“Stalking” as an issue comes up quite often, as we see from newspapers; but without going into an elaborate discussion, I will clarify what I know and believe about it, as a legal layman. I will refer to some academic and legal reference material. I may offer expanded remarks in a later blog entry.
Separating the wheat from the chaff
Stalking, like the terms harassment, abuse, and so on, often in practice has a subjective component. It can be defined—or invoked—by different women (or men) who have different ideas of what constitutes it, and how much of a behavior in another person a woman (or man) is able to tolerate, excuse, or interpret (after an interim) as acceptable enough. Sometimes we may feel that a person, especially a woman, may claim “stalking” while informing it with a significant emotional or subjective aspect. With this, is she expressing a passing mood to a large extent? Is she being manipulative? Is she seeking attention? Men can do this too.
So “stalking” must be defined with reference to something unusual that defines it—not a mere passing ornery mood. An interesting study (on female stalkers) available here notes that “According to Meloy [referenced in the study], stalking is 'the willful, malicious, and repeated following or harassing of another person that threatens his or her safety.'” Note some key terms: willful, malicious, repeated; harassing; and “threatens his or her safety.” This sounds like a significant component of danger is involved, and it should be clearly identifiable as such.
State statute on criminal stalking in New Jersey
Let’s look at the New Jersey state statute on stalking (N.J.S.A. 2C:12-10) to see how this state defines it—and this is criminal stalking:
“(1)…repeatedly maintaining a visual or physical proximity to a person; directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person’s property; repeatedly committing harassment against a person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person.
“(2) ‘Repeatedly’ means on two or more occasions.
“(3) ‘Emotional distress’ means significant mental suffering or distress.
“(4) ‘Cause a reasonable person to fear’ means to cause fear which a reasonable victim, similarly situated, would have under the circumstances.” [p. 686 of the 2012 Compact Edition of West’s New Jersey Statutes]
These are definitions. The rest of the statute deals with what constitutes offenses of the fourth degree, third degree, etc., and details related to getting a restraining order, etc.
If you read the definitions again, it seems that key to whether something constitutes stalking is emotional distress and being caused to fear—in a reasonable person. This last aspect presumably is meant to eliminate subjective, fluky, or manipulative claims.
Again, this is criminal stalking. One presumes that for a charge of stalking to be brought—the state, of course, doesn’t have time for frivolous complaints—the alleged actions have to cross some threshold that is rather demanding—about an activity involving (alternatively, as it seems from the definition above) close proximity to a person or regular monitoring or communicating about a person, etc.; or interference with a person’s property, harassment, or threats; and reactions in the victim of emotional distress and fear (these latter aspects would seem essential).
I am not even touching on the issue of cyberstalking, which is complicated indeed.
My own speculations on civil stalking in New Jersey, pending my research on it
New Jersey recently passed legislation on civil stalking. I am eager to see the statute on this, to understand it, but one thing should be clear as a general matter: in civil matters, there are two sides involved; alleging stalking in a civil-court forum is not merely ringing the unambiguous bells of making an allegation about criminal activity. And in the civil process—as I learned in order to be effective in the Bauer v. Glatzer lawsuit—there are phases of discovery and, only if necessary, trial. Both sides present evidence and other components of their claims in discovery, and I would assume it would also be possible that a person sued for stalking could also countersue, perhaps alleging stalking on the part of the plaintiff (of course, as is independent of the lawsuit action itself).
Such a case may then fall apart in the discovery phase. The person initially claiming stalking may find that the defendant, as a reasonable person—I would assume this standard would hold again—has some representations of things that ultimately establish that he or she was not “stalking” the plaintiff—meaning to convey danger or harm, or to cause emotional distress, or whatever other behavioral criteria of civil stalking there would be. There may be some very valid set of reasons for the behavior on the part of the defendant that the plaintiff had earlier interpreted (or claimed to be) mere stalking.
