Stalking and Related Laws
Many states in the U.S. have laws regarding stalking and the many forms it takes as described on this site. It is important to learn about them in detail as it will help you and/or your attorney to build a criminal case that has the best chance possible of leading to a conviction.
While it is a sad reality that it can be extremely difficult get local authorities to take action and local courts to convict it is important to understand that given the multi-state interaction that stalking campaigns can involve, are also federal statutes that address these crimes and appealing to federal authorities for help is another powerful tool available in your pursuit of justice.
The following are federal statutes mostly commonly used in the types of crimes involving stalking as described in the United States Attorneys’ Bulletin (May 2016). The entire document can be found on the Department of Justice website via this link https://www.justice.gov/usao/file/851856/download.
18 U.S.C. § 2261A: Cyberstalking
Title 18, United States Code, Section 2261A is the federal stalking statute. Section 2261A(1) covers in-person stalking and Section 2261A(2) covers cyberstalking— stalking that occurs using Internet or telephones—as well as stalking that occurs using the mail. Section 2261(2), originally enacted as part of the Violence Against Women Act of 2005, has two main provisions—Subsections (A) and (B):
Both provisions require that the defendant act with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person.
Both provisions also require the use of the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce. Usually this element is met with the use of the Internet.
Both provisions also require that the defendant engaged in a course of conduct, meaning more than one act.
Subsection (A) further requires that the course of conduct places the victim in reasonable fear of the death of, or serious bodily injury to, the victim, the victim’s spouse or intimate partner, or to an immediate family member of the victim. Subsection (B) requires instead that the course of conduct causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to the victim or the victim’s immediate family.
The statute previously required that the victim and the perpetrator be in separate jurisdictions, making the statute inapplicable in a number of stalking cases. A significant amendment to the cyberstalking statute was passed in 2013, which eliminated this requirement. The penalties available for violating section 2261A, contained in section 2261(b), range from a maximum of five years to a maximum of life where stalking results in death of the victim.
18 U.S.C. § 875: Threats and extortion
Section 875 prohibits the interstate and foreign communication of a threat to physically harm, kidnap, or injure the reputation of another. The Government must prove an interstate or foreign communication containing a true threat. Pursuant to Elonis v. United States, 135 S. Ct. 2001 (2015), the Government must also prove that the defendant knew, or was at least recklessly indifferent to, the threatening nature of the communication.
47 U.S.C. § 223: Obscene or harassing telephone calls
The statute makes it a crime to use a “telecommunications device” to knowingly send “any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to annoy, abuse, threaten, or harass another person.” In the context of the crimes discussed in this article, Section 223 would apply if the defendant initiated telephone calls (including VOIP calls) or texting with the intent to harass the victim. However, it does not cover offenders who use the Internet—social media, Web sites—to harass their victims. Notably, this section applies regardless of whether any conversation ensues. The statute cannot be applied where the calls are protected by the First Amendment. United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999). Section 223 is a misdemeanor.
18 U.S.C. § 2251: Production of child pornography
Section 2251(a) prohibits using, employing, persuading, and coercing a minor to produce child pornography, or attempting to do so. Even if the minor self-produces the child pornography, Section 2251(a) can apply if the minor acted at the direction of the defendant. For purposes of the crimes discussed in this article, Section 2251(a) is applicable where the defendant enticed or coerced a minor victim into taking and sending sexually explicit images or videos, or engaging in sexually explicit conduct over a webcam. Because this crime carries a mandatory minimum sentence of 15 years, it is not uncommon for cyberstalking offenses involving minors to be charged under this statute.
18 U.S.C. § 2422(b): Enticement/coercion of a minor
Section 2422(b) prohibits the use of a facility of interstate commerce, such as the Internet, to persuade, coerce, or entice a minor to engage in sexual activity for which any person can be charged with a criminal offense, or to attempt to do so. Because this crime carries a 10-year mandatory minimum sentence, it is not uncommon for sextortion cases involving minors to be charged under this statute.
18 U.S.C. § 1030: Computer hacking
Many of the cases described in this article involve unauthorized access to a computer to obtain explicit photographs or other information belonging to the victim. Often in cases involving adult victims, unauthorized access to the victim’s computer or email is the first step in their victimization. In these circumstances, subsection (a)(2)(C) of Section 1030, which proscribes unauthorized access to a computer to obtain information, likely applies.
To be guilty of a violation of 1030(a)(2)(C), the Government must prove the following elements:
First, the defendant intentionally accessed a computer without authorization
Second, the computer accessed was used in interstate and foreign commerce and communications, and
Third, the defendant obtained information by that access In the absence of a prior hacking conviction of the defendant, the Government must prove one of the following aggravating factors to felonize a violation of subsection (a)(2)(C):
The offense was committed for purposes of commercial advantage or private financial gain
The offense was committed in furtherance of any criminal or tortious act, in violation of the Constitution or laws of the United States or of any state, or
The value of the information obtained exceeds $5,000
If the computer hacking involved using the victim’s user id or password (or both) to gain unauthorized access, the aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), and its two-year mandatory, consecutive sentence may also apply. See United States v. Barrington, 648 F.3d 1178 (11thCir. 2011).
18 U.S.C. § 1952: Travel Act extortion
Section 1952 prohibits the use of a facility in interstate or foreign commerce—including the Internet—to engage in extortion. “Extortion” is not defined under the Travel Act, but courts have upheld the use of the Travel Act in cases where offenders attempt to extort money from victims by threatening to expose the victims’ sexual activities. United States v. Nardello, 393 U.S. 286, 295-96 (1969); United States v. Hughes, 411 F.3d 461 (2d Cir. 1969).