Defending Against an Accusation of Stalking

Stalking is a serious crime that can be a felony or misdemeanor. All 50 states have criminal laws against stalking. Learn how states define and penalize stalking offenses and what defenses may be available.

What Is Stalking?

The specific definition of the crime varies among jurisdictions but typically involves a pattern of following, watching, or monitoring another person with the intent to harass, frighten, intimidate, threaten, or cause the person emotional distress. It can include such behaviors conducted in person or electronically.

Examples of stalking behavior include:

• repeatedly or secretly following someone
• repeatedly showing up or driving by a person's home, workplace, or school
• monitoring a person's computer, cell phone, or social networking activity
• posting harassing messages on another's social media
• secretly placing a GPS device on someone's vehicle in order to track the person
• repeatedly sending unwanted letters, gifts, texts, or email
• using an electronic device to repeatedly communicate or post threats
• secretly photographing or videotaping someone
• threatening to hurt the person or the person's friends, family members, or pets, and
• damaging the person's home, vehicle, or other property.

What Are the Penalties for Stalking?

Stalking may start out as a misdemeanor offense. The circumstances that make stalking a felony vary with each state's law. In most states, stalking can be enhanced to a felony if:

• the crime is a second or subsequent offense
• the offender commits the offense in violation of a court order, such as an injunction, stay-away order, no-contact order, restraining order, or order of protection
• the stalking involves specific threats to harm the victim or those close to the victim
• the offender targeted the victim based on bias or prejudice
• the offender targeted a victim based on their job as a judge, police officer, or other public officials, or
• the stalking causes serious emotional distress to the victim.

Misdemeanor stalking offenses typically carry up to a year of jail time and fines. A defendant convicted of a felony may face prison time of a year or more and fines. In any stalking case, the judge will usually issue a restraining, protection, or injunction order against the offender (if one is not already in place). Violating this order can lead to additional criminal penalties and jail time.

What to Do and Not Do When Accused of Stalking

If you're being investigated or charged with stalking, you should retain a criminal defense attorney as soon as possible. Be prepared to give your attorney any information you have about the case, the victim, and your relationship with the victim.

There also are several things you should not do if you learn you are being investigated or charged with stalking.

• Don't try to talk to the victim about the case or have any contact with the victim (online, in person, or otherwise).
• Don't speak with the victim's family or friends.
• Don't talk to law enforcement or other investigators without an attorney present.
• Don't give any evidence to law enforcement without consulting with a lawyer first—even if you believe the evidence will show you are not guilty of the alleged crime.

What Are Defenses to Stalking Allegations?

As with any criminal charge, the prosecution must prove the crime beyond a reasonable doubt. The following are examples of arguments that, if applicable, can defeat a charge of stalking:

• the prosecution failed to prove each element of the crime beyond a reasonable doubt (for instance, the prosecution didn't prove that the defendant followed the victim because it's just as likely that the defendant was traveling to his nearby gym)
• the defendant didn't intend to harass, frighten, or annoy the victim
• the victim lied about what happened, or
• the victim intentionally or mistakenly identified the wrong person as the offender.

Consult an Attorney

An experienced and knowledgeable criminal defense attorney will be aware of the possible defenses to a stalking charge and the issues that need to be explored. An attorney can give you information about the criminal law process and legal advice, investigate the case, and represent you in court if needed.