Criminal Justice Section  


Criminal Justice Magazine
Spring 2005
Volume 20 Number 1

Model Code Revisited:
Taking Aim at the High-Tech Stalker

By Mary L. Boland

Mary L. Boland is an assistant state’s attorney in Cook County, Illinois, and chair of the Victim’s Committee of the ABA’s Criminal Justice Section. She is a member of the advisory panel on the review and revision of the Model Code on Stalking, which is directed by the National Center for Victims of Crime’s Stalking Resource Center and funded by the United States Department of Justice, Office on Violence Against Women. Contact the author at

California : When she ended their dating relationship, the defendant went online and posted her name, phone number, and address in chat rooms and stated that she fantasized being raped. At least six times, men showed up at her door in the middle of the night prepared to rape her to carry out her “rape fantasy.”
(Greg Miller & Davan Maharaj, N. Hollywood Man Charged in 1st Cyberstalking Case, L.A. TIMES (Jan. 22, 1999) available at
Colorado: When she refused to drop divorce proceedings, her husband burned her clothes in the backyard. When she got a restraining order that prohibited him from contacting her, he used global positioning satellite (GPS) technology to track her every move in her car.
( Colorado v. Sullivan, 53 P.3d 1181 (Colo. App. 2002).)
New Hampshire: A high schooler became obsessed with a classmate that he hardly knew. Although he rarely made contact with her, he watched and followed her for the next two years, logging all of his surveillance on a Web site—along with his detailed plans to kill her. He purchased her personal information on the Internet, and shot her to death as she exited work one day, then he killed himself.
( Remsburg v. Docusearch, Inc., 816 A.2d 1001 (N.H. 2003).)
New Jersey: An estranged husband drilled a tiny hole in the wall of his wife’s bedroom and installed a hidden video camera to watch her activities on his VCR.
(H.E.S. v. J.C.S., 815 A.2d 405 (N.J. 2003).)

It was just a decade ago that most stalking laws were passed. Stalkers and their behaviors were not as clearly understood then. The technology revolution had yet to make the Internet the information superhighway it is today. Few envisioned how the Internet and high-tech gadgets like cell phones and digital cameras could become such a significant part of a stalker's tool kit. Increasingly, though, technology is opening doors to new ways for stalkers to frighten, harass, surveil, and terrify their victims. The law is scrambling to keep up. Despite the obvious stalking behaviors in the cases represented above, in some jurisdictions, the law does not consider the behavior to constitute stalking.
Frustrated with the limitations in scope and depth of stalking laws, many practitioners are calling for a review of state stalking laws. In response, the U.S. Department of Justice, Office on Violence Against Women, is sponsoring the National Stalking Resource Center (NSRC). As part of the National Center for Victims of Crime, which provides technical assistance to criminal justice practitioners on civil and criminal issues related to stalking, the NSRC is spearheading a project to revisit the 1993 Model Anti-Stalking Code, a version of which has been adopted by the majority of states. In 2004, the Model Code Project brought experts from around the country together to consider emerging technological challenges and the criminal justice response to stalking. Project recommendations are due in 2005.

Extent of the problem

Stalking is not tracked as a separate offense in most jurisdictions and official stalking statistics do not show its true magnitude. In the first national study of a random sample of 16,000 adults, commissioned by the National Institute of Justice and Centers for Disease Control, it was estimated that about 10 million people will be stalked in their lifetimes; three times as many women are stalked as men and more than 80 percent of all stalkers are male. (NAT'L INST. JUST., RESEARCH PREVIEW, The Crime of Stalking: How Big Is the Problem? (Nov. 1997) available at files/fs000186.pdf.) More recent local and campus surveys have consistently shown a much higher incidence, with rates reported up to two times those of the earlier national survey.


