Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

1.3.BACKGROUND INFORMATION ON STALKING AND CRIMINAL HARASSMENT

1.3.1.Stalking

1.3.1.1. The Nature, Scope, and Impact of Stalking

“According to a 1997 study by the Center for Policy Research, one million women and three hundred thousand men are stalked annually in the United States. Approximately eight percent of all women and two percent of all men in this country will be stalked at some time during their lives.” J. Thomas Kirkman, Every Breath You Take: Massachusetts Steps Up Its Efforts to Stop Stalkers,” 85 Mass. L. Rev. No. 4 (Spring, 2001) (citing Tjaden and Thoennes, Violence and Threats of Violence Against Women in America, Center for Policy Research, National Institute of Justice (1997)). Even in 2006, according to the National Center for Victims of Crime, Stalking Resource Center, 1 in 12 women and 1 in 45 men will be stalked in their lifetime (see www.ncvc.org/src/Main.aspx for further helpful information and resources.)

Stalking behaviors cover a huge spectrum, encompassing everything from phone calls to first degree murder. “One study of stalking victims found a large array of behaviors including, but not limited to, the following: stealing or going through the victim’s mail, entering the victim’s home and moving objects without theft, stealing underwear, going through the victim’s garbage, wiretapping telephones, filing lawsuits against the victim, ordering items and magazines in the victim’s name, canceling the victim’s utilities, and harassing friends and family members of the victim. One victim reported her stalker mailed several of his teeth and a lock of his hair to her.” Id.
Not all stalkers become violent; not all stalkers explicitly threaten their victims. But all victims of stalking, by definition, suffer substantial emotional distress. In order to constitute stalking, the statute requires the pattern of conduct or series of acts to seriously alarm or annoy the victim, such as would cause a reasonable person to suffer substantial emotional distress. “Most stalking victims suffer major life disruptions with serious psychological effects even without being killed or physically assaulted.” Id.

1.3.1.2. Stalking Typologies and Pathologies

Certain typologies of stalkers have been identified and described: simple obsessional, love obsessional, erotomaniac, and false victimization stalkers. Id. (citing Sona, Palarea and Lane, Psychiatric Diagnosis and the Offender-Victim Typology of Stalking in Meloy, supra.) Cape and Islands Assistant District Attorney J. Thomas Kirkman, Director of the Domestic Violence Unit, presented his research and observations about the typologies of stalkers at the Sixth Annual Massachusetts Domestic Violence Conference, May 3-4, 2001 in East Falmouth. While typologies are still considered helpful to provide investigators with an initial picture of the offender, they are no longer intended to be used as definitive proof of an offender’s characteristics. As noted by ADA Kirkman, more recent examinations of the psychology of stalkers have found that there may be as many as 14 or 15 personality types (citing Zorza, J., Stalking Controversies and Emerging Issues (Mary P. Brewster, ed. 2003).

As also noted by ADA Kirkman recently, “Other studies have shown that the highest lethality risk factor for a stalking victim is the present or prior relationship between the stalker and the target. Intimate partner relationships pose the greatest threat.” McFarame et al., “Stalking and Intimate Partner Femicide,” Homicide Studies, 3(4); Farnham FR, James DV, Cantrell P: Association Between Violence, Psychosis and Relationship to Victim in Stalkers. Lancet 355:199, 2000. All cases should be assessed according to the behaviors of the particular stalker with less attention focused on profiling or categorizing the stalker.

1.3.1.3. Lethality Assessment in Stalking Cases

Be explicit in discussing safety issues with a stalking victim. If the victim is not aware of the dangers that stalking behaviors can represent, she may not take the kind of precautions that could save her life. Please review the general tenets of safety planning discussed in section 2.7, infra.

Cape & Islands Assistant District Attorney J. Thomas Kirkman has developed a list of questions to be asked in conducting an assessment of stalking lethality. The questions explore four central subjective and objective areas: the victim’s perception of the risk, the stalker’s personal history, the stalker’s court and criminal history, and the nature and context of the stalker’s behavior.
These questions are also valuable as a reminder of areas to cover when investigating a case, and when interviewing the witness.

1. 
   Victim’s Perception of the Risk
   

• 
  Has the stalker ever abused the victim?
  
• 
  If so, over what period of time?
  
• 
  How frequent was the abuse?
  
• 
  Was there a time pattern to the abuse? (e.g. after work, after abusing drugs or alcohol, after some other triggering event – describe)
  
• 
  Describe the precise nature of the abuse. Did it include threats to kill?
  
