A 32-year-old woman
subscribed to an online dating service. She described herself in her online
profile as the active, outdoors-loving Alaska resident she was. She answered
all of the queries she received. “Jan” was highly selective
and very cautious. She declined many initial invitations to correspond
and perhaps meet. She responded to one from “Raymond,” and
they corresponded for two weeks before they met for coffee. Unimpressed,
Jan declined Raymond’s next invitation for coffee.
Through his own efforts, Raymond learned
where Jan lived. Her unprotected home wireless connection allowed him
to easily infiltrate her computer and its data. Raymond was able to gain
access to Jan’s Yahoo email account. He opened her email; sometimes
he responded to email in her name. Jan grew confused when email came to
her from others in seeming reply to words of her own. Raymond changed
Jan’s public profile on the online dating service, and posing as
her he “winked” at dozens of other men—using the service
to falsely indicate her interest.
Jan felt that someone was trying to harass
and threaten her in some way, especially after unknown men started showing
up at her front door expecting to go out on “first dates.”
After it happened the second time, she called the police. After the third
time, they wondered whether to take her seriously. After all, none of
the “dates” intended to or caused her any harm. Maybe it was
just a case of vivid imagination.
In this hypothetical incident, has Jan
been the victim of stalking? Could Raymond be prosecuted under the current
versions of Alaska’s criminal stalking statutes? Because of the
reach of the Internet and other technologies, these questions have a currency
in 2007 that they did not have when Alaska’s stalking statute was
adopted in 1993. Most individuals did not use email in 1993; today it
is ubiquitous. Social networking via the computer was unknown then. It
was an era before MySpace, YouTube, FaceBook, IM, and portable GPS devices.
In 1993, Congress directed the National
Institute of Justice (NIJ) in the U.S. Department of Justice to develop
a model stalking code to encourage states to adopt anti-stalking measures.
NIJ entered into a cooperative agreement with the National Criminal Justice
Association (NCJA) to research existing stalking laws and develop model
legislative language. NCJA, in turn, sought additional input from the
National Conference of State Legislatures, the American Bar Association,
the National Governors’ Association, the Police Executive Research
Forum, the National Center for Victims of Crime, and other national organizations.
More than a decade later, one of the original
model code advisory organizations, the National Center for Victims of
Crime, considered that sufficient data had been collected to evaluate
the efficacy of the nation’s stalking legislation. The center empanelled
a Model Stalking Code Advisory Board, comprising twenty-three academicians,
judges, law practitioners, law enforcement authorities and victims advocates
to perform its evaluation.
In part because of technological changes,
the advisory board concluded there was a need to promulgate an updated
criminal stalking statutory model. This article examines the statutory
update suggested by the National Center for Victims of Crimes and explores
whether the same need exists in Alaska warranting revision of Alaska’s
criminal statutes. Readers should note that at this time there is no pending
legislation on Alaska criminal stalking statutes. As empirical data are
evaluated regarding stalking and civil and criminal legal responses, Alaska
policy makers will determine the need for legislative action. The promulgation
of a model does not mean that any state should follow in lockstep with
what the drafters have suggested. A model code is not the end of a discussion
but rather a beginning.
Needs Identified for the Model Stalking Code
Using data and information from a spectrum
of sources, the National Center for Victims of Crime concluded that on
a national basis:
- Stalkers often get away with their criminal behavior with little
or no risk of intervention by law enforcement.
- The burden of proof is so high that it is extremely difficult to
secure convictions.
- Most stalking offenses are misdemeanor crimes. Stalkers are rarely
sentenced for longer than a few days or weeks.
- Stalking laws are written with the “stranger stalker”
in mind, restricting the type of behavior that can be prosecuted when
the stalker and victim are in a relationship.
- Current state laws do not address the full range of stalking behaviors,
which may include indirect communication with the victim. Requirements
of proximity or direct contact overlook modern technologies available
to stalkers.
Does the Alaska Experience Align with the Center’s Findings?
- Stalkers often get away with their criminal behavior with little
or no risk of intervention by law enforcement.
This criticism of the current situation
may be true. The data analysis in Alaska is in its infancy, with more
research needed. The companion article, “Stalking in Alaska,”
discusses the possible extent of underreporting of stalking. Moreover,
the prevalence of domestic violence and the documented high number of
protective orders issued after a petitioner has separated from
a respondent may give an initial clue to the extent of stalking behavior.
