Entertainment Law Issue - Los
Angeles Lawyer
By Rhonda B.
Saunders
WHILE UNWANTED ATTENTION MAY BE A PRICE OF
FAME, A VARIETY OF MEASURES CAN BE INVOKED TO DETER STALKERS
Shortly before he murdered actress Rebecca
Schaeffer on July 13, 1989, Robert Bardo wrote to his sister, "I have an
obsession with the unattainable. I have to eliminate what I cannot attain." As a
result of the Schaeffer stalking and murder, and the vicious physical attack on
actress Theresa Saldana by drifter Arthur Jackson, the California
legislature passed the first antistalking law in the United States in 1990.(1)
This law has evolved over the past six years and has become more effective in
defining and addressing this increasingly common crime.
Stalking is currently defined in Penal Code Section 646.9 as:
Any person who willfully, maliciously, and repeatedly follows or
harasses another person and who makes a credible threat with the intent to place
that person in reasonable fear for his or her safety, or the safety of his or
her immediate family is guilty of the crime of stalking.
The seriousness of the crime of stalking is seen in the facts
surrounding the Theresa Saldana and Rebecca Schaeffer cases.
While living in Scotland in 1982, Arthur Jackson saw Theresa
Saldana in a movie and was immediately attracted to her. Jackson realized that
they could never have a “normal” relationship, so he came to the United States
specifically to kill her, get caught, receive the death penalty, and be with her
forever in the afterlife.
In Los Angeles, Jackson hired a private detective agency to
locate Saldana. The agency obtained her address through DMV records. On March
18, 1982, he went to Saldana’s home where he stabbed her 10 times. A witness
disarmed Jackson, which saved Saldana’s life.
Although Jackson was convicted of attempted murder and sentenced
to prison for 12 years, he continued to send Saldana numerous threatening
letters. In 1988, he was charged with and convicted of threatening Saldana and
sentenced to an additional 7 years in prison.
In 1986, while living in Tucson, Arizona, Robert Bardo saw
Rebecca Schaeffer on the television series “My Sister Sam.” He began writing fan
letters to her, and she sent him a handwritten card and autographed picture,
which validated his delusion of their “mutual attraction.” In 1988, after four
unsuccessful attempts to meet Schaeffer, Bardo saw Schaeffer in a movie and grew
infuriated when he saw her in bed with a male character.
Ironically, Bardo read in a magazine how Arthur Jackson located
Theresa Saldana’s home address through the DMV and obtained Schaeffer’s address
in the same manner.(2) Bardo went to Schaeffer’s house and shot her once through
the chest. She died at age 21.
California’s stalking law would not have protected Schaeffer and
Saldana. In 1991, Penal Code Section 646.9 required that a stalker make a
“credible threat of death or great bodily injury” toward the victim, placing the
victim in reasonable fear of death or great bodily injury. Saldana and Schaeffer
were not aware of the threats made against them by their stalkers. Even if they
had known, the threats themselves were implied and not direct.
Major revisions were made to Penal Code Section 646.9 in
1994, enhancing the ability of law enforcement officials and prosecutors to
protect victims of stalking. Currently, to convict a defendant of the crime of
stalking, the prosecutor must prove the following elements beyond a reasonable
doubt: (3)
1) A person willfully, maliciously, and repeatedly followed or
harassed another person.(4)
2) The person following or harassing made a credible threat.
3) The person who made the threat did so with the specific intent to place the
other person in reasonable fear (5) for his or her safety or the safety of the
immediate family of such person(s) (6)
If a court or restraining order is in effect at the time the
stalking occurs, the defendant can be charged with aggravated stalking.
From 1991 through 1993, stalking was a misdemeanor punishable by
a maximum of one year in the county jail when no restraining order was in
effect. Under the current law, a first-time convicted stalker can be sentenced
to up to three years in state prison, even without a restraining order.(7) If a
court or restraining order is in effect or if the defendant had previously been
convicted of felony stalking against any person, he or she could be sentenced to
up to four years in state prison.
