Stalking Statutes
Definition of the stalking statutes begins to provide an understanding of the basis for the creation of the law. “Laws that prohibit the willful, malicious, and repeated following and harassing of another person” is the definition of the stalking statutes (Siegel, 2009, p. 580). The stalking statutes are necessary to prevent fear and further trespasses against the victim. These trespasses include and are not limited to harassing, following and cyber stalking. Often stalking leads to the death of victims, as noted by Melvin Huang in the Texas Journal on Civil Liberties & Civil Rights in the article Keeping Stalkers at Bay in Texas “Further data paint a grim picture of stalking and its relationship to femicide. Overall, 87% of stalkers are men; furthermore, 94% of women and 60% of men are stalked by men. Seventy-seven percent of female stalking victims and 64% of male victims are stalked by someone they know. Fifty-nine percent of female stalking victims and 30% of male victims are stalked by a current or former intimate partner. The Intimate Partner Stalking and Femicide Study, which studied female murder victims who had been killed by intimate partners, found that 76% of femicide victims and 85% of attempted femicide victims had been stalked by their intimate partners in the year prior to their murders. These sobering statistics reveal that as much as stalkers may claim they act out of love for their victims, "it is not the power of love that drives them, but the love of power" (Huang, 2009, p. 58). When considering stalking statutes the criminal is considered to be of a unusual and special kind of criminal who has the control in a situation and has the thought to reach the other person through fear. The victims carry around their own personal terrorist.
The indication thought history is that stalkers have been in society. The stalking laws are a fairly new movement legislatively speaking. The 1990 move to pass anti-stalking laws has been fuelled by recent incidents of stalking that have caused great public interest. The move began in California after a series of women were murdered by their stalkers including actress Rebecca Schaeffer (Samaha, 2011, p. 356). The law has changed over time in regard to the crime due to the advent of the internet and the realization of the seriousness of the offense. Victims of stalking are often questioned by authorities and even assumed to be involved in victim precipitation. Since the 1990’s the stalking statutes have been modified to include electronic communications. The use of the internet allows a stalker to instill fear and threaten another person in the same fashion of control by using the electronic media. This required legislation to expand to protect the victims of internet or cyber stalking. The stalking statutes were first not taken with serious consideration because no actual physical harm had been caused to the victim. Research has indicated that stalking does lead to violent crime and the consideration for stalking laws by states has increased.
The federal stalking statutes pertain to general stalking, domestic violence and cyber stalking. The domestic violence statutes that include stalking are found in Title 18 U.S.C. § 2261(a)(1) - Interstate Travel to Commit Domestic Violence - requires that 1) the victim must be a spouse or intimate partner of the defendant, 2) the defendant must have crossed a State line (or entered or left Indian country) with the intent to injure, harass, or intimidate one's spouse or intimate partner, 3) in the course of or as a result of such travel, the defendant intentionally commits a crime of violence and 4) the defendant causes bodily injury to the spouse or intimate partner. "Spouse or intimate partner" is defined in 18 U.S.C. § 2266. [Note, "intimate partner" is defined differently under these provisions than it is under 18 U.S.C. 921(a)(32) for use in 18 U.S.C. § 922(d) or (g) prosecutions.] (Government, 2011).
The federal cyber stalking statutes are similar to the domestic violence statutes with the intent to prevent harassment and fear. They cover transmission of electronic communication and identity assuming on social networks. The federal laws also include communication by means of cell phones and messaging from state to state and international. A recent filing of a federal stalking case included cyber stalking and harassment as the accused went to lengths to create a false Facebook identity to harass a NOLA police officer. The harassment continued with email containing threats and repeated harassment. The accused’s mens rea was to knowingly threaten and harass the victim. The accused stated that his actions were justified because the officer raped his girlfriend and he wanted vengeance. This does support the argument that stalkers, no matter the motivation, are a very dangerous people with deeper intent to harm the victim. According to the source “Gary M. O'Bireck, 57, of Elmira, N.Y., is alleged to have created a fake online identity to terrorize and threaten the New Orleans officer, accusing the officer of raping O'Bireck's girlfriend in 2007, according to a felony complaint filed in federal court” (McCarthy, Friday, March 04, 2011). This type of stalking will become more prevalent as we move further in to the era of the online social life.
The Texas stalking statutes state that a person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that: the actor knows or reasonably believes the other person will regard as threatening: bodily injury or death for the other person; bodily injury or death for a member of the other person's family or household (PENAL CODE CHAPTER 42, 2011).
