UPDATED: June 19, 2018
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Aggravated stalking is a felony charge that can carry all of the same consequences and penalties as a regular felony offense. Despite constitutional challenges, a majority of states have some type of stalking statute and some also have aggravated stalking statutes. Florida, Georgia, Illinois, Wisconsin, Michigan, Nevada, Missouri, Vermont, New Mexico, and Tennessee are some of the states which have provisions against aggravated stalking.
An aggravated stalking statute begins with a basic stalking allegation. Stalking usually requires some proof that a defendant repeatedly followed, harassed, or communicated with a victim in a way that caused the victim substantial emotional distress. Aggravated stalking requires this same stalking proof plus some other aggravating act or circumstance. Most include a violation of no-contact orders as an aggravating circumstance.
A no-contact with victim order could be included in a protective order, restraining order, bond condition, or other court order. For example, if a defendant physically abused his girlfriend and the court allowed him to post bond subject to a condition that he have no contact with the victim, then the defendant could be charged with aggravated stalking if he tried to contact the victim after his release.
Some states set out multiple aggravating circumstances. For example, Florida also aggravates stalking charges if a victim is younger than sixteen years of age or if the defendant makes a credible threat of bodily injury directed towards the victim. Other states require some act, not just words, that adds to the stalking component. Illinois authorizes aggravated stalking charges if the defendant causes harm to or constrains the victim. Because stalking and aggravated stalking statutes are defined so broadly, the proof required and the defenses to stalking charges tend to be challenging for prosecutors and defendants.
Aggravating Stalking Defenses
Generally, the state must show pattern of conduct. A single incident of aggressive, annoying, or creepy behavior is not enough to support a stalking charge. Because the state is required to show repeated actions, they are often permitted to introduce other things a defendant has done to victim. This is somewhat different than other criminal cases where evidence is limited to the events that happened on a particular day.
Stalking is one of the few charges, which by design, authorizes and requires the admission of other bad acts. The defendant’s entire history with a victim is admissible to show intent and to verify the fear experienced by the victim. This is an incredibly frustrating charge to defend because the defendant must defend a series of events, rather than one specific event on one specific day.
Despite this frustration, some defensive options are available in the reverse. When the state introduces a defendant’s history, a defendant can also introduce a history of a victim’s reactions to rebut the credible threat element required to support an aggravated stalking conviction. Essentially, a defendant makes the argument that even though a victim had the opportunity to leave or avoid the defendant, she continued to have contact with the defendant, thereby demonstrating a lack of fear.
Even though a small number of states have formal aggravated stalking statutes, other states have statutes which are comparable or punish the same type of conduct as a felony. For example, the conduct of constraint for an aggravated stalking charge in Illinois could also be considered unlawful restraint or kidnapping in other states. Regardless of how stalking conduct is labeled, aggravated stalking charges can result in serious felony consequences.
Aggravated Stalking Punishment
Simple stalking charges are usually classified as misdemeanor offenses but aggravated stalking is classified as a felony. The range of punishment can range from two to ten years in prison. Because the offense is a felony, aggravated stalking can be enhanced under repeat offender statutes. Many of these states also classify aggravated stalking as an offense against the family or household. This means that an aggravated stalking conviction could be used later to enhance a different type of assault family violence charge from a misdemeanor offense to a felony level offense because of a violent family history.
If a defendant is placed on probation for aggravated stalking, then the defendant could be required to undergo a psychological evaluation, participate in counseling, and to refrain from any future contact with the victim. Essentially a protective order is built into the terms and conditions of the probation order. If a defendant is accused of aggravated stalking via cyber stalking, then the court could also place restrictions on a defendant’s use of electronic equipment or access to computers.