CHAPTER IX: STALKING

CHAPTER IX: STALKING IX -1 CHAPTER IX: STALKING A. Chapter Contents... 1 B. Chapter Goals... 3 C. Harassment Crimes... 3 1. Harassment... 3 2. Statutory Definition of Harassment... 3 3. Elements of Harassment... 4 D. Stalking Crimes... 5 1. Stalking... 5 2. Statutory Definition of Stalking... 5 3. Elements of Stalking... 6 4. Stalking Cases... 7 E. Grading, Counts, and Sentencing in Stalking and Harassment Cases... 10 1. Grading of Harassment Cases... 10 2. Grading of Stalking Cases... 11 3. Each Act Counts as a Charge After Second Incident Occurs... 11 F. Venue for Stalking Offense Prosecutions... 12 G. Stalking and Harassment in PFA Cases... 13 1. Stalking as Abuse... 13 2. Stalking as Prohibited Behavior... 13 3. PFA Stalking Case Law... 13 H. Federal Stalking Laws... 14 1. Interstate Stalking... 14 2. Interstate Violations of Protection Orders... 15 I. Other Relevant Information... 15 1. Prevalence of Stalking... 15 2. Stalking Is Mostly Perpetrated by Intimate Partners... 15 3. Relationship Between Stalking and Physical and Sexual Abuse... 16 4. Link Between Stalking and Other Forms of Abuse... 16 5. Stalking Behavior Is Intended to Intimidate Victims... 16 6. Technology-Aided Stalking... 17 7. Cyberstalking... 17

IX -2 8. Stalking Using the Civil Court Process... 18 9. Stalking Is Under-Reported... 18 10. The Aftermath of Stalking Is Long-Lasting... 19 J. Emerging Practices Justice System Sees Only the Tip of the Stalking Iceberg... 19 K. Emerging Practices Stalking Violence Is Often Preceded by Threats... 20 L. Emerging Practices Pennsylvania Court Authority to Protect Against Stalking... 20 M. Emerging Practices Criminal Prosecution May Be More Effective Against Stalkers... 21

CHAPTER IX: STALKING IX -3 B. Chapter Goals Stalking and harassment are criminal activities that are under-reported, but are frequently associated with domestic violence. In addition to being a crime, stalking behavior meets the definition of abuse under the PFA Act; stalking alone can support a PFA order. This chapter reviews civil and criminal stalking and harassment statutes and case law. Relevant information about stalking is provided, including its prevalence, dangerousness, and the use of technology-aided stalking. C. Harassment Crimes 1. Harassment Harassment and stalking are separate but related offenses. Statutorily, harassment used to be a lesser-included offense of stalking; it is now a separate offense. While both statutes address stalking-related behavior, they differ in the amount of activity required and the intent necessary. 2. Statutory Definition of Harassment According to the Pennsylvania Crimes Code, harassment is defined as follows: A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: (1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same; (2) follows the other person in or about a public place or places; (3) engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose; (4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures; (5) communicates repeatedly in an anonymous manner; (6) communicates repeatedly at extremely inconvenient hours; or (7) communicates repeatedly in a manner other than specified in paragraphs (4), (5) and (6). 1 Communicates and Course of Conduct for the harassment crime are defined as follows: "Communicates." Conveys a message without intent of legitimate communication or address by oral, nonverbal, written or electronic means, including telephone, electronic mail, Internet, facsimile, telex, wireless communication or similar transmission. 2 1 18 PA. C.S. 2709(a). 2 Id. (emphasis added.)

IX -4 "Course of conduct." A pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct. Acts indicating a course of conduct which occur in more than one jurisdiction may be used by any other jurisdiction in which an act occurred as evidence of a continuing pattern of conduct or a course of conduct. 3 3. Elements of Harassment a. Shoving, hitting, kicking constitute harassment A harassment conviction may be sustained if the Commonwealth establishes that the perpetrator strikes, shoves, kicks or otherwise subjects the victim to physical contact, or attempts or threatens to do the same, with the intent to harass, annoy, or alarm the victim. In Commonwealth. v. Kirwan, the court found that the defendant picking up his wife and throwing her to the ground was sufficient proof of physical contact and the requisite intent to sustain a harassment conviction. 4 b. Course of conduct with intent to alarm, annoy, or harass constitutes harassment The harassment statute bans a course of conduct that is carried out by the perpetrator, which has no legitimate purpose, is done with the intent to harass, annoy, and alarm the victim and which would alarm or seriously annoy the average individual. 5 For example, in Commw. v. Barzyk, the Superior Court upheld the harassment conviction of a man who played an audiotape of pig noises at a high volume whenever his ex-wife visited the man s neighbor. 6 Repeated inconvenient phone calls and insulting noises intended to annoy constitute harassment. The man constantly ridiculed his ex-wife whenever she passed by his home to pick up their daughter at a bus stop and the defendant frequently telephoned the victim and made pig noises. The court held that the defendant s behavior constituted a course of conduct prohibited under the statute. 7 c. Lewd or obscene communications The harassment statute prohibits communications that contain lewd or obscene language that are used to harass, annoy, and alarm victims. 3 18 PA. C.S. 2709(f) (emphasis added). 4 Commw. v. Kirwan, 847 A.2d 61 (Pa. Super. 2004). 5 See Commw. v. Evans, 445 A.2d 1255 (Pa. Super. 1982). 6 Commw. v. Barzyk, 692 A.2d 211 (Pa. Super. 1997). 7 Id. at 214-215.

