Stalking

While a single action that may cause another to experience fear may or may not be considered a crime, a “course of conduct” that does this may be considered “stalking” under Arizona law.

Stalking can occur between people with any type of relationship, or no relationship at all. However, most incidents of stalking occur between people with a previous romantic or sexual relationship, causing the crime to often be categorized as domestic violence. In March of 2016 the Arizona Legislature amended the state’s stalking laws. Due to the changes in technology and social structure, it was determined that Arizona’s stalking laws were outdated and did not adequately protect victims.

The previous law stated a person commits stalking if the person intentionally or knowingly engages in a course of conduct that is directly toward another person and if that conduct either:

1. Would cause a reasonable person to fear for the person’s safety and the person in fact fears for safety
2. Would cause a reasonable person to fear for the safety of the person’s immediate family member and the person in fact fears for the safety of immediate family member.

The old stalking law did not protect an individual’s property, extended family, significant others, partners, roommates, pets, or animals leaving many victims and their loved ones vulnerable to dangerous conduct without recourse under the law.

Arizona’s new stalking law significantly broadens the definition of stalking. This new, broad definition may cause individuals to unknowingly commit a felony. A conviction can result in prison time, heavy fines and a permanent criminal record.

Since it may be a domestic violence offense under ARS 13-3601, even an accusation can lead to an order of protection, a violation of which may be a separate criminal offense. It is important to consult an experienced stalking defense attorney if facing stalking charges under the new law.

If you face accusations of stalking in Maricopa County, your best decision is to immediately seek skilled legal representation. As a former prosecutor, James E. Novak has in-depth experience on both sides of the criminal courtroom.

He will work hard to fight stalking allegations and seek to get charges reduced or dismissed. He can challenge evidence and cross-examine witnesses to show the weaknesses in the prosecutor’s case, and can make arguments such as that the actions in the stalking allegation are protected under the First Amendment.

Call a Mesa stalking lawyer today at (480) 413-1499 to schedule a free consultation. The Law Office of James E. Novak represents clients throughout Maricopa County, including Tempe, Mesa, Gilbert, Scottsdale, Phoenix and Chandler.

• Current Definition of Stalking
• Changes in the Stalking Law
• Penalties for Stalking in Arizona
• Potential Defenses to Stalking Charges

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The amended version of Arizona’s stalking statute, ARS 13-2923, identifies two types of stalking. Under the first provision, a person commits stalking if the person intentionally or knowingly engages in a course of conduct that is directly toward another person and if that conduct causes the victim to suffer emotional distress or reasonable fear that:

1. The victim’s property will be damaged or destroyed
2. The victim will be physically injured
3. The victim’s family member will be physically injured
4. The victim’s domestic animal or livestock will be physically injured
5. A person with whom the victim has or previously had a romantic or sexual relationship will be physically injured
6. A person who regularly resides in the victim’s household will be physically injured
7. A person who has resided in the victim’s household within 6 months before the conduct occurred will be physically injured

If a person commits stalking under the first provision, he or she can be charged with a class 5 felony.

Under the second provision, a person commits stalking if the person intentionally or knowingly engages in a course of conduct that is directly toward another person; and subsequently that conduct causes the victim to suffer emotional distress or reasonable fear that:

1. Death of a family member will occur
2. Death of a domestic animal or livestock will occur
3. Death of a person with whom the victim has or previously had a romantic or sexual relationship
4. Death of a person who regularly resides in the victim’s household
5. Death of a person who has resided in the victim’s household within 6 months before the conduct occurred

Stalking under the second provision is a class 3 felony.

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Course of Conduct

An integral part of Arizona’s stalking statute is an offender’s course of conduct. Essentially, the course of conduct is the prohibited behavior that causes the victim to experience emotional distress or have a reasonable fear.

Under the old statute, an offender’s course of conduct included verbal, written, or other threats to a specific person on two or more occasions or electronic or digital surveillance on a person or online activity for 12 continuous hours or on two or more occasions. The prohibited conduct must have occurred by the offender and not a third party or another person acting under his or her direction.

Under the stalking amendment, an individual can be charged with stalking if he or she directly, indirectly, in person, through one or more third person, or by any other means on more than one occasion does the following:

1. Makes verbal, written, or other threats to a specific person on two or more occasions;
2. Makes electronic or digital surveillance on a person or online activity for 12 continuous hours or on two or more occasions; or
3. Communicates or causes to be communicated words, images, or language or through the use or electronic mail or communication that is directed at a specific person without authorization or a legitimate purpose.

