Advising and Representing Victims of Stalking and Harassment

Paul V. Kelly
Jackson Lewis P.C.
(617) 367-0025
paul.kelly@jacksonlewis.com
Advising and Representing Victims
of Stalking and Harassment
Stalking is generally defined as any unwanted
contact that communicates a threat or places the
victim in fear.
Stalkers are often obsessed with their victims, and
may monitor a victim’s actions, conversations,
social media usage, and whereabouts.
Motivation is typically to gain control
or feel connected to a person with
whom they do not and/or cannot have
a relationship.
Harassment is generally defined
as willful and malicious conduct
intended to cause fear, intimidation,
or emotional distress.
Harassment can be a weapon in the arsenal of the
the obsessive stalker, or it can arise from a fixation
for the victim, or from a desire for retaliation
against the victim for a perceived wrong.
Let’s look at some of the more notorious “celebrity stalking”
cases and the conduct that was involved.
Mark David Chapman
John Hinckley, Jr.
John Robert Bardo
Jonathan Norman
David Ajemian
Margaret Ray
Jack Jordan
Dawnette Knight
We are often contacted by corporate executives
and other non-celebrities who are being stalked
and harassed.
Stalkers appear to come from both genders, all
races, various socio-economic backgrounds, and a
broad age range. What they
appear to have in common is
some form of mental illness or
emotional instability.
• Investigation (develop full profile of stalker)
• Protection / Bodyguards
• Security systems
• Surveillance / Proactive counter-measures
• Direct engagement
• Criminal laws
• Civil law alternatives
• Surveillance can be an effective approach,
particularly with clients who do not wish to have
bodyguards actively protecting them or their
families.
• Need to be cautious here that you do not cross
any of the legal lines that you believe the stalker
has crossed in harassing your client.
• Undercover work can also be effective if handled
properly and carefully documented, preferably
with advance notice to law enforcement.
18 U.S.C. §2261A – Anti-Stalking Law
Whoever –
(1) travels in interstate or foreign commerce …
with the intent to kill, injure, harass, intimidate, or
place under surveillance in order to kill, injure,
harass, or intimidate another person …; or
(2) with the intent –
(A) to kill, injure, harass, or place under
surveillance with intent to kill, injure, harass, or
intimidate, or cause substantial emotional
distress to a person …, or
(B) to place a person … in reasonable fear of the
death of, or serious bodily injury to (i) that
person, (ii) a member of his/her immediate
family, or (iii) a spouse or intimate partner of
that person;
uses the mail, any interactive computer service, or
any facility of interstate or foreign commerce to
engage in a course of conduct (described above)
… shall be punished.
Maximum Penalties
Life imprisonment, if death results; 20 years, if
permanent disfigurement of life threatening injury
results; 10 years, if serious bodily injury results or
if dangerous weapon used; otherwise 5 years.
§ 2261A also provides:
Whoever commits the crime of stalking in violation
of a temporary or permanent civil or criminal
injunction, restraining order, no-contact order, or
other [similar] order, shall be punished by
imprisonment for not less that 1 year.
This is a mandatory minimum sentence.
18 U.S.C. §875 – Interstate communications
18 U.S.C. §876 – Mailing threatening
communications
Both statutes cover threats to kill, injure, cause
damage to reputation, accuse of a crime, kidnap or
extort; or demand / request ransom or reward for
the release of any kidnapped person.
18 U.S.C. §1951(a) – Hobbs Act
Whoever in any way or degree obstructs, delays or
affects commerce … by robbery or extortion, or
attempts or conspires to do so, or commits or
threatens physical violence to any person or
property in furtherance of a plan or purpose to do
anything in violation of this section … shall be …
imprisoned for not more than 20 years.
Of course, these laws vary from state to state. There are
various websites available that have a compendium of
state laws (i.e. Victims Rights Center).
What are some of the considerations of whether to
refer a matter to state or federal law enforcement?
• Interstate activity
• Degree or seriousness of the matter
• Prior history
• Resource availability
Penal Code §§120.45 – 120.60
Stalking in fourth degree (class B misdemeanor)
• Intentional conduct directed at a specific person
with knowledge it is likely to cause reasonable
fear of harm to the physical health, safety or
property of a person, [his] immediate family or
an acquaintance;
• causing material harm to the mental or
emotional health of a person, resulting from
telephone or other communication or contact
with the person, [his] immediate family or an
acquaintance, after the actor was clearly
informed to cease and desist that conduct; or
• is likely to cause reasonable fear that his/her
employment, business or career is threatened,
where conduct consists of appearing,
telephoning or initiating contact at person’s place
of employment, after notice to cease and desist.
• Third degree (class A misdemeanor)
Three or more transactions, prior conviction
within 10 years
• Second degree (class E felony)
Use of a weapon, stalking of a minor, prior
conviction
• First degree (class D felony)
Causes physical injury to victim
Penal Law §§240.25 – 240.31
Harassment in the first degree (class B misd)
A person is guilty … when he/she intentionally and
repeatedly harasses another person by following
such person in or about a public place or places or
by engaging in a course of conduct … which
places such person in reasonable fear of physical
injury. (Section does not apply to legitimate union
organizing activity.)
• Second degree
“strikes, shoves, kicks or otherwise
subjects such other person to physical
contact, or attempts or threatens to do so,” or
“repeatedly commits acts which alarm or
seriously annoy …”
• Aggravated / Second degree
use of computer, phone or mail to transmit
communication likely to cause annoyance or
alarm;
“strikes, shoves, kicks … because of a belief
or perception regarding race, color, national
origin, ancestry, gender, religion, religious
practice, age, disability or sexual orientation,”
or after prior conviction.
• Aggravated / First degree
Aggravated second degree [plus] causes
damage (in form of a swastika, setting cross
of fire, or displaying a noose or image
thereof).
Criminal courts of NY can issue an order of
protection following an arrest of a subject.
Family Court can issue order protecting subjects
from abuse by someone close to them (spouse,
former spouse, blood or marriage relation, intimate
relationship). Once issued, if violated arrest
should be immediate.
Civil courts can also issue restraining orders,
injunctions and harassment prevention orders.
• Engage experienced investigators.
• Consult with threat assessment professionals.
• Involve counsel with experience handling
stalking and threat cases.
• Be creative and pro-active.
• Use all available legal means to protect your
client and his family, friends and business
interests.