CHAPTER IX: STALKING IX -5 d. Anonymous or inconvenient hour calls The harassment statute proscribes anonymous communications and late-hour communications designed to harass a victim. For example, a string of 2:00 a.m. telephone calls from a husband to his estranged wife or a pattern of one party hanging up when the other party answers the telephone would justify a conviction under these provisions. e. Following the victim The harassment statute prohibits the following of another person in or about public places. This section should not be confused with section 2709.1, stalking. 8 While both statutes address stalking-related behavior, the two statutes differ in the amount of activity necessary to justify a conviction, the intent required, and the grading of the offenses. More specifically, a violation of the harassment statute may occur with a single following incident, whereas the stalking statute requires a course of conduct. The harassment statute requires the intent to harass, annoy, or alarm. The stalking statute requires the intent to place the victim in reasonable fear of bodily injury or to cause substantial emotional distress to the victim. Finally, stalking offenses carry far greater penalties than harassment offenses because stalking offenses carry a higher grading. D. Stalking Crimes 1. Stalking Pennsylvania s stalking statute is an expanded version of the stalking provisions previously contained in the harassment statute. The language of the new statute simply expands upon the prior stalking provisions of 18 Pa. C.S. 2709. Therefore, the cases interpreting the previous statute remain relevant. 2. Statutory Definition of Stalking According to the Pennsylvania Crimes Code: A person commits the crime of stalking when the person either: (1) engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person; or (2) engages in a course of conduct or repeatedly communicates to another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person. 9 8 18 PA. C.S. 2709.1. 9 18 PA. C.S. 2709.1(a).

IX -6 The stalking statute contains the following definitions: "Communicates." To convey a message without intent of legitimate communication or address by oral, nonverbal, written or electronic means, including telephone, electronic mail, Internet, facsimile, telex, wireless communication or similar transmission. "Course of conduct." A pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct. The term includes lewd, lascivious, threatening or obscene words, language, drawings, caricatures or actions, either in person or anonymously. Acts indicating a course of conduct which occurs in more than one jurisdiction may be used by any other jurisdiction in which an act occurred as evidence of a continuing pattern of conduct or a course of conduct. "Family or household member." Spouses or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood. 10 3. Elements of Stalking a. Course of Conduct The stalking statute proscribes a course of conduct, including following a person without authority, with the intent to place the victim in fear of bodily injury or to cause the victim substantial emotional distress. Because this section requires a course of conduct, the first incident of a The second of two related, but separate events triggers stalking course of conduct, each is a certifiable stalking count. perpetrator following a victim or undertaking some other act would not give rise to a stalking violation. Instead, the first incident would be actionable as a harassment violation under section 2709. 11 Since course of conduct has been generally regarded as two or more acts, once a perpetrator commits a second act that qualifies under the statute, a stalking violation has occurred. 12 10 18 PA. C.S. 2709.1(f). The definition of family or household member is included in the stalking statute because the statute incorporates higher grading offenses following a crime of violence against the same victim, family, or household member. 11 18 PA. C.S. 2709. 12 When the second act occurs, each act, including the first, is capable of sustaining a separate stalking charge and verdict. See Commw. v. Leach, 729 A.2d 608 (Pa. Super. 1999).

CHAPTER IX: STALKING IX -7 b. Stalking includes, but is not limited to, following a person The stalking definition clarifies that the prohibited behavior is not limited to simply following a victim. Any behavior that is accompanied by the requisite intent can be used to justify a stalking violation. For example, repeatedly appearing at a victim s home may constitute stalking. 13 c. Repeated unwanted communications prohibited Under the stalking statute, a course of conduct is a pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct. Course of conduct includes lewd, lascivious, threatening or obscene words, drawings, caricatures or actions either in person or anonymously. 14 The Pennsylvania Superior Court has determined that for purposes of the stalking statute, a course of conduct is established by two (2) related, but separate events and the elements of stalking are not established until the occurrence of a second prohibited act. 15 After that second act, each act of stalking, including the first, is a certifiable count, capable of sustaining a separate conviction and sentence. Each act constituting the course of conduct leading to arrest and trial is not merely cumulative evidence of stalking but stalking in and of itself. Therefore, a defendant can be charged, convicted, and sentenced for each act. 16 4. Stalking Cases a. Prior bad acts may be admissible as elements of stalking crime Although evidence of prior bad acts is generally not admissible if offered merely to show bad character or a propensity for committing bad acts, an exception to this rule exists in those instances where the evidence is relevant for some other legitimate purpose and not designed generally to prejudice the defendant by showing him to be a person of bad character. In stalking cases, prior bad acts are usually elements of the crime of stalking and such evidence can be admitted. For example, in Commonwealth v. Davis, as part of the evidence in the defendant s stalking trial, the court allowed testimony from a police officer that he had filed criminal charges against Davis for reckless driving which targeted the stalking victims. 17 Trial testimony indicated that the defendant, Davis, had engaged in domestic violence against Kelly Kraycar for many years. The parties were also engaged in a bitter and protracted custody dispute. After years of threats, following behavior, and Davis attempt to run over Kraycar, her new 13 See, e.g., Commw. v. Roefaro, A.2d 472 (Pa. Super. 1997) (stalking conviction upheld where defendant repeatedly left gifts and notes for the victim at her sister s house). 14 18 PA. C.S. 2709(f). 15 Commw. v. Leach, 729 A.2d 608 (Pa. Super. 1999). 16 Id. 17 Commw. v. Davis, 737 A.2d. 792 (Pa. Super. 1999).