Although at this time there are few reported
cases construing Alaska’s stalking statute, one recent case indicates
the extent to which stalking may be significantly underreported in the
state. In McComas v. Kirin, 105 P.3 1130 (Alaska 2005), the Alaska
Supreme Court upheld the issuance of a long-term domestic violence protection
order based upon threatening letters sent to a woman from her former spouse.
The letters were recognized as a course of conduct prohibited as stalking
in the second degree. Because in Alaska this crime is one that can be
classified as a crime involving domestic violence, the issuance of the
protective order was unanimously approved by the Alaska Supreme Court.
As this case illustrates, stalking behavior,
which has otherwise not been reported, can be behind the issuance of domestic
violence protective orders. In light of the number of post-separation
protective orders issued, it seems reasonable to conclude that the incidence
of domestic violence may be subsuming incidents of stalking.
- Most stalking offenses are misdemeanor crimes. Stalkers are rarely
sentenced for longer than a few days or weeks.
Alaska currently has a two-tiered system
for stalking charges. At this point there is simply not enough evidence
to say that this system is unworkable. As the accompanying article “Stalking
in Alaska” discusses, the crime is probably being heavily underreported
throughout the state and possibly undercharged.
Under the two applicable Alaska criminal
statutes, stalking is either a Class A misdemeanor or a Class C felony.
An individual commits second degree stalking—a misdemeanor—under
Alaska Statute 11.41.270 if “the person knowingly engages in a course
of conduct that recklessly places another person in fear of death or physical
injury, or in fear of the death or physical injury of a family member.”
When this basic stalking conduct is coupled
with actions that are violations of civil orders of protection against
stalking or domestic violence, or the victim is under 16, or if the defendant
at any time during the conduct possessed a deadly weapon, then stalking
is a felony. In addition, if the basic stalking conduct is itself in violation
of a condition of probation, release before trial, release after conviction,
or parole, the offense is a felony. Finally, a person who commits the
basic act of stalking described above, and who has been previously convicted
of a crime, an attempted crime or solicitation to commit a range of offenses
against the same victim is guilty of stalking in the first degree.
One of the expected benefits of criminalizing
stalking behavior is to intervene early before such conduct leads to more
dangerous, even lethal, action. Under Alaska law, a number of factors
increase the severity of the offense; these are directly related to the
escalation of the risk to the victim. When a victim already possesses
a civil protection order against stalking or domestic violence, and the
offender continues the prohibited conduct, the felony statute applies.
Under Alaska’s sentencing structure,
if the person is a first-time felony offender, the period of incarceration
ranges from zero to two years; an offender with a previous felony conviction
can receive a sentence of up to five years. Misdemeanants can be sentenced
up to a year. At this point, we do not have enough data to examine whether
the existing penalty structure is sufficient or insufficient.
A future comprehensive study of the treatment
of stalking in Alaska might identify the population of stalking convictions
obtained, whether they were for misdemeanor or felony stalking, whether
the sentences fell within the presumptive ranges and whether those convicted
of felony stalking received suspended impositions of sentences.
- Stalking laws are written with the “stranger stalker”
in mind, restricting the type of behavior that can be prosecuted when
the stalker and victim are in a relationship.
This does not appear to be a problem in
Alaska. The basic stalking behavior addressed in the Alaska statutes can
encompass conduct between those who have been involved in a relationship,
particularly in conjunction with criminal and civil statutes covering
domestic violence. The interrelationship among the state’s statutes
governing civil orders for protection against stalking, civil protection
orders against domestic violence, and the criminal stalking statutes permits
both law enforcement and prosecutors to pursue criminal charges even when
a relationship has existed, although as mentioned before, prosecution
may be challenging.
A.S. 18.66.100 et seq. describe
the process through which an individual who has been the victim of a “crime
of domestic violence” can obtain one of three civil protection orders
of varying duration. Eligible petitioners are those who have been victimized
by current or past members of their household. Household members
is a key defined term under the statutes, as it expands the reach of the
statute to those who have dated, have been involved in intimate relationships,
are related through marriage, or are related through the fourth degree
of consanguinity.
