Stalking/Aggravated Stalking

Stalking arrests occur when an individual engages in a repeat course of conduct that’s designed to cause a substantial amount of emotional distress in another. Although typically misdemeanors, stalking charges can quickly become serious felonies when the repeated conduct/harassment is accompanied by a threat of harm that places the victim in fear of death or bodily injury. In those circumstances, “stalking” can quickly turn into “aggravated” stalking.

Defending such charges requires a keen understanding of the law and a solid investigation of the victim’s claims and the state’s case. Remember, to be considered stalking, there must be a repeated course of conduct, and there must be a “credible” threat of harm to sustain the enhanced version of aggravated stalking. Often times claims of “stalking” are inflated by the victim with respect to the threat of harm and the quantity of acts alleged to have been committed and persons who are not guilty of a Colorado stalking charge are arrested every day. The Steinberg Colorado Criminal Defense Law Firm can evaluate the case to determine if the alleged victim’s claims coincide with this very technical statute. Stalking charges usually occur when there are allegations of domestic violence, or when “stalking” is being used as a basis for a temporary injunction for protection against violence. Arrests for stalking are simply a way for partners to excise power or get leverage for a breakup or divorce.

Stalking is also the most common reason cited for those seeking injunctions for protection, also known as protective orders. We defend those matters often, and you can learn more about that area of our practice here. If you need legal services to defend yourself from a stalker or to defend yourself from a Colorado stalking arrest, call The Steinberg Colorado Criminal Defense Law Firm–put H. Michael Steinberg’s more than 26 years of criminal law experience to work for you

The Law of Stalking in Colorado

C.R.S. 18-9-111 Harassment Stalking. (2004)

(1)   A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:

(a)  Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or

(b)  In a public place directs obscene language or makes an obscene gesture to or at another person; or

(c)  Follows a person in or about a public place; or

(d)  Repealed.

(e)  Initiates communication with a person, anonymously or otherwise by telephone, computer, computer network, or computer system in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, or computer system that is obscene; or

(f)    Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or

(g)  Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another’s home or private residence or other private property; or

(h)  Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.

(1.5) As used in this section, unless the context otherwise requires, “obscene”

means a patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions.

(2)   Harassment pursuant to subsection (1) of this section is a class 3 misdemeanor; except that harassment is a class 1 misdemeanor if the offender commits harassment pursuant to subsection (1) of this section with the intent to intimidate or harass another person because of that person’s actual or perceived race, color, religion, ancestry, or national origin.

(3)   Any act prohibited by paragraph (e) of subsection (1) of this section may be deemed to have occurred or to have been committed at the place at which the telephone call, electronic mail, or other electronic communication was either made or received.

(4)   (a) The general assembly hereby finds and declares that stalking is a serious problem in this state and nationwide. Although stalking often involves persons who have had an intimate relationship with one another, it can also involve persons who have little or no past relationship. A stalker will often maintain strong, unshakable, and irrational emotional feelings for his or her victim, and may likewise believe that the victim either returns these feelings of affection or will do so if the stalker is persistent enough. Further, the stalker often maintains this belief, despite a trivial or nonexistent basis for it and despite rejection, lack of reciprocation, efforts to restrict or avoid the stalker, and other facts that conflict with this belief. A stalker may also develop jealousy and animosity for persons who are in relationships with the victim, including family members, employers and co-workers, and friends, perceiving them as obstacles or as threats to the stalker’s own “relationship” with the victim. Because stalking involves highly inappropriate intensity, persistence, and possessiveness, it entails great unpredictability and creates great stress and fear for the victim. Stalking involves severe intrusions on the victim’s personal privacy and autonomy, with an immediate and long-lasting impact on quality of life as well as risks to security and safety of the victim and persons close to the victim, even in the absence of express threats of physical harm. The general assembly hereby recognizes the seriousness posed by stalking and adopts the provisions of this subsection (4) and subsections (5) and (6) of this section with the goal of encouraging and authorizing effective intervention before stalking can escalate into behavior that has even more serious consequences.

(b) A person commits stalking if directly, or indirectly through another person, such person knowingly:

(I) Makes a credible threat to another person and, in connection with such threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship; or

(II) Makes a credible threat to another person and, in connection with such threat, repeatedly makes any form of communication with that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or

(III)  Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this subparagraph (III), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.

(c) For the purposes of this subsection (4):

(I) Conduct “in connection with” a credible threat means acts which further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat;

(II) “Credible threat” means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person’s safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. Such threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.

(III) “Immediate family” includes the person’s spouse and the person’s parent, grandparent, sibling, or child; and

(IV) “Repeated” or “repeatedly” means on more than one occasion.

(5)   Where a person commits stalking under paragraph (b) of subsection (4) of this section, the following shall apply:

(a)  A person commits a class 5 felony for a first offense.

(a.5) For a second or subsequent offense, if such offense occurs within seven years of the date of a prior offense for which such person was convicted, the offender commits a class 4 felony.

(a.7) Stalking is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10).

(b)  If, at the time of the offense, there was a temporary or permanent protection order, injunction, or condition of bond, probation, or parole or any other court order in effect against such person prohibiting the behavior described in paragraph (b) of subsection (4) of this section, such person commits a class 4 felony. In addition, when a violation under subsection (4) of this section is committed in connection with a violation of a court order, including but not limited to any protection order or any order that sets forth the conditions of a bond, any sentence imposed for such violation pursuant to this subsection (5) shall run consecutively and not concurrently with any sentence imposed pursuant to section 18-6-803.5 and with any sentence imposed in a contempt proceeding for violation of the court order. Nothing in this paragraph (b) shall be construed to alter or diminish the inherent authority of the court to enforce its orders through civil or criminal contempt proceedings; however, before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the district of the court where the proceedings are to be heard and the district attorney for the district of the court where the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions.

