Research Paper on Stalking Law

Published: 2021-07-02
1161 words
5 pages
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Boston College
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Research paper
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The murder of Rebecca Schaeffer, an American model, and actress, in 1989 prompted the passage of the first United States anti-stalking laws in the state of California in the year 1990, (Sinclair, 2009). Schaeffer was brutally shot by her obsessed fan Robert Bardo who had been stalking her for three years. Earlier incidences of stalking included that of Theresa Saldana who was stabbed by an obsessed fan in 1982 but survived death. There were also other five murders of women either by ex-lovers, estranged husbands, or would-be suitors. The police department argued that they could not take any measure on claims of stalking until a crime was committed, which would act as evidence. This prompted a California Municipal Judge by the name John Watson to draft and propose the first anti-stalking laws, California Penal Code Section 646.9, in 1990. Watson presented the draft to the then State Senator Ed Royce and the laws were passed, (Tjaden, 2009). Three years later, the law was copied in every state across the USA. A special police unit was introduced at Los Angeles Police Department, namely Threat Management Unit in the same year. This department works with prosecutors, celebrity attorneys, and security details to keep obsessed fans at bay.

Protections were put in place to ensure safety for the celebrities who would be victims of stalking. The Drivers Privacy Protection Act (DPPA) was established in 1994. It prohibits states from disclosing a drivers personal information without the authority from State Department of Motor Vehicles. This followed a revelation that drivers information was being used to conduct criminal acts. Stalking was made a federal offense and was effective as of October 2007. Initially, these laws had significant variations with provisions that made the laws unenforceable due to ambiguities and the requirements to show specific criminal intent and a credible threat. However, these legislations have been amended in most states to broaden the definitions and stiffen penalties, easing the process of enforcement.

For a defendant to be charged and convicted of stalking, three elements have to be proven beyond reasonable doubt. These include a course of conduct or behavior, the presence of threats, and the criminal intention to cause fear in the victim, (Meloy and Felthous, 2011). These are requirements in most states across the United States. A course of conduct is a string of actions which when viewed collectively bring out a pattern of behavior. Acts designated by States as stalking range from explicitly defined actions, such as nonconsensual communication, obsessive surveillance, or lying in wait, to more general acts such as physical harassment. Some States stipulate the number of incidents that warranties a pattern of behavior, with several requiring two or more actions to be conducted.

The presence of a threat is another requirement in filing stalking charges. Most states require that the stalker imposes a threat or act in a way that would cause fear in a reasonable person in similar circumstances, (Meloy and Felthous, 2011). On this, States differ on the threat requirement. Some need a threat or conduct, while others mandate both for prosecution. Further, others insist on a threat, conduct, and intent requirements. Examples of threats would range from a stalker sending a threatening note to the victim or sending her black flowers, to more explicit threats through body language such as making signs of a gun shooting.

The third element is the intent to cause fear on the victim, (Meloy and Felthous, 2011). The intent requirements vary significantly among states. Most state statutes require that the stalker purposefully or willfully intended to instill fear, while others require less mental states, for instance, the negligent creation of fear knowingly. In many states, a proof is not needed that the offender intended to cause fear as long as his intention was to act in a way that resulted in fear. Under this aspect, the intent element is met if the victim is reasonably frightened by the alleged perpetrators behavior, (Baum, 2011). Some states, however, omit the intent requirement. In general, the more specific the intent requirement, the harder it gets to obtain the necessary proof to secure a conviction.

The constitutionality of the anti-stalking laws has been challenged by defendants in many states, with them alleging that the laws are very vague that they violate the due process of law, or are so broad that they infringe on constitutionally protected speech or activity. More than twenty states have faced constitutional challenges for being too broad and vague. With this drawback, only a few cases have been successful beyond the trial level. The Texas Court of Criminal Appeals is the highest states court to declare an anti-stalking statute unconstitutional on the basis that it lacked sufficient clarity about prohibited conduct, provided an inadequate notice, and had a vague threat requirement. To bridge the gap between individual state legislations, Congress passed the Interstate Stalking Punishment and Prevention Act of 1996 that prohibits stalking across state lines, makes restraining orders issued in one state valid in another state, and prohibits stalking on federal property. Violation of this act calls for five years imprisonment and twenty years in prison for violations that result in injury or incidences where the perpetrator used a dangerous weapon. In the case of a victims death, the punishment is life imprisonment.

When a stalking situation has been reported, civil protection may be given to the victim, a restraining order to the offender directing him not to come into contact or within the vicinity of the victim. If the defendant violates this order, the court may hold him in contempt and impose punishment depending on the state law. Many states have a misdemeanor and felony classifications of stalking. Misdemeanor cases usually carry a jail term of up to one year while a felony sentence ranges from three to five years, with the ability to enhance the penalty if one or more elements are found. In some states, repeat offenses can lead to incarceration for as long as ten years.

Despite the efforts to curb the stalking offense, there are many risks involved with the criminal justice system on this issue. For instance, the victim is exposed to risks at the arrest of the offender. This is because pretrial detention for those charged with stalking is rare and arrests often escalate the violence or increase the chances of retaliation, with or without victim notification of release. In the case of trial and conviction, the prison sentence without psychological therapy does little to address the mental health treatment that is needed by most stalkers. Therefore, in the end, the task of fashioning a workable, realistic remedy to avoid future stalking often falls on the victim.


Baum, K. (2011). Stalking victimization in the United States. DIANE Publishing.

Meloy, J. R., & Felthous, A. (2011). Introduction to this issue: International perspectives on stalking. Behavioral Sciences and the Law, 29(2), 139.Sinclair, H. C. (2009). Stalking, Threatening, and Attacking Public Figures: A Review.

Tjaden, P. G. (2009). Stalking policies and research in the United States: A twenty year retrospective. European Journal on Criminal Policy and Research, 15(3), 261-278.

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