interviews outside of normal work hours are of witnesses who cannot be interviewed at their work sites. Occasionally where there is a serious and new threat to the victim, more proactive work is required to insure her safety. Surveillance of the victim or the suspect may need to be done on weekends. One Unit investigator estimates that 10-15 percent of his time is overtime. These overtime demands may be said to make expansion of the Unit an imperative for the Unit to reach a minimum critical mass that allows for new case coverage when other staff are on vacation or ill. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 52 Evaluation of Unit attorneys also differs from normal procedures because the Unit accepts 0 cases that are not necessarily prosecutable. Instead of filing charges and trying cases, the attorneys and investigators may instead work with victims to defuse the situation so that it does not escalate. They will work with victims on safety planning, obtaining social services. Most importantly for the victims, they provide reassurance and validation that their case is important. The District Attorney suggested that one proxy measure of the Unit’s success is the reduction of domestic violence homicides that involved stalking behavior. The District Attorney finds that the stalking prosecution position is not a hard one to fill. The cases draw prosecutorial interest. The need for flex-time management can often match a prosecutor’s interest in this option.’ In setting up a stalking unit, prosecutors must remember that stalking is a new and not well understood crime. One of the most important functions of the unit is to “sell” the unit’s services to law enforcement and victims. As law enforcement, community groups, and victims become aware of the new stalking laws, caseloads will increase and increasing demands will be put upon Unit staff. A final management issue is the need to have the specialized Unit staff provide training to other prosecutors and law enforcement personnel, as well as educating the community. The obvious rationale for this function is the lack of familiarity among all parties of the relatively new stalking law (first adopted in 1990). Without an emphasis on training and community outreach, many stalking complaints would either not be made by victims or recognized by law enforcement or prosecutors. A hrther reason for encouraging these efforts is that training law enforcement can also provide political benefits from the appreciation shown by agency leadership for the fiee training. (Similarly, the availability of stalking investigators can relieve local law enforcement administrators of a potential staff allocation problem when his investigators take over a case.) Thus, despite the resources training requires, these efforts are an integral part of the Unit mission. Summary The San Diego Stalking Prosecution Unit is distinguished b; four characteristics. a It has developed staff with expertise in investigating, managing, and prosecuting stalking cases. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 0 53 0 The Unit is victim focused, placing high priority on ensudng victim safety, even before prosecution The Unit staff demonstrate a high level of teamwork and individual initiative Unit members spend a significant proportion of their time’on out-reach efforts, training criminal justice and community members on the prevalence and identifiers of stalking. Expertise in handling stalking cases is extremely important. Stalking cases often involve on-going crimes which require specialized abilities to investigate and build a case. Analogies to stalking prosecution might be found in the handling of gang or organized crime cases, where there are also both criminal and civil remedies available and the potential for homicide can be * high. Further, in all these cases, prosecution and conviction may not end the criminal behavior. Hence, all of these cases require individualized, rather than “cookie cutter” management and application of informed discretion on how to best proceed. Stalking cases may differ from these other cases, however, in that successful case resolution may not require prosecution: in some stalking cases, forceful intervention may succeed, while in others, premature prosecution can increase the danger to the victim. a Victim safety and service is clearly the overriding concern of the District Attorney and the Stalking Prosecution Unit. Case management procedures are geared to this objective. Unit members make special efforts to keep in contact with the victims, even after conviction, to monitor what is occurring. These efforts begin with the initial victim advocate phone call and continue past conviction and incarceration of the defendant. Teamwork and individual initiative are the distinguishing hall marks of the Unit’s operations. Significant responsibility is placed upon the Unit investigators and victim advocate to respond to victim complaints, even before any decision is made whether to formally file criminal charges or even accept the case for review. Training and community outreach e#orts are needed because stalking is still a new crime. In no other area of the criminal law is there a need for enforcement staff to “sell” their services. But most victims and many criminal justice agency personnel are either not aware of the stalking law or do not understand the extent of its full scope. a Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 54 I The leadership of the Stalking Prosecution Unit, especially in the person of Ker& Wells, has resulted in a broad community-wide effort to identify, investigate, and prosecute stalking cases. This broader effort begins with the Stalking Strike Task Force and its facilitating CTOSSagency communications and extends into ,virtuallyevery criminal justice Agency in the County. Thus, the City Attorney’s Office has a specialized stalking staff, as does Probation. The several law enforcement agencies in the County also have specialists on stalking among their domestic violence units, although caseloads do not yet pennit further specialization. In sum, stalking is considered to be a serious crime in San Diego County. The Stalking Prosecution Unit in the District Attorney’s Ofice is largely respoqsible for this occumng. Appendix6 This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 55
This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. C 2005) Law and Human Behavior, Vol. 29, No. 1, February 2005 ( DOI: 10.1007/s10979-005-1398-y Sexually Violent Predator Evaluations: Empirical Evidence, Strategies for Professionals, and Research Directions Holly A. Miller,1,3 Amy E. Amenta,2 and Mary Alice Conroy2 Several states have passed civil commitment laws that allow the precautionary detention of sex offenders who have completed their criminal sentences. Over 2,500 sex offenders have been committed across states with such statutes and several thousand more sex offenders have been evaluated. Most statutes call for an evaluation of risk by a mental health professional and, although each state statute is worded differently, three main elements common to sexually violent predator evaluations are used to guide evaluators: mental abnormality, volitional capacity, and likelihood of future sexual violence. The current article presents empirical evidence for the main tenants of these forensic evaluations, provides recommendations for evaluators in light of current limitations of evidence, and offers suggestions for future research in this area of forensic assessment. KEY WORDS: sexually violent predator; forensic evaluation; risk assessment. Since the mid-1990s, 16 state legislatures have passed civil commitment laws that allow the precautionary detention of sex offenders who have completed their criminal sentences (Fitch, 1998). These laws were passed in response to what is perceived as a serious social problem of sexual aggression in this country (Seto & Lalumière, 2000). Such laws were driven by the belief that traditional civil commitment procedures were inadequate to confront the unique danger presented by sex offenders who posed a continued threat to the health and safety of members of the community. As states with such statutes pursue civil commitment for incarcerated sex offenders and as additional states pass sexually violent predator4 (SVP) statutes, 1 College of Criminal Justice, Sam Houston State University, Huntsville, Texas 77341-2296. of Psychology, Sam Houston State University, Huntsville, Texas. 3 To whom correspondence should be addressed at College of Criminal Justice, Sam Houston state University, Huntsville, Texas 77341-2296; e-mail: hmiller@shsu.edu. 4 The terms and definitions utilized in relevant civil commitment statutes vary from state to state. Statutes use differing terms such as “sexually violent predator,” “sexually dangerous individual,” and “sexually dangerous person” to label offenders committed under such statutes. A table detailing the statutory terms and definitions utilized in the statutes of each of the 16 states with such laws has been provided. Although the authors acknowledge not all states use the terms, for the sake of simplicity “sexually violent predator” and “mental abnormality” will be utilized throughout this paper. 2 Department 29 C 2005 Springer Science+Business Media, Inc. 0147-7307/05/0200-0029/1  This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. 