• 
  Is the victim’s fear greater now than in the past? Why?
  
• 
  Can the victim put a numeric value on a scale of one to ten (with ten being the greatest) on his or her fear? Can the victim explain why that number was used?
  

2. 
   Stalker’s Personal History
   

• 
  Was the stalker abused as a child? By whom?
  
• 
  Has the stalker been abusive to others? To whom? What was the nature of the abuse?
  
• 
  Has the stalker been abusive towards animals?
  
• 
  Is there a history of similar stalking behaviors? What were the nature, circumstances and outcomes of such behaviors?
  
• 
  Does the stalker have a history of mental illness? What was the diagnosis and treatment protocol?
  
• 
  Does the stalker abuse alcohol or drugs?
  
• 
  Has the stalker ever fantasized or threatened homicide or suicide?
  

3. 
   Stalker’s Court and Criminal History
   

• 
  Has the stalker been the defendant of any order of protection or restraining order? Did the stalker obey the order? Describe the circumstances of any violation.
  
• 
  Has the stalker ever been arrested? Why? What was the outcome?
  
• 
  Has the stalker ever been convicted of any crimes? What was the sentence?
  
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  Has the stalker been under court supervision? Describe the circumstances and results.
  
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  Has the stalker been incarcerated? How long? What was his or her behavior while in custody and subsequent to release?
  
• 
  Has the stalker been convicted of stalking? What was the effect on stalking behaviors, if any, of post conviction terms of probation or release?
  
• 
  What overall effect did legal intervention have on the stalker’s behavior?
  

4. 
   Nature and Context of Behavior
   

• 
  What is the nature of the stalking behavior – following, watching, direct contact, or a combination?
  
• 
  Is the stalker abusing drugs or alcohol during the stalking events? If so, does he or she abuse substances during each event?
  
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  What is the nature of the stalker’s direct contact with the victim? (face-to-face, letters, phone calls, e-mail)
  
• 
  What is the substance of the contact?
  
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  Has there been any change in the number, nature or substance of contacts? If so, over what period of time? Describe the change.
  
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  What is the nature of the stalker’s indirect contact? (i.e. through others)
  
• 
  Describe any threatening behaviors.
  
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  Does the stalker have access to weapons?
  
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  Has he or she showed a fascination or obsession with weapons?
  
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  If the stalker and victim were intimate partners, has the victim attempted to terminate the relationship in the past? If so, what was the stalker’s response and what caused the relationship to renew?
  

**For more information on stalking, or for further helpful victim referral information, please visit: www.ncvc.org/src/Main.aspx.

1.3.1.4. Stalking Offender Information Form and Incident Log

To prove a pattern of conduct, you must work with victims to reconstruct the dates, times and places of significant events. After obtaining initial information about the events, you will be able to seek witnesses and documentary evidence (911 reports, phone records, work records, email) both to hone the factual information and to corroborate it at trial.

The Massachusetts Office for Victim Assistance (MOVA) has promulgated suggested forms for victims in obtaining and organizing information about stalkers, and information about individual stalking incidents.
The first form is the two-page “Offender Information in Stalking Cases.” The second form is the one-page “Stalking Incident Log.” You may wish to use these forms for different purposes: in your victim interviews, for distribution to victims and local police in your district, or as a starting point in developing forms for your own use, tailored to your county or district. For your convenience, the information, further resources and forms created by MOVA are replicated in appendix 9.1.7.

