“New Jersey Stalking” Defined:
New Jersey defines “stalking” in N.J.S. 2C:12-10b. The words themselves in this definition are clear: “A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.” Subsections “c,” “d,” and “e” then define circumstances under which stalking becomes elevated to a third degree crime.Subsection c makes stalking a third degree crime when it is done in violation of an existing court order. Subsection d makes stalking a third degree crime when it is a second or subsequent offense aganst the same victim. Under subsection e, stalking becomes a third degree crime committed by a person who is on probation or parole for violating a criminal statute, or actually serving a term of imprisonment for a crime. Any crime.
New Jersey Stalking--A Closer Look:
As mentioned above, the words are clear. But what do they mean? Note, first of all, that “stalking” is very much not limited to the popular understanding of the term. Under conventional understanding, stalking involves following, be it by vehicle or on foot. But New Jersey's definition includes any “course of conduct.” Thus texting, emailing, or even contacting friends or family members of the “victim” would appear to support a conviction. And how about playing a track of music more than once within the hearing of a cantakerous neighbor? Under N.J.S. 2C:12-10a(2), two times is enough to constitute “repeatedly.” The range of potentially triggering activities has no limits.
N.J.S. 2C:10a(3) defines “emotional distress” to mean “significant mental suffering or distress.” But isn't this largely subjective? Shall criminality depend upon an individual “victim's” particular neurosis or supersensitivity? The statute does define “cause a reasonable person to fear” to mean “to cause fear which a reasonable victim, similarly situated, would have under the circumstances.” But what is a “reasonable victim?” Adding fuel to the fire, another New Jersey statute extends the range of who can be a victim of stalking. N.J.S. 2C:12-10.2a defines remedies specifically to “victims” who are developmentally disabled or mentally defective. Thus bootstrapping the two statutes, the “reasonable victim similarly situated” can mean the “reasonably” (if there is such a thing) mentally defective individual.
Arguably, guilt or innocence of stalking might depend on the subjective state of mind of the “victim.” State of New Jersey v. B.A., 458 N.J. Super. 391 (App. Div., 2019) grappled with that issue. The B.A. court measured the behavior of the defendant in that case against what “a resonable victim” should be expected to endure. In affirming B.A.'s conviction, the court found that the nature and content of his communications could cause a reasonable person to fear for their safety or cause emotional distress. These factors, opined the court, removed B.A.'s behavior from speech that the First Amendment to the United States Constitution might otherwise protect.
New Jersey Stalking--Penalties
New Jersey Stalking convictions carry penalties that extend far beyond the criminal conviction itself. N.J.S. 2C:12-10.1, upon application of the “victim,” calls for the issuance of a permanent restraining order against the defendant upon sentencing. And the judgment of conviction itself makes application for that permanent restraining order automatic. The effectiveness of that permanent restraining order is statewide. Violation subjects the defendant to additional criminal penalties.
New Jersey Stalking--Legal Defenses:
New Jersey law relating to stalking is far-reaching. The largely subjective elements of criminal stalking expose alleged violators to criminal convictions for what might be utterly innocent conduct. At the same time, these largely subjective elements also provide significant grist for legal defense. Persons charged with stalking should contact an experienced New Jersey criminal defense lawyer immediately. Much can be done to reduce the likelihood of a criminal conviction. But skilled legal guidance is needed to tell the defendant what to do and, equally importantly, what not to do.
Stalking under Federal Law:
Stalking is also a crime under federal law. The specific federal statute that criminalizes stalking is 18 U.S.C. § 2261A. Where the New Jersey statute that defines stalking is very general, the federal law that defines stalking is very specific. 18 U.S.C. § 2261A first specifies jurisdictional requirements for the law to apply at all. It then specifies in meticulous detail those different acts that can constitute stalking. Finally, it specifies (by reference to a different federal statute) the punishment for federal stalking.
Like many federal statutes, 18 U.S.C. § 2261A is written in excruciatingly convoluted language. We provide that language below, as an appendix to this page.
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18 U.S.C. § 2261A. Stalking.
(1) travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family (as defined in section 115) of that person, or the spouse or intimate partner of that person; or
(2) with the intent--
(A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or
(B) to place a person in another State or tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to--
(i) that person;
(ii) a member of the immediate family (as defined in section 115) of that person; or
(iii) a spouse or intimate partner of that person;
uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii) of subparagraph (B);
shall be punished as provided in section 2261(b) of this title.