His letters and phone calls to her have contained no overt threats. But they frighten her. In fact, she is so terrified of him that she cannot bear to hear his name. They met three years ago, in a store. He was a customer; she was the clerk who waited on him. He started dropping by every day. After he figured out her phone number and address, he started calling her – several times a day – and writing her often. She returned his attention with pleas to leave her alone. He responded by buying her an engagement ring.
By many definitions, he is a stalker and she is a victim. As a real-life victim, she turned to the police for help. A prosecutor was put on her case and the alleged stalker was charged under Illinois’ anti-stalking statute. Under Illinois law, however, he is not a stalker.1 He cannot be stopped using the Illinois stalking law because his victim cannot prove the requisite elements of "following" and placing "under surveillance," or that threats of "bodily harm, sexual assault, confinement or restraint" were directed towards her or her family members.2 This "stalker" would have to cross the line of harassment, battery, assault, rape or murder before Illinois law enforcement could find teeth enough to stop him.3
To begin the search for a solution for victims of subtle stalkers, I offer an analysis of the anti-stalking statute of a neighboring state, Indiana, to see if it has elements that can be incorporated into Illinois’ statute to make it more effective. To this end, I examine the federal Model Anti-Stalking Code, compare Illinois and Indiana anti-stalking statutes, analyze the efficacy of the two statutes, and suggest new language that will strengthen the Illinois statute.
ILLINOIS AND INDIANA DEFINITIONS OF STALKING
Unfortunately, a stalker often becomes increasingly violent as his feelings of affection are not returned.4 Therefore, a victim could quite reasonably fear someone who will not take "no" for an answer and persists in a bothersome course of conduct. In Illinois, however, stalking is statutorily defined as following and/or placing someone under surveillance on at least two occasions.5 These acts must be done "knowingly."6 Moreover, they cannot be done in isolation, but must be done in combination with other specific acts, such as "transmit[ting] a threat of immediate or future bodily harm, sexual assault, confinement or restraint," or "plac[ing] a person in reasonable apprehension" of such harm.7 Conversely, Indiana’s anti-stalking statute does not delineate specific threats of bodily harm, sexual assault, confinement or restraint within its definition. Rather, it defines stalking broadly as a course of harassing conduct.8
Both Illinois and Indiana require the mens rea of intent. However, the ways in which mens rea is defined are quite different, due to language that each statute uses to define the element of intent. The Illinois statute follows its reference to the mens rea with "on at least 2 separate occasions follows ¼ or places under surveillance."9 Indiana follows its reference to the mens rea requirement with the word "harassment" and the phrase "that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened."10 Indiana further defines "harassment" as "conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress."11
By connecting the element of specific intent to a victim’s reasonable – although subjective – feelings of emotional distress, the Indiana statute can protect an entire class of victims that Illinois cannot: those victimized by the delusional stalker who may not intend harm, but whose course of conduct creates reasonable emotional distress in the one receiving his attention.12 In this way, Indiana’s statutory construction – which combines "knowing" with "harassment" and "cause a reasonable person to feel" – works much like a "should have known" mens rea.
MODEL ANTI-STALKING CODE
To help legislatures grapple with the elusive definition of stalking, the National Institute of Justice established a Model Anti-Stalking Code for the States.13 It developed this Model Code based on a nationwide survey conducted in the mid 1990s by the Stalking Resource Center of the National Center for Victims of Crime.14 For the survey, stalking was defined as "a course of conduct directed at a specific person that involves repeated visual or physical proximity, non-consensual communication, or verbal, written or implied threats or a combination thereof, that would cause a reasonable person to fear."15 Based on its survey results, the National Institute of Justice suggested that Congress define stalking as a "unique crime [in] that stalking behavior involves a series of discrete, individual acts, each one building upon the next."16 It recognized that while any given act may not necessarily be criminal in and of itself, when a stalker’s acts are combined they can create a pattern of behavior that would lead a reasonable victim to fear for her own safety or the safety of her loved ones.17 Therefore, the Model Code defines the stalker’s requisite intent as "has knowledge or should have knowledge" that his acts cause fear.18 By including the legal "should know" caveat to the Model Code, Congress "reaches delusional stalkers who believe either that their victims are in love with them or that they can win their victims’ love by pursuing them."19 The "should know" requirement makes an anti-stalking statute much more effective in protecting the victim because it is not always a stalker’s specific intention to cause fear in his victim, but rather, to win her affection.20
THE ACTUS REAS OF STALKING
