When I hear the word “stalking” I immediately conjure up images of a stranger in a dark hat with a dark trench coat, hiding in the edge of a dark alley, watching the unsuspecting person, and following them with evil intent.
Not so. Stalking in a dark alley, watching and following a person with evil intent may not be enough to get a stalking order.
To obtain a stalking protective order, a petitioner must demonstrate the following by a preponderance of the evidence:
(a) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person's immediate family or household thereby alarming or coercing the other person;
(b) It is objectively reasonable for a person in the victim's situation to have been alarmed or coerced by the contact; and
(c) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim's immediate family or household.
Among others, ORS 163.730(3) defines “contact” as it relates to ORS 30.866 as including but not limited to:
(a) Coming into the visual or physical presence of the other person;
(b) Following the other person;
(c) Waiting outside the home, property, place of work or school of the other person or of a member of that person's family or household;
…
(e) Speaking with the other person by any means;
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(g) Committing a crime against the other person;
(h) Communicating with a third person who has some relationship to the other person with the intent of affecting the third person's relationship with the other person;
Here are some of the things that have and have not been considered as stalking by the Oregon Court of Appeals and Oregon Supreme Court:
Boyd v. Essin (2000): After the divorce, Husband confronted Wife at public events, and would stand between her and her car or between her and the children. Wife saw Husband drive by her home many times and a neighbor saw Husband watching the house with binoculars. HELD: Stalking. The court held that it was an “unwanted relationship between parties.” There was no statement by Wife to Husband that the contact was unwanted and she had been alarmed. Court inferred that Wife was alarmed based on past history.
Delgado v. Souders (2002): Woman and Man both students at OSU. Man repeatedly walked quickly behind woman on almost daily basis, and passed her, speeding off. Woman noticed Man in the library several times where both were studying, and thought Man was staring at her. Woman never spoke to Man, but felt his behavior was alarming to her personal safety. Man testified that he didn’t know who the woman was, and he didn’t remember ever seeing Woman. HELD: Stalking – Oregon Supreme Court stated that Plaintiff must prove that in at least 2 instances, Respondent came into her visual or physical presence. Respondent should been aware of substantial and unjustifiable risk that she did not want contact by walking quickly past her, then disregarded that risk. Respondent “must have known” walking quickly behind people would alarm them.
Bryant v. Walker (2003): Woman was a clerk in a store. Man came into the store, and would stare at woman, and follow her from place to place in the store, staring at her. Woman told Man one time to stop contact. HELD: Stalking – one contact does not conclusively establish that Man knew the contact was unwanted, but “the exchange was surely sufficient to make him aware of a substantial risk that further contact was unwarranted.”
Courtemanche v. Milligan (2006): Mail carrier walked by woman’s home each day. Sometimes he would bring packages to the front door. Mail carrier wished woman a happy birthday, and said he could tell by the type of mail she received. Woman did not tell Mail carrier that conduct was unwanted. There was personal conversation, but woman never indicated conversation was unwanted. Woman’s husband called Mail carrier and said to no longer talk to his wife, it was scaring her. Mail carrier had no further contact. HELD: Not stalking, because only one contact communicated desire for no further contact.
Goodness v. Beckham (2008): Ex-husband unexpected appeared at Wife’s home, and had sent repeated emails that she would “pay” for her stance on parenting time. HELD: Not stalking. Threats were expressions of frustration and anger, not threats of imminent violence.
T.M.B. v. Holm (2012): Neighbor twice drove his lawnmower down the street as Petitioner walked his dog. No verbal contact. HELD: Stalking.
S.L..L v. MacDonald (2014): Respondent threated to “f*** up” Petitioner (ex-wife). Respondent had a criminal conviction against him with ex-wife as the victim. HELD: Stalking. Respondent’s repeated violation of the no-contact order showed willingness to break the law, despite the fact that stalking must be established with facts at the time of the initial stalking order.
A.M.M. v. Hoefer (2015): Respondent followed Petitioner to a nightclub, confronted her, stole property then followed her to her home. HELD: Not stalking. His threats were little more than exaggeration, and impotent expressions of frustration, without any fear of imminent danger of physical abuse.
