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Beginning in the late 1980s stalking became an accepted word in the American vocabulary and a distinct criminal offense under state and federal law. The sensitivity of the mental health and legal communities to this abnormal social behavior was heightened by the notable cases of Prosenjit Poddar (Tarasoff v. Regents of University of California, 551 2d 334 (1976); Meloy, 1996) and John Hinckley, Jr. (Caplan). Extensive media coverage of the stalking of some celebrated actors, musicians, and television show hosts raised the consciousness of the American public to this offense in the mid-1990s.
Stalking is the willful and malicious act of following, viewing, harassing, communicating with, or moving threateningly or menacingly toward another person. Stalking behaviors may be expressed by written and verbal communications, unsolicited and unrecognized claims of romantic involvement on the part of victims, obsessive surveillance, harassment, loitering, and following that may produce intense fear and psychological distress to the victim. Stalkers use telephone calls, conventional and electronic mail, and vandalism to communicate their obsessional interests.
Stalking is typically a long-term crime without a traditional crime scene. The stalking occurs at the target’s residence, place of employment, shopping mall, school campus, or other public place. There are a number of aborted or obscene phone calls or anonymous letters addressed to the target professing love or knowledge of the target’s movements. Written communications or symbolic items are often left on vehicle windows or placed in mailboxes or under doors by the stalker. The tone of communications may progress from protestations of adoration, to love, to annoyance at not being able to make personal contact, to threats of violence and menacing.
Although the actual number of stalking victimizations has yet to be systematically documented, a congressional report of 1998 estimates that approximately 1.5 million victims are subjected to the terror of threatened violence annually (Department of Justice). Remarkably, there are an estimated 200,000 stalkers in the United States. One of every twelve women in the United States has been or will be a victim of a stalker during her lifetime; one out of every forty-five men has suffered or will suffer the same fate. Stalking over the Internet, known as cyberstalking, claims additional victims from an estimated forty thousand offenders (Karczewski).
All states in the United States (including the District of Columbia) have passed antistalking legislation, following California’s lead, in an attempt to fill the gaps left by generally ineffective civil restraining orders and criminal statutes prohibiting such activities as ‘‘threats of violence,’’ ‘‘criminal trespassing,’’ and ‘‘harassment’’ (Geberth). Many of these state statutes are patterned after provisions of a model anti-stalking law jointly drafted by the National Criminal Justice Association (NCJA) and sponsored by the National Institute of Justice (NIJ) (Fein, Vossekuil, and Holden). Federal anti-stalking legislation (the Interstate Stalking Punishment and Prevention Act of 1996) targets perpetrators who travel across state lines to commit crimes.
Victimology and Targets of Stalkers
Historically, the study of crime began with and focused primarily on the study of offenders (Goring; Goddard; Lindesmith and Dumham; Rennie; Megargee and Bohn; Roebuck). In the late 1960s, social scientists began to theorize that a true understanding of crime required an examination of the role of the victim (Schafer). Consequently, researchers began to address the role of the victim in the victimization process and the acute and long-term effects of violence on both victims and their social network (Kinder; Burgess and Holmstrom; Cook, Smith, and Harrell; Wirtz and Harrell; Lerman).
The study of victims (victimology) has contributed to the way social scientists and practitioners view the role of victims and the dynamics of criminal acts. The victim’s account of ‘‘what happened’’ often provides a contrasting view to the offender’s account. Offenders may distort or misrepresent the facts of the criminal incident in order to minimize their responsibility, may have ‘‘fantasies’’ about the criminal act, or may simply claim that the victim is lying (Groth; Kestler).
The victim often provides detailed information about the circumstances surrounding the crime, including interactions and conversations with the offender prior to and after the crime; threats and demands that the offender made of the victim; weapons, if any, used by the offender during the crime; the identity and location of the offender; and details about the offender’s personality (if the victim knows the offender). It is information from the victim that assists clinicians and investigators in classifying and investigating the crime and eventually questioning the offender (Douglas, Burgess, Burgess, and Ressler; Kestler).
Targets of stalkers often feel trapped in an environment filled with anxiety, stress, and fear that often results in their having to make drastic adjustments in how they live their lives. The terms ‘‘target’’ and ‘‘victim’’ are not necessarily interchangeable. The term ‘‘target’’ is used to describe the primary recipient of the stalker’s attention. However, in many cases innocent parties and the target’s circle of friends and associates become victims of the stalker’s behavior.