30 Miller, Amenta, and Conroy mental health professional involvement within this legal arena will increase. As of June 2003, at least 2,500 SVP’s were committed across the states (Marcotty, 2003). In addition, at least 17 other states have laws in place that require a determination of whether or not an offender is a SVP for the purpose of registration and/or community supervision. Most, if not all, of these offenders, as well as thousands of sexual offenders evaluated but not found to be SVP’s, have been assessed by mental health professionals. Indeed, state SVP statutes explicitly provide for the involvement of mental health professionals. In Texas, to assist in the determination of whether an individual has a behavioral abnormality that makes the individual likely to engage in acts of sexual violence, the statute states that “the department required to make the determination shall use an expert to examine the person” (Texas Health & Safety Code, 2000). Virginia’s statute calls for “a mental health examination, including personal interview, of the person by a licensed psychiatrist or a licensed psychologist” (Virginia Code Annotated, 2004). Although states may provide guidance to the mental health professional performing a sexual predator evaluation, statutes vary in the level of specificity of assistance provided. Virginia’s statute, a relatively specific one, directs evaluators to “include consideration of the prisoner’s score on the rapid risk assessment for sexual recidivism or a comparable, scientifically valid instrument . . . and a review of (i) the prisoner’s institutional history and treatment record, if any (ii) the prisoner’s criminal background, and (iii) any other factor which is relevant to the determination” (Virginia Code Annotated, 2004). The California statute is specific in its recommendations of risk factors to be evaluated: “[r]isk factors to be considered shall include criminal and psychosexual history, type, degree and duration of sexual deviance, and severity of mental disorder” (California Welfare & Institution Code, 2003). Although Texas statute explicitly calls for an assessment of psychopathy, it allows for considerable discretion on the part of the evaluator, requiring a clinical interview, “and other appropriate assessments and techniques to aid in the determination” (Texas Health & Safety Code, 2000). Overall, state statutory guidelines provide minimal assistance to the mental health professional who is required to evaluate the risk posed by these sexual offenders. The purpose of the current article is to present the empirical evidence for the main tenants of these forensic evaluations. Additionally, the authors will provide recommendations for evaluators in light of current limitations in the empirical evidence and offer suggestions for future research in this area of forensic assessment. BACKGROUND In 1997, the United States Supreme Court issued a five to four decision upholding the Kansas SVP Act (the Act) “which establishe[d] procedures for the civil commitment of persons who, due to a mental abnormality or a personality disorder are likely to engage in predatory acts of sexual violence” (Kansas v. Hendricks, 1997, p. 350). Leroy Hendricks, the first inmate to be committed under the Act, challenged his commitment before the Supreme Court on double jeopardy, ex post facto law making, and substantive due process grounds. Addressing Hendricks’s first two This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. Sexual Predator Evaluations 31 claims, the Court found that the proceedings set forth in the Kansas statute were civil, not criminal in nature. Because the Act established a civil proceeding, the Court determined it unnecessary to address Hendricks’s claims of double jeopardy and ex post facto law making. The Supreme Court did address Hendricks’s third claim and ruled the Act’s definition of mental abnormality, “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others” (Commitment of Sexually Violent Predators Act, Kansas, 2002), satisfied substantive due process requirements. In accepting this definition, the Court ruled that three significant characteristics rendered it constitutional: (i) the mental abnormality element restricted civil commitment to a small group of dangerous individuals, (ii) the requirement differentiated between those subject to civil commitment from those subject only to the criminal justice system, and (iii) the inability to control element of the requirement legitimized the commitment of those found to be SVP’s. The criteria commonly found in state SVP commitment laws closely resemble those set forth in Kansas v. Hendricks (1997). Such laws generally include four elements: (i) a history of sexual offenses, (ii) a mental abnormality, (iii) volitional impairment, and (iv) as a result of mental abnormality, the individual is likely to engage in acts of sexual violence. The reader is referred to Table 1 for a review of statutory definitions across the 16 states with relevant civil commitment laws. Although variation exists among state definitions, the similarity of these definitions to those accepted by the Supreme Court as constitutional is clear. Given the minimalist nature of statutory guidelines in many states, guidelines as to how to proceed with sexual predator evaluations are increasingly being developed within the mental health community (Conroy, 2002; Doren, 2002; Lanyon, 2001; Reid, 2002). Lanyon (2001) reviews the literature in six areas likely to be relevant to a sex offender civil commitment evaluation: (i) assessment of psychopathology, (ii) deviant sexual interests, (iii) recidivism risk, (iv) treatment amenability, (v) response bias, and (vi) match with formal statutory criteria. Within each area, Lanyon provides evaluators with instruments “that tend to be employed” (p. 257). Relying upon anecdotal evidence and personal experience, Reid (2002) provides mental health professionals with an overall picture of the evaluation process and advice for reviewing records, interviewing offenders, and interacting with members of the adversarial system. Conroy (2002) reviews issues related to sex offender risk assessment including actuarial and clinical assessments of dangerousness, recidivism base rates, psychopathy, available risk assessment instruments and their strengths and weaknesses, treatment, and roles the mental health professional may play within this legal context. Within each topic area Conroy examines the empirical evidence and provides useful guidelines for the mental health professional conducting a sexual predator evaluation. More recently, Doren (2002) published a book devoted entirely to the topic of sex offender evaluations for civil commitment. He suggests the evaluator’s task includes two essential components: “(1) a diagnostic formulation, usually involving the additional issue to be addressed of a specific type of predisposition, along with Sexually violent persons, A.R.S. §36-3701 Sexually violent predators, Cal Wel & Inst Code §6600 Involuntary civil commitment of sexually violent predators, Fla. Stat. §394.910 Sexually violent persons commitment Act, §725 ILCS 207/1 Commitment of sexually violent predators, Iowa Code §229A.1 CA FL IL IA State statute AZ State Sexually violent person: “. . . (a) Has ever been convicted of or found guilty but insane of a sexually violent offense or was charged with a sexually violent offense and was determined incompetent to stand trial. (b) Has a mental disorder that makes the person likely to engage in acts of sexual violence” Sexually violent predator: “. . . a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely he or she will engage in sexually violent criminal behavior” Sexually violent predator: “. . . any person who (a) has been convicted of a sexually violent offense; and (b) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” Sexually violent person: “. . . a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of a sexually violent offense by reason of insanity and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence” Sexually violent predator: “. . . a person who has been convicted or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined to a secure facility.” Label used and definition Mental abnormality: “. . . a congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree that would constitute a menace to the health and safety of others.” Mental disorder: “. . . a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.” Mental abnormality: “. . . a mental condition affecting a person’s emotional or volitional capacity which predisposes the person to commit sexually violent offenses.” Mental disorder: “. . . a paraphilia, personality disorder or conduct disorder or any combination of paraphilia, personality disorder or conduct disorder that predisposes a person to commit sexual acts to such a degree as to render the person a danger to the health and safety of others.” Mental disorder: “. . . a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” Definition mental abnormality, mental disorder, or behavioral abnormality Table 1. Statutory Definitions for the 16 States Enacting Civil Commitments Laws This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. 