Stalking the Stalkers

Prior to the adoption of stalking laws in New York State in 1999, law enforcement typically responded to stalking allegations under existing statutes including harassment, aggravated harassment, trespass, or criminal mischief. Those laws, ranging from petty offenses to misdemeanors, did not always recognize the terror, anxiety and fear experienced by many stalking victims. New York State’s current law criminalizes various “course of conduct” stalking behaviors with penalties ranging from class B misdemeanor (stalking in the fourth degree) to a class D felony (stalking in the first degree). According to the Centers for Disease Control and Prevention (CDC), “Stalking is a public health problem that affects millions of women and men in the United States. Stalking occurs when someone repeatedly harasses or threatens someone else, causing fear or safety concerns.” 1 The CDC also notes that, “Stalking tactics can include:

• making unwanted phone calls
• sending unwanted emails, instant messages, text messages, voice messages, or social media messages
• approaching a victim or showing up unwanted, such as at the victim’s home, workplace, or school
• leaving strange or potentially threatening items for the victim to find
• watching, following, or tracking a victim
• sneaking into the victim’s home or car and doing things to scare the victim or let them know the perpetrator had been there.” 1

One of the obstacles in developing a stalking case is in the lack of documentation of a pattern of threatening conduct, or variations in police reporting from one region to the next, especially when stalking spans more than one geographical jurisdiction. Senior Investigator Matthew Stegner of the New York State Police Campus Sexual Assault Victims Unit has investigated several stalking crimes over the years. He said, “All of us in law enforcement have struggled with different police agencies using different platforms to create incident reports. In addition, each individual contact on its own (i.e.: one text message, one hang up call, one instance of driving past the house of the victim) may seem minor to the responding officer. However, the cumulative effect of the stalking behavior is what makes each case.”

New York State’s stalking laws cover actions which are “…likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person's immediate family or a third party with whom such person is acquainted…”3; or, “…causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person's immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct.”4  While some of the stalking crimes in New York State do not require prior notice to the offender to stop the conduct, several subdivisions do require that notice be given, specifically requiring that “…the actor was previously clearly informed to cease that conduct;” So how can police officers ensure that they are developing cases which will satisfy the essential elements of the stalking statute? The New York State Association of Chiefs of Police publishes a “Notice to Cease Conduct” form in the resource section of the New York State Law Enforcement Handbook. The fill-in-the-blank form captures necessary information to support the prosecution of a stalking crime, and also serves as an affidavit if needed to support the filing of a complaint in court. The form records the names of the victim and suspect, along with the date, time and location of the threatening conduct, a description of the offending action, and the substance of the words used in giving the cease-conduct order to the suspect, and any witnesses to the order. In the event it is the police officer delivering the notice to cease conduct, that part of the form could be completed as either an affidavit or investigative notes, with the other portion describing the threatening behavior completed by the victim.

Sr. Inv. Stegner urges that investigating officers help victims in understanding the importance of recording the facts and circumstances of all offensive behaviors, even though they may seem minor at first. “Documentation is king. Provide a stalking log to the victim and ask them to document each instance of harassment, calling, following, etc.”

According to the Stalking Awareness Prevention and Resource Center (SPARC), these are some critical ways in which police can help stalking victims:

1. Listen closely to victims — even if what they say sounds unbelievable — and document everything they report.

2. Substantiating the crime of stalking requires building a case that establishes a course of conduct. If you do not have enough evidence based on one incident report to charge the suspect with stalking, take the time to discuss with the victim how to document and report the offending behavior so that you may build a case.

3. Investigate other reported incidents such as vandalism, burglary, and violations of protection orders to see if these behaviors establish a pattern of conduct.

4. Consult with your local prosecutor and U.S. Attorney to learn exactly what evidence you need to collect to build and charge the case.

 5. If the victim is still engaging with the offender, understand this may be the best way for the victim to remain safe. 5

In an age of social media, many stalking crimes occur through texting and other online platforms. Inv. Stegner said, “It is so easy to create anonymous texts or anonymous profiles and reach out to the victim. As quickly as the accounts are created they can be taken down.” Many social media platforms, even when created anonymously, can leave a digital fingerprint. Stegner added, “I recently had a case where a suspect created three fake Instagram accounts and contacted his ex-girlfriend. An order of protection was in place prohibiting this contact. Through a search warrant on the Instagram accounts I was able to determine the same phone number (the suspect’s) was used to create all three accounts. The suspect was arrested for violating the order of protection and charged with stalking.”

Many of us in law enforcement have handled cases where the stalking behavior ranged from mild and spontaneous to deviant, premeditated, and sometimes violent. Stegner suggests that when police are investigating a stalking complaint, to meet the victim at a location other than the police station. “Always assume the victim’s vehicle and phone are able to be traced through applications such as Find My Phone, SNAPCHAT Map, or a GPS device on vehicle.” Stalking crimes can be debilitating to victims, families and acquaintances, causing them mental anguish, and fear about their own safety. Inv. Stegner recommends that when police are interviewing a stalking victim, to do it with an advocate or crime victim specialist. “These professionals are able to provide the emotional support to the victim before, during and after the criminal investigation and can assist them with concerns such as recouping lost wages”, Stegner added.

The International Association of Chiefs of Police has a model policy for the investigation of stalking crimes covering procedures from the initial police response, to evidence collection, threat assessment, victim assistance, and police intervention.6 SPARC7 has a variety of helpful information for law enforcement officers and victims, including call logs. The Notice to Cease Conduct form is a resource provided by the New York State Association of Chiefs of Police. In any investigation, be sure consult with your local prosecutor and victim advocates, and follow your own policies and procedures.

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1 Centers for Disease Control and Prevention; https://www.cdc.gov/violenceprevention/intimatepartnerviolence/stalking/fastfact.html ; Accessed Mar. 20, 2020

2 Response Tips for Law Enforcement; Stalking Awareness Prevention and Resource Center; https://www.stalkingawareness.org/wp-content/uploads/2018/12/Response-Tips-for-Law-Enforcement.pdf ; Accessed Mar. 20, 2020

3 New York State Penal Law; §120.45 Stalking in the fourth degree

4 Ibid

5 Response Tips for Law Enforcement; Stalking Awareness Prevention and Resource Center; https://www.stalkingawareness.org/wp-content/uploads/2018/12/Response-Tips-for-Law-Enforcement.pdf ; Accessed Mar. 20, 2020

6 International Association of Chiefs of Police; IACP Model Policy Library; Stalking; Accessed Mar. 25, 2020

7 https://www.stalkingawareness.org