From the target’s perspective, the stalker is either known or anonymous. With stalking, there is a continuum of no physical contact to a lethal amount of contact and aggression. Until stalking legislation, law enforcement was often unable to arrest an individual unless there was evidence of direct contact in the form of assault.
Early research efforts addressing the crime of stalking come from victims of domestic violence who are often stalked by their offenders. One domestic violence study in Boulder and Denver, Colorado, noted that 48 percent of those who had obtained restraining orders were stalked prior to the issuance of the order and 12 percent were stalked within three months after the issuance of the order (Harrell, Smith, and Cook). Anecdotal accounts of victim assistance service providers support the findings of Harrell and colleagues (Harrell, Smith, and Newmark).
Targets have often crossed paths with the stalker, most likely without notice by the target. They will, therefore, have no knowledge of the stalker’s identity. The relationship between the stalker and target is one-way. The target will eventually become aware of the stalker’s presence. Other potential victims are spouses, partners, or any who are viewed as an obstacle that comes between the stalker and his or her target.
In a nonrepresentative study of stalking targets, Hall examined questionnaires completed by 145 current and prior stalking victims from twenty states who ranged in age from sixteen to seventy and who had been stalked for varying lengths of time, with some cases beginning or going back to the 1960s. Seventeen percent had been stalked from less than one month to six months; 23 percent from six months to one year; 29 percent from one to three years; and 13 percent for five years or more, with one case having continued for over thirty-one years. Although 57 percent of the victims were stalked by their former intimate partners, only 50 percent of the victims were females stalked by a male intimate partner. Over one-third (35%) of all the stalkers had had prior, nonintimate relationships with their victims (only four of these cases were workplace related) and the remaining 6 percent were strangers with no prior relationship to their victims.
Isolated research has reported findings from cases involving the pursuit of public figures (Dietz, Matthews, Martell et al., 1991), of serial homicide (Ressler, Burgess, and Douglas), or describing the personalities and motivations of a small sample of stalkers (Hazelwood and Douglas; Geberth). Newspaper and anecdotal accounts are more prevalent than the academic literature; however, these accounts reveal little about the overall dynamics of the crime beyond the specific incident.
Stalker crimes are primarily motivated by interpersonal aggression rather than by material gain or sex. The purpose of stalking resides in the mind of stalkers, who are compulsive individuals with a misperceived fixation. Stalking is the result of an underlying emotional conflict that propels the offender to stalk and/or harass a target.
Because of the cognitive component to the behavior, stalking can be conceptualized as occurring on a continuum from nondelusional to delusional behavior. Delusional behavior may indicate the presence of a major mental disorder such as a schizophrenia, psychosis, or delusional disorder (American Psychological Association). Nondelusional behavior, while reflecting a gross disturbance in a particular relationship and a personality style or disorder, does not necessarily indicate a detachment from reality. This distinction is significant because of the potential legal implications, that is, pleas of insanity. What most readily distinguishes the behavior on this spectrum is the nature of the relationship an offender has had with his target and the content of the communication.
On the delusional end of this spectrum there is usually no actual relationship, rather such a relationship exists only in the mind of the offender. Communication content includes the presence of bizarre or nonbizarre delusions (American Psychological Association). On the nondelusional end of the spectrum there is most often a historical relationship between the offender and victim. These tend to be multidimensional relationships such as marriage or common law relationships replete with a history of close interpersonal involvement. Communication content includes a one-sided romantic fixation. In between these two poles are relationships of varied dimensions and stalkers who exhibit a mix of behavior. The offender may have dated his target once, twice, or not at all. The target may only have smiled and said ‘‘hello’’ in passing or may in some way be socially or vocationally acquainted.
Relationship to Target: Nondomestic Stalkers
The stalker with no interpersonal relationship with the victim may target an individual from a prior meeting or from nothing more than an observation. In nondomestic or anonymous stalker cases, the target usually cannot identify the stalker when first aware of the behavior. This classification has two types: the organized stalker and the delusional stalker.