Here are the facts, on the public record, of a recent stalking case. You be the judge.
Petitioners were two married women and their daughter (three petitioners). Their daughter knew Respondent’s daughter from school. Respondent’s daughter told teenage Petitioner that her father had beaten her. Prior to this time, the daughter had come to school with unexplained bruises. Petitioner told her mother. Petitioner (mother) called the police to report abuse. Respondent called Petitioner and told her never to have contact with his daughter again. The next day, Respondent came to Petitioners’ home, walked into the house without being invited, and told Petitioner that she should not ever have contact with his daughter again, that he had “spanked” her again, and it was Petitioner’s fault for calling the police. Teenage Petitioner was in the bathroom and heard the threats. Several months later, Respondent’s daughter ran away. Respondent drove to Petitioner’s home, aggressively approached the 14 year old Petitioner, questioned her about whether she had talked to his daughter, while the other two Petitioners’ tried to terminate the contact and get the teenager inside the house without Respondent becoming angry and potentially violent. A month later, Respondent came to the Petitioners’ home, and knocked so loudly that the walls shook, but Petitioners’ did not answer the door. That evening, Respondent came to Petitioners’ home and knocked loudly. When he didn’t get an answer, he followed the smell of chicken barbequing in the back yard. Petitioner told him to leave immediately. He demanded that they “deliver a message.” Petitioner ordered her teenage daughter into the house and followed her into the house. Respondent followed them, and began pushing the door to get into the house. Respondent reached into the house through the crack. Petitioner asked her daughter to get her the gun. She stepped back 3 feet, and Respondent came into the house. Petitioner pointed the gun at his chest and told him to get the “F*** out of my house” and Respondent still came forward towards her. After a few more demands to get out of the house, and the gun being pointed at his head, Respondent finally left the house and left the property. Respondent told police that he felt justified in going into the backyard because he wanted them to deliver a message for him.
You are the judge – what is your ruling?
In my opinion, there are 5 alarming or coercive contacts. One, when the Respondent called and threatened Petitioner to never have contact with him again. Two, when Respondent came into the house uninvited and threatened Petitioner. Three, when Respondent aggressively approached the 14 year old girl, and questioned her, despite the parents trying to get her away from the situation. Four, when Respondent pounded on the front door hard enough to shake the walls. Five, when he went into the back yard, pushed his way into the house, and only left when there was a gun pointed at his head. Each contact was alarming, each contact was one in which a normal “objective” person would have been alarmed and the contact was clearly unwanted.
The ruling? The stalking order was dismissed because the Petitioner only uttered the words “get off my property” on the last event, not on the previous events. The ruling appears to be inconsistent with the plain language of the stalking statute. Unlike a Family Abuse Prevention Act restraining order, which requires abuse or fear of imminent physical abuse, and fear of future abuse, the stalking statutes are written in such a way as to make it possible for someone to have a legal remedy when the contact is merely unwanted, and causes alarm.
There seems to be a pattern in the Court of Appeal opinions where the statutory elements of the two different statutes (stalking and restraining orders) are combined. The more recent cases dismiss the stalking order because the threats were unwanted but did not rise to the level of imminent danger. Imminent danger is a requirement in restraining orders, not in stalking cases.
When my kids were little, we read books and talked about that if someone touched you in a way that made you uncomfortable, my kids were told to loudly say “DON’T TOUCH ME! I DON’T LIKE IT!” If you want someone to leave you alone and you want to have a legal remedy, you need to loudly and clearly communicate that you do not want the contact, and that you want the contact to stop. If you don’t loudly and forcefully communicate to that person that just creeps you out by following you, or watching you, that person may get the message from the court and law enforcement that nothing stops that behavior. The fear, of course, is that if you do loudly communicate, particularly in person, that may escalate the situation and result in violence that you are not prepared to defend. It’s OK for the loud and forceful communication to be in writing, or by telephone, it doesn’t have to be in person. Be safe and be assertive about unwanted contact.