Public Awareness
OPDV Bulletin: The Anti-stalking Act of 1999
The newest addition to the growing body of law available to hold abusers accountable for their actions, the “Clinic Access and Anti-Stalking Act of 1999,” (1) became effective on December 1, 1999. The new legislation offers increased protection to victims of domestic violence by expanding the scope of abusive behaviors that are captured and criminalized while at the same time redefining the level of intent and types of injury necessary to find an abuser/stalker culpable. It does so by creating four degrees of a new crime designated “Stalking” under the umbrella of crimes designated “Assault and related offenses.” (2) These new laws recognize the harm caused by stalkers as well as the dangerous potential of those who engage in stalking behaviors and, in fact, specifically takes note of the “high correlation between stalking behavior and the infliction of physical violence or sexual assault.”(3)
Under the new legislation, in addition to those behaviors designed to create the fear of serious physical injury or sexual assault, engaging in a course of conduct that causes reasonable fear of material harm to a person’s physical health, safety or property may constitute stalking. Similarly, behaviors such as following, telephoning, initiating communications or appearing at a person’s workplace can be elements of the crime of stalking if such behaviors cause material harm to a person’s mental or emotional health or create a reasonable fear that his or her employment, business or career is threatened and the offender has been previously informed to cease the conduct. Stalking in the second degree also adds as a chargeable offense the scenario where a person over twenty-one years of age intentionally places a person under the age of fourteen in “reasonable fear of physical injury, serious physical injury or death.”(4)
The law further recognizes that stalking behaviors do not have to be aimed directly at the victim to create harm and, therefore, covers situations in which such behaviors are directed at immediate family members or, in stalking in the fourth degree, even third party acquaintances of the victim. Additionally the definition of “immediate family” includes not only parents, children, siblings and current or former spouses but also “any other person who regularly resides or has regularly resided in the household of a person”.(5)
The expansive definitions of parties and behaviors covered by the new stalking law is accompanied by a lower standard of intent than that found in the existing crimes of harassment and menacing. While with harassment and menacing, the offender must intend to create the fear of harm in the victim, stalking in the fourth degree only requires that the offender intentionally, and with no legitimate purpose, engage in the stalking conduct itself, and knows, or reasonably should know, that such conduct is likely to cause reasonable fear of material harm. By doing so, the law counters offender claims that he or she did not intend to create fear for the victim, even if that was the outcome.
Of equal importance, the legislation establishes meaningful penalties for the crime of stalking, ranging from a Class B misdemeanor for stalking in the fourth degree to a Class D felony for stalking in the first degree, punishable by up to seven years in prison.(6) It also provides for “bump-ups” - increases in the degree of stalking chargeable (and, as a result, increases in the potential penalties) - based on prior stalking behaviors or convictions as well as prior convictions for certain other defined crimes or for acts that occur during a stalking incident. Thus, for the first time, serial or repeat stalkers can be held accountable for their prior bad acts.
The new legislation adds stalking to the list of crimes defined as family offenses over which the criminal courts and the family court have concurrent jurisdiction. It adds stalking in the first and second degree to the list of crimes for warrants and stalking in the first degree has been added to the list of class D violent felony offenses - offenses that are subject to more stringent sentencing requirements (minimum of two years). Stalking in the third and fourth degrees have been added to the definition of “serious offense” in the penal law, precluding a person convicted of either offense from obtaining a firearm license. Courts will be required to suspend the firearm license and order the surrender of firearms of any person against whom a temporary order of protection is issued, where the person has a prior conviction for any degree of stalking. Further, courts will be required to revoke the firearm license and order the surrender of firearms of any person found to have willfully failed to obey an order of protection when such failure involved behavior constituting any degree of stalking.
All of the degrees of stalking have also been added to Section 631 of the Executive Law making victims who have not been physically injured as a direct result of stalking eligible for crime victim’s compensation for, among other items, loss of earnings or support, unreimbursed cost of repair or replacement of essential personal property that has been lost, damaged or destroyed as a direct result of the crime, unreimbursed cost for security devices to enhance the personal protection of the victim, transportation expenses incurred for necessary court expenses in connection with the prosecution of such crime, unreimbursed costs of counseling provided to a victim for mental or emotional stress resulting from the incident, and, occupational or job training.
The Office for the Prevention of Domestic Violence is currently developing detailed training materials on this new law. More information about the law, including the text of the bill, will be available on our website at www.opdv.state.ny.us. If you have any questions, please contact us at (518) 457-5800.
(1) In addition to the stalking provisions discussed herein the legislation creates two degrees of the crime of criminal interference with health care services or religious worship and further creates injunctive relief under the Civil Rights Law when there is reasonable cause to believe that criminal interference with health care services or religious worship has occurred or might occur.
(2) Located in Penal Law §120 et. seq.
(3) As cited in the legislative intent for the act.
(4) Penal Law §120.55.
(5) Penal Law §120.40(4).
(6) Stalking in the third degree is a Class A misdemeanor while stalking in the second degree is a Class E felony.
