Stalking Crimes: Do Alaska Stalking Laws Serve Their Purpose
in a Wireless, Social Networking Age?

Pamela Kelley

Kelley, Pamela. (Spring 2007). "Stalking Crimes: Do Alaska Stalking Laws Serve Their Purpose in a Wireless, Social Networking Age?" Alaska Justice Forum 24(1): 2–5. Alaska adopted a stalking statute in 1993. More than a decade later, the National Center for Victims of Crime empanelled a Model Stalking Code Advisory Board to evaluate stalking legislation throughout the United States. 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 suggested statutory update and explores whether a needs exists in Alaska warranting revision of Alaska’s criminal statutes.

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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.