California Stalking Laws: Stalking, Cyperstalking and Punishmemt

In today’s electronic world, an environment exists in which social media can reveal almost limitless information about an individual’s location, behaviors and actions. As a result, it’s important to know exactly which sort of behaviors are considered too much.

When communications and actions toward an individual begin to cross the line from harmless or irritating into annoying, threatening or harassing types of behaviors, those actions may, in fact, qualify as stalking. Learn about the location of the line between annoying and stalking, how to enforce that division, and at which point legal action should be taken to protect yourself and your loved ones.

Stalking is defined legally as the act of engaging in (repeated) behavior targeting an individual with no legitimate reason, which bothers, intimidates or harasses that individual. To better understand the definition, it can be broken down into individual actions that describe the behavior:

• Repeated behavior: Stalking is a pattern of behaviors culminating in the unwanted pursuit of an individual. It’s a persistent set of actions that individually may, in fact, be legal, but as a collection of behaviors, is intrusive and distressing.
  
  
• Behavior that bothers, intimidates or harasses: All kinds of behaviors can constitute stalking, including:
  
  

Again, some of these actions may be considered legal on an individual basis, but when combined and repeated in an unwanted manner, become harassment and stalking.

As stalking is a crime that can be committed with no physical harm taking place – the harm is often to the emotional and mental state of the victim – definitions and convictions can be somewhat controversial. Thus, federal codes regarding stalking behavior also include wording such as “substantial emotional distress” as harmful intent, along with an intention to do violence, harass or intimidate. In the United States, each individual state has and enforces its own stalking laws, although the federal code includes stalking as a criminal act across state borders.

It’s important to note that stalking laws also apply to electronic communications and online behavior. The relative anonymity of the internet may lead someone to believe that harassment, intimidation and threats are permissible, but these behaviors also qualify as stalking and can be included in a case against an individual.

In 1990, the state of California became the first state to enact laws that made stalking a criminal offense. Over the previous decade, California had faced a number of high-profile stalking cases regarding celebrities, including murders, attempted murder and a mass shooting. The culmination of all these cases led to the first anti-stalking law in California legal code.

Within three years, every other state in the nation had enacted laws to make stalking a criminal offense, under terms such as criminal harassment or criminal menace. In 2005 and 2011, laws were modified and created within the federal codes system that apply to stalking crimes as well.

Culturally, stalking is viewed as obsessive behavior. While historically, this kind of behavior entailed the obsessive harassment of celebrities and public figures, modern-day usage of the term includes the stalking of strangers, acquaintances and former partners. In fact, mild types of stalking behavior have been noted between members of heterosexual partnerships after a breakup. Consider the seemingly harmless behavior of “Facebook stalking” an ex, couched in the anonymity of the internet, as a sort of gray area regarding this kind of behavior.

California’s penal code defines stalking as the crime of following, harassing and threatening an individual to the point that they fear for their safety. Because of the language of the penal code, the act of stalking must include the following elements:

• Willful, malicious and repeated behavior;
• The stalking behavior must  be intentional or deliberate (rather than an accident);
  
• It must occur more than once (to form a pattern); and
  
• It must be done with the intention of disturbing the victim (again, rather than an accident or with another intention).

While stalkers may have the best of intentions in their own minds, the repeated act of these kinds of disturbances may show that the intent was to express control over the individual. For example, the act of repetition sets up a continuous purpose to the actions.

• Harassment: Within these laws, harassment is any kind of behavior that annoys, alarms, torments or terrorizes the victim. Again, this can be displayed by following an individual or expressing various types of communications.
  
  
• Threatening: A credible threat is one that causes the victim to fear for their safety or for the safety of their family and that the stalker can be reasonably assumed to be capable of executing. This threat may be delivered in any type of communication, and it also can be implied from previous statements and behaviors the stalker has already committed.
  
  
• Reasonable Fear: Defining reasonable fear for your safety or the safety of your immediate family can be something of a gray area. Therefore, it’s worth nothing that the following are not considered true threats that would cause reasonable fear for your safety:
  
  

Communications that fall into these categories may not be considered credible threats as defined.

