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Fighting Stalking

APPROXIMATELY 3.4 million Americans experienced stalking during a 12-month period, according to a recent major stalking survey by the Bureau of Justice Statistics (BJS). Stalking behavior includes everything from unwanted communications to showing up at someone’s workplace.

The last major national survey that looked at stalking prevalence was the 1998 National Violence Against Women survey, says Michelle Garcia, director of the Stalking Resource Center at the National Center for Victims of Crime. That survey found that about 1.4 million people were stalked in a year.

Another significant finding from the BJS survey is that 50 percent of the stalking victims said their stalking situation remained the same even after they reported the situation to police.

Garcia hopes the study will send a wakeup call about the severity of the stalking problem, which is a difficult crime to understand and prosecute.

One of the hurdles is that, taken alone, many of these behaviors (like e-mailing and leaving presents for someone) are not criminal. The activities only become criminal when they are part of a pattern of behavior that causes fear and that meets the definition of stalking.

Adding to the problem is that stalking behavior is normalized in popular culture. “In particular, it’s a word that gets bandied about to mean any sort of repetitive behavior,” says Garcia. She says, for example, that if someone bumps into the same person a few times in a weekend, they might jokingly say, “Don’t worry, I’m not stalking you,” when in fact that behavior is quite different from the actual crime of stalking.

Additionally, from a criminal justice perspective, addressing stalking requires a paradigm shift from reactive to proactive, according to Garcia. “If we intervene early enough, we can ideally prevent the commission of other and often more serious crimes, like physical assault or sexual assault or even homicide,” Garcia says.

In 2007, the Stalking Resource Center released a Model Stalking Code as an example of effective legislation. Although various states have enacted the legislation, Garcia says her group doesn’t point to any specific states as being a model for stalking prosecution. “One of the things we recognize is that there may be states that have excellent laws, but if law enforcement isn’t responding well, isn’t investigating well, and prosecutors aren’t charging cases, then it doesn’t matter how good the law is,” she says.

The reverse can also be true, according to Garcia. “There are states that may have some more challenging laws or difficult laws, but you have really assertive and aggressive investigators and prosecutors who make cases work under their laws and whatever challenges they have,” she says.

Garcia says that one of the most aggressive and innovative stalking prosecutors is Marc Guillory, assistant district attorney in San Francisco. California’s laws make stalking a challenge to prosecute, says Guillory. That’s partly because prosecutors have to prove that the behavior, whether it was repeated unwelcome communication or following someone in a car, constitutes a credible threat that had the specific intent of fear. Meeting that standard requires proving the existence of elements that you would have to prove in a first-degree attempted murder case, he says.

Why is Guillory given high marks as a prosecutor of these cases? He says he “raised the level of consequence” for stalking cases. Guillory charges them as felonies whenever he has the evidence and rarely reduces the cases to misdemeanors. He also often asks for very high bail.

“When I charge these cases, I think [the victim’s] life is threatened so the bail should be commensurate with the level of threat that is indicated by the stalking behavior,” says Guillory.

He usually asks for between $150,000 and $1 million bail, which is “the kind of bail you get on attempted murder and murder cases,” he notes.

Guillory also keeps in touch with the victims, both before trial—to ensure that the defendant is adhering to court-imposed constraints like restraining orders—and after convictions. He notes that statistics show that female murder victims are often stalked in the year before they are killed, and he regards his work as “homicide prevention.”