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PROVING A STALKING CASE

Stalking is now recognized as a serious crime. According to a 1998 study by the U.S. Department of Justice, Office of Justice Programs ("VAWA study") one out of every 12 women and one out of every 45 men in the United States has been stalked at some time in their lives. This study further shows that there is a correlation between stalking and other forms of domestic violence. Of those women who were stalked by a current or former husband or dating partner, 81% were also physically assaulted by the same partner.

Given the seriousness of the crime of stalking, it is important for prosecutors and other law enforcement personnel to have as many tools available to help stop this crime. A restraining order can be a powerful tool in a stalking prosecution. Not only can the police make an immediate arrest upon violation of the order, but it puts the stalker on notice that the victim is not alone and vulnerable. The court and police are also aware of the stalker’s conduct.

The existence of a restraining order also eliminates the defense that the stalker was not aware that his conduct was frightening the victim. Service of the restraining order puts the stalker on notice to have no contact with the victim. Thus, any further contact by the stalker can only be presumed to be for the purpose of frightening and harassing the victim. If the suspect is currently on probation or parole, a violation of a restraining order can be used to send the violator back to jail or prison.

Upon obtaining a stalking conviction, the prosecutor should always request that the court issue a restraining order for up to 10 years, pursuant to Penal Code Section 646.9(k). The victim makes this request in the confidential Victim Notification Form to the Department of Corrections, Pursuant to Penal Code 646.92.

Although restraining orders are certainly a necessary tool in combating the stalker, victims of stalking need to be made aware that a restraining order is not a magic wand that will automatically make the stalker go away. Indeed a restraining order is a "two-edged sword" that may possibly aggravate the situation. In fact, the VAWA study indicates that 69% of the women and 81% of the men who obtained restraining orders said that the stalker violated the order. What may be most effective is for the stalker to be convicted of the crime of stalking and put into custody. Accordingly, law enforcement personnel need to be aware of certain questions that must be asked of stalking victims and documented in their police reports in order to secure a successful prosecution. Basic questions that should be asked and documented are the following:

QUESTIONS THAT SHOULD BE ASKED:

  • Have the victim describe a typical day before the stalking began. Then have the victim describe a typical day since the stalking began.

  • When did the harassment first start? Get time, date, location of each incident, the exact words used by the suspect, and the nature of the conduct that the victim felt was personally threatening or threatening toward others.

  • Does the victim believe that the suspect will carry out the threat? If yes, why? Establish a basis for the victim’s fears. Establish who the victim believes may be the target of the stalker.

  • Was anyone else present when the conduct or threats took place? (Get the witnesses’ names, addresses, and phone numbers.)

  • Has the victim filed previous police reports against the suspect? When and where?

  • What is the victim’s current relationship with the suspect? When was the last time the suspect met with or contacted the victim? Has the victim initiated any contact with the suspect since the stalking conduct began? If so, why?

  • Does the victim have physical evidence of the stalking, such as phone messages, letters, gifts, etc? Tell the victim to start keeping a diary of the stalking events and/or threats.

  • Is there a valid restraining order against the suspect? When was it obtained? When does it expire? Why was it obtained? Does the victim have a copy of her affidavit supporting the issuance of the restraining order? Get a copy of the restraining order and all supporting documents, including the proof of service.

Investigating officers should bring any audio tapes or letters when they come to the District Attorney’s Office for a filing. Threats should be evaluated in the context in which they were made. Often it is not what is said, but how it is said that can make or break a case. We now have an effective law to protect stalking victims. No other law allows us to intervene before a more serious crime such as murder or rape takes place.

Drawing by Shannon Wainwright

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