Most important, the term “credible threat” has been redefined to
include not only a verbal or written threat, but also “a threat implied by a
pattern of conduct or a combination of verbal or written statements and conduct”
The threat or threats do not need to be direct.
Stalking is a crime of conduct, not necessarily of words. For
example, a stalker may send a note stating, “I love you,” but enclose a bullet
in the envelope. The credible threat made by the stalker must be against the
safety of the victim or the victim’s immediate family.(8) It no longer needs to
be a threat of “death or great bodily injury.”(9) The test of credible threat is
whether or not a reasonable person would fear for his or her safety, or the
safety of his or her immediate family, and whether this threat actually caused
substantial emotional distress to the victim. (10)
Substantial emotional distress can be shown through the victim’s
actions, such as hiring a bodyguard, adding additional security at home and at
work, avoiding public appearances, or seeking psychological counseling. Stalking
takes a heavy psychological toll on its victims and those around them. In a
typical reaction to the emotional stress of being stalked, one victim said, “I
have given up all hopes of ever having a safe life. For the rest of my life, I
will be looking over my shoulder, expecting to see him there.”
Imprisonment of the perpetrator does not necessarily end
stalking. Many stalkers, such as Arthur Jackson, will continue to send letters
or make phone calls to their victims while in jail or prison. However, new
charges of stalking can be filed against them, and telephone and mail privileges
can be restricted. The inmate could also lose “good time/work time” credits
toward an earlier release date.
Other provisions of Penal Code Section 646.9 provide that the
sentencing court may issue a restraining order valid for up to 10 years and, in
certain cases, require the stalker to register as a sex offender.” Failure to
comply with these terms can result in new criminal charges against the defendant
When the defendant is about to be released from jail or prison
following a conviction for stalking or a felony offense involving domestic
violence, the victim, family members of the victim, and witnesses to the
offense, upon their request, have the right to be notified by the department of
corrections, county sheriff, or director of the local department of corrections,
“not less than 15 days prior to the release.”(12) The notification form that is
completed by the victim, family member, or witness contains a section in which
they can request certain terms of parole, such as ordering the stalker to stay
35 miles away from their homes or work, and to have no contact with them in
person, by phone, fax, letter, or through third parties.
Stalking is a chronic behavior that can continue for many months
or years,(13) and incarceration or restraining orders may not diminish the
stalker’s obsession. However, he or she can be returned to prison for up to a
year if the terms of parole are violated. This procedure can be repeated twice,
for a maximum of up to three additional years in prison.
In addition to Penal Code Section 646.9,
several other California statutes can be
invoked against accused stalkers.
• Penal Code Section 12021(a)(1) and (c) (1) provide that it is
a crime for any person who is convicted of stalking (felony or misdemeanor) to
possess or have custody or control of a firearm.
• Civil Code Section 1708.7 establishes the tort of stalking, whereby a victim
can sue the stalker for general, special, and punitive damages.
• Government Code Section 6254 allows a victim of stalking, upon request, to
block from the public record his or her name and address in reports generated by
the police.
• Code of Civil Procedure Section 527 allows victims of harassment or threats to
obtain a civil restraining order at no cost to them,
• Code of Civil Procedure Section 527.8 permits a stalking victim’s employer to
obtain a restraining order against someone who is stalking or harassing an
employee.
Despite the protections offered to stalking victims through
state laws, it is not uncommon for stalkers to cross state lines to pursue their
victims. Congressman Ed Royce, author of California's first stalking law,
recently introduced the Interstate Stalking Punishment and Prevention Act, which
makes it a federal felony to stalk someone across state lines or on federal
property.(14) The act, signed into law on September 23, 1996, also makes a
restraining order issued in one state enforceable in other states.