IX -8 husband and daughter with his car, the Kraycars filed stalking charges. During the stalking trial, the jury heard from Ms. Kraycar that she had separated from Davis three years earlier because he was very physically and mentally abusive. She testified that after the separation the abuse escalated; Davis frequently telephoned her, calling her names, cursing at her, threatening to break her legs, and threatening to kill her. Even though Kraycar moved several times, obtaining an unlisted telephone number on each occasion, Davis obtained her new number and located her repeatedly. Ms. Kraycar eventually decided to disconnect the telephone and live without phone service to prevent Davis from repeatedly contacting her and issuing death threats. Davis and Kraycar had two children; the children each testified that Davis abused them when they refused to provide information regarding Kraycar s address. Ms. Kraycar and her new husband, Keith Kraycar, each testified that they repeatedly found signs near their vehicle and home that an unidentified person had been there. They observed Davis car parked outside their home on many occasions. The Kraycars moved seven times in two years, seeking to avoid Davis. Ultimately, Davis committed acts that led to criminal charges. The Kraycars were walking their baby in a stroller and Davis drove by three times in succession. The first time, Davis laughed and held up his middle finger at them; the second time Davis spat at them. On the third pass, Davis swerved the car toward them, hit the gas hard and came at the Kraycars very quickly. The Kraycars jumped out of the way. 18 The Kraycars reported Davis behavior to the police, who filed reckless driving charges against Davis. The Kraycars also filed a stalking complaint. At the stalking trial, the police officer who filed the Evidence of prior bad acts may be admissible as an element of stalking. reckless driving charge against Davis for the swerving incident testified about the reckless driving charge. Davis was convicted of stalking and appealed, claiming that the police officer s testimony regarding the reckless driving charge was unfairly prejudicial in the stalking case. Observing that the trial court properly instructed the jury that they did not need to pay any attention to the charge relating to Davis reckless driving, but that they should pay attention to the events that occurred that day, the Pennsylvania Superior Court held that the information regarding the reckless driving incident was properly before the jury and its admission in the stalking case was not unduly prejudicial. 19 18 Id. 19 Id. at 797-98.

CHAPTER IX: STALKING IX -9 b. Civil PFA order as part of course of conduct A civil PFA order can also be evidence of part of the course of conduct necessary to sustain a stalking conviction. For example, in Commonwealth v. Urrutia, the defendant, Urrutia, had been involved in a long-term relationship with Denise Thompson. 20 The parties had two children, and subsequently separated. Following the separation, the trial court granted Thompson s request for a PFA. On at least two occasions thereafter, Urrutia came to Thompson s home and exhibited violent behavior, and in one instance, injured a neighbor s child. Subsequently, Urrutia again came to Thompson s home, becoming violent and threatening to kill her. Urrutia fled when the police arrived, but returned later when he believed the police had gone. In fact, the police had merely circled the block and arrested Urrutia after he again exhibited explosive behavior. The Superior Court observed that the purpose of Pennsylvania s stalking law was to provide increased protection against certain types of predatory behavior, and noted that stalking often is a precursor to increased violence and even homicide. 21 The court also reviewed stalking conduct as the basis for the issuance of a civil PFA order with warrantless arrest if probable cause exists. The legislative scheme, both civil and criminal, was an attempt to interrupt as early as possible the escalating cycle of violence. 22 c. Stalking actions in other jurisdictions as course of conduct Stalking actions in other states followed by an act in Pennsylvania may constitute part of the course of conduct necessary to support a stalking charge in Pennsylvania, as in Commonwealth v. Guisto. 23 In Guisto, after following his ex-wife for six years in Connecticut, Maine, and New Hampshire, the defendant arrived uninvited at her apartment in Pennsylvania. Defendant threatened his ex-wife to gain access to her home and, once inside, raped her. In addition to other charges, defendant was charged with stalking. The trial court dismissed this stalking charge, reasoning that it did not have jurisdiction over defendant s out-of-state activities that constituted part of the course of conduct necessary for a stalking charge. Course of conduct can include stalking in other states together with stalking in Pennsylvania. The Superior Court reversed, holding that acts committed out of state could be used in conjunction with the act occurring in Pennsylvania as evidence of the course of conduct necessary to sustain a stalking charge in Pennsylvania. 24 20 Commw. v. Urrutia, 653 A.2d. 706 (Pa. Super. 1995). 21 Id. at 707. 22 Id. 23 Commw. v. Guisto, 810 A.2d 123 (Pa. Super. 2002). 24 Id.