In addition to providing a guide on how to incorporate the element of intent into a statute, the Federal Model Anti-Stalking Code provides an example of how to define the actus reas of stalking. The key lies in the Model Code’s use of the word "reasonable," as in its phrases "[acts that] would cause a reasonable person to fear" and "[acts causing a person to be] placed in reasonable fear."21 By using this language, instead of delineating specific acts and behaviors, the National Institute of Justice (NIJ) purposely avoids any suggestion that conduct, to be considered stalking, requires a physical, verbal or written threat.22 Instead, it encourages legislatures to criminalize threats that are merely "implied by conduct."23 The inclusion of implied threats into statutory language is important for ensuring the safety of victims whose stalkers attack without ever having made an overt threat.24 Such stalkers use tactics that are perfectly legal on their face, such as numerous telephone calls, letters and gifts, threats of suicide, or ordering items in the victim’s name.25
The Illinois and Indiana anti-stalking statutes address the actus reas elements of expressed and implied conduct in divergent ways. Illinois defines stalking in terms of specific, expressed conduct.26 Actionable stalking must include at least two separate acts of following another person or putting the person under surveillance.27 But the statute doesn’t stop there; it uses the word "and" to further narrow the statute’s definition of stalking.28 Such acts must be done in combination with the statutorily delineated acts of transmitting a threat or placing someone in apprehension of "bodily harm, sexual assault, confinement or restraint."29 Indiana’s anti-stalking statute contains none of the narrow or limiting actus reus language found in Illinois. Therefore, the triggering mechanism for the fear element is not specific behaviors, but rather implied threats that would place any reasonable person in fear. The actus reus includes the nebulous phrase, "course of conduct," and a word which is defined in the context of a victim’s emotional distress, "harassment."30
A NEED FOR CHANGE IN ILLINOIS
The narrow construction of the Illinois stalking statute makes it difficult for the Illinois judicial system to protect victims in the way intended by the Illinois legislature. In 1994, the Second District articulated the legislature’s intent as "not only to prevent violent attacks by outlawing those actions which serve as a prelude to such attacks, but to prevent terror produced by harassing actions in and of themselves."31 The next year, the Third District further articulated the legislature’s goal as "avert[ing] the terror, intimidation, and justifiable apprehension caused by harassing conduct."32 Yet, in 1996, barely three years after Illinois enacted its anti-stalking statute, the First District rendered a landmark decision in Illinois v. Soto, a case which sent prosecutors looking for something other than the state’s anti-stalking statute as a way to avert the terror of harassing conduct.33 The Soto court’s decision to acquit an alleged stalker rested on its finding that the defendant’s acts of grabbing the victim, smashing her car windshield, and pulling a gun – all executed on one day – were not done "in furtherance of a prior threat."34 The court, viewing these acts as a single event, placed a burden on the prosecution to find a true "prior threat."35 In response, the prosecution tried using a previous order of protection issued against the defendant as the requisite prior threat.36 However, because the order of protection did not spell out why it was issued, it failed as proof that a "predicate threat [was] transmitted to the victim."37 With three acts collapsed into a single event and the order of protection rejected as evidence, the prosecution was left without a "predicate threat" in its arsenal. Therefore, it could not meet the statutory burden of proving that the defendant "on at least 2 separate occasions" followed and threatened the victim.38
The anti-stalking statute’s limiting language not only requires proof of a series of incidents, but is further narrowed in its utility by the fact that it defines stalking in terms of certain types of acts. On top of that, it narrows "stalking" even further by requiring that the series and the acts be tied to more than one overt threat.39 This threat-and-conduct requirement fails to protect victims who do not receive overt threats.40 It allows a stalker to behave in a way that strikes fear in his victim while remaining within the scope of lawful behavior.41 Therefore, while Illinois’ law does not totally ignore the reasonable fearful intuitions of the victim, it severely weakens this element by the threat-and-conduct language construction. Even if the specific conduct requirement of this element is met and a threat is made, the statute further ties the hands of law enforcement by requiring that the threats be of a certain type. They must be threats of "bodily harm, sexual assault, confinement or restraint" rather than the broader "course of conduct" suggested in the Federal Model Code and used in the Indiana statute.42
SUGGESTED AMENDMENT TO THE ILLINOIS STALKING STATUTE
Illinois could re-write its anti-stalking statute in such a way as to effectuate the legislative purpose of preventing violent attacks and averting the terror, intimidation, and justifiable apprehension caused by stalking.43 To do so, Illinois legislators should integrate that part of the Indiana anti-stalking statute that allows a judge or jury the flexibility of assessing the totality of the circumstances when determining if a person is truly stalking someone. This would entail the adoption of the phrase "course of conduct" to cover a variety of subtle behaviors which, when viewed collectively, would cause fear in any reasonable person in those circumstances. Additionally, Illinois needs to take into consideration the victim’s emotional distress. Integrating these changes, an effective Illinois statute would read:
(a) A person commits stalking when he or she, knowingly and without lawful justification, engages in a course of conduct toward a person or a family member of that person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened, and that actually causes that person to feel terrorized, frightened, intimidated, or threatened.