32 Miller, Amenta, and Conroy Commitment of sexually violent predators, K.S.A. §59-29a01 ALM GL ch. 6, §178C Civil commitment, Minn. Stat. §253B.02 KS MA MN Sexually violent predator: “. . . any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.” Sexually violent predator: “. . . a person who has been convicted of a sexually violent offense or who has been adjudicated as a youthful offender or as a delinquent juvenile by reason of a sexually violent offense, or a person released from incarceration, parole, probation supervision or commitment under Chapter 123A or custody with the department of youth services for such a commitment or adjudication . . . and who suffers from a mental abnormality or personality disorder that makes such a person likely to engage in predatory sexually violent offenses.” Sexual psychopathic personality: “. . . the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.” Sexually dangerous person: “. . . (1) has engaged in a course of harmful sexual conduct . . . (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct . . . ” Mental abnormality: “. . . a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” Mental abnormality: “. . . a congenital or acquired condition of a person that affects the emotional or volitional capacity of such a person in a manner that predisposes that person to the commission of sexual acts to a degree that makes such person a menace to the health and safety of other persons.” This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. Sexual Predator Evaluations 33 State statute Sexually violent predators, civil commitment, §632.480 R.S.Mo. Sexually violent predator Act, N.J. Stat. §30:4-27.24 Commitment of sexually dangerous individuals, N.D. Cent. Code, §25-03.3-01 Sexually violent predator Act, S.C. code Ann. §44-48-20 State MO NJ ND SC Sexually Violent Predator: “. . . (a)has been convicted of a sexually violent offense; and (b) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” Sexually violent predator: “any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who (a) has pled guilty or been found guilty, or been found not guilty by reason of mental disease or defect . . . of a sexually violent offense; or (b) has been committed as a criminal sexual psychopath pursuant to . . . statutes in effect before August 13, 1980.” Sexually violent predator: “. . . a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care, and treatment.” Sexually dangerous individual: “. . . an individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.” Label used and definition Table 1. Continued Although the statute does not utilize a particular term, Sexually Dangerous Individual includes the definition: “. . . a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct. . . ” The statute explicitly excludes mental retardation: “For these purposes, mental retardation is not a sexual disorder, personality disorder, or other mental disorder or dysfunction.” Mental abnormality: “. . . a mental condition affecting a person’s emotional or volitional capacity that predisposes the person to commit sexually violent offenses.” Mental abnormality: “. . . a mental condition that affects a person’s emotional, cognitive, or volitional capacity in a manner that predisposes that person to commit acts of sexual violence.” Mental abnormality: “ . . . a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” Definition mental abnormality, mental disorder, or behavioral abnormality This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. 34 Miller, Amenta, and Conroy Civil commitment of sexually violent predators, Tex. health & safety code §841.001 Civil commitment of sexually violent predators, Va. code Ann. §37.1-70.1 Sexually violent predators, Rev. code Wash. (ARCW) §71.09.020 Sexually violent persons commitments, Wis. Stat. §980.01 TX VA WA WI Sexually Violent Predator: “. . . any person who (i) has been convicted of a sexually violent offense or has been charged with a sexually violent offense and is unrestorably incompetent to stand trial. . . and (ii) because of a mental abnormality or personality disorder, finds it difficult to control his predatory behavior which makes him likely to engage in sexually violent acts.” Sexually Violent Predator: “. . . any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined to a secure facility.” Sexually Violent Person: “. . . a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.” Sexually Violent Predator: “. . . (1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” Mental disorder: “. . . a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.” Mental abnormality: “. . . a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.” Behavioral abnormality: “. . . a congenital or acquired condition that, by affecting a person’s emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person.” Mental abnormality or personality disorder: “. . . a congenital or acquired condition that affects a person’s emotional or volitional capacity and renders the person so likely to commit sexually violent offenses that he constitutes a menace to the health and safety of others.” This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. Sexual Predator Evaluations 35 This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. 36 Miller, Amenta, and Conroy (2) an assessment of risk for certain types of sexual offending” (p. 24). Throughout the book, Doren makes specific recommendations for a multidimensional and ethically sound evaluation. He reviews procedural issues critical to these evaluations (i.e., record review, informed consent, content of the interview with the offender, collateral interviews), diagnostic considerations with different sex offender populations, issues relevant to risk assessment (i.e., methodologies, available instruments, recidivism base rates), and report writing and expert testimony. In an effort to expand upon the available statutory and professional guidelines, the following sections examine the empirical research for elements common to SVP evaluations: (i) mental abnormality, (ii) volitional capacity, and (iii) likelihood of future sexual violence. Although number of previous sexual offenses necessary to trigger the process is also a common element, this element is statutorily determined and is unlikely to be a consideration for mental health professionals performing such evaluations. In reviewing the literature for each statutory component, we will attempt to present information regarding what areas of a sexual predator assessment have an empirical foundation and what areas have little or no empirical support. Finally, we will discuss appropriate steps the evaluator can take in light of this support (or lack thereof) and what research directions are important in this area of forensic assessment. EMPIRICAL EVIDENCE FOR EVALUATIONS Assessment of Mental Abnormality Relevant civil commitment statutes require that the offender being considered for commitment have a mental abnormality. The term mental abnormality has been vaguely defined and is a legal term, not necessarily a diagnosed disorder listed in the Diagnostic and Statistical Manual—Fourth Edition—Text Revision (DSM-IV-TR, American Psychiatric Association, 2000). In other words, the form of abnormality that predisposes the offender to further sexual offenses may be a “diagnosis” such as rape-prone. Although the vagueness of state statutes allows “diagnoses” of symptoms (not included in the DSM) that may be important to risk, there are no formal ways of assessing the reliability or validity of such. The Association for the Treatment of Sexual Abusers (ATSA; 1997) argues that the process of determining mental/behavioral abnormality within a SVP evaluation should be no different than determining whether someone is mentally disordered under more typical civil commitment procedures. Thus, ATSA recommends there first be a determination of whether the offender has a psychiatric disorder, generally a disorder defined in the DSM-IV-TR (American Psychiatric Association, 2000), followed by establishing an association or link between the disorder, volitional capacity, and a scientific measure of risk. This section will focus on the determination of psychiatric disorder for these evaluations. Becker, Stinson, Tromp, and Messer (2003) reported the characteristics of a group of sexual offenders petitioned for civil commitment under Arizona’s SVP law. The results indicated that within their sample of 120 men, approximately three This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. Sexual Predator Evaluations 37 psychiatric disorders (as determined by the DSM) were diagnosed per offender. The authors report the most common disorder was pedophilia (63%), with frequent occurrences of paraphilia not otherwise specified (56%). Specific paraphilias such as sexual sadism, exhibitionism, and voyeurism were also quite common (36.5%). Several other types of DSM disorders, such as personality and substance abuse disorders, were also found in their sample. Data from petitions filed in Texas indicate that pedophilia and antisocial personality disorder have been the most common behavioral abnormalities forming the basis for commitment (Texas Department of Criminal Justice Programs and Services Division, 2002). Although there were no mental disorders defined outside of the DSM in the Becker or Texas reports, the reliability and validity of several disorders commonly diagnosed among SVP evaluation offenders remain dubious. After the sexual disorders were revised for the DSM-IV (American Psychiatric Association, 1994) and for the DSM-IV-TR (American Psychiatric Association, 2000) little research has examined their reliability and validity. One of the difficulties with reliability and validity research is that there are few, if any, standardized assessment procedures