Wednesday, September 14, 2011

"Stalker" Woman Calls Man Sixty Five Thousand (65,000) Times in One (1) Year

There’s harassment.  And then there’s harassment.  I just hope for her sake that she signed up for the "unlimited minutes" plan.

            And I’m trying not to judge here.  Every once in a while, an individual might have a couple of toddies, start reminiscing about old times and call up their ex-boyfriend or ex-girlfriend.  And sometimes they don’t answer the phone so you have to call back.  178 times.  Per day.  Every day for a year.  That, my friends, averages out to about 7.5 times per hour every hour for a year.  If the woman doesn’t sleep.  Again, I’m not judging.
            Per CBS news, Dutch prosecutors have charged a 42-year-old woman with stalking after she allegedly called her ex-boyfriend 65,000 times in the last year.  The 62-year-old (alleged) victim from The Hague filed a police complaint in August due to persistent phone calls. Police arrested the suspected stalker Monday, seizing several cell phones and computers from her home in Rotterdam.  Hague prosecution spokeswoman Nicolette Stoel said Thursday the woman argued to judges at a preliminary hearing she had a relationship with the man and the number of calls she placed to him wasn't excessive.  The man denied they had a relationship.
            Isn’t the last part the best part?  The guy (who is 20 years the alleged perpetrator’s senior) says they didn’t even have a relationship!
            I have no idea whether the allegations in the aforementioned story are true or false, so let’s move on to something different, but related.  So today, we will make up a hypothetical situation, where some crazy lady – we will call her “Ellen” – calls “Bob,” a man she likes, 65,000 times in one year.  Ellen is charged with Stalking, but she vehemently denies being a stalker.  She just really likes hearing the sound of Bob’s voice.
            Where is the line drawn between Harassing Communications and Stalking in Kentucky?  Let’s go to the KRS.
            First, we’ll look at “Harassment” which is a term that gets thrown around “willy-nilly” as my grandmother would say.  It is an extremely broad definition, which means parts, if not all, of the statute may actually be unconstitutional.  It reads:

525.070   Harassment.
(1) A person is guilty of harassment when, with intent to intimidate, harass, annoy, or alarm another person, he or she:
(a) Strikes, shoves, kicks, or otherwise subjects him to physical contact;
(b) Attempts or threatens to strike, shove, kick, or otherwise subject the person to physical contact;
(c) In a public place, makes an offensively coarse utterance, gesture, or display, or addresses abusive language to any person present;
(d) Follows a person in or about a public place or places;
(e) Engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose; or
(f) Being enrolled as a student in a local school district, and while on school premises, on school-sponsored transportation, or at a school-sponsored event:
1. Damages or commits a theft of the property of another student;
2. Substantially disrupts the operation of the school; or
3. Creates a hostile environment by means of any gestures, written communications, oral statements, or physical acts that a reasonable person under the circumstances should know would cause another student to suffer fear of physical harm, intimidation, humiliation, or embarrassment.
(2) (a) Except as provided in paragraph (b) of this subsection, harassment is a violation.
(b) Harassment, as defined in paragraph (a) of subsection (1) of this section, is a Class B misdemeanor.

            The problems with this statute are abundant.  One particularly glaring example is subsection (1)(c).  Making an “offensively coarse” gesture to someone or using “abusive” language to someone in public can be illegal.  Seriously?  Show me someone who HASN’T violated this law, and I will personally give them an offensively coarse gesture in public.  The law is over-broad to the point of absurdity.  And what is the phrase “no legitimate purpose” supposed to mean?  What about venting frustration, entertaining yourself, or conveying anger?  Are these purposes “legitimate?”  The law is vague, and that is a serious constitutional problem.  As it pertains to Ellen, it seems like the statute is not on-point because it doesn’t address phone calls.
            Let’s move on to something more on point to today’s conversation:  telephone contact.  When harassment takes the form of telephone calls, KRS 525.080 is controlling.

