When harassing or stalking behavior involves the internet, mail, or activities that cross state lines, the crime may be charged as a federal offense.
Updated July 10, 2023
Federal law contains criminal provisions that penalize stalking another person when the unlawful behavior involves interstate commerce. Generally speaking, when harassing or stalking behavior involves the internet, mail, or activities that cross state lines, the crime can be charged as a federal offense. Learn more about this federal crime and its penalties.
Is Stalking a Federal Crime? Is Cyberstalking a Federal Crime?
Yes. Federal law criminalizes both acts of stalking and cyberstalking. In order to violate the federal—as opposed to a state—anti-stalking law, a person must either:
- travel across state lines, internationally, or within U.S. territories, maritime jurisdictions, or tribal lands, or
- use the mail, internet, or some type of interstate or electronic communications system or service (like a phone, texting, messaging, or social media).
Because of these requirements, the federal crime is generally referred to as interstate stalking.
What Is Considered Stalking or Cyberstalking Under Federal Law?
A person commits the federal crime of stalking by traveling across state lines, internationally, or within federal jurisdictions with the intent to injure, intimidate, surveil, or harass another person and by engaging in conduct that:
- places the person in fear of death or serious bodily injury to oneself, a member of their immediate family, a spouse or intimate partner, or a pet, service animal, or horse, or
- causes, attempts to cause, or could reasonably be expected to cause "substantial emotional distress" to any person described above.
Federal courts have defined substantial emotional distress as mental distress, suffering, or anguish, including depression, shame, humiliation, shock, embarrassment, grief, anxiety, or fear.
Cyberstalking involves the same intent and conduct but occurs through the use of interstate or electronic communications, such as mail, email, phone, internet, or social media. A conviction for cyberstalking also requires that the prosecutor prove the defendant engaged in a "course of conduct"—two or more acts.
What Are the Federal Penalties for Stalking and Cyberstalking?
A person convicted of stalking under federal law faces up to five years in prison and a $250,000 fine. If the defendant's unlawful conduct results in the death of or physical injury to the victim, a conviction can land them in prison for 10 years, 20 years, or even up to life.
Defendants guilty of stalking in violation of a restraining order receive a minimum prison sentence of one year. When the victim of the stalking crime is younger than 18, a guilty defendant is subject to imprisonment for five years on top of the underlying sentence.
State vs. Federal Charges for Stalking or Cyberstalking
Every state prohibits stalking conduct similar to that prohibited under the federal law. And, in quite a few cases, a defendant's conduct can violate both state and federal laws—especially when it comes to cyberstalking.
Whether a case will be prosecuted in state or federal court may depend on agency resources, the circumstances involved in the crime, and the coverage of and penalties found in state statute, among other factors. If the conduct doesn't fall under the federal law (involving interstate travel or communications), only state charges can be brought.
Defenses to Federal Stalking and Cyberstalking Charges
Defendants charged with violating federal stalking laws might have one or more viable defenses. The availability of any particular defense differs from case to case, but common ones include the following.
Actual Innocence
Offenders charged with stalking or related crime in federal court have the usual defenses available to all criminal defendants, such as "Someone else committed this crime," or "The alleged conduct did not occur."
Lack of Proof: Intent or Requisite Fear
In order to convict a person under the federal anti-stalking statute, a prosecutor must prove both the defendant's intent and the resulting fear or distress by the victim. In other words, the government must show that a stalking defendant acted with the intent to cause death, injury, fear of injury or death, or substantial emotional distress to the victim. Defense attorneys may argue that the defendant lacked the requisite intent or that their client's actions didn't cause the necessary distress or fear to the victim.
Freedom of Speech
Anti-stalking laws are often challenged on First Amendment grounds. Courts sometimes struggle with where to draw the line on restricting speech.
Courts that have rejected these constitutional challenges reason that the federal statute bars conduct rather than speech, and where a stalking defendant's communications are "integral" to the crime of stalking (such as verbal or written threats), the defendant cannot successfully challenge the law based on the First Amendment.
Not all challenges have failed though. In one case, a provision of the interstate stalking crime that criminalized anyone who intentionally caused substantial emotional distress to another person using an interactive computer service failed to survive strict scrutiny where the victim was a reader of the defendant's blog and could have averted their eyes to the information at any point in time.
Talk to a Lawyer
If you have been arrested for or charged with a stalking crime under federal law, contact a criminal defense attorney as soon as possible. It's important to find a defense lawyer who defends criminal cases in federal court. A lawyer can help you navigate the federal court system and discuss potential outcomes in your case based on your unique set of circumstances.
(18 U.S.C. §§ 2261, 2261A, 2261B, 2262, 3571 (2023.); U.S. v. Cassidy, 814 F.Supp.2d 574 (2011).)
