The conversational meaning of the word “stalking” has changed in recent years. Someone may playfully confess to “stalking” a romantic interest by scrolling through their social media posts. But despite the light-hearted way the term gets thrown around, when it comes to its use in the law, stalking may mean a serious felony that can have significant consequences.

What Is Stalking?

Unlike most crimes, stalking isn’t so much one specific action as it is a collection of actions or events conducted with specific intent. Stalking is:

  • A series of deliberate actions and behaviors
  • Directed at one person
  • Actions that would cause a reasonable person to fear for their safety or the safety of others
  • Done with the intent to cause distress

Stalking is sometimes a hard crime to identify; many of the individual actions in a collective stalking charge are legal, up to a certain point. Each state has its own variation for how they define stalking, including adding requirements to define the crime. Some states require an accused stalker to make an express threat before their actions become criminal.

Federal charges of stalking fall under the Office of Violence Against Women within the Department of Justice, but people of all genders can be victims of — or accused of — stalking.

Frequent, Unwanted Communication

Most stalking charges include excessive, unsolicited communications. Repeatedly calling, texting, emailing, or writing to another person with the intent to harass them and make them feel uncomfortable could lead to a stalking charge.

Stalking usually requires a case-by-case analysis to determine when the line between reasonable actions and criminal actions is crossed. If you were fighting with your significant other one night and repeatedly called their phone to get them to talk to you, that’s unlikely to qualify as a crime. But if your partner ends the relationship and you keep making excessive attempts to communicate, your messages get more hostile, and you make or imply any threats, you may cross that line.

With a stalking claim, aggravating factors include:

  • Contacting the victim after they’ve asked you to stop
  • Creating fake social media profiles to evade privacy settings
  • Contacting the person’s acquaintances to relay messages
  • Sending unwelcome gifts
  • Going to places you expect the person to be
  • Following the victim

How Do You Prove Stalking?

Stalking can be difficult to prove. To constitute a crime, the behaviors must cause emotional distress, and the perpetrator must have the intent to cause that distress.


The prosecution needs to provide evidence of your alleged actions. This could include phone records showing the frequency of your calls, a text message or voicemail, emails, gifts, or letters. If the opposition successfully proves your actions, they’ll need to show your conduct surpassed societal norms to the point of harassment, which can be a subjective standard.


Even if you engaged in demonstrable, objectively unreasonable actions, your conduct needs to cause the victim a specific type of harm to qualify as a criminal offense. If you engage in stalker-like behaviors, but the victim doesn’t feel threatened, distressed, or afraid of them, the claim may fail to meet all required elements, ending your case.


Using a reasonableness standard, a jury will consider what the average person would find offensive or threatening. Someone may feel afraid of another person’s conduct, but the court could find that the person was being more sensitive or reactionary than a “reasonable person” would be.


Your own intent is a crucial element the prosecution will need to prove if you’re charged with stalking. “Stalker” actions that would make any reasonable person fear for their safety often won’t qualify as legal stalking unless your goal was to threaten a specific person. Someone who takes romantic comedies too literally may genuinely think that unwavering pursuit of another person is loving and desirable, even if their nonconsensual contact scares that person. Unless harassment was your goal, your actions may not qualify as stalking.

To prove the requisite intent, the prosecution must demonstrate that you knew the victim was afraid of you and wanted you to stop. They may use things you’ve said to the victim as proof you had intent, like a text message making a threat or acknowledging that you’ve upset the other party and intend to antagonize them further.

How Do You Defend Against a Stalking Claim?

Defending against a charge like this may begin with challenging the accusations about your conduct. By the time a defendant is charged with stalking, the victim has usually contacted law enforcement officials and support networks a few times. These services will likely tell a victim to document all of your interactions, take pictures of you following them, and to save and print every message they receive. If your accuser doesn’t have these kinds of records, your criminal defense attorney may be able to end the case there for a lack of evidence.

If police and prosecutors have ample evidence of your conduct, however, your defense attorney will probably call the more subjective elements into question, including whether the victim was afraid of your actions, if any existing fear was reasonable, and if you had the intent to cause the fear.

What Is the Penalty for Stalking?

Stalking penalties vary by state and get harsher if it’s a repeat offense. Many first-time offenders are charged with a misdemeanor. Common punishments for misdemeanor stalking include fines of up to $1,000 and/or one to two years in prison.

Aggravating factors may upgrade the charge to a felony, including stalking in violation of a restraining order, stalking the same victim after a previous conviction, or threatening serious acts of violence. A felony conviction could carry fines up to $10,000 or jail time up to 10 years.

Do I Need a Lawyer?

When convictions can carry serious penalties, a strong defense is vital, and since this area of law can get quite murky, experienced defense attorneys can make a big difference in your case. Criminal defense lawyers can help you assess the claims against you, bargain for more lenient charges, lift a restraining order, and challenge the facts and laws that apply to your situation.

Many lawyers will offer a free consultation so you can weigh your options before you commit to a plan. Sometimes a free consultation can create an attorney-client relationship, even if you don’t end up hiring that lawyer. This will allow you to share important information about your case. The lawyer is bound by law to keep that information confidential, except for very few circumstances, including disclosing a specific plan to commit a violent offense against someone. So whether you’re charged with a misdemeanor or felony crime, working with someone who expertly knows the law could increase your chances of a better outcome.

Speak to an Experienced Stalking Attorney Today

This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified stalking lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local stalking attorney to discuss your specific legal situation.

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