525.080   Harassing communications.
(1) A person is guilty of harassing communications when, with intent to intimidate, harass, annoy, or alarm another person, he or she:
(a) Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of written communication in a manner which causes annoyance or alarm and serves no purpose of legitimate communication;
(b) Makes a telephone call, whether or not conversation ensues, with no purpose of legitimate communication; or
(c) Communicates, while enrolled as a student in a local school district, with or about another school student, anonymously or otherwise, by telephone, the
Internet, telegraph, mail, or any other form of electronic or written communication in a manner which a reasonable person under the circumstances should know would cause the other student to suffer fear of physical harm, intimidation, humiliation, or embarrassment and which serves no purpose of legitimate communication.
(2) Harassing communications is a Class B misdemeanor.

            This statute is a bit less vague.  It still contains the “no legitimate purpose” language, but at least with this statute, you get more of an indication as to what sort of conduct is prohibited.  You cannot, for example, just call someone and hang up on them without intending to talk to them at all.
            The question for today is when, if ever, does this conduct cross the line to “Stalking?”  This is a strange question, because you have to do more than just the conduct described in the definition of “stalking” to be guilty of a stalking offense in Kentucky.  I know that sounds like a big stinking load of lawyer talk, but please allow me to explain.  Pursuant to KRS 508.130, 

(1) (a) To "stalk" means to engage in an intentional course of conduct:
1. Directed at a specific person or persons;
2. Which seriously alarms, annoys, intimidates, or harasses the person or persons; and
3. Which serves no legitimate purpose.
(b) The course of conduct shall be that which would cause a reasonable person to suffer substantial mental distress.

            However, even if you have engaged in the conduct enumerated above, you haven’t yet done anything which would constitute a “stalking” offense because you have not yet threatened anyone.  Pay close attention to the following stalking statutes and note the “threat” element of both Stalking in the first degree and Stalking in the second degree.

508.140   Stalking in the first degree.
(1) A person is guilty of stalking in the first degree,
(a) When he intentionally:
1. Stalks another person; and
2. Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:
a. Sexual contact as defined in KRS 510.010;
b. Serious physical injury; or
c. Death; and
(b) 1. A protective order has been issued by the court to protect the same victim or victims and the defendant has been served with the summons or order or has been given actual notice; or
2. A criminal complaint is currently pending with a court, law enforcement agency, or prosecutor by the same victim or victims and the defendant has been served with a summons or warrant or has been given actual notice; or
3. The defendant has been convicted of or pled guilty within the previous five (5) years to a felony or to a Class A misdemeanor against the same victim or victims; or
4. The act or acts were committed while the defendant had a deadly weapon on or about his person.
(2) Stalking in the first degree is a Class D felony.



508.150   Stalking in the second degree.
(1) A person is guilty of stalking in the second degree when he intentionally:
(a) Stalks another person; and
(b) Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:
1. Sexual contact as defined in KRS 510.010;
2. Physical injury; or
3. Death.
(2) Stalking in the second degree is a Class A misdemeanor.


            Notice that a threat is required for a person to be guilty of either stalking offense.  Now let’s go back to our hypothetical.  Ellen, could you come back in the room please?  Get off the phone Ellen; we’re trying to talk to you.
            It seems like Ellen is Not Guilty of Stalking as the statute reads in Kentucky because there was nothing in the hypothetical which indicates that Ellen made any sort of threat to Bob.  That is the good news.  The bad news for Ellen is that she may be guilty of Harassing Communications – especially if she really never had a relationship with Bob.  It wouldn’t be difficult for a Kentucky prosecutor to prove that at least a few of the 65,000 phone calls were not made with a legitimate purpose of communication.  Ellen needs a good Louisville criminal defense lawyer who can make a motion to declare the statute under which she is charged to be Unconstitutional.
            If you have been charged with Harassing Communications or Stalking in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call Gruner & Simms, PLLC.  Our experienced Louisville criminal defense lawyers will give you a free initial consultation about your case.  Call 502.618.4949 or visit www.grunersimms.com today.


     Questions answered in this blog post:  In Kentucky, what is harassing communications; what can I do if someone won't stop calling me; how can I find a Louisville harassment lawyer; how many phone calls equal stalking in Kentucky; how can I find a Louisville stalking charge lawyer; what is the difference between stalking in the first degree and stalking in the second degree; how can I find a good Louisville criminal defense lawyer; what is the definition of stalking in Kentucky?

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