Posted by Edmund R. Folsom, Esq., April 29, 2018.

“Stalking” sounds like a seriously creepy crime. It conjures images of someone hiding, creeping around, spying on and hunting another person, but in the case of Maine’s stalking statute the word chosen to label the crime carries connotations far more sinister than much of the conduct prohibited by the statutory language itself. It isn’t that the statute doesn’t address such creepy, dangerous conduct but that it addresses far less serious conduct and calls it the same thing. To determine the reach of any criminal statute, look to the minimal level of culpable conduct and the lowest culpable state of mind required to violate it. There, you have all that is required to commit the crime. Anything more than that is gilding the lily. As to the Maine crime of stalking, the least that is required to commit it is to “knowingly…engage[] in a course of conduct directed at or concerning a specific person that would cause a reasonable person…to suffer emotional distress.” 17-A M.R.S. §210-A(1)(A)(1). Understanding what this means in concrete terms requires examining the statutory definitions of the terms “knowingly,” “course of conduct,” and “emotional distress.” The term “knowingly” is defined as follows: “A person acts knowingly with respect to a result of the person’s conduct when the person is aware that it is practically certain that the person’s conduct will cause such a result… A person acts knowingly with respect to attendant circumstances when the person is aware that such circumstances exist.” 17-A M.R.S. §35(1)(A),(B). The term “course of conduct” is defined to include, “2 or more acts, including but not limited to acts in which the actor, by any action, method, device or means, directly or indirectly … communicates to or about a person.” 17-A M.R.S. §210-A(2)(A). The term “emotional distress” is defined to mean, “mental or emotional suffering of the person being stalked as evidenced by anxiety, fear, torment or apprehension that may or may not result in a physical manifestation of emotional distress or a mental health diagnosis.” 17-A M.R.S. §210-A(2)(D). From this, you see that a person commits the crime of stalking if the person communicates to or about another person at least twice, while aware that it’s practically certain the communications would cause a reasonable person to suffer some level of anxiety, fear or apprehension, if a reasonable person would suffer some level of anxiety, fear or apprehension. Isn’t that something? Keep in mind that a person commits a crime any time the person does the prohibited conduct while having the culpable state of mind.

I have been thinking about the above definition of stalking lately in connection with trends in the news. Let’s suppose person A owns a business. Let’s suppose that person B at least twice communicates publicly about person A in a way that damages person A’s reputation, seeking to cause others not to do business with person A. Suppose person A is a concert promoter, and person B publicly campaigns for municipal officials to stop doing business with person A, claiming that because person A is a domestic abuser person A should be shunned by responsible municipal officials. Wouldn’t a reasonable person faced with a public campaign that threatens loss of livelihood suffer anxiety, fear, or apprehension at the prospect? Wouldn’t person B have to be aware of the practical certainty that these communications concerning person A would cause emotional distress in a reasonable person? What if person B dislikes person A’s politics and embarks on a campaign of multiple social media communications, calling for a boycott of person A’s business or the firing of person A from person A’s job, because person A has expressed personal and/or political views that person B believes require punishment and ostracism? Wouldn’t that cause anxiety, fear or apprehension in a reasonable person, and wouldn’t person B have to be aware that it is practically certain the communications would have that effect? I wonder how many of those who engage in this now popular activity of vilification and shaming realize that what they are doing is defined as “stalking” under Maine law.

Even beyond that, there are many unpleasant bits of news one person might need to communicate to another that would cause a reasonable recipient to suffer anxiety, fear or apprehension. To take the stalking statute as drafted to the logical extreme of its absurd ramifications, suppose a doctor breaks a very bad diagnosis to a patient, then later reports to the patient that treatment is going poorly and the patient has only weeks to live. Here, we have a course of conduct consisting of 2 communications directed at or concerning the patient, that the doctor must be aware would be practically certain to cause a reasonable person anxiety, fear, apprehension and likely even, torment. We have a convergence of prohibited conduct and culpable state of mind — we have a completed crime of stalking.  If that seems ridiculous, don’t look at me!  I’m not the one who criminalized knowingly making two or more communications to or about a particular person that would cause a reasonable person to suffer anxiety, fear or apprehension; let alone the one who decided to name it stalking.

When a statute sweeps within its plain terms this much conduct undeserving of criminal punishment, it is left to police and prosecutors to pick and choose who to charge and prosecute from among the larger pool of those who commit the crime. Those decisions will necessarily be based on the personal views and preferences of police and prosecutors. The stalking statute is a bad statute. A large part of its problem is that it does not require specific intent to harm, but instead punishes conduct committed only “knowingly.” Arbitrariness, caprice and personal points of view will dictate its enforcement at the margins, where police and prosecutors engage in stretch-to-fit so they can get the guy for something.  And margins tend to creep.  But hey, it’s only stalking. It’s not like it’s a big deal or anything, right?

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