IX -10 d. Separate stalking instances may occur over a short period Two instances of stalking may occur over a very short period of time. For example, in Commw. v. Johnson, the defendant threatened the victim, his former intimate partner, and she obtained a PFA order. 25 Months later, the defendant followed the victim and her mother home from work one day and made obscene gestures from his car. The victims went to the police station, made a report, and returned home. Upon arriving, the victim saw the defendant fleeing from her dwelling, and she saw his car parked outside. The defendant claimed that these two actions were part of one continuous event, and did not constitute a course of conduct. The lower Two incidences over a period of time, however short, may constitute stalking course of conduct. court found defendant guilty of stalking. The Superior Court affirmed the conviction, finding that defendant s actions constituted a course of conduct. 26 The court found that two events occurred on the day defendant followed the victim; each was distinct in nature (in a vehicle and on foot) and in time (before and after the report at the police station). 27 E. Grading, Counts, and Sentencing in Stalking and Harassment Cases 1. Grading of Harassment Cases Harassment may be a summary offense or a third degree misdemeanor depending on the nature of the harassing activity involved. The harassment crime is graded a summary offense when a defendant, with the intent of harassing, annoying, or alarming another, engages in a course of conduct, follows another person, or strikes, shoves, kicks or subjects another to physical contact or attempts to strike, shove or kick another. 28 The harassment is graded a third degree misdemeanor when the harassing activity involves: communicating to or about another person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures; communicating repeatedly in an anonymous manner; communicating repeatedly at inconvenient hours; or communicating repeatedly in some other way. 29 Furthermore, the statute provides that the grading will be enhance by one degree if the perpetrator has previously violated an order for protection under the PFA Act involving the same victim or household member. 30 25 Commw. v. Johnson, 768 A.2d 1177 (Pa. Super. 2001), reversed on other grounds, 828 A.2d 1009 (Pa. 2003). 26 Id. 27 Id. 28 18 PA. C.S. 2709(a)(1)-(3), (c)(1). 29 18 PA. C.S. 2709(a)(4)-(7), (c)(1). 30 18 PA. C.S. 2709(c)(3).

CHAPTER IX: STALKING IX -11 2. Grading of Stalking Cases Stalking can be graded as a misdemeanor of the first degree or a felony of the third degree. A first stalking offense constitutes a misdemeanor of the first degree, unless the defendant was previously convicted of a crime of violence involving the same victim, family, or household member. 31 In Commonwealth v. Bortz, the Pennsylvania Supreme Court found that a firsttime offender under the stalking statute could be charged with a felony of the third-degree because of a prior violation of a PFA order. 32 Lori Nester terminated her romantic relationship with Bortz and he began to threaten her. Nester obtained a PFA order against Bortz and he was subsequently convicted of indirect criminal contempt for violations of the protection order that included phone calls and delivering love letters to Nester. 33 Bortz was charged with one count of stalking graded as a third-degree felony, among other charges, after he confessed to ringing Nester s doorbell and spraying a white foamy substance on her care. 34 A jury convicted Bortz on all counts and he was sentenced to 15 to 84 months on the stalking conviction. Bortz challenged the grading of his stalking charge, asserting that his conviction for violating the PFA order did not constitute a crime of violence contemplated by the stalking statute because his violation involved sending love letters and no violent acts. 35 The Supreme Court upheld the conviction and found that the statutory language was clear and free from ambiguity and specifically enumerated the violation of a PFA order as a crime of violence. 36 A second stalking offense or a stalking offense following conviction for a crime of violence against the same victim, family, or household member constitutes a third degree felony. 37 Repetitiveness of stalking demonstrates defendant s obsession and heightens victim s fear, [which] often reveals escalation of violence. Separate counts and sentencing for each act are justified. 3. Each Act Counts as a Charge After Second Incident Occurs Each event in the stalking course of conduct may support a separate stalking charge. Standing alone, the first event in the course of conduct does not constitute stalking; a second event must occur. However, once the second event occurs, the first and second incidents are each considered separate stalking incidences. 31 18 PA. C.S. 2709.1(c)(1). 32 Commw. v. Bortz, 909 A.2d 1221 (Pa. 2006). 33 Id. at 1222. 34 Id. 35 Id. 36 Id. at 1223. 37 18 PA. C.S. 2709.1(c)(2).