for the diagnosis of sexual disorders. For example, many of the other Axis I disorders can be assessed through structured and semistructured interviews and psychological assessments. These results, combined with clinical interviews allow for the assessment of reliability and validity of diagnoses. To date there is not a structured or semistructured interview for the Paraphilias, nor is there a solid psychological assessment measure that has been successful at aiding in the diagnosis of these disorders. In fact, no instrument, or group of instruments, has yielded a clearly defined set of characteristics, traits, or personality patterns for any group of sex offenders. It appears that most clinicians may rely upon clinical interviews, arrest reports (if applicable and available), possibly phallometric testing (addressed below), and/or develop a tool for assessment. Raymond, Coleman, Ohlerking, Christenson, and Miner (1999) pointed out this diagnostic problem in their study of comorbidity in pedophilic offenders. In an attempt to remedy the lack of structured measures to assess the paraphilias, the authors developed their own semistructured interview for paraphilic diagnoses (and offer it to other researchers for use). The only successful (albeit semisuccessful) assessment procedure for certain paraphilias has been phallometric testing. Years of research have demonstrated the ability of erectile measurement to differentiate sexually deviant preferences from nondeviant preferences (Hall, Shondrick, & Hirschman, 1993; Harris & Rice, 1996; Harris, Rice, Quinsey, Chaplin, & Earls, 1992; Lalumiere & Harris, 1998; Lalumiere & Quinsey, 1994). Penile plethysmograph measurement is typically done in one of two ways: circumference and volumetric procedures. The second is considered the most accurate measurement, especially when attempting to measure low levels of response (Kuban, Barbaree, & Blanchard, 1999). However, the majority of historical research using phallometric testing utilizes the circumference measurement. Besides different measurement strategies across studies, varied stimulus presentation makes generalization a significant problem. The plethysmograph measurement is stimulated (or not) by pictures, scenes, clips, and/or audio dialogue. The audio dialogue and/or visual stimuli vary on violence level and age of actors. This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. 38 Miller, Amenta, and Conroy Besides generalizability issues, research has demonstrated that the plethysmograph can be successfully faked (e.g., Marshall & Fernandez, 2000; Wilson, 1998). Studies have indicated that both offenders and nonoffenders can significantly inhibit their arousal (Henson & Rubin, 1971; Murphy & Barbaree, 1994). Individuals are seemingly able to use cognitive strategies to distract themselves during perceived inappropriate stimuli and/or to excite themselves during perceived appropriate stimuli. Because faking takes place at the cognitive level, detection is very difficult. Although more sensitive plethysmograph methods (volume changes) are available, the ability to fake the phallometric assessment will remain a problem. All of that being said plethysmography does show promise in specific areas. Hanson and Bussiere (1998) completed a meta-analysis of 61 sexual offender recidivism studies and found that a pedophile index derived from phallometric evaluation was the most powerful predictor of sexual re-offense (r = .32). However, a similarly constructed rape index did not significantly predict recidivism. These findings are consistent with other studies that have yielded much more positive results in the utility of phallometric assessment with pedophilic versus rape sexual offenders (see Marshall & Fernandez, 2000 for a review). Both recent reviews of the literature and years of individual research results indicate that the plethysmograph effectively discriminates between pedophilic and nonpedophilic sexual interest/preference. Of greatest concern is the sensitivity of the procedure. Sensitivity indicates the percentage of sexually deviant individuals identified as such, whereas specificity indicates the percentage of sexually nondeviant individuals being classified as nondeviant. The majority of phallometric studies have indicated very high specificity, but much lower sensitivity (Blanchard, Klassen, Dickey, Kuban, & Blak, 2001; Freund, Watson, & Dickey, 1991). The good news is that a nondeviant individual is less likely to be wrongly classified (especially in pedophilic offenders); however, since false negatives are more common, an offender who does not demonstrate deviant results on the plethysmograph may not be accurately diagnosed. This is problematic when considering the time and cost that a phallometric assessment incurs and that other assessment methods are few and far between. Additionally, when examining the studies on sexual offenders and the plethysmograph, it is important to note how each study defines their offender groups. Since diagnosis of the paraphilias is not based on standardized interviews or other assessments, definitions of sexual offenders, especially pedophiles, differ between studies. O’Donohue, Regev, and Hagstrom (2000) point out that pedophilia, as well as most of the sexual disorders in the DSM-IV (American Psychiatric Association, 1994) were ignored during the version’s field trials even though the diagnostic criteria changed from the DSM-III-R to the DSM-IV. Additionally, the paraphilia criteria changed again from the DSM-IV to the DSM-IV-TR. The editors of the DSM-IV-TR removed the necessity of the individual’s distress and social/occupational impairment from the sexual urges in criterion B of the paraphilia disorders (Hilliard & Spitzer, 2002). Thus, similar to the criterion B of paraphilias in the DSM-III-R, individuals can now meet the criteria of a paraphilia if they act on their sexual urges (against a nonconsenting person) whether or not it causes distress or impairment in their overall functioning. Since these DSM This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. Sexual Predator Evaluations 39 version changes there seems to be little empirical information about the reliability and validity of pedophilia or other sexual disorders. Additionally, O’Donohue et al. (2000) note “the DSM-IV diagnosis of pedophilia is virtually ignored by both practitioners and researchers” (p. 96). The authors state that the criteria are vague, include constructs that are not verifiable, and have no method of being measured. What makes the pedophilia diagnosis even more dubious for SVP evaluators is that although many sexual offenders who are petitioned for civil commitment have committed more than one sexual offense against a child over a 6-month period, the question remains whether this diagnosis represents underlying pathology or is simply a description of past behavior. High-risk sexual offenders are ordinarily assessed for civil commitment during the last months of their incarceration after several months or years of imprisonment. Thus, unless they admit to having recurrent (more than once within a 6 month time frame) sexual urges or fantasies regarding children, or demonstrate sexual attraction for this age group on the plethysmograph, Pedophilia is diagnosed via past behavior (historical diagnosis). If the offender has not had the opportunity to offend, does not admit to current aberrant sexual urges or fantasies during the evaluation, or does not appear sexually deviant on the plethysmograph (if used), is the diagnosis still appropriate 5, 10, or even 20 years later? Is it possible that through time and/or treatment that pedophilia can be “in remission?” Currently, the diagnostic criteria do not allow for such. In addition to the stated issues with the diagnosis of pedophilia, there are also reported problems with other frequently diagnosed sexual disorders. For example, Marshall, Kennedy, Yates, and Serran (2002) conducted a study to examine the interrater reliability of the sexual sadism diagnosis. The authors sent 12 vignettes (half with diagnosis of sexual sadism) to a sample of forensic psychiatrists. Fifteen out of 24 forensic psychiatrists completed the diagnostic task. Results indicated an overall rate of agreement of 75%. However, when chance was taken into account, a kappa of .14 was provided, indicating a much lower rate of agreement. The authors concluded that there is little evidence to encourage confidence in the diagnostic criteria of sexual sadism. Not only are the sexual disorder diagnoses fraught with reliability and validity questions, currently there is not a diagnosis to capture most offenders who have committed rape. In the Becker et al. (2003) study, the authors reported approximately 28% of their sample of sexual offenders had committed rape, forcible rape, or attempted rape. Numerous evaluators have utilized the diagnosis “paraphilia not otherwise specified” to apply to rapists. However, the definition of this appellation is so amorphous that no research has ever been conducted to establish its validity (in fact the word rape is not even mentioned in the Paraphilia NOS diagnostic description). How such a diagnosis would differentiate a class of rapists who suffer from a mental abnormality is very unclear. Although previous studies have indicated that the diagnosis of sexual sadism accounts for only 2–5% of offenders who commit rape (Quinsey, Chaplin, & Varney, 1981), there remains a large portion of rapists who do not meet the criteria for any paraphilia. Unlike the commonly diagnosed disorders (within SVP evaluations) discussed above, there is a wealth of literature that demonstrates the use of tools to aid This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. 