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Florida Bar Journal

Following the Crime of Stalking

Criminal Law

It has been called the crime of the nineties.1 A crime that until recently was seldom re-

ported or investigated. It is the crime of stalking, and it is no longer just the bane of celebrities and the wealthy. A recent media report indicated that as of the mid-1990’s, there were more than 200,000 stalkers in America.2 The prey of the aforementioned stalkers, like victims of domestic violence, come from all racial and ethnic groups and all socioeconomic backgrounds. The ways, methods, and motivations of stalkers are as varied as the human mind can muster, and victims suffer a broad range of indignities from harassing phone calls to death.

Into the Mind of the Stalker

The study of stalking is still in its infancy; however, several mental health experts have begun to classify stalkers into the following categories according to certain characteristics as well as typologies based upon the stalker’s mental state. The most widely-referenced study was conducted by Vernon Gerberth who classified stalkers into two categories: the Psychopathic Personality Stalker and the Psychotic Personality Stalker.3

Psychopathic Personality Stalker

This stalker has lost control over the victim (most commonly a spouse or lover) and intends to seriously harm the victim. This type of stalker insists on male dominance and exhibits a macho image in order to hide feelings of inferiority.

Psychotic Personality Stalker

This stalker becomes obsessed with an unobtainable stranger and mounts a campaign of harassment to make the victim aware of his or her existence. They sincerely believe that the victim harbors intense feelings of love for them and would act upon that love or positively respond to the stalker’s advances if it was not for the interference of outside factors.

Michael A. Zond has also researched stalkers, categorizing them by behavior characteristics.4 Zond and his team classify stalkers into the following three distinct categories:


This type of stalker has a delusional disorder in which the predominant theme of the delusion is that a celebrity or public figure of either the opposite gender or of a higher status is in love with the stalker. The victim does not know the stalker. The stalker remains convinced the victim loves him or her and would return the affection if not for some external influence. The duration of stalking and delusion usually lasts 124 months.

Love Obsessional

Like the erotomaniac, this stalker believes that if the victim would simply acknowledge the stalker’s existence, the victim would fall in love with the stalker. These stalkers only know their victims through the media. They usually engage in a campaign to make their existence known to the victim by writing, telephoning, or otherwise attempting to contact the victim, which lasts approximately 146 months.

Simple Obsessional

Unlike the two previous categories, there was a prior relationship between the stalker and the intended victim. This relationship may have been a former spouse, employee, or neighbor, and in all cases the stalking began after the relationship had soured or there was a perception by the stalker of mistreatment. There have been other classifications of stalkers and convicted stalkers have been interviewed/examined by mental health professionals. The reasons or triggers that induce people to become stalkers is a body of mental health science that is presently evolving.

Florida Stalking Law
in a Nutshell

F.S. §784.048, entitled Stalking; definitions; penalties,5 criminalizes stalking and provides the following definitions:

(a) “Harasses” means to engage in a course of conduct, directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

(b) “Course of Conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.

Unless otherwise provided by law, a person commits the crime of stalking if, with intent to harass another person, the person engages in a course of conduct reasonably likely to harass that person, including but not limited to any combination of the following: “Credible threat” means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.

Florida law draws a distinction between misdemeanor stalking, punishable by up to one year in jail, and felony or aggravated stalking, punishable by up to five years in the Florida State Prison. Misdemeanor stalking requires the stalker to willfully, maliciously, and repeatedly follow or harass another person. Aggravated stalking requires the stalker to willfully, maliciously, and repeatedly follow or harass another person, and make a credible threat with the intent to place that person in reasonable fear of death or bodily injury.6 The violation of a court-ordered injunction for protection also falls under the ambit of aggravated stalking. Effective January 1, 1995, children 14 or 15 years of age who commit aggravated stalking are subject to being prosecuted as adults.

To date, several Florida appellate courts have reviewed the stalking statute and have found it to be constitutional. The preponderance of challenges raised claimed that the terms defining the offense such as “willfully, maliciously or repeatedly,” were unconstitutionally vague, served no legitimate purpose, failed to give fair notice of proscribed activity, and were overbroad. To date, Florida courts have rejected these arguments. Further, the Florida Supreme Court has ruled that a person may not rely upon a double jeopardy defense merely because he or she pleads guilty to violating an injunction for protection by engaging in the same conduct that served as the basis for the aggravated stalking charge. In State v. Johnson, 676 So. 2d 408 (Fla. 1996), the Supreme Court held that the prosecution of aggravated stalking did not violate double jeopardy, despite the defendant’s plea to violating an injunction for protection, due to the fact that aggravated stalking contains some elements not present in a contempt action for violation of injunction.