In addition to or in lieu of a charge of stalking, the crime of
making a terrorist threat is often charged. According to Penal Code Section 422,
terrorist threat is defined as:
Any person who willfully threatens to commit a crime which will
result in death or great bodily injury to another person, with the specific
intent that the statement is to be taken as a threat even if there is no intent
of actually carrying it out, which, on its face and under the circumstances in
which it is made is so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened a gravity of purpose and an immediate prospect
of execution of the threat, and thereby causes that person reasonably to be in
sustained fear for his or her own safety or for his or her immediate family’s
safely.(15)
The crime of terrorist threat differs from stalking in that it is truly a crime
of words, not necessarily a crime of conduct. The words themselves must be a
direct (not implied) threat of death or great bodily injury. Section 422 does
not require a “pattern of conduct.” One threat is sufficient The threat must
place the victim in reasonably sustained fear.(16) Although the statute states
that the threat must be “so unequivocal, unconditional, immediate and specific,”
case law has held that the language of the statute does not mean that the
suspect must be standing in front of the victim with a weapon in his or her hand
when he or she makes the threat.
The crime does not require that the suspect intended to carry out the threat,
only that the suspect intended the statement to be taken as a threat. No showing
that the suspect has the immediate ability to carry out the threat is needed,
nor does the statute require a time or specific manner of execution. It only
requires that the words used be of an immediate threatening nature and convey an
immediate prospect of execution.(17) In other words, was the victim frightened for
his or her life when first made aware of the threat? The threat may be conveyed
directly to the victim by the suspect, by letter, fax, e-mail, telephone, or
through third parties.(18)
The court in People v. Brooks found that a conditional threat can be a violation
of Section 422 if its context and the surrounding circumstances reasonably
convey to the victim that it is intended.(16) In People v. Stanfield, the court
held that the use of the conditional word “if’ does not absolve a defendant from
conviction under Penal Code Section 422. Both Stanfield and Brooks strongly
disapprove a prior case, People v. Brown, which held that the threats must be
unconditional.(20)
Terrorist threats are often made in celebrity cases. It is
not uncommon for the suspect to make threats against the celebrity’s family,
staff, agent, manager, or lawyer. These people are seen as obstacles who must be
eliminated because they stand between the stalker and the celebrity.
Intervention by third parties to help or protect the victim could increase the
risk of violence.(21)
In April 1995, Robert Dewey Hoskins scaled a wall surrounding
entertainer Madonna’s home and proceeded to the courtyard adjacent to the living
quarters. Basil Stephens, Madonna’s bodyguard, scared Hoskins away. Hoskins
returned the next day and was rebuffed by Caresse Henry, Madonna’s personal
assistant. Hoskins grew enraged and threatened to kill both Madonna and Henry.
Hoskins also threatened to kill Stephens. Hoskins told Stephens that if Madonna
didn’t marry Hoskins that evening, he would slice her throat from ear to
ear.(22)
Hoskins returned to the house several weeks later and scaled
the wall to gain entry onto the property. When he was confronted by Stephens,
Hoskins once again threatened to kill him. This time, Hoskins lunged for the
bodyguard’s holstered gun and ultimately was shot twice by the bodyguard.
In January 1996, Hoskins (26) was brought to trial and
accused of stalking and making a terrorist threat against Madonna Ciccone;
making terrorist threats against Madonna’s bodyguard, Stephens, and personal
assistant, Caresse Henry; and assaulting Madonna’s bodyguard.
Madonna testified at the trial that she was still having
nightmares about Hoskins eight months after these incidents occurred. The jury
found Hoskins guilty of all charges, and he was sentenced to 10 years in state
prison.
Hoskins, Bardo, and Jackson are examples of obsessed fans who
were willing to commit acts of violence to link their names forever with the
names of their celebrity victims. In fact, these celebrity stalker’s often do
accomplish that goal. For example, Hoskins is now referred to as “the Material
Guy” by his fellow inmates in prison.
It is a mistake to characterize all stalkers
as mere transients or losers, or to think that only celebrities are stalking
victims. Stalkers, as well as their victims, can be anyone.
It is a mistake to characterize all stalkers as mere
transients or losers, or to think that only celebrities are stalking victims.
Stalkers, as well as their victims, can be anyone. All stalkers share an uncanny
intelligence and unusual determination that enables them to track their prey.