1.3.1.5. Proving a Stalking Case

Massachusetts passed its first stalking statute in 1992, the year after California passed the nation’s first anti-stalking law. The impetus for California’s initiative was widespread shock over the stalking murder of a well-known actress, Rebecca Shaeffer. Shaeffer was gunned down at the door of her apartment building by a fan who had followed her and harassed her for two years. In quick succession twenty-seven states, including Massachusetts, passed anti-stalking laws similar to California’s statute. By 1996, all states except New York had anti-stalking criminal statutes on the books; and in 2000 New York also passed a comprehensive anti-stalking law. Kirkman, id.
The original Massachusetts stalking statute outlawed repeated following or harassing conduct. In Commonwealth v. Kwiatkowski, 418 Mass. 543, 546 (1994), the Supreme Judicial Court found the statute to be facially vague because as written it appeared to define harassment as a “representation of either a pattern of conduct or a series of acts” and not just a single pattern of conduct or a single series of acts. In other words, the law could be read as requiring both a single pattern of conduct or series of acts, or multiple patterns of conduct or series of acts. Because it was found to lack an unambiguous application, the statute was struck down as unconstitutionally vague.
The legislature amended the statute in 1996 to correct the defect by incorporating verbatim a construction provided by the Court in Kwiatkowski; the ambiguous term “repeatedly” was deleted. The amended statute outlaws the conduct of one who “willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person.” “A pattern or series in the context of this statute would involve more than two incidents.” Id. at 547-548.
A pattern of mere following or observation is not enough. Massachusetts also included the requirement of a threat in its stalking statute (not all states did). The element is set forth in the statute as a “threat with the intent to place the person in imminent fear of death or bodily injury.” Mass. Gen. Laws ch. 265, § 43. The threat component “closely approximates the common law definition of the crime of assault.” Commonwealth v. Matsos, 421 Mass. 391, 394 (1995). The Commonwealth need not prove that the defendant actually intended to harm the victim … it need only prove that the defendant’s threats were reasonably calculated to place the victim in imminent fear of bodily injury.” Id. at 395 (citations omitted).
The defendant’s conduct must “seriously alarm or annoy” the victim, as would cause “a reasonable person to suffer substantial emotional distress.” Thus, the statute requires subjective proof of the victim’s fear (“alarmed or annoyed”) as well as objective proof of the victim’s distress (“cause a reasonable person to suffer substantial emotional distress”). Kirkman, id. In determining whether the victim’s apprehension is reasonable, the court must look “to the actions and words of the defendant in light of the attendant circumstances.” Matsos, 421 Mass. at 395. Accordingly, the defendant’s prior bad acts may be relevant and may be admitted to corroborate that the acts were “of a kind to cause a reasonable person emotional distress,” and/or to corroborate that the victim was actually “alarmed or annoyed.”
Because the court considers context and “attendant circumstances,” what may appear out of context to be ambiguous may be found, in context, to constitute an explicit threat. For example, in Matsos, the defendant wrote to the victim that “there is going to come a day when you are going to want to come and see me … But you will never see me, your eyes will always be closed.” Id. at 395. In the context of the case (in which the defendant sent the victim hundreds of pages of letters detailing sexual fantasies involving the victim, followed the victim, and made references to guns and dangerous friends), the statement was viewed by the court as an explicit threat. The victims’ eyes being “always closed” was not interpreted as an image of her being unable to understand or effectively communicate with the defendant. Rather, in the context of the defendant’s behavior, it was interpreted as a warning that the victim would be killed by the defendant in retaliation for her failure to respond to his advances. Thus, in reviewing an indictment or a charging decision in order to determine whether a defendant’s behavior included a threat, you should consider any and all of his gestures, and all of his conduct toward the victim, in the light of the history between them. The context may reveal the threat.
The imminent nature of the threat in Matsos was also derived from context and circumstance. The defendant did not explicitly state that he would harm the victim soon, or at any particular time. But the court found that the manner and nature of the threats revealed them to be imminent, because the defendant wrote in his letters that he followed her and knew specifics concerning when and where she conducted her activities. Id. at 394. The inability to inflict immediate harm does not preclude a conviction for threats. A conviction may be based on the victim’s reasonable apprehension that the threat may be carried out in the future. Commonwealth v. Ditsch, 19 Mass. App. Ct. 1005 (1985). Thus, “imminent” does not mean immediately following. Rather, the meaning of “imminent” is revealed by and related to a reasonable apprehension of future harm.
In recent cases adjudicating threats complaints, the Supreme Judicial Court has further clarified that it is appropriate for the Court to consider whether particular circumstances justify a victim’s apprehension. In determining a threat, the context of the stalker’s behavior must be examined. As noted in Comm v. Sholley, “ a threat is not confined to a technical analysis of the precise words uttered [but must include] the context in which the allegedly threatening statement was made and all the surrounding circumstances.” These cases, Commonwealth v. Sholley, Commonwealth v. Milo M., and Commonwealth v. Chou, are summarized and excerpted infra in Section 1.5, Statutes and Annotations, in both the “Threats” and “Stalking” subsections.
Because the stalking statute dictates that the defendant must have acted “willfully and maliciously,” you must offer proof of the defendant’s mens rea. You must show that the defendant acted out of cruelty, hostility or revenge. You may do this through the defendant’s own statements, or through circumstantial evidence. You may use the burden of proving the defendant’s motive as a rationale for the court to admit testimony regarding past history between the parties, and the defendant’s prior bad acts.
Lastly, proving the case also involves proving identity. Identity is often problematic in stalking cases because they so often involve “anonymous” acts such as hang up calls, unsigned letters, flowers and gifts delivered without identifying the sender, or acts of vandalism such as slashed tires, broken windshields, or items left on porches and lawns. Explore all possible ways to tie the defendant to such “anonymous” acts. In addition to analyzing the defendant’s opportunity and motive, look into phone records, handwriting experts, store and credit card company receipts and records, and phone traps as evidence tying each act to the defendant. Obtain search warrants to search for items used in particular incidents, such as the particular typewriter, or the particular type of stationery. Explore whether third parties assisted the defendant in carrying out his acts; they could be extremely valuable witnesses at trial. If you do not know how to trace an “anonymous” e-mail, seek help from the Computer Crime Unit at the Attorney General’s Office, or from specialists within your county.
In summary, the stalking statute dictates that you prove six elements:

1. 
   Pattern of conduct or series of acts
   

(involving at least three incidents directed at the victim)

2. 
   Substantial emotional distress
   

(the acts were of a kind to cause a reasonable person emotional distress – an objective analysis)

3. 
   Actual alarm or annoyance
   

(the victim was actually alarmed or annoyed – a subjective analysis)

4. 
   Willful and malicious
   

(the defendant acted out of cruelty, hostility, revenge or other wrongful motive)

5. 
   Threat made with intent to place victim in imminent fear of death or bodily injury
   

(the contexts and circumstances can create the threatening environment, can justify the victim’s apprehension )

6. 
   Identity
   

In order to prove these elements, make the following preparations:

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  Work closely with the victim and police investigators to construct a timeline of all significant incidents and events. See the lethality assessment questions and stalking information forms, in this section, supra, as well as Section 3.3 infra, “Interview the Victim.”
  

• 
  Prepare exhibits to illustrate this timeline for the jury.
  

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  Research all possible witnesses with respect to the defendant’s motive, the defendant’s opportunity, and the defendant’s actions.
  

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  Research all possible documentary evidence and records: police logs to help identify dates of events; school and work records to help identify opportunity and motive; invoices to place the defendant at certain locations, or to show items he purchased and used during certain acts.
  

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  Research any and all prior bad acts, subsequent acts, and similar crimes by the defendant, and prepare motions to allow them to be admitted at trial. See infra section 6.2, “Sample Motions.”
  

• 
  Consider using experts to testify about the dynamics of abusive relationships and/or the profiles and typologies of stalkers. See infra section 3.3.10, “Experts.”
  

• 
  Be prepared to argue the applicability of any and all exceptions to the Hearsay Rule—excited utterances, present sense impressions, prior consistent statements, prior inconsistent statements, prior reported testimony, admissions, past recollection recorded, present recollection revived, business records, and public records. See infra section 3.3.4, “Consider All Types of Potential Testimony.”
  

1.3.2.Criminal Harassment

A new stalking law was passed in August, 2000 and was enacted to take effect on October 30, 2000. The statute prohibits “criminal harassment” – a pattern of conduct or series of acts directed at the target, which seriously alarms the target and would cause a reasonable person to suffer substantial emotional distress. Mass. Gen. Laws ch. 265, § 43A.