The law change is crucial, because it encompasses both actions made by third parties and any other means. The term “any other means” encompasses a wide array of conduct and ensures the statute will protect victims from conduct influenced by technological advancement and societal changes.

Another important change to the law is the class of persons protected under the stalking law. Under the old law, an individual could only be charged with stalking for committing prohibited conduct against the victim or the victim’s immediate family members.

Immediate family members included only the victim’s spouse, parent, child or sibling or any other person who regularly resides in a person's household or resided in a person's household within the past six months.

The new law extends protection to the victim’s entire family, including aunts, uncles, grandparents, and cousins, victim’s property, and victim’s animal or pet.

Under the previous law, an individual could only be charged with stalking if the course of conduct caused the victim to have reasonable fear for safety or the safety of immediate family members. Now an individual may be charged with stalking if the course of conduct causes the victim to suffer emotional distress or reasonable fear.

Emotional distress means any significant mental suffering or distress that may, but does not have to require medical or other professional treatment or counseling. Adding emotional distress to the statute broadens the conduct that may result in stalking charges.

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Stalking is a felony. However, the degree of felony depends on the facts of the case. If the offender’s course of conduct causes a victim to have reasonable fear or experience emotional distress that physical harm will occur to a family member, household member, property, significant other, partner, pet, animal, or his or herself, the offender may be charged with a class 5 felony.

A first-time class 5 non-dangerous felony is punishable by a presumptive prison term of 1.5 years, with a range of 9 months to 2 years. For a dangerous offense, there is a presumptive term of 3 years and a range of 2 to 4 years.

Stalking under the second provision, which encompasses a course of conduct that causes the victim to experience emotional distress or reasonable fear of death or death of a family member, household member, animal, pet, significant other, or partner, is a class 3 felony.

A non-dangerous Class 3 felony is punishable by between 30 months and seven months in prison, with a presumptive term of 3.5 years. A dangerous Class 3 felony is punishable by five to 15 years in prison, with a presumptive term of 7.5 years.

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Stalking now encompasses a wide array of conduct and arguably makes it easier for a prosecutor to obtain a conviction. As a result, it is important have a strong, well developed legal defense. Potential defenses include but are not limited to the following:

• Mistaken Identity-"It Wasn't Me". It is possible that the victim or witness misidentified the defendant in a case. Misidentification is common and can occur for multiple reasons, including the defendant might have a similar appearance to the actual perpetrator, the victim (or witness) is genuinely mistaken, or based on the relationship or previous interactions the victim (or witness) is convinced the defendant committed certain actions without any valid proof.
• It Did Not Happen- A victim or witness may fabricate or exaggerate certain facts in a case. Through an attorney, the defendant may assert the particular events did not occur or did not occur in the manner or context the victim or witness alleged.
• No Course of Conduct- The stalking statute requires that the conduct that causes fear or emotional distress occurs more than once. A defendant may assert that the conduct which caused the victim to have reasonable fear or emotional distressed happened only once and does not constitute stalking under ARS 13-2923.
• No intent or knowledge- ARS 13-2923 requires that the offender intentionally or knowingly cause reasonable fear or emotional distress. It is possible the defendant was unaware or did not intend that the actions caused reasonable fear or emotional distress. For example, the victim may allege someone is stalking her, because the defendant followed her home on three occasions. However, upon further review of the evidence, the defendant was visiting her neighbor and never realized the victim was experiencing fear or emotional distress.

Preparing a strong defense is a complex process. It is highly recommended to consult an experienced criminal defense attorney during this process. Having a well-developed defense increases the chances of a favorable result in a case.

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James Novak of The Law Office of James Novak is an experienced stalking defense attorney. Named “One of the Top 100 Trial Lawyers” by the National Trial Lawyers Association in 2015, James Novak diligently represents individuals facing criminal charges, including stalking, domestic assault, child abuse, and other domestic violence offenses.

As a Former Maricopa County Prosecutor, James Novak has the knowledge and experience to build the strongest possible defense on your behalf. He is committed to his clients and ensures their needs and defense comes first.

The Law Office of James Novak, PLLC proudly represents individuals throughout Arizona, including Phoenix, Mesa, Tempe, Chandler, Gilbert, Scottsdale, and surrounding areas. Speak to James Novak personally and confidentially regarding your matter and defense options at (480) 413-1499 or submit an online contact form to schedule a free initial consultation.