IX -12 After the second act occurs, each act of stalking, including the first, is a certifiable count, capable of sustaining a separate conviction and sentence. In Commonwealth v. Leach, following the entry of a PFA order against him, the defendant vandalized the victim s vehicle on nine separate occasions in a fivemonth period. 38 One incident was caught on surveillance videotape. The defendant was found guilty of nine counts of stalking. In addition, the court found him guilty of contempt for violation of the PFA order and for nine counts of criminal mischief. Leach was sentenced to two and one-half to five years imprisonment followed by an eight-year term of probation. On appeal, Leach argued that his nine separate acts of vandalism constituted only one act of stalking, and that accordingly, his sentence was excessive. The Pennsylvania Superior court rejected this argument, finding that after the second necessary act occurs, the first, the second, and any additional acts are part of the course of conduct and are, by definition, stalking. Each act forms the basis for an independent charge, conviction, and sentence. The court found that Leach was properly convicted of the nine acts of stalking, observing: Each time a stalker commits an act, as part of an established course of conduct, under circumstances demonstrating an intent to place the victim in fear of bodily injury or to cause the victim substantial emotional distress, the fear and emotional distress increases. (sic) The repetitiveness of stalking acts is indicative of the defendant s unrelenting obsession with the victim and often reveals an escalation of violence. For these reasons, it is essential that each stalking act, which is included in an established course of conduct, be a separate offense, punishable with an individual sentence. 39 F. Venue for Stalking Offense Prosecutions Venue for prosecuting a stalking offense lies in either the jurisdiction where a communication is initiated or the jurisdiction where it is ultimately received. 40 In addition, acts constituting a course of conduct that occur in more than one jurisdiction may be used in any of the jurisdictions as evidence of a continuing course of conduct. 41 Evidence of acts performed in other jurisdictions may be used as evidence of a continuing pattern or course of conduct. A perpetrator who stalks a victim in another state before engaging in an act of stalking in Pennsylvania can immediately be prosecuted for stalking, because the prior acts committed elsewhere are admissible to form the requisite course of conduct to support a conviction. The police and victim do not have to wait for a second incident in Pennsylvania before filing stalking charges. 42 38 Commw. v. Leach, 729 A.2d 608 (Pa. Super. 1999). 39 Id. at 612-13. 40 18 PA. C.S. 2709.1(b)(1). 41 18 PA. C.S. 2709.1(b)(2). 42 See Commonwealth v. Guisto, 810 A.2d 123 (Pa. Super. 2002).

CHAPTER IX: STALKING IX -13 G. Stalking and Harassment in PFA Cases 1. Stalking as Abuse The PFA Act defines stalking as one form of abuse that, alone, can Stalking alone can support a PFA order. establish a basis for a PFA order, and distinguishes the stalking activity necessary to support a PFA order from criminal stalking behavior. Stalking as defined in the PFA Act is: Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses). 43 2. Stalking as Prohibited Behavior The relief section of the PFA Act allows a judge to direct a defendant to refrain from stalking or harassing the plaintiff and other designated persons. 44 3. PFA Stalking Case Law There are few reported PFA cases involving stalking. a. Repeated calls and e-mails Repeated calls and threatening e-mails can support a PFA order. In R.G. v. T.D., a case involving college students, the plaintiff claimed that defendant, her former boyfriend, made repeated unwanted phone calls, sent e-mails, and informed plaintiff that she was the object of his obsessive-compulsive disorder. 45 One of the e-mail messages included the statement, You are not answering me, you ll die. 46 Plaintiff testified that she adamantly insisted that defendant stop contacting her, yet he refused, and his increasingly hostile messages made her very scared. The trial court entered a PFA order and the defendant appealed. On appeal, the Superior Court affirmed the trial court, holding that defendant s repeated acts placed plaintiff in reasonable fear of bodily injury. 47 b. Repeated calls, threats against others Where repeated calls and threats toward others do not cause fear, a PFA order may not be sustained. In D.H. v. B.O., the plaintiff alleged that defendant, his 43 23 PA. C.S. 6102 (a)(5). 44 23 PA. C.S. 6108(a)(9). 45 R.G. v. T.D., 672 A.2d 341 (Pa. Super. 1996). 46 Id. at 342. 47 Id. at 342.

IX -14 former homosexual lover and roommate, left several disturbing messages on plaintiff s voicemail at work while plaintiff was away on vacation. 48 Plaintiff terminated his relationship with defendant. Defendant then telephoned plaintiff 13 times over the next five days. These phone calls were characterized by plaintiff as the defendant s effort to repair the relationship. Plaintiff did not testify about being in fear of defendant, even though defendant threatened to strangle plaintiff s boss, and to expose potentially damaging financial information about plaintiff s employer. The trial court entered the PFA order, but on appeal the Superior Court reversed, citing plaintiff s lack of fear of defendant and defendant s lack of threats toward plaintiff. 49 c. Course of Conduct Where the plaintiff provided ample testimony of the defendant s course of conduct that caused her reasonable fear of bodily injury, the Superior Court upheld the entry of a PFA order. 50 In Mescanti v. Mescanti, the trial court entered a PFA order on behalf of a wife against her husband. She testified that defendant had instigated fights; prevented her from leaving; woken her from sleep (so that she hadn t slept without interruption in months); hacked her email; gone through her pockets, purse, car and cell phone logs; followed her when she was out with friends; and written her letters that he loved her and didn t want to lose her and could not live without her. After arguments he would disappear into the parties basement where she would hear the sound of a gun cocking. 51 H. Federal Stalking Laws 1. Interstate Stalking In addition to violating state criminal law, some stalking cases can be federally prosecuted. The federal crime of interstate stalking makes it illegal for a perpetrator to cross state lines with the intent to injure or harass another person, and, in the course of such travel, to place that person (or a spouse, intimate partner, or other member of that person s immediate family) in reasonable fear of death or serious bodily injury. 52 This crime does not require a relationship between the perpetrator and victim, so it covers both stranger stalking and intimate partner stalking. It is also a federal crime under the Interstate Domestic Violence Act to travel between states or to enter an Indian territory with the intent to kill, injure, harass, or intimidate an intimate partner, if during this travel the perpetrator commits a 48 D.H. v. B.O., 734 A.2d 409 (Pa. Super. 1999). 49 Id. at 411-12. 50 Mescanti v. Mescanti, 956 A.2d 1017 (Pa. Super. 2008). 51 Id. 52 18 U.S.C. 2261(a).