Florida is the second state to enact a stalking law, which is not to say the law is without its detractors. Some members of the criminal defense bar have touted it to be a vague and overbroad crime, as well as an “in vogue,” or a “politically correct crime.” Further, the ability of law enforcement to make warrantless arrests for stalking solely on the basis of the victim’s word, despite the absence of corroborating evidence, is distressing to the defense. Equally distressing to prosecutors and law enforcement are the difficulties of putting together and trying a case with little or no physical evidence to present to the jury. Such scenarios are aggravated by the fact that many Florida law enforcement agencies do not have viable stalking policies and procedures nor anti-stalking training in place.7

Prosecuting and Defending the Stalker

Unlike some criminal offenses, stalking is unique as the nature of the crime poses like challenges for the prosecution and the defense. Often, the case will come down to the credibility of the victim as he or she is, more likely than not, the sole witness. Stalking victims who do not keep detailed journals of the times, dates, and actions of the stalker usually speak in vague, broad terms when describing the stalker’s activities. Players in the criminal justice system are challenged by victims who claim, “she is always following me,” “he is always there when I get off from work,” “he called me a million times last week,” and so on. Add pre-existing marital discord or a child custody battle to a given equation and the art of separating fact from fiction comes into play. When marital discord aggravates the tension between parties, actions that were once routine or welcome may now be considered harassment or stalking to the complainant. A thorough investigation on the part of law enforcement often serves to identify true stalking cases from false ones.

The California Experience

California was not only the first state to enact anti-stalking legislation, but it was arguably the first state to boast a criminal justice system that appreciates the full scope of the stalking phenomenon.8 In July 1990, the Los Angeles Police Department established a Threat Management Unit (TMU) to investigate long-term, abnormal patterns of threat and/or harassment directed toward a specific individual.9 Since its inception, TMU personnel have developed expertise in both the assessment and management of stalking cases. One method utilized to assist the stalking victim is the creation of a suspect intervention program. Once the TMU determines the type of stalking case they are dealing with, they rely upon one of several intervention programs. Such programs consist of one or more of the following intervention techniques:

Detective Contact
A law enforcement officer contacts the suspect either through mail, telephone, or a face-to-face contact. Such contacts have proven deterrent effects, especially when dealing with “simple obsessional” stalkers.

Temporary Restraining/Protective Orders
Although it is arguable that restraining or protective orders deter violence, they are useful in effecting at-scene arrests. This is especially true in Florida, which permits law enforcement officers to arrest, without a warrant, a person believed to have violated an injunction for protection.

Arrest and Detention
Statistics compiled by the U.S. Justice Department reveal that spending several days behind bars has a sobering effect on persons who have never experienced the harsh realities of incarceration. Arrest and detention provides several benefits, such as affording the victim time to relocate, and giving the suspect time to reflect on his or her activities.

Mental Health Diversion
This typically focuses on a police officer’s involuntarily detaining an individual for psychiatric assessment when circumstances warrant.

California’s efforts to classify, investigate, and prosecute stalkers have not gone unnoticed. Indeed, a myriad of law enforcement agencies across the United States are taking a long, hard look at stalking.

The Tennessee Experience

The city of Nashville, Tennessee, is taking steps toward preventing stalking before the victim is subjected to the abuses of the stalker. If a person is being stalked in Nashville, the police stalk the stalker by using the same methods they have used in the past to track drug suspects. making videotapes, using caller ID, and taping telephone conversations, the police are able to show the stalker’s course of conduct. One Nashville police officer commented on the ease of getting such evidence, opining, “It’s so easy. All you have to do is stay near the stalker’s target and here he comes.”10 Nashville’s anti-stalking program is part of its PEACE (Program to End Abuse through Counseling and Education) domestic violence project.

