Stalking law and digital stalking
· 11 min read
1. Naming the pattern
Stalking became a legal category only when the collective recognized that the damage is cumulative and patterned rather than punctual. Before 1990, prosecutors faced with a serial harasser had to charge each act separately — a trespass here, a phone misuse there — and each charge was a misdemeanor that produced no protective relief. The conceptual shift was to define a new offense whose actus reus is a course of conduct: two or more acts of a specified kind, directed at a specific person, where each act might be lawful in isolation. This is one of the few places in modern criminal law where the law explicitly criminalizes a pattern rather than an act, and the doctrinal innovation is contested in mens rea cases because it requires proof of intent across a sequence rather than at a moment.2. The Rebecca Schaeffer trigger
The 1989 murder of 21-year-old actress Rebecca Schaeffer by an obsessed fan who had hired a private investigator to find her home address was the proximate trigger for California's 1990 statute. The killer had pursued her for three years through letters and attempted visits to studio lots; the conduct was visible, escalating, and unaddressed because no law named it. The statute Schaeffer's case produced — Penal Code §646.9 — became the template. The collective lesson, repeated since with the murders of Cynthia Garcia, Yvette Cade, Lori Hacking, and many less-famous women, is that legal categories follow notorious cases. The unnamed harm to thousands of obscure women had not moved legislatures; one televised case did.3. Tjaden and the epidemiology
Patricia Tjaden and Nancy Thoennes's National Violence Against Women Survey, conducted in 1995–1996, gave the field its first defensible prevalence estimates: 8.1% of women and 2.2% of men reported being stalked in their lifetime under a fear-based definition. Subsequent surveys using broader definitions (CDC's National Intimate Partner and Sexual Violence Survey) raised the estimate to about 16% of women. The crucial finding was the intimate-partner concentration: in 59% of cases against women, the stalker was a current or former intimate partner. Stalking is overwhelmingly the post-relationship phase of intimate-partner abuse, not stranger pathology, and policy designed around the stranger-stalker archetype mis-targets the actual population.4. The femicide link
McFarlane, Campbell, and colleagues' work on intimate-partner femicide established stalking as one of the strongest available pre-homicide signals. In a controlled study of women killed by intimate partners compared with abused-but-living controls, 76% of the femicide victims had been stalked by the perpetrator in the prior 12 months, versus 36% of the abused controls. Combined with strangulation history, gun access, and threats to kill, the Danger Assessment instrument achieves meaningful predictive power. The policy implication is that stalking should be triaged not as nuisance harassment but as the precursor offense to homicide, justifying more aggressive intervention than the criminal-justice system currently delivers.5. Restraining orders and the enforcement gap
The civil protection order, available in every U.S. state, is the most-used legal tool against stalking. The order itself is cheap and often granted ex parte within hours. The gap is enforcement: violation of a protection order is a separate criminal offense, but arrest is discretionary in many jurisdictions, prosecution is slow, and the median sentence is short. Empirical studies (Logan & Walker) find that protection orders modestly reduce re-victimization on average but do not protect the highest-risk women, who are killed despite or because of the order. The order is a tool, not a shield; pretending otherwise produces dangerous false security.6. The reasonable-person element
Stalking statutes require that the conduct cause fear in a reasonable person. This standard, written for analog stalking where the victim could see the threat, fails for digital stalking where surveillance is covert. A woman whose ex is reading her texts through stalkerware does not feel fear until she discovers the surveillance, but the harm — the loss of intimate privacy, the constraint on her communications — is happening throughout. Several states have updated language to include "would cause a reasonable person to fear, or that does cause substantial emotional distress," to capture the harm of covert surveillance once disclosed. Federal interstate stalking (18 U.S.C. §2261A) was amended in 2013 to add intent to cause substantial emotional distress.7. Stalkerware and consumer surveillance
Stalkerware is commercial spyware marketed for surreptitious installation on a target's device — typically a spouse's, child's, or employee's. Products like mSpy, FlexiSpy, and the now-defunct StealthGenie forward location, SMS, calls, app data, and microphone audio to the purchaser. The Coalition Against Stalkerware, founded in 2019 by EFF, Kaspersky, and survivor advocates, has identified hundreds of such products. The FTC has taken enforcement actions (Retina-X 2019, SpyFone 2021) under deceptive-practices theories. Apple and Google have added detection prompts for unknown AirTags and similar trackers. But the underlying industry persists, and the legal status of "if you own the phone you can spy on whoever uses it" remains murky enough that stalkers exploit gray-zone marketing.8. AirTags and the physical-tracking problem