In the civil protection order process, a crime of domestic violence is also specifically defined. The
term includes:
(3) “domestic violence”
and “crime involving domestic violence” mean one or more
of the following offenses or an offense under a law or ordinance of
another jurisdiction having elements similar to these offenses, or
an attempt to commit the offense, by a household member against another
household member:
(A) a crime against the person under
AS 11.41;
(B) burglary under AS 11.46.300–11.46.310;
(C) criminal trespass under AS 11.46.320–11.46.330;
(D) arson or criminally negligent burning
under AS 11.46.400–11.46.430;
(E) criminal mischief under AS 11.46.475–11.46.486;
(F) terrorist threatening under AS 11.56.807
or 11.56.810;
(G) violating a protective order under
AS 11.56.740(a)(1); or
(H) harassment under AS 11.61.120(a)(2)–(4);
(A.S.
18.66.990(3)(2007))
For those who are not eligible for a domestic
violence protective order, but who believe they have been the victim of
a crime of stalking or sexual assault, A.S. 18.65.850(a) describes the
civil protective order remedy:
A person who reasonably believes that the person is a victim of
stalking or sexual assault that is not a crime involving domestic
violence may file a petition in the district or superior court for
a protective order against a respondent who is alleged to have committed
the stalking or sexual assault. A parent or guardian may file a petition
on behalf of a minor.
Building on the dual platforms of protective
orders available to those who fear physical harm for themselves or family
members, Alaska’s criminal statutes then incorporate violations
of these protective orders into an element that, coupled with a course
of conduct of unwanted contact, elevates stalking from misdemeanor to
felony behavior.
- The burden of proof is so high that it is extremely difficult
to secure convictions.
Alaska statutes are not problematic in
this area, although this criterion of the model code is phrased somewhat
imprecisely. What is meant is not burden of proof in the ordinary
legal sense—proof beyond a reasonable doubt—which,
of course, applies for criminal conviction in all cases. Rather, the writers
of the model code are referring to the necessity (burden) of proving criminal
intent. They are proposing new language to make it clear that the statute
should be a general intent crime rather than a specific intent crime.
This entails the difference between intending to do the act and intending
a particular result; in other words the statute should require that the
stalker intend his actions rather than specific consequences of his actions.
It is easier for a prosecutor to show intent to perform an act. Currently,
in many jurisdictions stalking statutes require evidence of specific intent
to cause a special level of fear in the victim—a result—but
this is not the case in Alaska. Alaska currently has a general intent
statute; in fact, in Alaska the level of criminal intent that has to be
proven beyond a reasonable doubt is less even than that suggested under
the proposed model. Under the model the defendant must act purposefully
but in Alaska the statute requires only that the defendant be proven to
have acted knowingly.
The actual prosecutorial work of proving
the general intent of a course of nonconsensual contact remains challenging,
but current statutory language seems adequate.
- Current state laws do not address the full range of stalking
behaviors, which may include indirect communication with the victim.
Requirements of proximity or direct contact overlook modern technologies
available to stalkers.
The means and methods of stalkers have
expanded to include new acts, including the use of new technologies. Drafters
of the proposed model act recognize that contemporary imaginations are
as ill-equipped to guess what methods will be useful to the stalker of
2021 as the legislatures of 1993 were to imagine what would be available
today.
The hypothetical example of Jan at the beginning
of this article illustrates the limitations of the current stalking statute
from a legal perspective. The story suggests new issues that may arise
in prosecuting an individual like Raymond under state stalking statutes,
particularly in light of the definition incorporated for “nonconsensual
contact.” Under Alaska’s basic definition of criminal stalking,
the stalker must be shown to have engaged in “repeated acts of any
contact with the purported victim without that person’s consent.”
The contact covered by the statute includes traditional forms recognized
early on—following or appearing within the sight of that person;
approaching or confronting that person in a public place or on private
property; appearing at the workplace or residence of that person; entering
onto or remaining on property occupied by that person; or contacting that
person by telephone. Prohibited nonconsensual contact also includes “sending
mail or electronic communications to [the victim]...[and] placing an object
on, or delivering an object to, property owned, leased, or occupied by
that person.”
In the hypothetical scenario, the only direct,
nonconsensual contact between Raymond and Jan occurred when he infiltrated
her Yahoo email account and when he interfered with her public profile
at the online dating service. The basis for this conclusion is an expansive
reading of A.S. 11.41.270(b)(3)(D) which provides that “nonconsensual
contact includes...entering onto or remaining on property owned, leased,
or occupied by [the victim].” None of the definitional sections
of the statute limits the definition of property to real property, and
the law remains unsettled as to the ownership interest one holds in one’s
property on various social networking or gaming locations on the Internet.