Stalking is about control or domination through harassing or frightening conduct that intrudes on the privacy of the victim and is often designed to produce fear in the victim. Conduct ranges from the annoying to the predatory to the homicidal. Although the media have focused considerable attention on cases involving celebrities, stalking is a crime most often targeted at women by men they know, usually a current or former spouse, cohabiting partner, or date. No single profile of a stalker has emerged from research, but studies have shown that stalkers range from former partners who refuse to accept a breakup and feel rejected or angry to persons who seek revenge to those obsessed with the idea that they are "in love" with a person they may not even know or may hardly know to those who seek some "connection" with a high-profile or celebrity target. Without intervention, stalkers will continue their conduct on average for about two years.
Most commonly stalkers use "hands-on" or "lying-in-wait" methods. They repeatedly follow their victims; watch them at work and home; send or deliver letters, cards or objects; or drive by or around victims; damage property; break into victim's homes; and/or threaten or perpetrate violence directly to the victim and family members, friends, coworkers, or even pets. Over the past decade, however, as technology has become less expensive, easier to obtain, and harder to detect, stalkers have added a high-tech component to their methods. Sometimes referred to as cyberstalking, the term is loosely used to describe the use of electronic technology, including the Internet with its capabilities of e-mail, chat rooms, spyware, programmable keystroke tracking, as well as hidden cameras and videos and cell phones, and even the nonelectronic global positioning systems (GPS) that allow stalkers to track every move a victim makes from a remote location.
No one yet knows just how many stalkers use high-tech methods, but there is no question that it is a serious and growing problem. By 1999, in one urban police department alone, the use of electronic devices was identified in more than 40 percent of the reported harassment cases. (See generally U.S. DEP'T JUST., 1999 Report on Cyberstalking: A New Challenge for Law Enforcement and Industry, a report from the Attorney General to the Vice President (August 1999) available at The attorney general estimated that if cyberstalking victims comprised even a fraction of the proportion of offline victims, "there may be potentially tens or even hundreds of thousands of [cyberstalking] victims." (Id. at 6.)
Using technology allows a stalker to remain anonymous or at least avoids the risk of being discovered lurking outside the victim's home or work. Stalkers can be anywhere from the next room to another continent and engage in their threats or harassment at any hour of the day or night. They can program viruses or send repeat e-mails filled with hate or threats or obscenities, or enter chat rooms and impersonate the victim or provide the victim's personal information to others to encourage harassment by others. No longer must stalkers personally follow their victims. They can sit in their room and monitor every movement of the victim through GPS technology or watch the victim's activities 24 hours a day on a television, computer monitor, or even a cell phone.

Psychological terror

Living with the fear and uncertainty that stalking causes produces chronic stress and can produce long-term negative effects in victims. Victims may experience anxiety, depression, sleeplessness, anger, intense stress, and other symptoms of serious trauma. They may feel extremely vulnerable and become hypervigilant-constantly monitoring their environment for danger. Commonly, victims experience major changes in daily activities. They may change schools, jobs, social activities, and even move to try to avoid the stalker. When dealing with a high-tech stalker, however, efforts at physical avoidance may be futile.
A woman who had married, moved to Washington and obtained a new job, was the target of an anonymous e-mailer, "Courtney Collide." Investigation showed it was an old boyfriend from out of state whom she had not seen in seven years. She e-mailed him, telling him she knew it was him and to stop. Instead, "Courtney" began to send pornographic e-mails and his tone turned threatening. Next, there were telephone calls from males who visited a teen chat room and saw the woman's home phone number along with a request to join her and her husband for sex. When she moved to a new city job, "Courtney" found out and posted her work number on an Internet board as a woman seeking sex; she began to receive calls from strange men at work. "Courtney" also contacted the woman's supervisors and falsely notified them that she had gotten her job under false pretenses. The victim repeatedly reported the harassment, but, at the time, Washington did not consider this stalking. He was finally charged with identity theft when he sent an e-mail to the woman's coworker under her name suggested that the city teach its children about sex and linked to a pornographic Web site. But he moved before the Washington warrant was served on him in South Carolina where he lived. Eventually, he was charged and pled guilty to two federal charges of online harassment. (See Cyberstalker enters guilty plea, SEATTLE POST-INTELLIGENCER (July 30, 2004) at

