Public Awareness

The call came in at 1:00 a.m. It was a hang-up call but her caller ID displayed his name and number. Her number is unlisted and she has no idea how he knew where to call. She goes out and when she turns around, he's there. She's driving in her car and he pulls up beside her. He won't let go and she doesn't know what to do.

In December of 1999, the New York State Legislature expanded and strengthened the harassment, menacing and criminal contempt statutes by creating the separate crime of stalking. Now these same acts can, in all likelihood, support a prosecution for stalking. The new law provides opportunities for meaningful law enforcement intervention at the earliest stages of stalking behavior. The statutes, found in Penal Law §§ 120.45, 120.50, 120.55 and 120.60, define the types of harm resulting from the defendant's actions, including harm to the victim's emotional and mental health. This new focus on how the victim experiences the defendant's conduct is significant when we consider that victims of stalking often articulate feelings of extreme anxiety, sleeplessness, and acute watchfulness, among a broad range of emotional harm. The prior harassment and menacing statutes required victims to specifically define their reactions in terms of a fear of death, imminent serious physical injury, or physical injury. For many stalking victims, the overwhelming sense of dread that they experience in their daily lives does not readily translate into a fear of physical injury or death. Yet, prior to 1999, that was the sole avenue of proving stalking under the harassment and menacing statutes.

The new stalking statutes shift the focus from the defendant's intent to instill specific types of fear in the victim, to the defendant's intent to engage in certain conduct. The inquiry now is whether such conduct is likely to cause the victim to reasonably fear harm to physical health, safety, property, or to instill a reasonable fear that the victim's employment, business, or career is threatened.

The rationale for this significant change recognizes the unpredictable, random, and unexpected behaviors of stalkers. It also addresses the broader context in which stalking occurs. Stalking often begins when a relationship ends. The defendant's behavior may, on the surface, appear to be innocent, concerned or even endearing toward the victim. Standing alone, such conduct might be legal, such as leaving notes on a car window professing love in one message and condemnation in another. However, when viewed in the context of the entire relationship, the behavior becomes alarming, frightening, and obsessive -the antithesis of expressions of affection and undying love.

Context is the cornerstone of any stalking case. The statute requires that the defendant's behavior serve "no legitimate purpose." In a recent New York County case, People v. Stuart, 742 N.Y.S. 2d 767, the defendant challenged the phrase "no legitimate purpose" as being unconstitutionally vague. In Stuart, the defendant persistently followed and stared at the complainant almost each day for more than one month, ducking behind buildings to avoid detection. The complainant testified that she was "very scared" and "very uncomfortable," especially after she repeatedly told the defendant that she did not want his attention.

The court upheld the defendant's conviction and found that "no legitimate purpose" must be read in the context of the rest of the language of the statute. The court rejected the defendant's claim that mere coincidence brought him into contact with the complainant. By focusing on the conduct of the accused stalker rather than on the stalker's motivation, PL §120.45 ensures that accused stalkers do not escape criminal liability by saying that they did not intend to cause fear in the victim.

The definition of "course of conduct" has been raised in several cases interpreting the new stalking law. In People v. Eugene, 2002 N.Y. Misc. LEXIS 514, also in New York County, the defendant called the complainant at work nine times over a two day period. The defendant claimed that nine calls in two days failed to constitute a "course of conduct" within the meaning of the statute. The court disagreed and denied dismissal of the charges, saying that the "standard is a series of acts over a period of time, however short, with a continuity of purpose that is reasonably likely to cause the target fear of physical injury." Id. at 516, citing People v. Payton, 612 N.Y.S. 2d 815 (Criminal Ct. Kings Co. 1994). The court recognized that the phone calls, which were preceded by a past history of physical abuse by the defendant as well as thirty phone calls from the defendant to the victim in a single day several months earlier, constituted continuity of purpose and created a reasonable likelihood that the victim would fear physical injury. The Eugene case is a reminder that context is the foundation of a stalking case.

Similarly, in People v. Perez, 734 N.Y.S. 2d at 401, a Nassau County case, the court held that the defendant's conduct of trailing the victim as she drove through Suffolk and Nassau counties, even as she desperately sought to avoid him, was sufficient to support a stalking charge because it demonstrated a continuity of purpose on the defendant's part and caused a state of fear in the victim. The court specifically noted that there is no statutory requirement that a "course of conduct" be of any particular type or duration. The stalking charge was sustained because the defendant's acts constituted prima facie proof of a pattern of conduct made up of a series of acts over a period of time, however short, evincing a continuity of purpose.

It is encouraging that all of these cases seem to reflect the legislative intent behind the law, namely, to provide "real and effective sanctions for stalking conduct even at its earliest stages." N.Y. Laws of 1999, Chapter 635 § 2. Courts interpreting the new statutes have accepted the common understanding and plain meaning of the statutory language rather than theoretical, speculative interpretations. Thus far, the courts have recognized the critical role that the context of the relationship, including prior history of abuse, plays in stalking cases. The new statutes enable us as prosecutors, advocates, and law enforcement authorities to act promptly and effectively to curtail conduct that, left unchecked, all too often culminates in serious assaults and homicides.