40 Miller, Amenta, and Conroy the SVP evaluator in diagnosing personality disorders. Commonly used structured (or semistructured) interviews include the Structured Interview for DSM-IV Personality Disorders (SIDP-IV; Pfohl, Blum, & Zimmerman, 1995), the Structured Clinical Interview for DSM-IV Personality Disorders (SCID-II; First, Gibbon, Spitzer, Williams, & Benjamin, 1997), and the Personality Disorder Examination (PDE; Loranger, 1988). For a review of commonly used diagnostic interviews for personality disorders see Rogers (2001). Additionally, there are psychological instruments that provide information for Axis II disorders. For example the Millon Clinical Multiaxial Inventory-III (MCMI-III; Millon, Davis, & Millon, 1997) is a selfreport personality measure that assesses personality disorder traits, although not without debate (see Rogers, Salekin, & Sewell, 1999; Wiener, 2000 for overviews of the forensic application of the MCMI-III). Assessment of Volitional Capacity In Kansas v. Hendricks (1997), the Supreme Court noted—not less than 17 times—the necessity of linking some mental abnormality or personality disorder with an offender’s lack of ability to control dangerous sexual behavior. Four years later, the same Court reiterated that some lack of control must be demonstrated in order to distinguish the SVP from the typical criminal recidivist (Kansas v. Crane, 2002). Subsequent state cases have emphasized establishing the connection of mental disorder to behavioral control difficulties (In re Thorell, 2003) and demonstrating that the behavior is a product of the disorder or abnormality and not simply a matter of volitional choice (In re Leon G., 2002). The Minnesota Court of Appeals specified expert testimony as a critical element in this determination, saying there must be “. . . a judicial finding of ‘lack of control’ based on expert testimony tying that ‘lack of control’ to a properly diagnosed mental abnormality or personality disorder before civil commitment may occur” (In re Martinelli, 2002, p. 886). Attorneys wanting expert testimony concerning personality disorders in regard to civil commitment are generally seeking a witness who will speak to some factor that would impair control (Schopp, Scalora, & Pearce, 1999). Experts have attempted in various ways to provide evidence regarding the issue of control. Testimony given to the court in Kansas v. Hendricks (1997) indicated that the diagnosis of pedophilia qualified as the kind of mental disorder called for in the statute. In Kansas v. Crane (2002), an expert opined that together, two conditions (exhibitionism and antisocial personality disorder) met the requirements specified in the statute. In the professional literature, Doren (2002) suggests that simply the diagnosis of pedophilia makes a predisposition self-evident. Under this premise the strength of the sexual desire is so overwhelming that the individual is unable to resist. The person may very well have learned from prior (direct and vicarious) experiences, and incorporated that learning into his decision-making process as indicated in the limited options he considers. If the person repetitively limits his perceived options based on a continuing type of sexual desire, then this process represents impairment in his decision making. Paraphilias often signal this type of impairment (Doren, 2002, p. 17). This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. Sexual Predator Evaluations 41 Hoberman describes the lack of self-control as a common sense dimension: A sexual offender with a propensity for a particular deviant sexual arousal who does not control that arousal and who initiates sexual behavior when he perceives the opportunity of a potential victim demonstrates a difficulty, or in extreme cases an inability, to control his behavior. (Hoberman, 1999, pp. 9–29). He goes on to say that further inferences regarding ability to control can be drawn from the records of the offender’s behavior and from results of personality measures (i.e., Minnesota Multiphasic Personality Inventory-2; Butcher, Dahlstrom, Graham, Tellegen, & Kaemmer, 1989). On the other hand, Becker and Murphy (1998), while stressing the importance of the diagnosis of some paraphilia for SVP civil commitment, admit that there is currently no data that would equate these diagnoses with volitional impairment. The legal community has long complained that there is no consensus within the mental health profession regarding the relationship between control and mental disorder (McAllister, 1998). Evidence for this view includes the competing briefs submitted to the court in Kansas v. Hendricks. Legal scholars have noted that patterns of healthy human behavior tend to be consistent with personality traits, yet these are not labeled “beyond volitional control” (Janus, 1998, p. 319). Serious concern has been raised regarding the overall lack of empirical support for the notion that persons diagnosed with paraphilias or personality disorders are unable to control their behavior or that these disorders result in any unique difficulty in controlling behavior (Morse, 1998; Schopp & Sturgis, 1995; Winick, 1998). In the early 1980s, the American Psychiatric Association joined with the American Bar Association in recommending that the volitional prong of the ALI standard for insanity be eliminated. This recommendation was based on the contention that volition was virtually impossible for a mental health professional to measure (La Fond, 2000). It was becoming increasingly clear that many of the mental abnormalities were constructs, not supported by the same scientific structures as physical diseases. The preface to the DSM-IV-TR makes clear that no particular diagnosis implies any degree of control over the behaviors that might be associated with that disorder (American Psychiatric Association, 2000). Whereas many of the medical disorders represent the conjunction of pathology and etiology with signs and symptoms, many psychopathologies—particularly personality disorders— are signs and symptoms alone (Lilienfeld, Waldman, & Israel, 1994). Yet the simple inclusion of personality disorders and paraphilias under the broader umbrella of mental disorders—the same umbrella that shades schizophrenia, dementia, and major affective disorders—may imply there is some definable entity, distinct from the behaviors and manifestations themselves, causing the symptoms. To date, however, our science has identified no such entity. Perhaps the most promising area of research likely to establish scientific evidence of diminished behavioral control is psychophysiological. Prentky and Burgess (2000) discuss psychosis, organicity, senility, and mental retardation as disinhibiting factors that may “. . . contribute to the relaxation of controls and the expression of a preexisting tendency to engage in a particular behavior” (p. 34). Hare and others have been assembling data regarding neuropsychological correlates of psychopathy (Kiehl, Hare, McDonald, & Brink, 1999; Kiehl, Smith, Hare, & Liddle, 2000; Raine This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. 42 Miller, Amenta, and Conroy et al., 2003). Various orbitofrontal abnormalities have been reported to be associated with poor impulse controls, aberrant sexual behavior, and personality disorders (Bechara, Damasio, & Damasio, 2000; Blair & Cipolotti, 2000; Saver & Damasio, 1991). At least one case study has been published linking pedophilic symptoms with a right orbitofrontal tumor (Burns & Swerdlow, 2003). Yet, what evidence that exists remains correlational. There is no empirical proof that an individual diagnosed with a personality disorder or paraphilia actually has a neuropsychological abnormality, or, if present, the degree to which that abnormality may impair behavioral control. If it is, in fact, the neuropsychological abnormality that is decreasing the individual’s ability to control behavior, why not utilize that abnormality directly and not rely on a personality disorder that is only a correlate of the root problem? However, in reality, neuropsychological diagnoses are not commonly used as the basis for sex offender commitments. Additionally, the target behaviors in the sex offender population are often well organized and goal directed, not the very impulsive acts commonly associated with neurological abnormalities. In 1987, Rogers suggested possible criteria for assessing volitional capacity. He proposed examining loss of capacity to make choices, incapacity for delay, disregard for apprehension, foreseeability and avoidability, and whether the deficit was a result of mental illness. However, a generally accepted operational definition has failed to emerge. Not only is there no method developed by which to assess behavioral control, there is no clear definition of what is being measured. Any standard would appear to be more normative than scientific. To scientifically evaluate an individual’s difficulty in controlling certain behaviors, one would need some way to calibrate what constitutes more or less difficulty. In 2002, the U.S. Supreme Court provided some limited guidance on the role of behavioral control in determining whether an individual qualified for civil