CHAPTER IX: STALKING IX -15 violent crime that causes bodily injury. This crime does not include stranger stalking or violence, but it does cover both violence and stalking committed against an intimate partner. 53 2. Interstate Violations of Protection Orders Another federal action involves the crime of interstate violation of a protective order, 54 which prohibits a person from violating a valid protection order by carrying out credible threats of violence, constant harassment, or causing bodily injury during the course of interstate travel, (including entry or departure from Indian territories). This act covers all protection orders, whether issued against an intimate partner under state domestic violence law, or a stranger under state stalking law. Full faith and credit provisions of the Violence Against Women Act (VAWA) require all courts and Indian tribes to honor all valid protection orders issued by any other state or tribal court. 55 VAWA Full Faith and Credit requires courts to honor all valid protection orders issued by another state or tribal court. I. Other Relevant Information 1. Prevalence of Stalking The National Violence Against Women Survey, a comprehensive survey of 8,000 men and 8,000 women by the National Institute of Justice and the Centers for Disease Control and Prevention (National Survey), found that 8% of the women and 2% of the men said they had been stalked at some point in their lives. In most cases, stalking episodes lasted a year or less, but sometimes continued for more than five years. Researchers estimate that 1,000,000 women and 400,000 men are stalked in the U.S. annually. 56 2. Stalking Is Mostly Perpetrated by Intimate Partners Perhaps due to news media accounts of celebrity stalking incidents, including some that end in murder, the public is likely to regard stalking as a crime perpetrated by strangers. One of the most valuable lessons about stalking that research has to offer is that this behavior is a weapon used by perpetrators of domestic violence. 57 Although stalking is also used to harass celebrities and other strangers, those cases are relatively rare compared to stalking cases between intimate partners. While stranger and celebrity stalking are valid public concerns, stranger stalking is the least likely form of the crime, at least for women. 53 18 U.S.C. 2261. 54 18 U.S.C. 2262. 55 18 U.S.C. 2265. 56 Patricia Tjaden, U.S. Dep t of Justice, The Crime of Stalking: How Big Is the Problem? 1 (1997), available at http://www.ncjrs.gov/pdffiles/fs000186.pdf. 57 Id. at 1-2.

IX -16 Women are significantly more likely to be stalked by an intimate partner a spouse, former spouse, cohabitant, or date than by someone unknown to them. Only 21% of female victims identified their stalkers as a stranger. Men, however, reported substantially higher rates of stranger stalking. About 87% of all stalkers are male. 58 About 80% of all stalking victims are female. 59 Most victims of stalking are between the ages of 18 and 29 when the stalking started. 60 3. Relationship Between Stalking and Physical and Sexual Abuse There is compelling evidence of the link between stalking and other forms of violence. According to the National Survey mentioned previously, 81% of women stalked by a current or former intimate partner are also physically assaulted by that partner. 61 31% of women stalked by a current or former intimate partner are also sexually assaulted by that partner. 62 Compared to statistics from the general population, husbands or intimates who stalk their partners are four times more likely than husbands or intimates in the general population to physically assault their partners, and they are six times more likely to sexually assault their partners. 63 4. Link Between Stalking and Other Forms of Abuse The National Survey also provides compelling evidence of the link between stalking and controlling and emotionally abusive behavior in intimate relationships. According to the National Survey, intimate partners who stalked were significantly more likely to engage in emotionally abusive and controlling behavior than former intimates who did not stalk. 64 Such behaviors included jealousy and possessiveness, isolating behaviors, insistence on constantly knowing victim whereabouts, preventing victim from knowing about or having access to family income, and preventing victim from working outside the home. 65 5. Stalking Behavior Is Intended to Intimidate Victims Unlike many other criminal offenses, stalking is distinguished by recurrence and persistence. Stalking, like most domestic violence, is in effect, a serial crime, but it is a serial crime against one victim. Unlike most other crime victims, stalking victims are subjected to a pattern of crimes over an extended period of time. Victims of stalking, both men and women, reported that the person stalking them behaved in ways that induced fear, even when the stalker did not make overt 58 Id. 59 Id. 60 Id. 61 Patricia Tjaden and Nancy Thoennes, Nat l Institute of Justice and Centers for Disease Control & Prevention, Stalking in America: Findings From The National Violence Against Women Survey 1, 8 (1998). 62 Id. 63 Id. 64 Id. 65 Id. at 9.

