Cecily Zamora
Stalking laws have been introduced in most English-speaking jurisdictions, with some form of legislation prohibiting stalking behaviour. The first anti-stalking law was passed in 1990 in California, with all 50 states enacting anti-stalking laws soon after. In 1996, the US Congress enacted the first federal stalking law, and in 1998, the National Institute of Justice and the Centers for Disease Control and Prevention released a study on the extent of stalking nationwide. While stalking laws were initially contentious, the debate has lessened since the mid-2000s, and more jurisdictions have implemented legislation to prohibit stalking.
| Characteristics | Values |
|---|---|
| First anti-stalking law | Passed in 1990 in California |
| Stalking as a criminal offense | Emerged in the early 1990s |
| Federal stalking law | Enacted in 1996 |
| Interstate Anti-Stalking Punishment and Prevention Act | Enacted in September 1996 |
| Stalking law in South Korea | Passed in April 2021 |
| Stalking law in China | Simple stalking is treated as a minor offence, punishable by a small fine or less than 10 days of detention |
| Stalking law in India | A stalking case is reported every 55 minutes |
| Stalking law in Russia | Convicted stalkers may face fines or up to 3 years in prison |
| Stalking law in Germany | Stalkers may face up to 3 years in prison |
| Stalking as a military offense | Section 120a of the Uniform Code of Military Justice (UCMJ) criminalized stalking in 2011 |
| Anti-stalking laws in US states | As of 1996, 17 states had amended their stalking laws |
| Criticism of anti-stalking laws | Civil libertarians argue that stalking laws infringe on First Amendment rights |
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What You'll Learn
Stalking as a criminal offence
Stalking has been recognised as a criminal offence since the early 1990s, although the behaviours that characterise stalking are not new. The first anti-stalking law was passed in 1990 in California, and by 1996, all 50 states in the US had enacted anti-stalking laws. In 1996, the US Congress enacted the first federal stalking law, the Interstate Anti-Stalking Punishment and Prevention Act, which made it a felony to cross a state line to stalk someone in violation of a restraining order.
Since the mid-2000s, the debate around anti-stalking laws has lessened, and more jurisdictions have enacted legislation prohibiting stalking behaviour. Most English-speaking jurisdictions now have some form of legislation prohibiting stalking behaviour, often using the term harassment to describe the behaviour. Some non-English-speaking countries, particularly in Europe, have also introduced anti-stalking legislation.
Anti-stalking laws have been the source of much controversy. Civil libertarians claim that stalking laws contravene the Constitution by making criminal and innocent behaviour indistinguishable and by infringing on First Amendment rights. Others criticise the laws as a politically safe shortcut that legislators have adopted to address a pervasive crisis too complex for a single law.
Despite the controversy, anti-stalking laws are important because they reflect a legislative understanding that stalking is fundamentally different from other harassment crimes, and they offer victims protection from behaviour that was previously unregulated. Most anti-stalking laws require one or more of three critical elements to establish the offence: conduct (or behaviour) requirements, intention, and the response of the victim. For example, in some jurisdictions, there is no need to prove that the perpetrator intended to cause fear. Instead, if the behaviour was one that would cause a reasonable person to feel fear, it is only necessary to prove that the perpetrator intended to commit the act that caused fear.
In some countries, stalking is treated as a minor offence, and stalkers are punished with small fines or short periods of detention. However, there are calls for harsher penalties for stalking. For example, in Russia, some lawyers propose including an article in the Criminal Code that would make stalking punishable by up to three years in prison.
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Anti-stalking laws in the US
The specific definitions and penalties for stalking vary depending on the jurisdiction. Some jurisdictions, like California, the UK (excluding Scotland), and Italy, broadly define stalking as repeated intrusions on the victim without specifying the nature of the acts. In contrast, other jurisdictions, such as Michigan, most Australian jurisdictions, and New Zealand, provide explicit lists of behaviours that constitute stalking when engaged in repeatedly. These prohibited behaviours may include following, loitering near the victim, contacting the victim by any means, surveillance, interfering with the victim's property, or leaving offensive materials.
To violate federal anti-stalking laws in the US, an individual must engage in specific prohibited acts and cross state lines, travel internationally, or operate within US territories, maritime jurisdictions, or tribal lands. Additionally, the use of mail, the internet, or interstate electronic communications systems is considered a federal crime in the context of stalking. A conviction for cyberstalking, which involves the same intent and conduct but occurs through electronic communications, requires the prosecutor to prove a "course of conduct", or two or more acts.
To secure a conviction under federal anti-stalking statutes, prosecutors must prove both the defendant's intent and the resulting fear or distress in the victim. This intent may include the intention to cause death, injury, fear of injury or death, or substantial emotional distress. If convicted of federal stalking charges, an individual may face up to five years in prison and a fine of up to $250,000. However, penalties may vary based on the severity of the crime and can include longer prison sentences or even life imprisonment in cases where the victim suffers physical injury or death.
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Controversies and criticisms
Stalking laws have been the subject of much debate and controversy since their inception. Initially, there was significant opposition to the implementation of anti-stalking laws, with arguments that they were unnecessary, overly broad, and infringed on individual rights. However, since the mid-2000s, the debate has subsided, and more jurisdictions have enacted legislation prohibiting stalking behaviour.