commitment. With respect to the civil commitment of dangerous sexual offenders under the statute, the Federal Constitution required the state to prove that such offenders had serious difficulty in controlling their behavior. Such required proof—when viewed in light of such features of the case as the nature of the psychiatric diagnosis and the severity of the mental abnormality itself—had to be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjected the offender to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case (Kansas v. Crane, 2002, p. 607). The question to be addressed would seem to be why a particular person has greater difficulty directing his or her sexual behavior than the average person or than the average sex offender. Even if such degrees of control could be measured, it would be another matter to connect the deficit directly to one of the paraphilias or to a personality disorder. This becomes particularly problematic given that the most commonly applied diagnoses are primarily based upon behavioral descriptors. Personality disorders and paraphilias differ in significant ways from many other diagnostic categories. Unlike neuropsychological disorders, no physiological deficits have been demonstrated and linked to the behaviors. Unlike many of the psychotic disorders, no brain scans have demonstrated abnormalities. Unlike many of the disorders described in the DSM, no specific treatments have been demonstrated to be Sexual Predator Evaluations 43 This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. highly effective. Unlike many other disorders, the criteria for pedophilia and antisocial personality disorder can be met completely from behavior described in records. It would seem tautological, and certainly not scientific to argue that the offender has pedophilia because he/she commits sexual acts against children and he/she commits sexual acts against children due to that pedophilic condition. Translating this premise into the control paradigm: the offender lacks the ability to control his/her behavior because the person fails to control that behavior. Assessment of Sexual Recidivism Although most state statutes focus on the relationship of the above variables to determine whether a sexual offender is a danger to recidivate sexually, most SVP evaluators include some formal assessment of risk that utilizes measures. This is one area where forensic assessment has made enormous progress, going from Monahan’s (1981) report on the overrated clinical prediction of violence to more recent findings where studies consistently report the relationship between certain variables/instruments and recidivism (e.g., Harris, Rice, & Quinsey, 1993; Kroner & Loza, 2001; Loza & Green, 2003; Salekin, Rogers, & Sewell, 1996). Multiple studies have demonstrated the relationship between specific variables and sexual reoffense (e.g., Barbaree, Seto, Langton, & Peacock, 2001; Hanson & Bussiere; 1998; Hanson & Thornton, 2000). Thus, mental health professionals are able to offer the court consistent evidence that certain factors (and scores on actuarial instruments) are associated with an increased likelihood of sexual recidivism. The number of actuarial instruments available to readers has “burgeoned” in recent years (Barbaree et al., 2001, p. 491). Instruments such as the Violence Risk Appraisal Guide (VRAG; Quinsey, Harris, Rice, & Cormier, 1998), the Sex Offender Risk Appraisal Guide (SORAG; Quinsey et al., 1998), the Minnesota Sex Offender Screening Tool—Revised (MnSOST-R; Epperson, Kaul, Huot, Goldman, & Alexander, 2003), and the Static-99 (Hanson & Thornton, 2000) have all received considerable empirical attention. Although a review of literature associated with each instrument is beyond the scope of the present paper, comprehensive reviews of each instrument and theoretical commentary regarding the application of actuarial risk assessment instruments in the context of sex offender civil commitment proceedings are available (Barbaree et al., 2001; Campbell, 2000; Conroy, 2002; Doren, 2002; Hanson, 1998; Hanson & Thornton, 2000; Hart, 2003; Hoberman, 1999; Quinsey et al., 1998; Rice & Harris, 1997, 2002; Sreenivasan, Kirkish, Garrick, Weinberger, & Phenix, 2000). Although recent advances in the risk assessment literature are commended, limitations of the extant body of research should be acknowledged. First, the classifying (in research and in treatment) of sexual offenders as one group may be problematic when attempting to understand empirical results. Second, research on recidivism has focused almost exclusively on static rather than dynamic (or changing) variables. Thus, if a sexual offender successfully completes treatment while incarcerated, it is not known whether his/her static risk level should be modified. Third, there is conflicting research examining the relationship between psychopathy and sexual re-offending. 44 Miller, Amenta, and Conroy This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. Sexual Offenders as One Group One of the consistent problems with sexual offender research, whether it examines the utility of methods to predict recidivism or assesses the effects of treatment, is the lumping of sexual offenders into one group. Research has indicated significant differences between types of sexual offenders, including rates of recidivism (e.g., Doren & Epperson, 2001; Furby, Weinrott, & Blackshaw, 1989; Hanson & Bussiere, 1998; Rice & Harris, 1997). For example, incest offenders recidivate at lower rates than extrafamilial child molesters who target victims of the opposite sex (Quinsey et al., 1998) who, in turn, recidivate at lower rates than extrafamilial child molesters who target victims of the same sex (Hanson, Steffy, & Guthiere, 1993). Thus, lumping sexual offenders into one group to examine the utility of risk assessment measures may significantly affect the findings of studies that have done so. Additionally, several groups of sexual offenders have been almost entirely ignored within the literature. These include noncontact sexual offenders such as exhibitionists, voyeurists, and frotteurists. Becker et al. (2003) reported that 32% of their sample was diagnosed with one or more of these disorders. In a recent study examining the differences in predictive validity of actuarial risk assessments in relation to offender type, Bartosh, Garby, Lewis, and Gray (2003) investigated the effectiveness of four risk instruments utilizing subgroups of offenders. The sample included 73 rapists, 59 extrafamilial child molesters, 37 incest child molesters, and 17 noncontact sexual offenders. Results indicated that the effectiveness of each measure was related to offender type. The authors conclude, “offender type should play an important role in determining the course of risk assessment” (Bartosh et al., 2003, p. 436). Although these results contradict previous reports of no sexual offender type differences in actuarial prediction (e.g., Hanson & Thornton, 2000; Sjostedt & Langstrom, 2001) and are limited because of small sample sizes, further research is warranted examining possible group differences and risk prediction. Importance of Dynamic Risk Variables Several recent studies have indicated the importance of the relationship between dynamic variables and risk for recidivism (e.g., Beech, Friendship, Erikson, & Hanson, 2002; Dempster & Hart, 2002; Hanson & Bussiere, 1998; Hanson & Harris, 2000; Thornton, 2002). For example, Hanson & Harris (2000) present data that demonstrate dynamic variables such as criminal attitudes, social influence, and hostility are related to sexual recidivism. Although researchers are identifying important dynamic variables that should be taken into account when evaluating risk, only a small number of such measures are currently being developed and these remain in their infancy. Instruments such as the Sex Offender Need Assessment Rating (SONAR; Hanson & Harris, 2001) have shown promise, but more research is needed. Additionally, there are no standards of how to take dynamic variables into account and/or combine them with more established static variables when determining risk. In other words, if and how these variables do change and whether they decrease risk is unknown at this time. For example, if a sexual offender modifies criminal attitudes within the treatment setting, rids himself of antisocial influence, Sexual Predator Evaluations 45 and reduces anger, will that be enough to significantly decrease his level of risk? In order for the SVP evaluator to take dynamic variables into account, research needs to illuminate the relationship between these variables and risk. This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. Use of Psychopathy in Risk Determination Although psychopathy has not generally been used as a diagnostic category to provide evidence for a mental illness for insanity or incompetence to stand trial evaluations, it is being utilized to define mental abnormality in SVP evaluations. In Texas the statute even mandates psychopathy assessment. The court’s understanding of psychopathy has serious implications for the offender. If an offender is reported to have psychopathy, not only is he/she considered untreatable (Coid, 1998; Gunn, 1998), but also the criminal justice system associates his/her psychopathy with violence and recidivism (Shipley & Arrigo, 2001). In addition to diagnostic confusion between antisocial personality disorder and psychopathy (e.g., Shipley & Arrigo, 