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Main Points with New York's New Stalking Law

January 1, 2001

Jennifer DeCarli

Concurrent Jurisdiction

This is a family offense, meaning criminal court and family court have concurrent jurisdiction over this offense. This was not enacted as a remedy only for domestic violence victims, it was adopted to curb stalking behavior whether directed at strangers, acquaintances or intimates.

Recognizes Abusive Behavior Not Specifically Directed at the Victim:

The trickiest part of the stalking law is that it does cover a wide range of stalking behaviors directed not only at the victim but also directed at immediate family members and acquaintances of the victim. It widens the net and goes after behavior not only directed at the victim but also directed at individuals other than the victim, recognizing that the intent is still to hurt and control the victim.

This is vastly different than before. Before if an ex-spouse was harassing the victim's mother or a friend to get to the victim, the victim could not file a family offense petition based on this conduct. Now, with the new stalking law, the victim can file stalking 4th charges and/or a family offense petition in Family Court based on that behavior that is directed not at her directly but at her immediate family member or acquaintance. (Remember - the victim could also file stalking 4th charges in criminal court as well.)

Definition of Material Harm and Recognizing Abuse that is not Strictly Physical

The definition of material harm may prove challenging. There is no definition in the statute of material harm and it is a crucial element of the stalking 4th definition. By using this term the law is recognizing abuse that does not require physical violence or threats of physical violence. (See 120.45(1) where it states "causes reasonable fear of material harm to the physical health, safety or property of such person ......." and 120.45(2) where it states "causes material harm to the mental or emotional health of such person ...." ) This definition issue will have to be decided by case law, much like the definition of physical injury with the assault law. I did speak with one of the legislative drafters of the statute who stated that the intent was to give the material harm definition a lay person's meaning - i.e. a substantial amount of harm.

"Chronic Stalkers", "Predicate Crimes" and "Bump Up" Provisions

This law goes after "chronic stalkers" - repeat offenders. For example, if an individual has been convicted of stalking 4th in the past ten years and he commits it again, he will be "bumped up" to stalking 3rd. The law also targets individuals who have been convicted of what is termed a "predicate crime" in the past against the victim or the victim's immediate family member. The list of "predicate crimes" is quite extensive, recognizing that many stalkers may be individuals who have been involved in an abusive intimate relationship with their victim in the past and could now be upset about a recent break up. Additionally, the law contains many "bump up" provisions for "chronic stalkers" and individuals who have been convicted of a predicate crime. For example, if an individual commits stalking 4th and in the past 10 years he was convicted of a predicate crime against that same individual or the individual's immediate family member - he will be "bumped up" to a stalking 3rd.

 





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