The Massachusetts Legislature was motivated to file the criminal harassment bill three days after the death of Sandra Berfield, on January 20, 2000, in Everett. Steven Caruso allegedly stalked Ms. Berfield for two years, including following her, repeatedly showing up at the restaurant where she worked in order to be waited on by her, and accosting her. Ms. Berfield could only obtain a civil restraining order; because she had no prior relationship with Caruso, she was not eligible for a permanent order pursuant to ch. 209A. The defendant’s stalking behavior increased in severity. He slashed her tires, and poured battery acid into her car’s gas tank. The victim set up a video camera on a tripod and captured the defendant on film. Prosecutors were successful in convicting him for malicious destruction of property, but entered a nolle prosequi for stalking: there was no threat. In July of 1999, the defendant was released from jail. That fall Ms. Berfield received hang up calls and chain letters from Caruso. In January 2000, a package was left for her at her apartment; with her sister’s name in the return address section. Ms. Caruso was murdered when she opened this package and a bomb exploded. Caruso was indicted for her murder and is awaiting trial. The Commonwealth’s case will include physical evidence tying him to the construction of the bomb, prior bad acts, and testimony of motive and opportunity.
Criminal harassment is a lesser degree of stalking in that there is no requirement that the defendant made a threat with the intent to place the victim in imminent fear of death or bodily injury. Thus, the Commonwealth need not prove that a threat was made, and need not prove that the victim feared death or bodily injury. The Commonwealth need not prove a specific intent on the part of the defendant. While the Commonwealth still must prove willful conduct, that may be established with proof that the conduct was intentional. There is no need to prove that the consequences of the conduct were intended. An act is done maliciously it if is done willfully without justification or mitigation. See Commonwealth v. O’Neil, 67 Mass. App. Ct. 284 (2006). Intervention can occur earlier.
Proof of a lesser degree of conduct may also be indicated in that “Criminal Harassment” requires that the conduct “seriously alarm” the target, whereas “Stalking” requires that the conduct “seriously alarms or annoys” the target. Perhaps the fear to be proved under criminal harassment may be briefer or more sudden than that required to prove stalking (though of course, the behavior must still reveal a pattern or a series of acts.) At present, no case law exists to clarify the importance, if any, of this distinction.
Stalking is a felony, with a five year maximum sentence (or up to two and a half years in the house, or a $1,000 fine, or both). There is a mandatory minimum of one year of imprisonment for stalking in violation of a protective order, s. 43(b) and a mandatory minimum of two years of imprisonment (as well as maximum sentence of ten years) for a second stalking offense. Criminal harassment is a misdemeanor with a maximum two and a half year jail sentence. Violation of a second offense, and violation of criminal harassment after a conviction for stalking, trigger maximum sentences of ten years in prison.
Below, courtesy of ADA Tom Kirkman, Director of the Domestic Violence Unit in the Cape Cod and Islands District Attorney’s Office, is a sample jury instruction for criminal harassment that follows the standard set forth in Commonwealth v. O’Neil, 67 Mass. App. Ct. 284. The current MCLE “model” jury instruction improperly defines malice. This jury instruction should be recommended in all criminal harassment cases:
Sample Jury Instruction on Criminal Harassment, G.L. c. 265, §43A
The defendant is charged with criminal harassment, which is a crime specifically defined by our Legislature in Chapter 265, section 43A of our General Laws. The relevant portions of that statute read as follows:
“Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person, and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished.”
In order to prove the defendant guilty of criminal harassment, the Commonwealth must prove four things beyond a reasonable doubt:
First, the Commonwealth must prove that over a period of time, the defendant knowingly engaged in a pattern of conduct or series of acts involving at least three incidents directed at a specific person, here the complainant. The Commonwealth must show that the defendant intended to target the complainant with harassing conduct on at least three occasions.
Second, the Commonwealth must prove that those acts were of a kind that would cause a reasonable person to suffer substantial emotional distress. Emotional distress that is merely trifling or passing is not enough to satisfy this element. The emotional distress must be markedly greater than the level of uneasiness, nervousness, unhappiness or the like which are commonly experienced in day to day living; it must entail a serious invasion of the victim’s mental tranquility.
Third, the Commonwealth must prove that those acts did cause the complainant to become seriously alarmed.
Fourth, the Commonwealth must prove that the defendant took those actions willfully and maliciously. Willful conduct is intentional, not accidental or mistaken. The Commonwealth does not have to prove that the defendant intended a harmful consequence, only that he intended the act leading to a harmful consequence.
An act is done maliciously if it is done willfully without justification or mitigation. Malice need not be express, but may be inferred from the defendant’s conduct.
If after having considered all of the evidence you find that the Commonwealth has proved beyond a reasonable doubt each of the four elements I have just defined, that is, that the defendant willfully and maliciously engaged in a knowing pattern of conduct or series of acts over a period of time directed at the complainant that seriously alarmed the complainant, and that would cause a reasonable person to suffer substantial emotional distress, then you shall find the defendant guilty of criminal harassment.
If, however, after your consideration of all of the evidence you find that the Commonwealth has not proved each and every one of these four elements beyond a reasonable doubt, you shall find the defendant not guilty.

1.3.3.An Act Relative to Harassment Prevention Orders

On February 9, 2010 Governor Patrick signed legislation that provides criminally enforceable protective orders to victims of harassment and sexual abuse, regardless of whether the victim and the attacker have a relationship. Prior to this law, a victim of abuse could petition for a protective order only if the abuser was a family member, someone living in the victim’s home, or someone with whom the victim had a “substantial dating relationship.” The new law allows a victim to obtain a civil protective order against a menacing stranger or acquaintance. In May, 2010, the Governor signed a supplemental bill amending the original legislation to provide for the police to arrest for violations of an order.

The new Chapter 258E defines “Harassment” as:

9. 
   3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or
   

(ii) an act that:

1. 
   By force, threat or duress causes another to involuntarily engage in sexual relations; or
   
2. 
   Constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.
   

The process for obtaining and enforcing a harassment order are similar to a 209A order.