The Tampa Experience

One domestic violence assistance program that is gaining popularity is the Abused Women Active Response Emergency (AWARE) system, which began in Tampa, Florida, and has expanded to 46 U.S. and Canadian cities. Once a battered women meets the eligibility criteria for participation in AWARE, a security system is installed in her home that provides the victim with an emergency necklace pendant for as long as the need exists. Should a participant find herself in danger from a stalker or abuser, she can press the pendant or emergency button on the system panel mounted in her home. This alarm alerts the security company which immediately contacts law enforcement.11

Assisting the Stalking Victim

Law enforcement is usually the first criminal justice agency to become involved in cases where stalking is alleged. Unfortunately, law enforcement agencies generally lack the human and fiscal resources to provide victims with round-the-clock protection. Law enforcement agencies can, however, assist the stalking victim in a panoply of ways short of providing personal protection. After investigating the complaint, they can best assist the stalking victim by:
•Advising the victim to maintain a diary or daily log of the stalker’s activities;
•Ensuring the victim is aware of both civil and criminal remedies;
•Assisting victims in enhancing personal security;
•Advising victims to be alert for unusual packages or boxes that arrive at their home or workplace;
•Advising victims that phone numbers should be changed and unlisted;
•Advising that trusted neighbors, co-workers, and family members be alerted;
•Advising them to avoid any patterns of exercise or other activities in the neighborhood.
•Advising them that keys and locks should be inventoried and accounted for and locks should be changed accordingly;
•Advising them to obtain a mobile phone;
•Advising victims to park in well-lighted areas, visually check the car every time entering and leaving it, and lock both the car and the garage at all times;
•Advising them to drive to the nearest law enforcement agency if followed by a stalker.12


The assessment, investigation, prosecution, and defense of stalking cases is a most complex and challenging process. Often, victims suffer a host of indignities before, during, and after law enforcement intervention. Stalking victims are encouraged to report the actions of the stalker immediately, and to keep a detailed journal of the stalker’s actions. The criminal justice system is encouraged to learn to distinguish between the types of stalkers in an effort to effectively stop them before they cause irreparable harm to their victims. As mental health and forensic experts continue to study the phenomenon of stalking, we will begin to get a better picture of just what prompts stalkers to engage in their campaigns of harassment, terror, and violence. q

1 Gregor Krause, Stalking: The Crime of the Nineties, Albuquerque Mag., Jan. 1993, at p. 26.
2 Maria Puente, Legislators Tackling the Terror of Stalking, USA Today, July 21, 1992, at A.
3 Vernon Gerberth, Stalkers, Law & Order 138 (Oct. 1992).
4 Michael Zona et al., A Comparative Study of Erotomaniac and Obsessional Studies in a Forensic Sample, 38 Journal of Forensic Science 894 (July 1993).
5 For a superb, exhaustive review and analysis of Florida’s stalking law, see generally Note, Stalking the Problems with Stalking Laws: The Effectiveness of Florida Statutes Section 784.048, 45 Fla. L. Rev. 609 (1993) [hereinafter Problems with Stalking Laws].
6 Fla. Stat. §784.048.
7 Problems with Stalking Law, supra note 5. In a survey conducted by the author, James Thomas Tucker, he reported that few law enforcement agencies had a stalking policy or training providing for specific courses of action when officers encountered stalking. Id at 671.
8 See Cal. Penal Code §646.9. For an in-depth analysis of §646.9, see Kelli L. Anttinello, Anti-Stalking Legislation: A Comparison of Traditional Remedies Available for Victims of Harassment Versus California Penal Code Section 646.9, 24 Pac. L.J. 945 (1993).
9 John C. Lane, Threat Management Fills Void in Police Services, Police Chief, Aug. 1992, pp 27-31.
10 Susan R. Paisner, Domestic Violence: Targeting Batterers, The Journal, winter 1996, pp 32-51.
11 Id. at 33.

12 Harvey Wallace, A Prosecutor’s Guide to Stalking, National Prosecutor, Jan. 1995, pp 26-30.

Joseph G. Jarret practices civil and criminal litigation in Lakeland with Benjamin W. Hardin, Jr., whom the author thanks for supporting this undertaking. Mr. Jarret received his B.S. from Troy State University (W. Germany campus), his Masters in Public Administration from Central Michigan University, his J.D. from Stetson, and a post-graduate certificate in public management from the University of South Florida.

This column is submitted on behalf of the Criminal Law Section, Anthony C. Musto, chair, and Randy Merrill, editor.

Criminal Law