CHAPTER IX: STALKING IX -17 threats. 66 Victims asserted that controlling the victim, keeping the victim in the relationship and scaring the victim were the primary reasons for stalking. 67 6. Technology-Aided Stalking Computer and telephone technology have provided new opportunities for stalkers. Stalkers use e-mail, the Internet, chat rooms, Web sites, cell phones, tiny digital and video cameras, and global positioning systems (GPS) to stalk their victims something few could have foreseen years ago when stalking statutes were first enacted. Stalkers may use hightech tools to frighten and control victims: e-mail, Internet, chat rooms, cell phones, miniature cameras and GPS tracking. Abusers are using wireless technologies to aid their efforts to track and control their intimate partners activities through high-tech eavesdropping, home monitoring, and tracking the movements and locations of the victims. Although there are currently no empirical studies measuring this technology misuse, anecdotal stories abound. For example, some abusers install GPS technology in their victims cars. 68 These systems cost less than $500 and are accurate enough to pinpoint a vehicle s exact location. 69 Abusers also use high-tech eavesdropping in their stalking efforts. In H.E.S. v. J.C.S., the husband s hidden placement of a tiny microchip video surveillance camera and microphone in a picture in his wife s bedroom constituted stalking behavior which supported a protective order. 70 7. Cyberstalking Cyberstalking, generally, is the use of the Internet, e-mail, or other electronic communication devices to stalk another person. Cyberstalking shares important characteristics with offline stalking in that cyberstalkers are similarly motivated by a desire to control the victim. In many cases, cyberstalking begins when the victim attempts to terminate the victim s relationship with an intimate partner. 71 One cyberstalker retaliated against a woman who had rejected his romantic advances by impersonating her in various Internet chat rooms and bulletin boards where he posted, along with her telephone number and address, messages that she fantasized about being raped. In response, on at least six occasions men came to her door 66 Tjaden & Thoennes, supra note 61, at 7. 67 Id. 68 Michael Rosenwald, Every Step You Take Every Move You Make My GPS Unit Will Be Watching You, POPULAR SCIENCE (2004), available at http://www.popsci.com/scitech/article/2004-11/every-stepyou-take-every-move-you-make-my-gps-unit-will-be-watching-you. 69 Id. 70 H.E.S. v. J.C.S., 815 A.2d 405, 416-18 (2003). 71 U.S. DEP T OF JUSTICE, CYBERSTALKING: A NEW CHALLENGE FOR LAW ENFORCEMENT & INDUSTRY, REPORT FROM THE ATTORNEY GENERAL TO THE VICE PRESIDENT (1999), available at https://www.ncjrs.gov/app/publications/abstract.aspx?id=179575.

IX -18 offering to take her up on her rape fantasy offer. The cyberstalker was caught and pleaded guilty to one count of stalking and three counts of solicitation of sexual assault. 72 The anonymity of the Internet makes it easier for cyberstalkers to conceal their true identity by using different Internet Service Providers and adopting screen aliases. Experienced cyberstalkers may use anonymous e-mailers that make it very difficult to determine the true source of the e-mail. Cyberstalking is a growing threat. For example, in 1999, the Los Angeles District Attorney s Office estimated that e-mail or other electronic communications were a factor in approximately 20% of the 600 cases handled by its stalking unit. 73 The Sex Crimes Unit chief in Manhattan s District Attorney s office also estimated that cyberstalking was involved in 20% of the cases handled by their unit in 1999. 74 8. Stalking Using the Civil Court Process Cases involving intimate partner stalkers are more complicated if the stalker and victim share children. In these situations, persons who engage in stalking behavior may attempt to use legitimate court processes, such as custody proceedings, in their efforts to maintain contact, intimidation, and control over the victim. Such an individual may vehemently oppose custody exchange facilitated by a third party, may argue against custody exchange in a neutral location, or may file repeatedly for different custody or visitation arrangements. 75 9. Stalking Is Under-Reported The prospect of being stalked pursued, spied upon, threatened is so unnerving that most people might assume it is always reported to law enforcement authorities. Who would not want police help when harassed? So it is surprising how rarely stalking victims actually inform authorities about such crimes. In a nationwide study: [O]nly 55% of women victims and 48% of men victims reported the stalking to the police. The three reasons most often cited by those who did not report were that it was not a police matter, that the police couldn t do anything, or that the victims were afraid of reprisals by the stalker.... Women victims were much more likely than men to obtain restraining orders (28% as opposed to 10%), but 69% of women and 81% of men who received restraining orders reported that the stalker had subsequently violated the order. 76 72 Id. 73 Id. 74 Id. 75 Paul Mullen & Michelle Pathe, Stalking, 2002 CRIME & JUSTICE 273, 291 (2002). 76 Clare Dalton & Elizabeth M. Schneider, Stalking and Domestic Violence, BATTERED WOMEN AND THE LAW 665, 668 (2001); see also Tjaden & Thoennes, supra note 61, at 9-10.