The organized stalker’s identity is unknown or at some point the individual may make his or her identity known through continuous physical appearances at the victim’s residence, place of employment, or other location. It is unlikely that the victim is aware of being stalked prior to the initial communication or contact. Only after the stalker has chosen to make personal or written contact will the target realize the problem.
The stalker may place himself or herself in a position to make casual contact with the target at which time verbal communication may occur. A description of this contact may be used in a later communication to terrorize and/or impress upon the target that the stalker is capable of carrying out any threats.
A delusional stalker or erotomania-related stalking is motivated by an offender-target relationship that is based on the stalker’s psychological fixation. This fantasy is commonly expressed in such forms as fusion, where the stalker blends his personality into the target’s, or erotomania, where a fantasy is based on idealized romantic love or spiritual union of a person rather than sexual attraction (American Psychological Association). The stalker can also be motivated by religious fantasies or voices directing him to target a particular individual. This preoccupation with the target becomes consuming and ultimately can lead to the target’s death. The drive to stalk arises from a variety of motives, ranging from rebuffed advances to internal conflicts stemming from the stalker’s fusion of identity with the target. In addition to a person with high media visibility, other victims include superiors at work or even complete strangers. The target almost always is perceived by the stalker as someone of higher status. Targets often include political figures, entertainers, and high media visibility individuals but do not have to be public figures. Sometimes the victim of a stalker’s violence is perceived by the stalker as an obstruction.
Although the research on menacing, harassing, and stalking behaviors in persons who have or had a prior relationship is relatively new (Walker), the psychiatric literature has been building a classification scheme on a subgroup of stalkers diagnosed with erotomania in whom the relationship exists only in fantasy and delusion (Seeman, 1978). Mullen and Pathé note that erotomania has long been known to be associated with stalking behaviors of both men and women and has the potential to lead to overt aggression; they provide a historic perspective both on the forensic aspects of stalking and the psychodynamic components. The physician Claude De Clérambault outlined the features of an erotic delusion syndrome in his book Les Psychoses Passionelles (1942). De Cléambault observed that erotomania began with love and hope but then disintegrated into resentment and anger. The patients, usually female, were described as holding the delusional belief that a man, usually older and of an elevated social rank, was passionately in love with them. This love became the purpose of the patients’ existence; they may have sent letters and telephoned the person both at home and at work. Raskin and Sullivan observed that the patients may be dangerous and threaten the life of their victim or his family especially when the patient reaches the stage of resentment or hatred that replaces love. Meloy (1989) has suggested the dynamics of blurring of unrequited love and the wish to kill.
Rekindling an interest in the forensic aspects of erotomania has been credited to Goldstein and Taylor, Mahendra, and Gunn, and has also led to various classifications of stalkers. Zona and colleagues (1993) analyzed police files and classified persons as either erotomanic, love obsessional, or simple obsessional. Stalkers have been classified from a mental health intervention standpoint using short-term crisis intervention to assist survivors (Roberts and Dziegielewski) and a law enforcement perspective (Wright et al.) based on the nature of the relationship, nondomestic or domestic; the content of communication, nondelusional or delusional; level of aggression (low, medium, or high); level of victim risk; motive of stalker; and outcome. Forensic studies of obsessional harassment and erotomania have occurred in criminal court populations (Meloy and Gothard). Meloy and Gothard have suggested the term obsessional follower for someone who engages in an abnormal or longterm pattern of threat or harassment directed toward a specific individual. Consequently, stalking patterns in domestic violence are now seen as dangerous and the forensic aspect is being tested (Perez). Erotomania in and of itself is insufficient for explaining stalking behavior. When focusing on relationships involving romantic attachment and domestic activities, empirical investigation demonstrates different characteristics associated with stalking behaviors than those found in erotomania (Meloy, 1996).
