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Stalking

Utah Code Section: 76-5-106.5

Elements

(1) A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person:

(a) to fear for the person's own safety or the safety of a third person; or

(b) to suffer other emotional distress.

 

(2) A person is guilty of stalking who intentionally or knowingly violates: (a) a stalking injunction or (b) a permanent criminal stalking injunction issued pursuant to this section.

Definitions

A "course of conduct" means two or more acts directed at or toward a specific person, including:

(i) acts in which the actor follows, monitors, observes, photographs, surveils, threatens, or communicates to or about a person, or interferes with a person's property: (A) directly, indirectly, or through any third party; and (B) by any action, method, device, or means; or

(ii) when the actor engages in any of the following acts or causes someone else to engage in any of these acts:

(A) approaches or confronts a person;

(B) appears at the person's workplace or contacts the person's employer or coworkers;

(C) appears at a person's residence or contacts a person's neighbors, or enters property owned, leased, or occupied by a person;

(D) sends material by any means to the person or for the purpose of obtaining or disseminating information about or communicating with the person to a member of the person's family or household, employer, coworker, friend, or associate of the person;

(E) places an object on or delivers an object to property owned, leased, or occupied by a person, or to the person's place of employment with the intent that the object be delivered to the person; or

(F) uses a computer, the Internet, text messaging, or any other electronic means to commit an act that is a part of the course of conduct.

"Emotional distress" means significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required.

 

A "reasonable person" means a reasonable person in the victim's circumstances.

 

Requisite Mental State of Mind

 

A person engages in conduct:

(1) Intentionally, or with intent or willfully with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result.

(2) Knowingly, or with knowledge, with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(3) Recklessly with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

(4) With criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor's standpoint.

Defenses

The defenses to stalking are largely fourfold:

(1) the defendant did not know or should not have reasonably known that the course of conduct would cause fear;

(2)that the alleged victim's fear was not reasonable;

(3) that the course of conduct was not directed to a specific person;

(4) that any served stalking injunction did not prohibit the course of conduct or was vague.

The first defense requires the prosecution to prove either knowledge or recklessness as to whether the course of conduct would cause fear. The definitions of knowing and reckless are discussed below. If the prosecution cannot prove beyond a reasonable doubt that the defendant acted knowingly or recklessly, then the jury is instructed to return a not guilty verdict.

The second defense focuses on the alleged victim.  If the jury finds that the victim's fear was not what a person in the victim's circumstances would find reasonable, then the jury must return a not guilty verdict.  The defense might be that the victim was histrionic, or has a motive to get the defendant in trouble, and that motive is the true reason for the alleged victim's "fear".

The third defense is a quasi first amendment argument.  The US and Utah constitutions are protective of free speech.  A person is allowed to express their views on social media, such as Twitter or Facebook.  However, free speech is not unlimited speech.  The balance between the two comes up frequently in stalking trials in which the prosecution relies on social media postings.

The fourth defense applies in cases in which the prosecution relies on a violation of a civil stalking injunction.  The defense must rely on either a straight denial of the alleged violative act, or that the injunction itself did not prohibit the defendant's conduct, or that the injunction was vague as to the scope of prohibited conduct. When it applies, vagueness can be a very effective argument because the prosecutions needs to prove that the defendant "knowingly" or "intentionally" violated the terms of the injunction.  If the terms were not clear and unambiguous, then the defendant could not have acted with the requisite mental state.

The statute does specific limit certain defenses.  Specifically, in any prosecution for stalking, it is not a defense that the defendant:

 

(a) was not given actual notice that the course of conduct was unwanted; or

 

(b) did not intend to cause the victim fear or other emotional distress.

Jail/Prison time, fines & restitution

 

Stalking is a class A misdemeanor:

(a) upon the offender's first violation of Subsection (2); or

(b) if the offender violated a stalking injunction.

Stalking is a third degree felony if the offender: (a) has been previously convicted of an offense of stalking;

(b) has been previously convicted in another jurisdiction of an offense that is substantially similar to the offense of stalking;

(c) has been previously convicted of any felony offense in Utah or of any crime in another jurisdiction which if committed in Utah would be a felony, in which the victim of the stalking offense or a member of the victim's immediate family was also a victim of the previous felony offense;

(d) violated a permanent criminal stalking injunction; or

(e) has been or is at the time of the offense a cohabitant of the victim.

 

Stalking is a second degree felony if the offender:

(a) used a dangerous weapon or used other means or force likely to produce death or serious bodily injury, in the commission of the crime of stalking;

(b) has been previously convicted two or more times of the offense of stalking;

(c) has been convicted two or more times in another jurisdiction or jurisdictions of offenses that are substantially similar to the offense of stalking;

(d) has been convicted two or more times, of stalking.

A permanent criminal stalking injunction shall be issued by the court at the time of the conviction. The court shall give the defendant notice of the right to request a hearing.