Challenges to prosecution

California passed the first stalking law in 1990 after considerable media coverage of the death of actress Rebecca Shaeffer, who was stalked for nearly two years by a man who had obtained her address from the state's department of motor vehicles. Other states began to pass their own versions of stalking legislation, and in 1993 Congress asked the National Institute of Justice (NIJ) to develop a model stalking law. Over the next several years, the federal government and the remaining states passed stalking laws, many amending their laws to be consistent with the Model Anti-Stalking Code.
The goal of stalking statutes is to prevent the continuation or escalation of harassing conduct and potential resulting physical harm to a victim. However, practitioners have expressed considerable frustration in utilizing current stalking laws, especially in cases of domestic violence. Anti-stalking provisions may be included in domestic violence protective orders, but only about half of the states allow a civil protection order for stalking. Most only consider a violation of the order to be a misdemeanor. Yet, stalking is one of the significant risk factors for homicide of abused women-76 percent of women killed by their partners had also been stalked by them.
Stalking cases that involve domestic violence may also be the most difficult to prosecute. Perhaps because stalking behaviors include conduct that is not necessarily criminal, such as calling, sending gifts, or stopping by, the pattern of stalking may not be recognized at first by the victim. And even when the victim sees the conduct as stalking, the criminal justice system may not. Colorado Springs Sergeant Howard Black, a member of the Model Code Project and former head of a multidisciplinary team that addresses stalking in serious domestic violence cases, notes that "stalking is a pattern crime. But each time the victim calls, a new incident is reported, a new officer responds, and a new case may be filed. Too often, the criminal justice system treats each individual act in isolation and fails to see the pattern." Practitioners suggest that civil protection options should be expanded and statewide registries should be available to better inform law enforcement of the repeat nature of the conduct.
Some jurisdictions are taking innovative approaches to investigating and prosecuting stalking in the context of domestic violence. California district attorneys offices in Los Angeles and San Diego have specialized stalking prosecutors. The Los Angeles police department established a threat management unit that examines and classifies serious stalker cases. Some jurisdictions have developed a checklist for first responders to determine whether repeated conduct is occurring. Others, like the Dover, New Hampshire, police department's anti-stalking unit, are utilizing a focused team approach. The Colorado Springs team, called the Domestic Violence Enhanced Response Team, has a full range of investigative and advocacy services that seek to increase the level of accountability of these stalking offenders. All cases screened into the system are flagged for repeat police contacts.
Practitioners have advocated for a multidisciplinary team approach, as it is becoming clear that stalking cases require specialized methods of investigation and prosecution. However, while a considerable amount of investigatory work is necessary to prove stalking, only 12 states mandate that stalking is a felony; most allow it to be upgraded to one, but in several states, a first offense is a misdemeanor. In all states, repeat offenses are felonies. Many practitioners believe that the seriousness of stalking is not reflected in the law and that it should be addressed as a felony. Further, appropriate penalties should consider the mental health of the offender and whether continued dangerousness warrants a civil commitment after incarceration.

Stalking by technology

The biggest problem in stalking by technology, though, is not enforcement; it is the scope of the laws. The Model Anti-Stalking Code provides that stalking consists of:
(1) a course of conduct which
     a) is directed at a particular person
     b) causes the victim to fear some sort of injury or death and
     c) would cause the "reasonable" person the same or similar type of fear;
(2) The defendant must know, or should know, that his conduct will place the victim in fear. (U.S. Dep't Just., NAT'L INST. JUST., Project to Develop a Model Anti-Stalking Code for States (1993).)

