Missouri's New, Lori Drew Stalking Statute

On June 30, Missouri Governor Matt Blunt signed a bill that updates the state’s stalking and harassment statutes.

The stalking statute, in particular, seems designed to address the conduct attributed to Lori Drew, the woman who has been (incorrectly IMHO) indicted in the Megan Meier suicide case.

Here’s the new and improved Missouri stalking statute, which apparently goes into effect in a couple of months:

1. As used in this section, the following terms shall mean:
(1) `Course of conduct', a pattern of conduct composed of a series of two or more acts, which may include communication by any means, over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included. . . .
(2) `Credible threat', a threat communicated with the intent to cause . . . the target . . . to reasonably fear for his or her safety, or the safety of his or her family, or household members or domestic animals or livestock . . . . The threat must be against the life of, or a threat to cause physical injury to, or the kidnapping of, the person or the person’s family, or . . . household members or domestic animals or livestock. . . .
(3) `Harasses', to engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person under the circumstances to be frightened, intimidated, or emotionally distressed.
2. A person commits the crime of stalking if he or she purposely and repeatedly, through his or her course of conduct, harasses . . . another person.
3. A person commits the crime of aggravated stalking if he or she purposely and repeatedly, through his or her course of conduct, harasses . . .another person, and:
(1) Makes a credible threat with the intent to place that person in reasonable fear of death or serious physical injury, commits the crime of aggravated stalking; or
(2) At least one of the acts constituting the course of conduct is in violation of an order of protection and the person has received actual notice of such order; or
(3) At least one of the actions constituting the course of conduct is in violation of a condition of probation, parole, pretrial release, or release on bond pending appeal; or
(4) . . . the other person is seventeen years of age or younger and the person harassing the other person is twenty-one years of age or older; or
(5) He or she has previously pleaded guilty to or been found guilty of domestic assault, . . . or any other crime where the other person was the victim.
4. The crime of stalking shall be a class A misdemeanor for the first offense. A second or subsequent offense within five years of a previous finding or plea of guilt . . . shall be a class D felony.
5. The crime of aggravated stalking shall be a class D felony for the first offense. A second or subsequent offense within five years of a previous finding or plea of guilt . . . shall be a class C felony.

Vernon’s Annotated Missouri Statutes § 565.225.

I’ve italicized the portions of the statute that bring the offenses of basic stalking and aggravated stalking down to the least serious conduct possible in each instance:

• You can commit stalking by sending two or more email messages that serve no legitimate purpose to someone and would cause a reasonable person under the circumstances to be “emotionally distressed.” (I’m assuming, that the course of conduct has to have had no legitimate purpose AND cause the target to be emotionally distressed.)
• You can commit aggravated stalking if you commit harassment as defined above and you are 21 or older and your victim is 17 or younger (Think Lori Drew.)

I agree with an attorney cited in an article on the statute. He said making it a crime to inflict emotional distress on a teen-ager is too broad to be reasonable. As he noted, if a teen-ager breaks up with a teen-ager with whom he/she has had a romantic relationship, that would qualify as stalking. Alternatively, if a twenty-one year old college student is dating a seventeen-year-old high school student, and the college student sends the high school student two or more email messages ending the relationship, that would qualify as aggravated stalking.

Now, of course prosecutors are not going to charge someone every time either of those scenarios happens. I’m sure prosecutors in Missouri are going to be reasonable and, I hope, will only use this statute in egregious cases, such as cases in which the stalker threatens to harm someone. The latitude the statute gives prosecutors is, though, a problem because it could be abused.

I suspect the statute will be challenged as being void for vagueness. As the U.S. Supreme Court explained in Hill v. Colorado, 530 U.S. 703, 732 (2000), a statute “can be impermissibly vague for either of two . . . reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.”

I suppose the statute, on its face, makes it clear what you are not supposed to do, so I’ll assume, for the purposes of argument, that it would pass muster on the first prong of the void for vagueness standard. I think, though, it can clearly be enforced arbitrarily. The reason I focused on the lower-common denominator versions of stalking and aggravated stalking is to illustrate how vast the potential scope of the statute’s provisions are. As I noted above, I suspect prosecutors will exercise their discretion wisely and refuse to bring charges, at least in most instances, where they are not warranted . . . like the two breakup scenarios above. But they CAN bring charges in those and other instances if they want to . . . and that opens up the possibility of arbitrary enforcement. Student A breaks up with Student B and isn’t charged with stalking (or aggravated stalking); Student C breaks up with Student D under the same circumstances, and is.

And that’s just the breakup scenario, which is pretty straightforward, in terms of what happens and what it’s likely to cause (distress). But think of all the other things people do to each other, online as well as offline, that cause emotional distress. I’m certainly not in favor of causing someone emotional distress, but I’m very, very leery of making it a crime absent some compelling, objective circumstances (like a threat, or real world conduct like following someone).

For what it’s worth.