These elements must be proven to exist in a court of law for action to be taken against stalking behavior. Common defenses against stalking charges thus include:

• No credible threat: This defense often frames the threat in terms of a joke gone poorly or a threat so outlandish that the individual should never have taken it seriously.
  
  
• No intent to harm or cause fear: This defense implies that the individual meant well when executing these repeated behaviors and never intended to create any overtones of harm, fear or threat.
  
  
• Constitutionally protected activities: In cases where the individual was engaged in such an activity – for example, a lawful protest – stalking charges do not apply.

In California, stalking can be charged as either a misdemeanor or a felony. The charges depend on the severity of the case in question and the behavioral history of the accused. If the individual is in violation of a court-ordered protective order such as a restraining order, or if the individual has been previously convicted for stalking, the offense will always be charged as a felony.

A stalking misdemeanor charge can lead to probation, up to a year in county jail, and/or a fine up to $1,000. A stalking felony charge can lead to probation, up to five years in state prison, and/or a fine up to $1,000. A stalking conviction can be expunged from an individual’s record if you have successfully completed all jail time and probation and are not currently involved in any other criminal accusations. This removes the stalking conviction from the eyes of future potential employers.

In addition, a victim of stalking can bring civil charges against a stalker as an attempt to collect damages related to the stalking, through both compensation (for example, repair from acts of vandalism done to an individual’s property) and punitive damages (to financially “pay” for the emotional distress to a victim and/or their families). The success of the civil case depends on the victim’s ability to prove the existence of all the listed elements.

A number of misdemeanor and felony charges similar to stalking can be charged or prosecuted instead of or alongside stalking charges. For example, harassment itself is a criminal offense that can lead to additional fines and jail time of up to two years. Trespassing can be charged for stalking acts in which someone illegally accessed another person’s property with intent to harm or damage the property.

Threats of violence may fall under general criminal threatening, which also can be a criminal charge. Depending on the situation, other laws regarding domestic violence or assault might also apply, and it is a crime to threaten an individual with death. In addition, California cyberstalking laws, as well as cyberbullying and cyberharassment laws all deal with online behaviors that echo those defined in stalking laws.

In California, three specific charges often accompany a stalking charge:

• Kidnapping: Kidnapping is the act of physically moving a victim a substantial distance using force and/or fear to do so. Unlike a stalking charge, a kidnapping charge requires physical contact between the victim and the individual and proof that the victim was physically handled as well as threatened.
  
  
• Annoying phone calls: California law considers it illegal to make phone calls that are obscene, threatening or repetitive with the intent of harassing the person being called. Phone calls are often part of a stalking charge; it’s the intent to place the victim in a state of fear that separates the stalking charge from a phone harassment charge.
  
  
• Criminal threats: As mentioned, a criminal threat is a threat to kill or physically harm someone that puts an individual in a state of reasonable fear for their safety or for the safety of a family member. These threats are specific and can be delivered verbally, in writing or electronically. A stalking charge can include other harassing behavior, depending upon the nature of the threat expressed.

First and foremost, you have the right to call 911 if you fear you are actively being stalked, especially if you’re being physically followed or pursued or if you have recently received a threat of harm or violence. Even if the emergency is not immediate, if you urgently fear for your safety, the 911 emergency hotline is there to assist.

If you fear you are being stalked or experiencing behavior that points to signs of stalking, it’s important to safely confront the situation. You should contact the individual to inform them that their behavior is unwanted and that they should cease and desist immediately. The victim should record the incidences of stalking behavior and save all available evidence.

You should contact the police and make a report of stalking behavior, including records and evidence, and work with law enforcement officials as to what the next steps should entail. Victims should also inform their friends, family and their employer about the stalking behavior so that others can be made aware of any threatening actions from the individual.

It’s important to not engage with the stalker if the contact continues or escalates; instead, work with family, friends and law enforcement officials to protect your safety and privacy.