2001), research has been mixed regarding the relationship between psychopathy and sexual recidivism (Barbaree et al., 2001; Brown & Forth, 1997; Dorr, 1998; Hanson & Harris, 2000; Porter et al., 2000; Quinsey et al., 1998). Evaluators need to be cautious both when psychopathy is and is not evident. Although there is solid evidence that psychopathy is a good predictor of general and violent recidivism, the findings regarding the relationship between psychopathy and sexual re-offending are less consistent (Barbaree et al., 2001; Firestone et al., 2000; Porter et al., 2000; Quinsey et al., 1998). Strongest support for psychopathy as predictive of sexual recidivism has been found when it interacts with deviant sexual interests (e.g., Rice & Harris, 1997). Additionally, the absence of psychopathic traits is not indicative of a low risk to sexually re-offend in and of itself. There are many offenders with pedophilia, especially those who offend outside the family, who do not have high levels of psychopathy, but remain a high risk to recidivate sexually (Firestone et al., 2000). As highlighted by Becker et al. (2003), the majority (63%) of offenders petitioned for civil commitment in their sample were diagnosed with pedophilia. Many of the sexual offenders diagnosed with pedophilia do not have psychopathic personalities and typically have fewer psychopathic traits than other types of sexual offenders (e.g., rapists and mixed offenders; Porter et al., 2000). SUMMARY The above review highlights the empirical strengths and limitations of SVP evaluations. In the assessment of mental abnormality, although evaluators commonly diagnose offenders with disorders such as pedophilia and paraphilia not otherwise specified, little empirical information is available regarding the reliability and validity of these disorders. In addition, the diagnosis of sexual disorders and sexual crimes such as rape are made difficult by problematic diagnostic criteria, the (often) historical basis of the diagnosis, and a lack of a diagnostic category to capture offenders who commit rape. Although the assessment of specific paraphilias through phallometric testing is promising, especially among pedophilic This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. 46 Miller, Amenta, and Conroy offenders, the plethysmograph can be faked and problems with its generalizability and sensitivity exist. There is presently no consensus in the field regarding the relationship between behavioral control and mental abnormality. In addition to the lack of agreed upon methodology to assess “inability to control,” at present there is no consistently utilized definition of just what is being assessed. Although psychophysiological research being conducted represents a promising area of research, evidence linking personality disorders or paraphilias to neuropsychological abnormalities is, at present, correlational. There is no empirically established link between a diagnosis of personality disorder or paraphilia and a neuropsychological condition; nor is there evidence to suggest the extent to which a physiological abnormality impairs behavioral control among individuals diagnosed with personality disorders or paraphilias. Although consistent evidence regarding the relationship between certain variables and scores on actuarial instruments and the likelihood of sexual recidivism is rapidly accumulating, problems with sexual recidivism research complicate the assessment of risk in the context of SVP evaluations. Classification of sex offenders into homogeneous groups potentially obscures empirical findings among studies examining the utility of risk assessment measures. In addition, research on methods to measure dynamic variable risk is only beginning and; there are no widely accepted standards to account for changes in such variables in the context of an SVP risk assessment. Empirical support regarding the relationship between psychopathy and sexual recidivism has been inconsistent and evaluators must use caution regarding level of risk both when psychopathy is and is not present. Presented below are additional considerations for evaluators faced with the task of conducting a scientifically sound assessment in this legal arena followed by research directions that would increase the empirical foundation of SVP evaluations. Strategies for Evaluators Perhaps the most basic principle for SVP evaluators is to avoid providing opinions on issues beyond the competence of the discipline. For example, regardless of attorney requests, opinions on issues such as whether the examinee meets statutory criteria as a repeat sex offender should be left to the legal system. Terms such as “mental abnormality” or “behavioral abnormality” are legal inventions and not clinically recognized diagnoses. Legal definitions are sufficiently vague that an exact translation into diagnostic categories lacks any reasonable degree of clinical certainty. Nonetheless, mental health professionals can assist the trier of fact by providing clinical diagnoses from the DSM-IV-TR, provided their meaning is carefully explained. Diagnoses such as schizophrenia, dementia, depression, or mental retardation—common in many clinical populations—are relatively rare in sex offenders pending commitment proceedings. By far the majority of sex offenders are committed on the basis of a paraphilia or a personality disorder. While many offenders may meet the criteria specified in the DSM-IV-TR, it is essential that evaluators explain what these diagnoses actually mean. For the most part they are behavioral descriptors or, stated another way, signs and symptoms absent This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. Sexual Predator Evaluations 47 demonstrated pathology and etiology. For example, a person who is at least 16 years of age and has molested a child (or children) more than once over a 6-month period has met the diagnostic criteria for Pedophilia. Some legal experts have suggested that such a category is so behaviorally explicit that anyone could arrive at the diagnosis with an adequate record and a command of the English language (Schopp et al., 1999). Thus, to truly inform the court, it becomes necessary to explain that some diagnoses are not disease entities that invade the systems of helpless, unsuspecting organisms. Degree of behavioral control is perhaps the element of most SVP standards that is farthest from the realm of competence of mental health professionals. Volitional control is not scientifically demonstrable, yet easily implied by the linguistically careless. Phrases such as “leads to . . . ,” “results in . . . ,” “manifests as . . . ,” or “predisposes to . . . ,” suggest that some identified phenomenon is in some way responsible for the individual’s failure to control sexual behaviors. However, to suggest the existence of something beyond signs and symptoms, manifested as behavior, is simply to reify a construct. There is no scientific data identifying something that is causing loss of control, let alone a loss measurable in degrees of difficulty. While an evaluator can report that an individual repeatedly fails to exercise control, even in the face of severe negative consequences, it is best left to the trier of fact to determine whether this is a case of “cannot” or “will not.” Prediction of human behavior in any context is difficult and, at best, imperfect. Yet the last two decades has seen an explosion in the data available on the prediction of violence risk and, in particular, the risk of sexual offender recidivism. While that data clearly remains inadequate if one expects to provide a simple “yes” or “no” answer regarding risk, the mental health professional has a considerable body of evidence available that can assist the trier of fact in a way that goes well beyond chance and/or clinical judgment alone. Actuarial data can be helpful if presented in the context of its limitations. A number of factors have correlated repeatedly with risk for recidivism, while others have shown no relationship or a negative relationship. Making the most current information available to legal decision-makers provides a valuable service. A number of newly developed actuarial instruments can be very useful to the evaluator provided they are used selectively and with reasonable caution. As with any psychometric instrument, they should provide an important piece of data or lead the evaluator to a hypothesis. However, scores should not be interpreted as the final answer to the question of risk. Such reliance would assume that all possible variables impacting risk are covered in the instrument’s formula and that these risk factors should be weighted in exactly the same way for all individuals. Even those most enthusiastic about this approach (Quinsey et al., 1998) have stopped short of this conclusion. The very newness of these tools must temper our embracing them unabashedly. Research bases are still developing. As was recently the case with the MnSOST-R, despite very positive initial research, contrary data may subsequently appear (Seto & Barbaree, 1999). This may serve to effectively discredit an evaluation that relies too heavily upon an actuarial instrument. Additionally, since each actuarial instrument assesses different variables and was developed with different populations (although there is This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. 