Experts in the field of stalking have identified three types
of stalkers:(24)
• Simple obsessional. There exists a prior
relationship between the victim and stalker, such as husband or wife, lover,
neighbor, coworker, student or teacher, attorney or client, and physician or
patient. Obsessional conduct begins after either the relationship has gone sour
or the stalker perceives real or imaginary mistreatment. These cases have the
greatest potential for violence, because the stalker tries to reestablish the
relationship or seeks retribution
• Love obsessional. The stalker almost never knows the victim except
through the media. The stalker begins a campaign to make his or her existence
known to the victim. First contact is usually through letters or gifts. This
would describe the majority of star-struck fans. The conduct can escalate to
contact-type behavior, such as approaching and asking for an autograph, showing
up at the studio or on location, or appearing at the victim’s house. Such
behavior may signal that the obsession is starting to get out of control. Bardo,
Jackson, and Hoskins all traveled long distances from out of state to make
physical contact with their victim.
• Erotomania. The stalker believes that he or she is passionately loved by the
victim.
Stalkers who are suffering from this delusion will often go
to great lengths to contact the object of their obsession in order to make their
presence known. Their victims are usually persons of higher socioeconomic class
and status, or an unattainable public figure. Such stalkers believe that the
victim would return their affection if not for some external influence.
Unfortunately, no single course of action will protect
potential stalking victims in all cases. Each case should be analyzed
individually by antistalking professionals such as the Los Angeles Police
Department’s Threat Management Unit (TMU). Developed in 1990. the unit is the
only law enforcement group in the United States devoted solely to proactive
investigation and intervention of long-term abnormal threat and harassment
cases. Led by Lieutenant John Lane since its inception, TMU has developed
certain insights into the management of stalking and harassment cases. The
unit’s jurisdiction extends throughout the city of Los Angeles, but TMU is often
called upon to offer expertise and advice to those outside the city limits. TMU
detectives utilize a variety of approaches, including:
• The use of restraining orders.
• The use of the mental health system.
• Police contact with the suspect
• The education of victims, other law enforcement agencies, and victims’ rights
advocates as to the prevention and dynamics of stalking.
• Investigating and gathering information regarding the stalking or harassment
• Monitoring ongoing cases and making arrests.
Stalking victims should have no contact with a suspected
stalker, because it merely fuels the obsession. It is not uncommon for stalking
victims to feel sorry for the suspect or to believe that they (or their manager.
assistant, or lawyer) can defuse the situation. This can be dangerous. The
stalker will not hear the message. “Leave me alone, you are bothering me.”
Instead, the stalker focuses on the fact that he or she is being noticed by the
object of his or her obsession or acknowledged by those within the victim’s
circle. This focus changes when the contact is made by a police agency or other
antistalking professional.
The use of restraining orders in
stalking cases can be a two-edged sword. A restraining order is an efficient
tool for law enforcement and prosecutors because it puts stalkers on legal
notice that their conduct is unwelcome and frightening.(25) However, it is not
uncommon for stalkers to violate the provisions of the orders and to continue to
try to contact their victims. An order can also enrage stalkers.
However, when stalkers show up at a studio or a victim’s
home, or continue to call or write to a victim, they can he arrested immediately
for violating the court order. Local police agencies tend to take more seriously
cases that have a restraining order on file because they know that the victim
has taken steps to stop the harassment, which have been ignored by the
suspect.(26) ln fact, a valid restraining order also enables prosecutors to file
aggravated felony stalking charges and helps prosecutors prove the stalker’s
specific intent to place the victim in fear, because a restraining order proves
that, regardless of previous legal notification that the conduct has frightened
the victim, the stalker continued the behavior.
Stalking victims who nay be unaware that they are being
stalked need to be informed of any threats or seemingly obsessive behavior by
colleagues, family, friends, or those who work for or with the victim, both for
personal safety and as an element of the crime. The victim or victim’s employer
must understand the importance of gathering evidence. A diary should be kept,
detailing the time, date, and place of each contact, It is also helpful to note
if there are any other witnesses to these contacts. Letters and packages should
be kept but carefully handled. If there is anything suspicious about a package
or letter, the police or fire department should be called immediately. If the
identity of the stalker is unknown, letters and packages can be excellent
sources for fingerprints. If the identity of the stalker is known and a picture
of him or her can be obtained. the picture should be shown to the security
people at work, close neighbors, coworkers, friends, and relatives. The more
people who know about the situation, the easier it is to warn the victim or to
help police catch the stalker.