CHAPTER IX: STALKING IX -19 10. The Aftermath of Stalking Is Long-Lasting Victims report that they were stalked, on average, for one to two years, but that the consequences continued much longer. 77 Targets of stalking are forced to change their lifestyle and suffer feelings of helplessness, anger, frustration, and depression. 78 They must take extra precautions, change addresses, and may even choose to carry a weapon in the hope of self-protection. 79 One-third of victims report they have sought psychological treatment as a result of being stalked. 80 7% said they never returned to work. 81 One study found deleterious effects on the victim s psychological and social functioning in virtually all cases. 82 Increased anxiety, sleep disturbance, significant depression, and suicidal ruminations were common, with the majority of victims having symptoms of a post-traumatic stress disorder. 83 The reasons victims thought the stalking stopped included police involvement (15%) and their own relocation (20%). 84 Female victims reported that stalking often ceased when their stalker entered into a new relationship. 85 J. Emerging Practices Justice System Sees Only the Tip of the Stalking Iceberg Stalking is under-reported. As discussed above, for reasons of privacy, fear of reprisal, and lack of faith in law enforcement, only 55% of all female stalking victims report to the police that they are being stalked. 86 Of the reports filed, only 25% of victims said that their case was prosecuted. 87 Of those stalkers who are prosecuted, only half are convicted, and about twothirds of those convicted are sentenced to jail time. 88 To encourage safety, it is important that judges understand and not minimize the prevalence, likelihood, and effect of stalking behavior. Civil protection order enforcement is particularly important for those victims obtaining protection orders. According to a Department of Justice study, only half of the women who filed stalking reports said they were satisfied with police response, and that their situation improved as a result of their decision to report the stalking. The same 77 Tjaden & Thoennes, supra note 61, at 11-12; see also Mullen & Pathe, supra note 75, at 273, 296-298. 78 Tjaden & Thoennes, supra note 61, at 11. 79 Id. at 13. 80 Id. at 2, 11. 81 Id. at 11. 82 Mullen & Pathe, supra note 75, at 278. 83 Id. 84 Tjaden & Thoennes, supra note 61, at 11-13. 85 Id. 86 Tjaden, supra note 56. 87 Id. 88 Id.

IX -20 victims rated court response slightly higher, at 60% satisfaction. However, researchers observe that: The response of the judicial system does not always live up to the victim s expectations, as victims are confronted by lawyers, magistrates, and judges who are ignorant of stalking issues and who trivialize the stalker s actions. This has led to calls for comprehensive training for those who work in these areas in the special needs of the victims of prior intimate stalking. 89 K. Emerging Practices Stalking Violence Is Often Preceded by Threats Verbal or written threats of harm may precede a stalking attack. Studies reveal that approximately half of all stalkers threaten the victim, the incidence being higher among those with a prior intimate relationship with the victim or those with a real or imagined injury related to a business or professional relationship. The majority of those individuals who make such threats do not subsequently commit violence. Nonetheless, threats by stalkers should be taken seriously, as those who commit assaults have usually issued prior warnings. 90 So, how can a victim or police officer or judge evaluate the seriousness of threats made in a stalking case? One research team that has studied the correlation between threats and attacks suggests that: [T]hreats should be regarded as promises. Like many promises, not all are fulfilled, but, nevertheless, they should be accepted as a commitment to future action until proved otherwise. Most stalkers who assault give warnings of their intentions by threatening. Threats in the stalking context should always be taken seriously. Quite apart from being a warning, threats are, in and of themselves, acts of violence issued to frighten and intimidate. 91 L. Emerging Practices Pennsylvania Court Authority to Protect Against Stalking In addition to stay-away and do not stalk conditions in bail and probation or parole orders, courts may issue anti-stalking protection orders pursuant to Pennsylvania s PFA Act, which allows the court to issue an order [d]irecting the defendant to refrain from stalking or harassing the plaintiff and other designated persons as defined in 18 Pa. C.S. 2709 (relating to harassment and stalking). 92 89 Mullen & Pathe, supra note 75, at 292. 90 Id. at 303. 91 Id. at 305. 92 23 PA. C.S. 6108(a)(9) (2003).

CHAPTER IX: STALKING IX -21 M. Emerging Practices Criminal Prosecution May Be More Effective Against Stalkers Criminal prosecution may be more effective against stalkers than actions for protection in civil court. 93 Victims should also understand that restraining orders are a civil remedy that rarely attract prison sentences and pit the victim against the accused. Victims may be better advised to pursue criminal charges against their stalker, invoking anti-stalking laws or other charges such as theft, assault, or threats. This approach diffuses some of the fervor encountered in victim-initiated civil interventions, as the charges are brought by the state. It may also reduce demands on the victim in the court process, including face-to-face contacts between victim and defendant. Prosecution under anti-stalking laws offers greater flexibility in sentencing and more serious penalties than do civil approaches. Legal sanctions raise the stakes sufficiently high for a substantial number of stalkers to abandon their quest. 94 Even though criminal prosecution may be more effective in the long run, for those individuals subject to a PFA order, strong and swift enforcement of the PFA order may convince an abuser who continues to engage in stalking after the order is entered that the stalking is not worth it. Further, sending a stalker to jail, even for the short sentence permitted under PFA indirect criminal contempt, 95 may give the victim enough time to take further steps to protect herself or himself. 93 See Mullen & Pathe, supra note 75 at 311. 94 Id. 95 See 23 PA. C.S. 6114(b).

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