Bluetooth trackers from Apple, Tile, and Samsung, marketed for finding lost keys, are mass-deployable physical-stalking devices. A perpetrator drops an AirTag in a victim's car, bag, or coat lining and tracks her location continuously through the manufacturer's crowd-sourced network. Apple's 2022 update added unwanted-tracker alerts on iPhones and an Android detection app; cross-platform industry standards followed in 2024. The architecture nonetheless makes targeted physical surveillance accessible to anyone with $30. Several civil suits and prosecutions have followed AirTag stalking deaths. The policy question is whether device makers bear design liability when their product is repeatedly used for the same predictable harm.9. Doxxing and the distributed mob
Modern digital stalking often outsources the harassment. The primary perpetrator posts the target's address, employer, and a degrading description to an anonymous forum, and dozens or hundreds of strangers send the threats, contact the employer, and order pizzas. Each individual sender contributes too little to constitute a course of conduct alone, but the aggregate is a coordinated stalking campaign. Criminal doctrine has not adapted: prosecutors charge the originator but cannot reach the mob. Civil remedies under state harassment statutes, anti-doxxing laws (several states have enacted them since 2020), and federal cyberstalking remain partial. The collective challenge is naming distributed harm without criminalizing speech.10. Platform responsibility under Section 230
Section 230 of the Communications Decency Act immunizes platforms from liability for third-party content. This has made meaningful suit against Twitter/X, Meta, or Reddit for hosting stalking-facilitating accounts difficult. Carrie Goldberg's litigation against Grindr in Herrick v. Grindr (2019) — where an ex-boyfriend impersonated the plaintiff on the app to send 1,100 men to his apartment for sex — failed largely on §230 grounds. The 2018 FOSTA-SESTA carveout for sex trafficking created a template for narrowed immunity; whether similar carveouts for stalking facilitation are constitutionally feasible is the live question. Citron and Franks have proposed reform models that condition immunity on reasonable moderation practices.11. The non-citizen stalking victim
Stalking victims without secure immigration status face additional barriers: reporting risks deportation, the perpetrator may control their immigration paperwork, and shelters may be unable to serve them. VAWA self-petition (for spouses of citizens), the U-visa (for crime victims who cooperate with law enforcement), and the T-visa (for trafficking victims) create immigration-relief pathways. Backlogs run to years, applications require certifications from cooperating law enforcement that some agencies refuse to provide, and 2025-era immigration enforcement policy interacts unpredictably with victim cooperation. The collective protection promised by stalking statutes is materially weaker for non-citizens than the statute alone implies.12. The integration deficit
The structural problem is not law but plumbing. A stalking victim needs criminal prosecution, civil protection order, possibly Title IX or workplace action, lease termination rights, immigration relief, platform takedowns of impersonating accounts, device forensics to find the stalkerware, financial-fraud remediation if accounts were hijacked, and ongoing safety planning. Each institution has its own intake, its own evidentiary standard, its own timeline, and its own scope. Carrie Goldberg's practice and the Stalking Prevention, Awareness, and Resource Center document the cost of navigating this maze unaccompanied: the victim becomes a part-time project manager of her own protection while the perpetrator continues. Law 3 — Connect — is the missing piece: not more statutes but a coordinated victim-services architecture that treats the protection as a single problem rather than seven.Citations
1. Tjaden, Patricia, and Nancy Thoennes. Stalking in America: Findings from the National Violence Against Women Survey. NCJ 169592. Washington, DC: National Institute of Justice, 1998. 2. McFarlane, Judith M., Jacquelyn C. Campbell, Susan Wilt, Carolyn J. Sachs, Yvonne Ulrich, and Xiao Xu. "Stalking and Intimate Partner Femicide." Homicide Studies 3, no. 4 (1999): 300–316. 3. Campbell, Jacquelyn C., et al. "Risk Factors for Femicide in Abusive Relationships." American Journal of Public Health 93, no. 7 (2003): 1089–1097. 4. Citron, Danielle Keats. Hate Crimes in Cyberspace. Cambridge, MA: Harvard University Press, 2014. 5. Goldberg, Carrie. Nobody's Victim: Fighting Psychos, Stalkers, Pervs, and Trolls. New York: Plume, 2019. 6. Violence Against Women Act of 1994, Pub. L. No. 103-322, tit. IV; codified at 18 U.S.C. §2261A (interstate stalking). 7. California Penal Code §646.9 (1990). 8. Logan, T.K., and Robert Walker. "Civil Protective Order Effectiveness: Justice or Just a Piece of Paper?" Violence and Victims 25, no. 3 (2010): 332–348. 9. Coalition Against Stalkerware. Annual Report. https://stopstalkerware.org. 2023. 10. Federal Trade Commission. In the Matter of Support King, LLC (SpyFone). FTC Matter No. 192-3003, settled September 2021. 11. Herrick v. Grindr LLC, 765 F. App'x 586 (2d Cir. 2019). 12. Smith, S.G., X. Zhang, K.C. Basile, et al. The National Intimate Partner and Sexual Violence Survey: 2015 Data Brief. Atlanta: Centers for Disease Control and Prevention, 2018.
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