In Texas an offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted under this section (PENAL CODE CHAPTER 42, 2011). Texas appears to be far behind some states in reference to the stalking statutes. The movement to progress the laws to provide protection in Texas is noted by authors such as Melvin Huang “Should stalking protective orders be enacted in Texas, courts and law enforcement must deal with problems of enforcement and effectiveness. As discussed above, these are two critical yardsticks by which to measure the actual power and legitimacy of protective orders. Stalking protective orders would probably face the same challenge that family violence and sexual assault orders have in terms of effective enforcement. Four recommendations are presented in hopes of meeting and overcoming this challenge: (1) enhance stalking training and response protocols in police departments and the community as a whole; (2) engage respondents in protective order proceedings; (3) advance the economic rights of applicants; and (4) modernize safety planning.” (Huang, 2009, p. 93). Huang is correct in the analysis of the challenges that new legislation will face. The enforcement of protective orders is difficult and the enforcement of a stalking protective order would be more of a challenge due to the proof and the nature of the crime. The victim often must document interaction from the stalker. This includes communication documentation and voice recording. The victim is providing the proof to have law enforcement take the seriously. In the past stalkers were not considered a dangerous threat.
Texas has stepped up the alert with stalkers in recent years. The cases are going to the courts, it would appear that judges and law enforcement are beginning to listen to the victims and realize this is a serious matter and may lead to worse than the terrorizing of the victim as noted in a 2010 case where the stalker had been found guilty twice “Fear and uncertainty of what the man might do next drove Kate Brown to pursue her stalking case against him. Harmon Manuel, 27, was a former acquaintance who had been in high school band with her. The two never had a romantic relationship, but Manuel sent Ms. Brown, 23, of Waskom, hundreds of text messages each day professing his love for her. The texts and phone calls began in 2002 and continued until 2005, even after multiple phone number changes. After Manuel pushed his way inside of her apartment, she notified the police. She said he eventually threatened her life. “I wasn't able to be alone, and I always had a sense of panic," she said in a phone interview. She said she does not know how he always found her new numbers. A Smith County jury convicted and sentenced Manuel in April to serve a 10-year prison term on a stalking charge and a $10,000 fine. When combined with an earlier six-year sentence he received in November on another stalking charge, he will serve 16 years for both charges” (WORCHEL, 2010). It is important to note how the first charge did not prevent the reoccurrence of stalking. Each incident noted took the offense to a new and heighted level; the offenses carried out by the offender were escalating. This is often the case with stalking. The first charge may have exacerbated the second offense as explained by another stalking victim“Some stalkers are simply not afraid of the consequences of a protective order violation. As Diana, a former stalking victim laments: "[the protective order] pisses them off, it’s like taking a fly swatter and hitting an elephant with it. It just makes them mad."' (Huang, 2009, p. 70). The protection offered to victims is lacking in effectiveness and until the stalkers are dealt with harshly and new legislation provides more teeth to prevent stalking, the victims will be under duress and continue to have fear for their own safety.
Works Cited
PENAL CODE CHAPTER 42. (2011). Retrieved April 27, 2011, from PENAL CODE: http://www.statutes.legis.state.tx.us/SOTWDocs/PE/htm/PE.42.htm#42.072
Ginsberg, .. (2009). We The People (Seventh ed.). New York, NY, U.S.A.: W.W. Nortion & Company, Inc.
Government, F. (2011). Criminal Resource Manual. Retrieved April 27, 2011, from WWW.justice.gov: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01118.htm
Huang, M. (2009, Fall). Keeping Stalkers at Bay in Texas. Texas Journal on Civil Liberties & Civil Rights, 15(1), pp. 53-100.
McCarthy, B. (Friday, March 04, 2011, Friday, March 04, 2011 Friday, March 04, 2011). The Times-Picayune . Retrieved April 27, 2011, from NOLA.com : http://www.nola.com/crime/index.ssf/2011/03/massachusetts_professor_accuse.html
Regoli, R., & Hewitt, J. (2008). Exploring Criminal Justice. Sudbury, MA: Jones & Bartlett Learning.
Samaha, J. (2011). Criminal Law (Tenth ed.). Belmont, Ca., U.S.A.: Wadsworth.
Siegel, L. J. (2009). Criminology (Tenth ed.). Belmont, CA, U.S.A.: Wadsworth.
WORCHEL, D. (2010, May 17). Victim, Experts Discuss Stalking. Retrieved 4 27, 2011, from Texas District & County Attorneys Association: http://www.tdcaa.com/node/6489
