Stalking

Stalking

  • CR22-502.  Stalking, 13 V.S.A. § 1062 (03/23/07)

Aggravated Stalking

Reporter’s Notes

The stalking statutes are relatively new, and there are some open questions concerning the proper interpretation of the statute.  Areas of uncertainty include (1) the meaning of “legitimate purpose,” and (2) whether specific intent must be proven.  Also note that the legislature amended the statutes in 2005.  All of the current instructions apply to post-amendment behavior.  If you have reason to need pre-amendment 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).

Under 13 V.S.A. § 1061(1)(A), the State must prove that the defendant’s course of conduct “serves no legitimate purpose.”  It is not clear what the court can say to help explain this element.

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 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 post-2005 definition requires 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.”  13 V.S.A. § 1061(1)(B).

 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.  These amended instructions appeared in CR22-502, 22-507, 22-522, and 22-527.

 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 amendment also clarifies 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 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 State v. Hoch, 2013 VT 83 (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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