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VOLUME 7 - CHAPTER 77
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77.16 Stalking

    77.16.2 Stalking: Miscellaneous Issues

    77.16.2.1 Constitutional Challenges To The Crime Of Stalking
    77.16.2.2 Stalking: Constitutional Challenge To Use Of Term Repeatedly
    77.16.2.3 Stalking: "Repeatedly" Should Not Be Defined As More Than Once

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    77.16.2.1    Constitutional Challenges To The Crime Of Stalking

PRACTICE NOTE: The Kansas anti-stalking statute was held to be void for vagueness in State v. Bryan (KS 1996) 910 P2d 212, 215. The court faulted the statute for containing no guidelines to determine when "following" a person becomes "alarming, annoying or harassing." Under the statute, the court said "[t]he crime depends upon the sensitivity of the complainant." The court also relied in part upon Coates v. Cincinnati (1971) 402 US 611, 614 [91 SCt 1686; 29 LEd2d 214] which held that a disorderly conduct statute forbidding persons from conducting themselves in a manner "annoying" to a passerby, was impermissibly vague.

    Other stalking statutes have also been invalidated on constitutional grounds. (See e.g., Commonwealth v. Kwiatkowski, (MA 1994) 637 NE2d 854, 857 [stalking statute unconstitutionally vague because "repeatedly harassing" required a "course of conduct" and this could be interpreted as requiring more than one course of conduct; prospectively interpreted statute to remove "repeatedly" from the harassment-based offense]; State v. Norris-Romine, (OR 1995) 894 P2d 1221, 1224 [stalking statute struck down as unconstitutionally vague because of the vagueness of the term "legitimate purpose"]; Long v. State (TX 1996) 931 SW2d 285, 288 [stalking provision of harassment statute is unconstitutionally vague in its prohibition of conduct that is likely to "annoy" or "alarm" victim]; see generally Bjerregaard, Stalking and The First Amendment: A Constitutional Analysis of State Stalking Laws. (1996) B. Bjerregaard, Crim. L. Bull. July-Aug. at 321-332.)

    See also FORECITE National™ 77.16.2.2 [Stalking: Constitutional Challenge To Use Of Term Repeatedly].

Annotation, Validity, Construction, And Application Of Stalking Statutes, 29 ALR5th 487.

See also generally, FORECITE National™ 305.19.8 [Stalking].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 77.16.1.2 [Stalking:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Use of the term "repeatedly" in a stalking statute creates a vague and uncertain element which may implicate 14th Amendment due process/notice principles. (See Lanzetta v. New Jersey (1939) 306 US 451, 453 [59 SCt 618; 83 LEd 888]; People v. Soto (CA 1985) 171 CA3d 1158, 1162-64 [217 CR 795]; see also Kolender v. Lawson (1983) 461 US 352, 357-60 [103 SCt 1855; 75 LEd2d 903].) When there is no specification as to how many occasions are necessary to meet the "repeatedly" requirement, some jurors might find two or three occasions to be sufficient while other jurors might require a greater number. As a result, there is a danger that the statute will be arbitrarily enforced and that the defendant will not be afforded adequate notice of the proscribed conduct. (But see People v. Heilman (CA 1994) 25 CA4th 391, 400-401 [30 CR2d 422] [term "repeatedly" is not unconstitutionally vague because it means "more than once"].)

    For example, in Commonwealth v. Kwiatkowski (MA 1994) 637 NE2d 854, 857 the Massachusetts stalking statute was held unconstitutionally vague on its face because it permitted conviction if the defendant "repeatedly harasses" the victim. Harassment was defined as pattern of conduct or series of acts over period of time, and therefore, the crime of stalking could be interpreted as requiring more than one pattern of conduct or series of acts. For this reason, the statute lacked any reasonably discernible unambiguous application. [The statute struck down in Kwiatkowski has since been amended. (See Commonwealth v. Alphas (MA 1999) 712 NE2d 575.)]

    The fact that several other states have enacted statutes which specifically require more than one occasion, does not establish that as a matter of common sense the term repeatedly -- if not defined, as in California -- means more than once. Contrary to Heilman, the common definition is not free from ambiguity. Heilman states that the dictionary definition is "said, done or presented again." (People v. Heilman, 25 CA4th at 400 fn 5.) In point of fact, this is the second definition, the first definition is "renewed or recurring again and again; constant, frequent." (Webster's Third New Int'l. Dict. (1981), p. 1924.) Accordingly, Heilman erroneously concluded the common meaning of the term "repeatedly" is sufficiently specific. Therefore, the legal conclusions founded upon this faulty assumption are also erroneous.

    See also FORECITE National™ 77.16.2.1 [Constitutional Challenges To The Crime Of Stalking].

"Anti-Stalking Statutes," Criminal Law Bulletin, May-June 1994, pp. 203-241.

See also generally, FORECITE National™ 305.19.8 [Stalking].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 77.16.1.2 [Stalking:  Federal Circuit Model Instructions And Notes].

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VOLUME 7 - CHAPTER 77

RATIONALE: Without definition, the jury may improperly assume the term "repeatedly" means simply, more than once. Repeatedly means more than this, it means "again and again."

POINTS AND AUTHORITIES: The term repeatedly may be unconstitutional unless construed to preclude conviction based on only two or three occasions. (See FORECITE National™ 77.16.3.4 [Stalking: Defense Theory That Victim's Feelings Of Harassment Were Not Reasonable And/Or Subjectively Held].)

    Further support for this argument may be found in People v. Green (CA 1991) 227 CA3d 692 [278 CR 140]. In Green the court concluded that the term "pattern of criminal gang activity" as used in the California statute (Penal Code § 186.22(e)) is not unconstitutionally vague because it is specifically defined by the statute as, inter alia, the commission of two or more specific offenses. (Green, 227 CA3d at 703.) In so doing, the court relied on U.S. v. Campanale (9th Cir. 1975) 518 F2d 352, 364, which addressed a vagueness argument in the context of the RICO statutes, which employ the phrase "pattern of racketeering activity." The federal court held: "It is true that, if undefined, terms such as 'pattern of racketeering activity' would be unmanageable. Any ambiguity is cured by 18 USC 1961, which defines 'racketeering activity' with reference to specific offenses, [and] 'pattern of racketeering activity' with reference to a definite number of acts of 'racketeering activity' within a specified time period." [Emphasis added.] (Campanale, 518 F2d at 364.)

    At a minimum, the term should be defined as meaning "again and again" which is the dictionary definition.

    See FORECITE National™ [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.19.8 [Stalking].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 77.16.1.2 [Stalking:  Federal Circuit Model Instructions And Notes].