Furthermore, it is even less clear whether Raymond has engaged in nonconsensual
contact when he obtained access to Jan’s passwords and usernames
by walking through the open front door of her unprotected wireless connection.
Under Alaska statutes the alleged stalker
must be shown to have engaged “in a course of conduct” which
is defined as “repeated acts of nonconsensual contact involving
the victim or a family member” that recklessly place the victim
or a family member in fear of death or physical injury. The actions that
placed Jan in fear of physical injury were the arrivals on her doorstep
of three uninvited men expecting a date. These actions were set into motion
by Raymond, yet in order for the use of unwitting actors to meet the definition
of the criminal act, an Alaska court would be required to read the definition
of any act in the statutory definition of nonconsensual act
to include indirect acts.
The lack of a definition specifically including indirect conduct in the statute could possibly work against the
prosecution of the type of behavior described in the hypothetical scenario.
***
There is little doubt that Raymond is
stalking Jan. But Jan is not likely to find her peace of mind through
a criminal prosecution of Raymond for stalking. There are too many
uncertainties under the law. While Raymond acted knowingly when he engaged
in a course of conduct that included actions to which Jan did not consent,
his actions merely set the stage for the behavior that caused Jan’s
reasonable fear of physical harm. Raymond knowingly obtained Jan’s
address, but there is nothing to indicate it was obtained illegitimately.
Raymond knowingly jumped on her wireless connection, but without an adequate
firewall it was as though Jan provided the key to her front door.
All Raymond needed was her user name and password for her online dating
account and her email account; those two may have been the same.
From that point forward, everything Raymond has done is in mimicry of
Jan. He uses the online service to identify men willing to meet
her, and sends them off on faux dates to knock on her door.
In fact, only in this area, where the model
act looks to widen the reach of means and methods, is there a probable
alignment of needs between those identified nationwide in the model act
and those known here in Alaska. The Alaska statute recognizes “electronic
communications” as the basis for stalking charges but it does not
clearly contemplate indirect contacts arranged via social networking as
a course of conduct that may constitute a criminal violation. The
statute leaves open the question of whether property includes
that which exists only in a virtual state. Given these ambiguities
in statutory language brought
about by technological advances, the reach of the Alaska statutes on stalking
awaits interpretation on a case-by-case basis. The time required
for the development of case law might be well used to continue gathering
data to support a sound analysis of the efficacy of current stalking laws.
Pamela Kelly is an assistant professor
with the Justice Center and the director of its Paralegal Program.
Model
Stalking Code for the States
Section One: Legislative Intent
The Legislature finds that stalking is
a serious problem in this state and nationwide. Stalking involves severe
intrusions on the victim’s personal privacy and autonomy. It is
a crime that causes a long-lasting impact on the victim’s quality
of life, and creates risks to the security and safety of the victim and
others, even in the absence of express threats of physical harm. Stalking
conduct often becomes increasingly violent over time. The Legislature
recognizes the dangerous nature of stalking as well as the strong connections
between stalking and domestic violence and between stalking and sexual
assault. Therefore, the Legislature enacts this law to encourage effective
intervention by the criminal justice system before stalking escalates
into behavior that has serious or lethal consequences.
The Legislature intends to enact a stalking
statute that permits the criminal justice system to hold stalkers accountable
for a wide range of acts, communications, and conduct. The Legislature
recognizes that stalking includes, but is not limited to, a pattern of
following, observing, or monitoring the victim, or committing violent
or intimidating acts against the victim, regardless of the means.
Section Two: Offenses
Any person who purposefully engages in
a course of conduct directed at a specific person and knows or should
know that the course of conduct would cause a reasonable person to:
(a) fear for his or her safety or the safety
of a third person; or
(b) suffer other emotional distress
is guilty of stalking.
Section Three: Definitions
As used in this Model Statute:
(a) “Course of conduct” means
two or more acts, including, but not limited to, acts in which the stalker
directly, indirectly, or through third parties, by any action, method,
device, or means, follows, monitors, observes, surveils, threatens, or
communicates to or about, a person, or interferes with a person’s
property.
(b) “Emotional distress” means
signifi cant mental suffering or distress that may, but does not necessarily,
require medical or other professional treatment or counseling.