As with other classifications of stalking, the activity of the erotomanic stalker is often longterm and includes written and telephonic communications, surveillance, attempts to approach the target, and so on. With the passage of time, the activity becomes more intense. Sometimes the preoccupation with the victim becomes allconsuming and may ultimately lead to the death or injury of another party. John Hinckley, Jr., both an attempted political assassin and a celebrity stalker, is one such example. His erotomanic obsession with the actress Jodie Foster was never destined to be consummated. Celebrity stalkers like Hinckley seek a self-identity through actions or fantasies, and often seek relationships with targets through the media. All actions are ultimately designed to fill the bottomless personality void, and are designed to bring media attention to someone with serious personality and social defects. Stalkers like Hinckley are likely to transfer targets of obsession. Indeed, Hinckley first staked out Jimmy Carter and only settled on Ronald Reagan when access to Carter eluded him. He injured both his target and surrounding victims. In Hinckley’s 1998 release petition hearing, a state witness (a commander) testified that Hinckley was stalking her, in that he had gathered information about her personal schedule, recorded love songs for her, and, when ordered not to contact her, disobeyed by sending her a package. A state mental health expert testified that Hinckley’s psychotic disorders were in remission but that Hinckley was still dangerous. The expert based his opinion on Hinckley’s ‘‘relationship’’ with the commander, stating it was strikingly similar to the ‘‘relationship’’ he had with Jodie Foster (Hinckley v. U.S., 140 F.3d 277, 286 (1998)).
Domestic stalking occurs when a former partner, family member, or household member threatens or harasses another member of the household. This definition includes common law relationships as well as long-term acquaintance relationships. The domestic stalker is initially motivated by a desire to continue or reestablish a relationship, a desire that can evolve into an attitude of ‘‘If I can’t have her no one can.’’
A study by Burgess and others (1997) examined data from 120 male and female batterers of varied age, marital, educational, and economic status, who attended group treatment for batterers or who were charged with domestic violence in a district court. One-third of the sample group admitted to stalking, and their behaviors indicated the possibility of continuing violent acts even though separation with the partner had occurred. Researchers determined that both open and clandestine stalking occurred. At this point it is not clear if this sample is representative of a particular pattern. Stalkers feel that they have a right to do what they do. They also did not feel that the victim provoked their stalking behaviors. Such attitudes suggest that the triggering event is less predicated on behavior of the victim and resides more in the fantasy life of the stalker. A potential stalker might be provoked by displacement, for example, being humiliated or disappointed in areas of life outside of the home.
Factor analysis of batterers who stalk compared to nonstalking batterers found three stalking patterns of pursuit. First, stalkers are open in their attempts to contact their former partners; when this fails they begin to contact others and discredit the partner. The second factor is the conversion of positive emotion of love to the negative emotion of hate. Stalkers essentially go underground with the clandestine behavior, including anonymous or hang-up phone calls and entering the residence without permission. Just before they go public again, there is a phase of ambivalence indicating the splitting of love and hate, when, for example, they might send gifts and flowers. The third factor is when they move from the mix of public and secret behavior to a public display of stalking and targeting behavior, and, in the sample just cited, entered the victim’s residence and displayed violence.
The stalking behavior reveals far more personal disturbance in the perpetrator than the loss of control and anger arising purely within an interpersonal exchange, for example, the man who has had a bad day at work, comes home and becomes enraged at the wife, feeling she has slighted him or not attended to the house. This is in contrast to a man who is fixed on a partner and pursues her with little or no provocation from the victim.
The stalking behavior represents a selfgenerating pattern within the individual rather than being linked to the victim. Such intense predatory preoccupation suggests such diagnostic categories as: obsessive-compulsive disorder, psychotic behavior, delusional fixation, or a combination of behaviors.
Computer technology has provided the stalker with another means for accessing a target. Some investigators specialize in prosecuting Internet cyberstalking. While some cases involve adults as both offenders and victims, many pedophiles exploit children with this technology.
In U.S. v. Reinhardt, 975 F. Supp. 834 (W.D. La. 1997), the court granted the government’s motion for pretrial detention of an alleged pedophile cyberstalker. The defendant was charged with producing and distributing child pornography. On government’s motion for pretrial detention under the Bail Reform Act, the district court held that: (1) the defendant’s case involved a crime of violence; (2) there were no conditions of release that could reasonably assure safety of the community; and (3) the defendant also posed a risk of flight.
Reinhardt illustrates how the Internet can be a tool for pedophiles and child pornographers. It demonstrates a pedophile’s use of technology to stalk children for sexual purposes, to gain control over the child and his family, to recruit new victims, and to communicate with other pedophiles. Reinhardt exemplifies the amount of detail, care, and compulsiveness that is demonstrated in the profile of a career pedophile.
