Stalking

Stalking

  • CR22-502.  Stalking, 13 V.S.A. § 1062 (03/23/07) (for crimes charged prior to applicability of 2015 amendments)
  • CR22-503.  Stalking, 13 V.S.A. § 1062 (07/19/18) (based on 2015 amendments)

Aggravated Stalking

Reporter’s Notes

The stalking statutes were originally enacted in 1993, and were subsequently amended in 1999, 2005, 2013, and most recently in 2015. All of the current instructions incorporate the 2015 amendment, which took effect on July 1, 2016. If you have reason to need pre-2016 instructions, please contact the reporter by email (see link at bottom right). See State v. van Aelstyn, 2007 VT 6, 181 Vt. 274 (upholding conviction based on prior statute).

The original stalking statute, § 1062, prohibiting intentional stalking, was ambiguous regarding the specific intent that needed to be proven. Applying the rule of lenity, the committee interpreted the statute as requiring proof that the defendant intended to cause the specific harm (i.e. the defendant intended to cause the victim to fear for his or her physical safety, or the defendant intended to cause the victim substantial emotional distress). However, the 2005 amendments to the definitions section (§ 1061) changed the meaning of “stalk” to a more objective standard. Whereas the earlier definition required a course of conduct which “causes the person to fear for his or her physical safety or causes the person substantial emotional distress,” the 2005 definition required a course of conduct which “would cause a reasonable person to fear for his or her physical safety or would cause a reasonable person substantial emotional distress.” 2005, No. 83, § 4.

Based on the 2005 amendments to the statute, the committee amended the mental element for stalking to reflect the view that the State must show that the defendant’s intentional conduct would cause a reasonable person to fear for his or her physical safety, or that it would cause a reasonable person substantial emotional distress.

The committee amended CR22-502 again in 2009 in response to State v. Hinchliffe, 2009 VT 111, 186 Vt. 487, and State v. Ellis, 2009 VT 74, 186 Vt. 232, which suggested that stalking is not a specific intent crime. The 2009 amendment to the instruction also clarified that the third essential element involves an objective standard that is “measured by examining whether a reasonable person in the victim’s circumstances would be afraid.” Hinchliffe, 2009 VT 111, ¶ 25.

The Legislature again revised the stalking statutes in 2015. See 2015, Adj. Sess., No. 162, § 5, eff. July 1, 2016; see also 13 V.S.A. § 1061. This most recent amendment redefines “course of conduct,” and eliminates the prior requirement that the conduct must “serve[] no legitimate purpose.” However, the provision of the former statute that “Constitutionally protected conduct is not included within the meaning of “course of conduct” was retained. The amendment also eliminates statutory definitions for “following,” “harassing,” and “lying in wait,” adds a definition for “emotional distress,” and further clarifies that “[r]easonable person” means “a reasonable person in the victim’s circumstances.” Finally, the amendment revises the mental element by providing a new alternative by which to prove the mental element that the defendant knows or should know that his or her conduct “would cause a reasonable person to fear for . . . the safety of another . . . .” 13 V.S.A. § 1061(4) (emphasis added). The current instructions reflect the 2015 legislative amendment.

The State need not prove that all the essential elements of stalking occurred at the same time. A defendant may still be convicted of stalking even if his or her actions do not cause fear or serious emotional distress until some later point. See In re Hoch, 2013 VT 83, ¶¶ 11–14, 194 Vt. 575 (upholding conviction based on prior statute).

 Aggravated Stalking — Violation of Court Order. The statute at 13 V.S.A. § 1063(a)(1) does not specifically require notice of the court order, and the model instruction does not include an element that the defendant received a copy of the order.  (Also see CR22-371, second degree aggravated domestic assault, under 13 V.S.A. § 1044(a)(1)).  In contrast, the statute for violation of an abuse prevention order (13 V.S.A. § 1030), specifically requires notice.  Notwithstanding this difference, the committee notes that, in the rare case when the defendant has not received notice of the order, it would be unfair to consider violation of the order as an aggravating factor.  In such cases, the element of notice must be proven.

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