48 Miller, Amenta, and Conroy certainly overlap), using more than one of these measures may be appropriate. The more corroborative data the instruments produce, the higher the probable accuracy of prediction. Further, the more similar the evaluated offender is to the actuarial instrument’s development sample, the better it is predictive of future behavior. Whether mental health professionals should address the “ultimate issue” in any forensic case has long been a matter of debate. However, given the legal criteria specified for SVP evaluations and the state of the science in the field, if there were ever a strong argument not to opine on the ultimate issue, it is here. Evaluators can lend greatest service to the trier of fact by providing a well-explained clinical diagnosis and a scientifically based risk assessment. Research Directions In order to improve the empirical basis of SVP evaluations, further research is warranted within each of the statutory elements described above. The following section outlines research directions that would provide empirical support for components of SVP evaluations that are, as yet, not well supported. Diagnostic categories have very important implications for sexual offenders, especially those petitioned for civil commitment. A diagnosis of sexual sadism or psychopathy, for example, may influence several individuals and systems that make decisions for the offender. Therefore, evidence of high diagnostic reliability and validity are warranted, particularly with the diagnoses most common in SVP evaluations. Due to the change in sexual disorder criteria via DSM-IV and DSM-IV-TR renewed research examining reliability and validity of these disorders would aid the SVP evaluator. Additionally, the development of measures to aid in accurate and reliable diagnosis would undoubtedly improve accuracy. For example, the development of structured or semistructured interviews for the sexual disorders (like we have for most diagnostic categories) would allow for increased reliability in sexual disorder diagnosis. In addition to the development of diagnostic interviews for the sexual disorders, the further development of and research on tools to assess these disorders without depending upon the candor of the offender would aid accurate assessment. Future research that demonstrates methods for increasing the sensitivity of the plethysmograph would continue the promise of this measure’s ability to assist in accurate assessment and diagnosis of sexual deviance and disorder. Research on additional tools that do not rely on offender frankness or require a lengthy and expensive administration apparatus is also warranted. For example, Seto and Lalumière (2001) reported initial results of the Screening Scale for Pedophilic Interests (SSPI) that could possibly be utilized as a screen for sexual deviance for those evaluations that cannot/do not use the plethysmograph. Seto and Lalumière found that this index predicted plethysmograph verified pedophilic interests above chance levels (ROC = .70). Another area of sexual deviance assessment that holds promise is attitudinal research. Previous study has reported the relationship between criminal and prooffending attitudes and recidivism (e.g., Hanson, 2003). Future research is warranted to further understand this association and how best to assess it. Criminal This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. Sexual Predator Evaluations 49 or pro-offending attitudes may be effectively examined through a form of implicit attitude paradigm assessment. Future research is also warranted to examine the diagnostic difficulty with offenders who commit rape. The debate of including a specific paraphilic rape diagnosis in the DSM may need to be fully resurrected. Additionally, if rape and other sexual disorders already listed in the DSM are, in fact, mental disorders, and not simply behavioral descriptors, underlying etiology and pathology need to be clearly identified. In addition to further reliability and validity information on sexual and personality disorders, research is needed that examines the relationship among diagnosis, risk, and recidivism. Although there is evidence indicating that certain types of offenders are more likely to recidivate (i.e., rapists, mixed offenders; Porter et al., 2000), there is little knowledge of base rates for specific sexual disorder types (i.e., pedophiles, exhibitionists, sexual sadists), or dually diagnosed offenders. It may be that certain types of sexual disorders, or combinations of disorders, increase the likelihood of sexual recidivism. For example, individuals who have diagnoses of paranoid schizophrenia and substance abuse are significantly more likely to act violently (Walsh, Buchanan, & Fahy, 2002). It may be that pedophiles or sexual sadists who abuse substances are also significantly more likely to recidivate than individuals with a pedophilic disorder alone. Additionally, further research not only should clarify the relationship between offender type and risk differences, but also on typologies within these offender groups. The focus thus far has been almost exclusively on specific offense behavior, with the majority of attention given to type of victim. Is this to imply that men who rape adult women are a homogenous group? This would seem to assume that these individuals have similar personality structures, similar motives, and similar treatment response, because they prey upon similar victims. Clearly no evidence currently available would support this assumption. The area of volitional control is the element of sexual predator evaluations that would appear to have the least empirical support or scientific evidence. We have no data that identifies something that causes lack of control or degrees of control. The most promising area of research for this element seems to be physiological or neuropsychological in nature. Currently there is growing evidence indicating that certain offenders, particularly psychopaths and violent offenders may have different physiological/neurological underpinnings that increase the likelihood of violent behavior (Bechara, et al., 2000; Blair & Cipolotti, 2000; Burns & Swerdlow, 2003; Kiehl et al., 2000). Research in this area may continue to provide evidence that brain function (or brain abnormality) affects volition. However, it is important to note that actual testing must establish the presence of neurological or neuropsychological deficits rather than simply assuming offenders who are psychopathic or incarcerated have brain abnormalities because correlational evidence has been found. Although most state sexual violent predator statutes do not mandate specific actuarial risk assessments, many evaluators utilize instruments that provide evidence of risk level. The field of forensic assessment has been very successful in the last decade in identifying variables that are related to sexual recidivism. However, the understanding of dynamic risk variables remains in its infancy. There are This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. 50 Miller, Amenta, and Conroy several dynamic variables that appear to be significantly related to sexual recidivism; however, research provides no evidence of whether these measured variables indeed do change, or what kind of change is needed to reduce an offender’s level of static risk. As clinicians, we believe that variables such as criminal or pro-sexual offending attitudes, hostility levels, and impulse control can change. However, we have little data to support resulting changes in sexual behavior. Additionally, if in fact these variables do change through time, imprisonment, and/or treatment, researchers need to examine to what extent they need to change to reduce the likelihood of sexual recidivism. To date there have been few instruments developed to assess dynamic risk. The SONAR (Hanson & Harris, 2001) was developed with released offenders being supervised in the community and assesses stable and acute risk variables through interview. Since the SONAR was developed with community supervised prior offenders there are several variables that relate only to this specific circumstance. For example, the SONAR assesses cooperation with supervision. Unless the SONAR is slightly modified and validated for use with incarcerated offenders, this tool would be limited in its use for SVP commitments, unless the evaluator is in Texas where civilly committed offenders do live in the community supervised or after conditional release to the community in other state programs. One known study has modified the SONAR for use in an incarcerated sexual offender sample (Guy, Torres, Miller, & Kwartner, 2004). In this initial examination of the slightly modified version, results demonstrated good psychometric properties and its ability to detect change in the stable dynamic risk factors over approximately 1 year of sexual offender treatment. However, before the SONAR can be used in these circumstances, or any other, much further research is needed to replicate the few studies that have utilized this instrument. To date, psychopathy is one of the best predictors of future recidivism, above all violent recidivism. However, research findings have been mixed in reporting the relationship between psychopathy and sexual re-offending. Further studies are warranted to increase knowledge of this relationship particularly because the diagnosis of psychopathy has been found to be a significant predictor of civil commitment (Levenson, 2003). 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