Pedophiles’ social networks consists of other pedophiles. They socialize, telephone, write letters, e-mail, network, and share strategies for continuing their deviant relationships with children even when in prison. In Florida, one convicted child pornographer used his prison post office box number to expand his distribution of child pornography until he was discovered.
Pedophiles can move from an isolated position as solo operators into a network of perpetrators; Reinhardt, for example, had a codefendant. Indeed, an elaborate and organized pedophile network exists on the Internet both nationally and internationally. The Reinhardt case illustrates the Internet pedophile as entrepreneur, one who has a product line on his own home page. Reinhardt provided advice to a ‘‘chat room’’ correspondent on how to build a longterm relationship with a young boy, how to manipulate parents in order that they not ‘‘cause problems,’’ and taught his victims how to answer questions about the ongoing sexual relationship.
Pedophiles are totally preoccupied with their sexual interest in children. The probation office identified nine jobs Reinhardt held in four states between 1986 and 1997. The defendant’s obsession with the Internet was reflected in his ownership of several computers. This case reveals the inner workings of pedophiles and child pornographers. The general public can now access all dimensions of child sexual exploitation through the Internet. They can call up a pedophile’s home page or talk with him or her in a ‘‘chat room.’’
State and Federal Anti-Stalking Laws
The legal history of stalking is a testament to the limitations of applying existing statutory law, and the passage of innovative legislation to address a newly conceived crime that extends beyond the boundaries of common law offenses. From the ineffectiveness of civil protection orders to the limited utility of a federal antistalking statute, victims are often left with little practical legal recourse. Add to this an often-muted response from criminal justice agencies and it is no wonder that nearly half of all stalking victims are dissatisfied with the law enforcement response to their victimization (Department of Justice).
Civil Protection Orders
The first line of defense for victims is a civil protection or restraining order that has the effect of enjoining the stalking behavior. These orders are designed to restrict an offender from making contact with the victim, or from appearing at a particular place, such as a victim’s home or work. Sanctions include contempt of court, fines, and jail time or prison sentences. In a number of states, including California, Colorado, Delaware, Maine, South Carolina, Texas, and West Virginia, antistalking legislation has prompted more serious sanctions for violations of protection orders.
Eligibility restrictions for restraining orders in many states, however, severely limit their protective value. For example, some states require a legally recognizable relationship between the victim and offender (e.g., marriage) for a restraining order to be issued. Others will not issue an order unless there is a finding of actual physical abuse (Bradfield). Beyond such restrictions, restraining orders are far less than a guarantee of protection. Commentators note that: (1) approximately four out of every five orders are violated; (2) less than 20 percent of these violations result in an arrest; (3) there is an insufficient law enforcement commitment to protective orders; and (4) taking out a protective order, at best, does little to protect against future victimization and, at worst, may incite a stalker to retaliate against his victim (Walker, 1993; Patton).
Extending The Application of Related Statutes
Until recently, the discretionary use of criminal statutes provided a remedy for the deficiencies of protective orders, as well as for the absence of carefully drafted antistalking laws. Over time, prosecutors have come to rely on various offenses found in most state penal statutes— statutes prohibiting harassment; terrorist threats; threatening or intimidating behavior; and telephone threats or harassment, letter threats, and threats using electronic technologies such as e-mail or facsimile. Critics have called these statutes inadequate given their failure to: (1) account for the repetitive nature of stalking, which is a primary feature of the offense; (2) consider the full range of bizarre behaviors found within stalking activity; and (3) recognize anything less than an explicit threat as a crime. Moreover, most of these statutes have narrowly drawn intentionality requirements that further limit their application to stalking cases. Finally, the sanctions associated with these statutes are often insignificant and, when applied, can have the effect of trivializing the serious crime of stalking (Bradfield).
State Anti-Stalking Statutes
Antistalking statutes, prompted by the brutal murder of actress Rebecca Schaffer in California in 1989, attempt to address some of the limitations found with civil protection orders and related statutes. Many are drafted with an explicit consideration of the behavioral idiosyncrasies that characterize stalking offenses; without a requirement that the stalker has committed a violent act; with less significant mens rea or intentionality provisions; and with increased sanctions. In a majority of jurisdictions, a first-time offender may be indicted on either felony or misdemeanor charges; repeat stalking is most often prosecuted as a felony.