One of the most controversial aspects of stalking laws is the issue of perpetrator intent. Some anti-stalking laws require proof that the perpetrator intended to cause fear or harm to the victim, while others have adopted a 'minimum standard of intent', where the behaviour itself is considered sufficient if it would cause a reasonable person to feel fear. This variation in legislation has led to criticisms of stalking laws for being too broad and lacking specificity.
The implementation and enforcement of stalking laws have also faced criticism. Despite stalking being recognised as a distinct crime in all states, many state laws lack adequate penalties and enforcement mechanisms. There is a lack of understanding among criminal justice personnel regarding anti-stalking laws, and misperceptions about what constitutes stalking are widespread. This has resulted in a lack of effective investigation and prosecution of stalking cases, with civil law parallels to criminal anti-stalking laws being less common.
In some countries, stalking laws have been criticised for their weaknesses and leniency. For example, South Korea's stalking laws were accused of not taking violence against women seriously enough after a woman was stalked and murdered by her former colleague in 2022. Similarly, lawyers in Russia have argued that the punishments for stalking are not always commensurate with the crime, advocating for stricter penalties.
The broad nature of stalking laws has also been a point of contention. While the intent is to ensure the legislation covers a wide range of stalking behaviours, some argue that this results in individuals being prosecuted for minimal intrusions. This raises questions about the appropriateness of criminal sanctions in low-risk situations and the need for effective communication about the risks and characteristics of stalking.
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Defining stalking
Stalking is a crime in most parts of the world, but its definition varies across jurisdictions. Most anti-stalking laws require one or more of three critical elements to establish the offence: conduct (or behaviour) requirements, intention, and the response of the victim.
Stalking can be defined as the willful and repeated following, watching, or harassing of another person. It is a series of actions that occur over a period of time, and these actions are often interrelated to harassment and intimidation. Unwanted contact, including phone calls, texts, and social media messages, are common forms of stalking. Other behaviours include showing up at a person's home or workplace, monitoring or surveillance, property damage, and threats.
The element of fear is what often separates stalking from harassment. Stalking behaviours cause a reasonable person to feel fear or apprehension, and this fear is often masked by other emotions such as anger, frustration, hopelessness, or despair. The victim's perceptions, vulnerabilities, and sensitivities become a defining element in establishing the offence, rather than the perpetrator's intent.
In some jurisdictions, there is no need to prove that the perpetrator intended to cause fear. Instead, if the behaviour was one that would cause a reasonable person to feel fear, it is only necessary to prove that the perpetrator intended to commit the act that caused fear.
The definition of stalking has evolved over time. In the past, behaviours that are now considered stalking were referred to as "female harassment", "obsessive following", or "psychological rape". The term "stalking" was first used by the media in the 20th century to describe people who pester and harass others, initially referring to the harassment of celebrities by strangers.
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Stalking internationally
Stalking laws have been introduced in many countries around the world, although the specific definitions of stalking vary between jurisdictions. The status of stalking as a criminal offence is relatively new, emerging in the early 1990s, although the behaviours that characterise stalking are not.
In 1990, California passed the first anti-stalking law in the United States. By the early 21st century, all 50 US states had criminalised stalking, and similar policies had been adopted internationally. For example, in 1993, Section 264 of the Criminal Code, titled "criminal harassment", came into force in Canada. This section addresses acts termed "stalking" in other jurisdictions. In 1998, President Clinton signed a bill into law that protects children against online stalking, making it a federal crime.
In 2013, the Indian Parliament amended the Indian Penal Code to introduce stalking as a criminal offence. Stalking is defined as a man following or contacting a woman, despite clear indications of disinterest, or monitoring her use of the internet or electronic communication. In India, a stalking case is reported every 55 minutes, although most cases are not reported as they are not considered criminal enough.
In China, simple stalking is treated as a minor offence, with punishments including a small fine or less than 10 days of detention. In Taiwan, more than 7,000 cases are reported each year, with 80% of the victims being female.
In some jurisdictions, such as California, the UK, and Italy, the nature of the acts that constitute stalking is not specifically defined, while others, like Michigan, most Australian jurisdictions, and New Zealand, specifically state what kinds of behaviour are considered stalking if engaged in repeatedly. Prohibited behaviours typically include following, loitering near the victim, contacting the victim, keeping the victim under surveillance, interfering with the victim's property, or leaving offensive materials.
While stalking laws were initially contentious, with debates around their necessity and concerns about their broad scope infringing on individual rights, the debate has lessened since the mid-2000s, and more jurisdictions have enacted legislation to prohibit stalking behaviour.
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Frequently asked questions
Stalking laws emerged in the early 1990s, with the first anti-stalking law passed in California in 1990.
The US Congress enacted the first federal stalking law in 1996.
The first federal stalking law was the Interstate Anti-Stalking Punishment and Prevention Act, enacted in September 1996.
No, the status of stalking as a criminal offence is relatively new, though the behaviours that characterise stalking are not.