Stalking victims should adhere to the following common-sense
measures:
• Do not go out in public alone.
• Be aware when driving or walking in order to notice if someone is following.
• Vary daily routines. For example, do not go jogging everyday at the same time,
on the
same route.
• Add or supplement security measures such as surveillance cameras or alarms to
homes.
• Do not allow homes (especially the interiors) or families to be filmed or
photographed
for the public.
• Hire additional security or bodyguards.
California's stalking law is unique because, by properly
utilizing it, lives can be saved.
However, the law’s success depends on the full cooperation of the victim.
Celebrities and those around them must realize that publicity may arise when
they come forward, but this inconvenience must be balanced with the knowledge
that the stalker will not go away and may endanger the lives of their loved
ones.
1) Pen. Code Section 646.9 (codified Jan. 1, 1991).
2) Subsequent to these cases, the California legislature
enacted Veh. Code Section 1808.21, which provides that stalking and threat
victims may request confidentiality of their DMV records.
3) CALJIC 9.16.2 (amended 1995).
4) "Repeatedly" means on more than one occasion. "Harassment
means multiple acts, over a period of time, however short, evidencing a
continuity of purpose. People v. Heilman 25 Cal.App.4th 391 (1994).
5) The victim's state of mind (and knowledge of the suspect's
prior history) is relevant and admissible at trial. People v. McClelland,
42Cal.App.4th 144 (1995).
6) Intent to carryout the threat is not required. Pen. Code
646.9 (amended 1996). The specific intent element is satisfied if the suspect
intended to place the victim in fear. People v. Carron, 42Cal.App.4th391 (1995).
7) A first-time stalking can now be prosecuted as either a
misdemeanor or a felony.
8) "Immediate family" includes any spouse, parent, child, any
person related by consanguinity or affinity within the second degree, or any
other person who regularly resides in the household, or who, within the prior
six months, regularly resided in the household.
9) The legislative intent in changing the words "death or
great bodily injury" to "safety" was to incorporate threats of sexual assault
and kidnapping into stalking conduct.
10) The crime of stalking is not committed if the victim is
unaware of the threat, but the threat can be conveyed to the victim by third
parties (i.e. secretaries, agents, security guards).
11) See Pen Code Section 290
12) Pen. Code Section 646.92
13) J.R. Meloy, Stalking (Obsessional Following): A Review of
Some Preliminary Studies, Aggression and Violent Behavior 147-162 (1996).
14) 18U.S.C.Sections 2261-62
15) Penal Code Section 422
16) In People v. Allen, 33Cal.App.4th1149 (1995), the court
held that 15 minutes of fear is more than sufficient to constitute "sustained
fear".
17) In re David L. 234CalApp.3d 1655 (1991).
18) People v. Stanfield, 32Cal.App.4th 1152 (1995); In re
David L., 234Cal.App.3d 1655.
19) People v. Brooks, 26Cal.App.4th 142 (1994):Stanfield,
32Cal.App.4th 1152.
20) People v. Brown, 26Cal.App.4th 1251 (1994).
21) Meloy.J.R., A Clinical Investigation of the
Obsessional Follower: "She Loves Me, She Loves Me Not." in L. Schlesinger,
Explorations in Criminal Psychopathology (1996).
22) "A seemingly conditional threat contingent on an act
highly unlikely to occur may convey to the victim a gravity of purpose and
immediate prospect of execution" Standfield, 32Cal.App.4th at 1162.
23) People v. Robert Dewey Hoskins, Los Angeles Superior
Court BA122741.
24) M.Zona, et.al., A Comparative Study of Erotomanic and
Obsessional Subjects in a Forensic Sample, 38 Journal of Forensic 894-903
(1993).
25) Intent to frighten the victim is an element of the crime
of stalking.
26) This indicates a "continuity of purpose".
27) Neighbors, coworkers, friends, and relatives should be
warned not to confront the stalker physically.
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