(c) “Reasonable person” means
a reasonable person in the victim’s circumstances.
Section Four: Defenses
In any prosecution under this law, it shall
not be a defense that:
(a) the actor was not given actual notice
that the course of conduct was unwanted; or
(b) the actor did not intend to cause the
victim fear or other emotional distress.
Optional Provisions
Section Five: Classification
Stalking is a felony.
Aggravating factors.
The following aggravating factors shall
increase the penalty for stalking:
(a) the defendant violated any order prohibiting
contact with the victim; or
(b) the defendant was convicted of stalking
any person within the previous 10 years; or
(c) the defendant used force or a weapon
or threatened to use force or a weapon; or
(d) the victim is a minor.
Section Six: Jurisdiction
As long as one of the acts that is part
of the course of conduct was initiated in or had an effect on the victim
in this jurisdiction, the defendant may be prosecuted in this jurisdiction.
Source:
National Center for Victims of Crime. (2007). The Model Stalking Code
Revisited: Responding to the New Realities of Stalking. Washington, DC.
http://www.ncvc.org/ncvc/AGP.Net/Components/documentViewer/Download.aspxnz?DocumentID=41822
Alaska
Stalking Statutes
A.S. 11.41.260–11.41.270 (2006)
Sec. 11.41.260. Stalking in the
first degree. (a) A person commits the crime of stalking in the
first degree if the person violates AS 11.41.270 and
(1) the actions constituting the offense
are in violation of an order issued or filed under AS 18.66.100–18.66.180
or issued under former AS 25.35.010 (b) or 25.35.020;
(2) the actions constituting the offense
are in violation of a condition of probation, release before trial, release
after conviction, or parole;
(3) the victim is under 16 years of age;
(4) at any time during the course of conduct
constituting the offense, the defendant possessed a deadly weapon;
(5) the defendant has been previously convicted
of a crime under this section, AS 11.41.270, or AS 11.56.740, or a law
or ordinance of this or another jurisdiction with elements similar to
a crime under this section, AS 11.41.270, or AS 11.56.740; or
(6) the defendant has been previously convicted
of a crime, or an attempt or solicitation to commit a crime, under (A)
AS 11.41.100–11.41.250, 11.41.300–11.41.460, AS 11.56.807,
11.56.810, AS 11.61.118, 11.61.120, or (B) a law or an ordinance of this
or another jurisdiction with elements similar to a crime, or an attempt
or solicitation to commit a crime, under AS 11.41.100–11.41.250,
11.41.300–11.41.460, AS 11.56.807, 11.56.810, AS 11.61.118, or 11.61.120,
involving the same victim as the present offense.
(b) In this section, “course of conduct”
and “victim” have the meanings given in AS 11.41.270 (b).
(c) Stalking in the first degree is a class
C felony.
Sec. 11.41.270. Stalking in the
second degree. (a) A person commits the crime of stalking in
the second degree if the person knowingly engages in a course of conduct
that recklessly places another person in fear of death or physical injury,
or in fear of the death or physical injury of a family member.
(b) In this section,
(1) “course of conduct” means
repeated acts of nonconsensual contact involving the victim or a family
member;
(2) “family member” means a
(A) spouse, child, grandchild, parent, grandparent,
sibling, uncle, aunt, nephew, or niece, of the victim, whether related
by blood, marriage, or adoption;
(B) person who lives, or has previously
lived, in a spousal relationship with the victim;
(C) person who lives in the same household
as the victim; or
(D) person who is a former spouse of the
victim or is or has been in a dating, courtship, or engagement relationship
with the victim;
(3) “nonconsensual contact”
means any contact with another person that is initiated or continued without
that person’s consent, that is beyond the scope of the consent provided
by that person, or that is in disregard of that person’s expressed
desire that the contact be avoided or discontinued; “nonconsensual
contact” includes
(A) following or appearing within the sight
of that person;
(B) approaching or confronting that person
in a public place or on private property;
(C) appearing at the workplace or residence
of that person;
(D) entering onto or remaining on property
owned, leased, or occupied by that person;
(E) contacting that person by telephone;
(F) sending mail or electronic communications
to that person;
(G) placing an object on, or delivering
an object to, property owned, leased, or occupied by that person;
(4) “victim” means a person
who is the target of a course of conduct.
(c) Stalking in the second degree is a class
A misdemeanor.
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