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Jurisdictions vary as to how they grade stalking. Many states divide stalking into degrees or grade it as simple and aggravated. First-degree or aggravated stalking is generally graded as a felony, and second-degree or simple stalking is generally graded as a misdemeanor. 1 Factors that could enhance grading are the violation of a restraining or protective order, the use of a weapon, a youthful victim, or previous convictions for stalking. 2
Figure 10.9 Diagram of Domestic Violence and Stalking
KEY TAKEAWAYS
- Individuals covered by domestic violence statutes are relatives by blood or marriage, individuals who share a child, ex-spouses and ex-lovers, and individuals who reside together.
- Some special features of domestic violence statutes are special training for law enforcement in domestic issues, protection of the victim by no-contact orders and nondisclosure of the victim’s residence address, the duty of law enforcement or prosecutors to inform the victim of the d ecision of whether to prosecute and the duty to inform the victim of special procedures available t o protect domestic violence victims, the ability to arrest domestic violence offenders with or without a warrant, special factors to consider in the sentencing of domestic violence defendants, and peace officer immunity for enforcement of domestic violence provisions.
- The criminal act element required for stalking varies, but in general it is repeatedly engaging in a course of conduct that poses a credible threat to the victim’s safety, including following, harassing, approaching, or pursuing the victim.
- The criminal intent supporting the stalking criminal act is specific intent or purposely in most jurisdictions. Some jurisdictions require a different criminal intent to support the harm requirement: either specific intent or purposely, general intent or knowingly, reckless intent, negligent intent, or strict liability.
- Some jurisdictions require the defendant to cause harm, which is victim fear of serious bodily injury, fear of death of the victim or the victim’s family member, or damage to the victim’s property. The test for victim fear varies and could be either subjective and objective fear, just subjective fear, or just objective fear.
- It is common to divide stalking into degrees or grade it as simple and aggravated. First- degree or aggravated stalking is generally graded as a felony, and second-degree or simple stalking is generally graded as a misdemeanor. Factors that can aggravate grading are the violation of a restraining or protective order, the use of a weapon, a youthful victim, or previous convictions for stalking.
EXERCISES
Answer the following questions. Check your answers using the answer key at the end of the chapter.
- Chris punches and slaps Rhianna, his roommate and girlfriend. Could this be considered domestic violence?
- Read Statev. Holbach, 2009 ND 37 (2009). In Holbach, the defendant appealed a conviction for stalking based on his constitutionally protected right to travel around town and do errands. The defendant was on probation for stalking the victim and subject to conditions of probation, including a stay-away order. However, the victim claimed that she saw the defendant following her around town on many occasions. Did the Supreme Court of North Dakota uphold the defendant’s stalking conviction? Why orwhy not? The case is available at this link: http://scholar.google.com/scholar_case?case=14788412528928431856&q=stalking&hl=en&as_sdt=2,5&as_ylo=2009.
- Read Burkev. State, 676 S.E.2d 766 (2009). Why did the Court of Appeals of Georgia reverse the defendant’s conviction for aggravated stalking in this case? The case is available at this link: http://scholar.google.com/scholar_case?case=14247986447862424093&q=stalking&hl=en&as_sdt=2,5&as_ylo=2009.
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