Stalking

"Shop and Stalk" by Lance Hester; Oct 1997

            Random flirts beware!  “Regulars” at bars, coffee shops, or shopping malls beware!  Those who happen to share the same regular path as another person to a bus stop, parking space, or school-yard beware!  The state has a law designed just for you.

            Under RCW 9A.46.110:

(1)A person commits the crime of stalking if, without lawful authority and under circumstances not amounting to a felony attempt of another crime:

(a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and

(b) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person.  The feeling of fear must be one that a reasonable person in the same situation would experience under all the circumstances;  and

  (c) The stalker either:

  (i) Intends to frighten, intimidate, or harass the person;  or

  (ii) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person.

  (2)(a) It is not a defense to the crime of stalking under subsection (1)(c)(i) of this section that the stalker was not given actual notice that the person did not want the stalker to contact or follow the person;  and

  (b) It is not a defense to the crime of stalking under subsection (1)(c)(ii) of this section that the stalker did not intend to frighten, intimidate, or harass the person.

…

  (4) Attempts to contact or follow the person after being given actual notice that the person does not want to be contacted or followed constitutes prima facie evidence that the stalker intends to intimidate or harass the person.

  (5) A person who stalks another person is guilty of a gross misdemeanor except  (in some circumstances is guilty of a felony). …

…

            In pertinent part, the statute goes on to define the following words:

            “Follows” means deliberately maintaining visual or physical proximity to a specific person over a period of  time.  “Harasses” means unlawful harassment as defined in RCW 10.14.010.  “Repeatedly” means on two or more separate occasions.

            Even a cursory reading of the stalking statute leaves one wondering what minimum act it would take to be charged with stalking.

            Imagine this. 

            Man meets woman at her work.  He asks her out.  She says no.

Man calls same woman at her work (at the number she gave him after he initially asked her out) that same day.  He informs her that it is an open invitation to go out should she change her mind.

Man sends woman a card - telling her that meeting her made his day special.

            TWO MONTHS LATER man walks past same woman at same store.  He compliments her hairdo.

Man calls woman once more.  The consensual call lasts 8 minutes.

            Man gets arrested.  Man charged with Stalking.

            The Court of Appeals says that the stalking statute is constitutional.  It was challenged as overbroad in State v. Lee, 82 Wn.App 298 (1996).  The case was granted review by the State Supreme Court on December 4, 1996.  On April 8, 1997 the case was heard; the opinion has yet to be filed.

            Unless the Lee decision is reversed, there are only two methods of attacking a stalking charge.  Those methods are typically long-shots, but often a client’s only hope of avoiding trial.

            The statute can be challenged as unconstitutionally vague as applied to a particular situation.  Under this approach the inquiry is whether the statute, as applied to the particular defendant's conduct, is unconstitutional.  (See, State v. Danforth, 56 Wn.App 133, 135 (1989), and Bellevue v. Miller, 85 Wn.2d 539 (1975).  In cases where the prosecuted conduct is something other than the “core” of the statute, the case must be dismissed. State v. Zuanich, 92 Wn.2d 61 (1979).

            This is where the context of the terms defined in the statute get argued.  The outcome will obviously be determined on a case by case basis.  For instance, did the person from the above example “follow” within the “core” meaning of the statute when he walked past the “victim” and complimented her hairdo?  Considering the fact that the first encounter was entirely voluntary, it seems ludicrous to characterize his second encounter as “repeated” following. 

            If the two phone calls were allegedly “repeated harassment” a separate analysis of the harassment statute (RCW 10.14.040) must follow. 

            Fortunately, the only cases with published opinions have involved excessive behavior.  If a client is prosecuted under a scenario similar to the above (one that in most peoples minds does not constitute stalking), compare the actions to the defendants in one of the following cases:

            State v. Lee, 82 Wn.App 298 (1996).  This is actually a consolidated opinion involving two different cases. 

            State v. Halstein, 65 Wn.App. 845 (1992).  This case was actually with regard to a burglary prosecution.  The court considered additional factors at the sentencing phase.  It was only when the court found the defendant demonstrated “obsessive predatory behavior” that stalking occurred.

            Meanwhile, make sure your clients take a different route to the bus, car, or work every day.  They shouldn’t make friends with complete strangers.  And they shouldn’t become regulars at any retail outlet or restaurant for fear of being perceived as “repeatedly” following or harassing.