The Difference Between Offensive and Alarming Conduct in Stalking Cases

Stalking laws are generally designed to protect victims from being threatened by the speech or conduct of the stalker. In Oregon, for example, stalking is two contacts between the stalker and the victim, each of which must cause the victim to be reasonably alarmed for his or her safety or the safety of a member of his or her family or household. When the alarm is caused by speech, it must include a threat of harm. A recent case demonstrates the difference between simply offensive and alarming speech and conduct.

After a separation, the wife moved to another town. The husband began sending numerous letters and e-mails and making phone calls to the wife. The contents of one letter and one e-mail were described to the court. (The others were not.) The letter called her a whore, accused her of sleeping with four men since the separation, and included a box of condoms. The e-mail said only that a birthday card with a picture and letter had been sent, but the contents of the card, letter, or picture were not disclosed.

The only in-person contact was one encounter at the barn where the wife boarded a horse. The husband did make other attempts to find the wife at the barn, and drove on her street numerous times, but she did not see him. The husband also sent anonymous letters to people the wife knew, but the content of the letters was not disclosed other than to describe it as saying “terrible things.”

There was no testimony that the wife felt threatened by any of the contacts by the husband, nor did she provide any evidence of domestic violence during the marriage.

The Oregon Court of Appeals ruled that the evidence simply didn’t prove that the wife was placed in any fear or that the husband threatened her. (And two of the three judges who ruled on the case were women.) A history of violence or testimony that the wife did feel threatened might have led to a different result. I think the judges would have wanted both.

The lesson of this case is that if you think you are being stalked, but the communications don’t include a threat, the courts, unfortunately, won’t be able to help. If the stalker’s conduct, as opposed to speech, puts you in fear – and that could be simply from the stalker repeatedly approaching you in a way that could be seen as threatening – then you may have a case. Keeping a log of incidents and your reactions may help a lawyer assess whether you can make your case. If the stalker is sending you written communications, save them. If there are phone calls, you may legally record them in Oregon. A lawyer should be able to go through the evidence and advise you whether you have enough to prove that you are being threatened, and can discuss with you whether you are, in fact, being frightened by the stalking.

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