Stalking is the willful, malicious and repeated harassment or following of another person, the victim, with the intent of placing the victim in fear for his or her safety or for the safety of his or her immediate family. The defendant must make a credible threat which creates a reasonable fear in the victim. The threat can be expressed to the victim or it can be implied by a pattern of conduct. The most prevalent example of stalking is when someone sends repeated threatening letters to someone who is either a political figure or famous which threatens bodily harm.
Harassment is defined for the purpose of stalking as two or more acts directed at a specific person that seriously annoys, alarms, torments, or terrorizes the person and is done without a legitimate purpose. The acts must be done over a period of time and must demonstrate the common purpose of harassment. The period of time can be short.
In order to constitute a credible threat, it must be one that the defendant appears capable of carrying out and the fear it creates in the victim must be reasonable. If a defendant threatens to use his magic powers to reverse gravity and fling someone off the earth, it would not be seen as a credible threat. It is irrelevant if a defendant does not intend to carry out their threat. If a defendant followed a victim around saying they were going to stab the victim’s children and produced a knife, it would constitute stalking whether or not the defendant intended to actually stab the victim’s children.
Stalking can even be found in acts which a defendant might not intend to be taken as harmful. For example, a man continually sends love letters to a woman who does not return the affection, and makes known she does not return the affection. The man then shows up on her doorstep several times with flowers and gifts and she still does not return the affection and tells him he needs to not contact her anymore. Him showing up and threatening to kill himself if she does not return the affections would then be seen as stalking (if not sooner with the flowers and gifts on her doorstep, depending on the man’s insistence). While the man may not have ever intended to be a threatening presence and would never have intended any harm, it would still be taken as stalking. Generally a victim would get a restraining order first however, it is not necessary for a stalking charge.
One of the main defenses to stalking is that the defendant is engaging in constitutionally protected conduct. Being in a legally defined public place with a victim is not sufficient to constitute an implied threat from a defendant to a victim unless there is a restraining order specifically directing the defendant to stay away from the victim. However, a defendant remaining in the same space as the victim, making sure the victim knows that the defendant is near the victim, coupled with any prior acts which would make a victim fear the defendant would be considered stalking, even if done in a public place.
Elements, crimes and defenses vary from state to state and within the federal system. If you or someone you know is charged with any crime, as always, you should consult a local attorney, licensed to practice in your jurisdiction and preferably one practicing only criminal law. You can always look for your local criminal attorney at http://www.crimelawyers.org