The code defines a "course of conduct" as "repeatedly maintaining a visual or physical proximity to a person or repeatedly conveying verbal or written threats or threats implied by conduct or a combination thereof directed at or toward a person."
"A large part of the problem lies with the way the laws are drafted, often requiring the stalker to have a visual or physical presence," said Tracy Bahm, director of the Stalking Resource Center at the National Center for Victims of Crime. Laws that have a proximity requirement do not cover conduct of a person who stalks the victim by GPS technology or the one who surveil the victim from a distance-posting to the Internet the details of the stalking and plans for killing the victim. Yet the conduct is threatening. Some states have recently amended their laws to reflect that threatening conduct can be by any means; a few have specifically addressed the use of the Internet as a medium for the transmission of these threats or the posting of messages without the victim's consent or that would place the victim at risk for harm or violence.
About a third of the states have recently responded to the increased use of technology by enacting special cyberstalking laws. Cook County State's Attorney Richard Devine spearheaded the effort to pass Illinois' 2001 cyberstalking law "to protect citizens from stalkers' use of modern technology to harass and terrify." The law specifically applies to transmission of threats by electronic communications. (720 ILCS 5/12-7.5.) In 2004, Washington State enacted its cyberstalking law. And in 2004, Wisconsin included as stalking conduct acts of photography, video or audio taping, or monitoring or recording by any electronic means. In other states, however, courts have been left to determine whether cyberstalking is implicitly covered in the definition of stalking conduct. The Model Code Project is considering broad language encompassing the developing technological methods of stalking that can be incorporated into stalking offenses.
Additionally, although the Model Code provides for both a subjective and objective standard to establish fear, commentators have noted that a showing of subjective fear means that the threatening conduct must be transmitted to the victims and that the victims must prove their own terror. Consistent with other types of criminal offenses, some states have decided to focus more on the defendants' conduct than their success at causing the victims to experience fear. In these states, proof of the defendants' knowledge in committing the acts of stalking is sufficient. Wisconsin amended its stalking law in 2004 to include that knowledge (as opposed to intent) that conduct could cause serious emotional harm or fear is sufficient. But other states still require a specific "intent" to stalk or cause fear in the victims. This can be difficult to prove where defendants claim they only "intended" to form a relationship with the victims.
For example, in November of 2004, a man who claimed to "super-hydrate" to improve his "nerve conduction velocity" so he could communicate telepathically with his "spiritual twin" celebrity victim was acquitted of stalking reportedly because the New York jury found that prosecutors could not prove that the defendant "intended" to stalk his victim. Although the victim stated she feared for her and her family's safety, the defense characterized the defendant as "love-struck" during the 15-month period when he repeatedly called her family members, showed up at her father's home and told him that he was the singer's "soul mate," and eventually broke into a ballroom in an attempt to "court" her. (Man Acquitted of Stalking Sheryl Crow, ASSOCIATED PRESS, Nov. 30, 2004.)
Technology continues to evolve at a rapid rate. One of the newest methods of surveillance is video-voyeurism. Tiny cell phones with built-in cameras as small as microchips can be used to view and monitor unsuspecting victims. Small cameras can also be concealed in shoes, briefcases, or shopping bags. Cameras have been used to film up the skirt of an unsuspecting woman or child and the images are then posted on the Internet. Called "upskirting," this type of surveillance is highly intrusive but may not fit the definition of stalking in many jurisdictions. For example, a Virginia man caught using a video camera to film up the skirts of unsuspecting teens at a mall was sentenced to just 10 days because Virginia law did not cover his specific conduct. (Legal Loopholes Protect Video Voyeurs, 02/08/video.voyeur.ap/). About 38 states have responded with specific laws to prohibit these intrusions of dignity and privacy. In December 2004, President Bush signed a bill that prohibits video-voyeurism on federal lands. The Video Voyeurism Prevention Act of 2004 can serve as a model for the remaining states whose laws do not cover this type of surreptitious and harassing surveillance.
Armed with a better understanding of the dynamics of stalking, and of the ever-evolving technology that stalkers adapt to their criminal purposes, the Model Code Project is a timely undertaking to ensure that stalking laws adequately cover the conduct of stalkers and protect the victims. Practitioners eagerly await the Model Code Project's recommendations for revisions to the Model Anti-Stalking Code this year.

Online Resources on Stalking

• Computerized Crime: (U.S. Department of Justice Web site with specialized information for law enforcement, lawyers, teachers, media, victims, and other members of the public—including parents)

• CyberAngels: (assists victims of online harassment)

• GetNetWise: (assists families and caregivers to help children use the Internet safely)

• Stalking Resource Center at the National Center for Victims of Crime: or 202/467-9700 (technical assistance to practitioners; maintains a database of current legislation on stalking; publishes a stalking newsletter). Crime victims can call 1800-FYI-CALL for assistance.

—Mary L. Boland



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