If such a change were made to the Illinois anti-stalking statute, victims of subtle stalkers could receive the protection they desire and the legislature intended. Three years of sending unwanted letters and gifts, calling continuously, ignoring pleas to be left alone, and repeatedly proposing marriage would be enough to prove an intentional course of conduct. The court could then assess whether such obsessive behavior would cause a reasonable person to feel intimidated, if not outright terrorized. For victims of subtle stalkers who long to be free from daily terror, intimidation and fear, a new, re-written Illinois law is their only hope.
1 720 Ill. Comp. Stat. 5/12-7.3 (1993).
3 Id.; See e.g. Illinois v. Soto, 277 Ill. App.3d 433 (1st Dist. 1996).
4 Id. at 234.
5 5/12-7.3(a). (stating "[S]talk means a knowing or an intentional course of conduct involving repeated or continuing harassment.).
7 Id. at (a)(1), (a)(2).
8 Ind. Code 35-45-10-1 §1 (1993).
10 35-45-10-1 §1.
11 Id. at §2.
12 Lowell T. Woods, Jr., Anti-Stalking Legislation: A Legislative Attempt to Surmount the Inadequacies of Protective Orders, 27 Ind. L. Rev. 449, 469 (1993).
13 U.S. Department of Justice, National Institute of Justice Research Report: Project to Develop a Model Anti-Stalking Code for the State 43 (1993) [hereinafter Model Code].
14 Patricia Tjaden and Nancy Thoennes, Stalking in America: Findings from the National Violence Against Women Survey, U.S. Dept. of Justice, National Inst. of Justice (1998), available at www.ncvc.org/src/ (The National Institute of Justice and the Centers for Disease Control and Prevention cosponsored a nationally representative phone survey of 8,000 women and 8,000 men, 18 years and older. The survey was conducted by the Center for Policy Research between November 1995 and May 1996. The study provides empirical data on the prevalence of stalking, the characteristics of stalking, and the consequences of stalking.).
17 Id. (For purposes of this article and simplicity’s sake, the victim will be considered female and the stalker, male. This reflects national statistics indicating that one in 12 women are stalked in their lifetime as compared to one in 45 men. The National Center for Victims of Crime, Stalking Resource Center, found July 10, 2006, at www.ncvc.org/ncvc/Main.aspx .).
18 Model Code, supra note 4, at §1(b).
19 Jennifer L. Bradfield, Anti-Stalking Laws: Do They Adequately Protect Stalking Victims?, 21 Harv. Women’s L.J. 229, 254.
21 Model Code, supra note 4, at §2(a), §2(b).
22 Belinda Wiggins, Is There A Need For Federalization Of Anti-Stalking Laws In Order To Prevent Recidivism In Stalking?, 50 Syracuse L. Rev 1067, 1076.
24 Id. at 1073.
27 Id. at (a).
29 Id. at (a)(1), (a)(2).
30 35-45-10-1 §1 (defining harassment as "conduct ¼ that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress.").
31 Illinois v. Krawiec, 262 Ill. App.3d 152, 160 (2nd Dist. 1994).
32 Illinois v. Holt, 271 Ill. App.3d 1016, 1020 (3rd Dist. 1995).
33 Illinois v. Soto, 277 Ill. App.3d 433 (1st Dist. 1996).
34 Id. at 436.
36 Id. at 439.
37 Id. at 437.
38 Id. at 439.
39 720 Ill. Comp. Stat. 5/12-7.3.
40 Bradfield, supra note 10, at 249.
42 Id.; Model Code; and 35-45-10-1.
43 E.g. Illinois v. Holt, 271 Ill. App.3d 1016, 1020 (3rd Dist. 1995).
Judith Miller is a third-year law student at Northern Illinois University College of Law. She is a member of Law review and the Moot Court Society. She graduated in 1980 from Knox College with a B.A. in Political Communication.