The requirements of state anti-stalking statutes generally require proof of a ‘‘course of conduct’’ and distinct threats by the offender that cause an actual fear of death or injury on the part of the victim. The former requires that the offender must have engaged in a persistent course of purposeful action amounting to a pattern of behavior. This may consist of nonconsensual communication, for example, obsessive surveillance, lying in wait, or physical harassment. A majority of states specify the number of incidents required to constitute a pattern of behavior or course of conduct.
Statutes differ with respect to the threat requirement. Some states require either a threat or conduct. Others mandate both a threat and conduct for prosecution. Still others impose threat, conduct, and intent requirements. A minority of jurisdictions requires that the stalker’s behavior constitute an objectively ‘‘credible threat,’’ that is, a threat that would create fear in a reasonable person in like circumstances.
The intent requirements of state statutes vary considerably as well. Most state statutes require that the offender purposefully or willfully intended to instill or cause fear; others require lesser mental states, for example, ‘‘knowing’’ negligent creation of fear. Only a few states omit the intent requirement. For obvious reasons, the more significant the intent requirement, the more difficult it is to obtain the proof necessary to secure a conviction.
Following passage of the first state statute in California in 1990, many legal scholars, advocates, and legislators predicted a series of constitutional challenges. The predictions were accurate. More than twenty state statutes have faced constitutional challenges for being broad and vague (Karbarz). Only a few cases have been successful beyond the trial level (Harmon). The Texas Court of Criminal Appeals is the highest state court to declare an antistalking statute unconstitutional, on the ground that it lacked sufficient clarity with regard to prohibited conduct; provided inadequate notice; and had a ‘‘vague’’ threat requirement (Long v. State, 931 S.W. 2nd 285 (1996)).
Model Anti-Stalking Statute
The Model Anti-Stalking Code (Model Code) developed by the National Criminal Justice Association and sponsored by the National Institute of Justice took state legislation one step farther in an effort to address some apparent limitations in state statutes. According to Bradfield ‘‘some anti-stalking statutes still require that the stalker overtly threaten his victim, thereby allowing stalkers who communicate their threats through conduct to escape punishment. Likewise, some statutes still require that the stalker intend to cause fear, enabling stalkers who do not possess such intent to continue terrorizing their victims’’ (p. 245). Many states have amended their statutes in response to the well reasoned and carefully drafted provisions found in the Model Code.
The Model Code’s act requirements are generous, allowing for a cause of action where there is:
- A course of conduct involving repeated physical proximity (following) or threatening behavior or both;
- the occurrence of incidents at least twice;
- threatening behavior, including both explicit and implicit threats; and
- conduct occurring against an individual or family members of the individual.
Satisfaction of the intent requirements is similarly relaxed. Prosecutors need only prove:
- Intent to engage in a course of conduct involving repeated following or threatening an individual;
- knowledge that this behavior reasonably causes fear of bodily injury or death;
- knowledge (or expectation) that the specific victim would have a reasonable fear of bodily injury or death;
- actual fear of death or bodily injury experienced by the victim; and
- fear of death or bodily injury felt by members of the victim’s immediate family.
Federal Anti-Stalking Statutes
In an effort to ‘‘close the gaps’’ between individual state laws and to bolster their deterrent effect, Congress passed the Interstate Stalking Punishment and Prevention Act of 1996. The act prohibits stalking across state lines, makes restraining orders issued in one state valid in other states, and prohibits stalking on federal property, for example, post offices, national parks, and military bases. Violations of the act result in five years imprisonment, and twenty years in prison for violations that result in an injury or acts where the offender used a dangerous weapon. Life imprisonment is prescribed for stalking that results in the victim’s death.
The Limits of Substantive Law
The stark reality of the criminal justice system often places a severe constraint on the value of substantive stalking laws, no matter how carefully statutes are written and in spite of the many legislative advances around the United States since around 1990. Consider the risks to the victim that accompany the arrest of the offender. Pretrial detention for those charged with stalking offenses is rare. Arrests often escalate violence or lead to retaliation, with or without victim notification of release. In the unlikely event of a trial and conviction, a prison sentence does little to address the mental health treatment needs of most stalkers. Mental illness undermines principles of deterrence. In the end, the burden of fashioning a workable, realistic remedy to avoid future stalking often falls on the victim.
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