A peace officer shall have a duty to respond as soon as reasonably possible to a report of stalking and to cooperate with the alleged victim in investigating such report.

What Is Stalking Behavior?

Stalking refers to repeated harassing or threatening behavior by an individual, such as following a person, appearing at a person’s home or place of business, making harassing phone calls, leaving written messages or objects, or vandalizing a person’s property, according to the U.S. Department of Justice Office for Victims of Crime (OVC).

Any unwanted contact between two people that directly or indirectly communicates a threat or places the victim in fear can be considered stalking, but the actual legal definition of stalking varies from state to state according to each state’s laws.

According to the OVC’s brochure “Stalking Victimization,” anyone can be a stalker, just as anyone can be a stalking victim. The brochure points out that:

• Stalking is a crime that can touch anyone, regardless of gender, race, sexual orientation, socioeconomic status, geographic location, or personal associations. Most stalkers are young to middle-aged men with above-average intelligence.

• Unfortunately, there is no single psychological or behavioral profile for stalkers. Every stalker is different. This makes it virtually impossible to devise a single effective strategy that can be applied to every situation. It is vital that stalking victims immediately seek the advice of local victim specialists who can work with them to devise a safety plan for their unique situation and circumstances.

• Some stalkers develop an obsession for another person with whom they have no personal relationship. When the victim does not respond as the stalker hopes, the stalker may attempt to force the victim to comply by use of threats and intimidation. When threats and intimidation fail, some stalkers turn to violence.

Stalking Can Become Violent

The most prevalent type of stalking case involves some previous personal or romantic relationship between the stalker and the victim. This includes domestic violence cases and relationships in which there is no history of violence. In these cases, stalkers try to control every aspect of their victims’ lives.

The victim becomes the stalker’s source of self-esteem, and the loss of the relationship becomes the stalker’s greatest fear. This dynamic makes a stalker dangerous. Stalking cases that emerge from domestic violence situations, however, are the most lethal type of stalking.

The stalker may attempt to renew the relationship by sending flowers, gifts and love letters. When the victim spurns these unwelcome advances, the stalker often turns to intimidation. Attempts at intimidation typically begin in the form of an unjustified and inappropriate intrusion into the victim’s life.

The intrusions become more frequent over time. This harassing behavior often escalates to direct or indirect threats. Unfortunately, cases that reach this level of seriousness often end in violence.

High Court Upholds Colorado’s Anti-Stalking Law
Karen Abbott, Rocky Mountain News
Published January 18, 2006

The Colorado Supreme Court upheld state efforts to crack down on stalking Tuesday, ruling that prosecutors need not prove that a stalker realized his behavior was distressing to his victim.

The state’s high court said Colorado legislators recognized that many stalkers believe, wrongly but sincerely, that their attention is welcome or will become welcome if they persist.

Some crimes require that a person have criminal intent in order to be convicted, but stalking is an exception, the Supreme Court said in a unanimous ruling written by Justice Gregory Hobbs. The ruling upheld the constitutionality of Colorado’s anti-stalking law and overturned a Court of Appeals decision in March 2004.

The high court quoted from the state’s anti-stalking law, the current version of which was enacted in 1999.

It states: “A stalker will often maintain strong, unshakable, and irrational emotional feelings for his or her victim, and may likewise believe that the victim either returns these feelings of affection or will do so if the stalker is persistent enough. Further, the stalker often maintains this belief, despite a trivial or nonexistent basis for it and despite rejection, lack of reciprocation, efforts to restrict or avoid the stalker, and other facts that conflict with this belief.”

The case in question involved Brian Cross, now 46, who was convicted by a Mesa County jury in 2001 of stalking a woman who worked in a shopping center kiosk.

For two months in 2001, the defendant went to the shopping center almost daily and sat on nearby benches or circled the kiosk, the Colorado Court of Appeals said in its 2004 ruling.

“The victim felt threatened by defendant’s presence and reported his activities to the mall’s security personnel,” the court said. “She began using different doors to enter and leave the mall, had her husband drive her to and from work, and had her supervisor modify her work schedule so that she would not leave work alone.”

On one occasion, the defendant appeared at an evening church service that the victim and her family regularly attended.

Cross was arrested a few days later for violating parole in connection with a previous stalking conviction. He was sentenced to 24 years in prison.

Law enforcement officials on Tuesday applauded the ruling.

“I think it’s fantastic,” said Denver police Sgt. Matt Murray, who oversaw the department’s domestic violence unit for years.

“Domestic violence is a crime of control, and stalking is the ultimate control. I don’t even have to do a physical act . . . I can cause you immediate fear and get you to change your behavior from 2,000 miles away.”

In 2003, Denver police increased their enforcement of the stalking statute, examining the possibility of prosecution whenever someone violates a restraining order for the third time. Stalking is a class VI felony.

The results have been positive, Murray said.

“One of the great things about stalking is you can stop the behavior,” he said.

The outcome for Cross remains to be seen. The appeals court ordered a new trial on other legal grounds not related to whether he realized his conduct distressed his victim.