Colorado Stalking Laws 18-3-602 – To Convict, A Defendant Does Not Need To Know That The Alleged Victim Is Suffering Serious Emotional Distress
Colorado Stalking Laws 18-3-602 – To Convict A Defendant Does Not Need To Know That The Alleged Victim Is Suffering Serious Emotional Distress – What is often confusing to a person accused of under Colorado’s Domestic Violence Harassment by Stalking Law – is when the accused stalker has no intent to alarm the alleged victim. Colorado law treats stalking somewhat differently than other Colorado criminal charges. In a Colorado stalking case – the State’s District Attorney (prosecutor) does NOT have to prove that an alleged stalker realized or understood that his or her behavior caused serious emotional distress to the alleged victim.
Put differently, a Defendant – the alleged stalker – does not need to know that his or her conduct would cause a reasonable person serious emotional distress to be convicted of felony stalking. The accused could have a mental state of protecting the person, caring for the person, trying to stop the person from taking unnecessary chances.
There is no requirement – to be found guilty of stalking – the accused intend to cause the victim harm. If the victim suffers serious emotional distress, the Defendant need only be aware of his or her conduct. If that “awareness” by the Defendant of his or her conduct is established beyond a reasonable doubt by the prosecution, then if the result of that conduct – (as evaluated using an objective standard) – of the impact of those acts on the alleged victim causes that victim serious emotional distress – then the intent of the accused stalker as to the impact of his behavior is not relevant to the jury’s decision at trial.
The mens rea (the mental state) of acting knowingly – one of the key elements of the Colorado crime of Harassment by Stalking 18-3-602 – does not apply to the result his or her conduct would cause serious emotional distress to a reasonable person and impact the alleged victim.
This is different than the general rules that apply to most Colorado crimes. Usually the mental state of a crime applies to all of the elements of an offense. Colorado’s Harassment By Stalking law 18-3-602 is an exception to the general rule.
The so called “stalker” may be entirely oblivious to the reality of the emotional distress he or she is causing. The reasoning here is that there are “stalkers” who are so out-of-touch with reality they may not escape criminal prosecution on that basis.
What Is Colorado’s Harassment By Stalking Law? – CRS 18-3-602
Here is a reprint of Colorado’s Stalking Law as of 2016:
CRS §18-3-602 Stalking
(1) A person commits stalking if directly, or indirectly through another person, the person knowingly:
(a) Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship; or
(b) Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or
(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.
(2) For the purposes of this part 6:
(a) Conduct “in connection with” a credible threat means acts that further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat.
(b) “Credible threat” means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person’s safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. The threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.
(c) “Immediate family” includes the person’s spouse and the person’s parent, grandparent, sibling, or child.
(d) “Repeated” or “repeatedly” means on more than one occasion.
(3) A person who commits stalking:
(a) Commits a class 5 felony for a first offense except as otherwise provided in subsection (5) of this section; or
(b) Commits a class 4 felony for a second or subsequent offense, if the offense occurs within seven years after the date of a prior offense for which the person was convicted.
(4) Stalking is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401(10).
(5) If, at the time of the offense, there was a temporary or permanent protection order, injunction, or condition of bond, probation, or parole or any other court order in effect against the person, prohibiting the behavior described in this section, the person commits a class 4 felony.
(6) Nothing in this section shall be construed to alter or diminish the inherent authority of the court to enforce its orders through civil or criminal contempt proceedings; however, before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the judicial district of the court where the proceedings are to be heard and the district attorney for the judicial district in which the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions.
(7) A peace officer shall have a duty to respond as soon as reasonably possible to a report of stalking and to cooperate with the alleged victim in investigating the report.
(8) (a) When a person is arrested for an alleged violation of this section, the fixing of bail for the crime of stalking shall be done in accordance with section 16-4-105(4), C.R.S., and a protection order shall issue in accordance with section 18-1-1001(5).
(b) This subsection (8) shall be known and may be cited as “Vonnie’s law”.
(9) When a violation under this section is committed in connection with a violation of a court order, including but not limited to any protection order or any order that sets forth the conditions of a bond, any sentences imposed pursuant to this section and pursuant to section 18-6-803.5 or any sentence imposed in a contempt proceeding for violation of the court order shall be served consecutively and not concurrently.
Click on Image to enlarge Colorado Sentencing Chart
What Level Of Emotional Distress Must The Alleged Victim Experience?
Colorado case law provides some examples of “serious emotional distress.” One example is where a victim testified at trial that she was constantly being watched forcing her to take alternate routes to her destinations – where that behavior caused stomach aches, sleep issues, and perpetual anxiety and compelled the victim to take a leave of absence from work to enter a safe house for her safety.
Another example of a case where the Colorado Court of Appeal found evidence sufficient to support a finding beyond a reasonable doubt of serious emotional distress was where the victim testified a Defendant’s behavior caused her:
- to change her work schedule,
- to take days off from work,
- to “feel unsafe”
- to have trouble with sleeping; and
- to feel nervous all of the time believing that “she was constantly being watched by the Defendant.”
The law does not require – to find “serious emotional distress” – that the victim seek professional treatment or a have a nervous “breakdown.”
In one case involving emails, the Court found that the evidence presented at trial was sufficient if it included “implicit and explicit threats, would have caused a reasonable person in recipients’ position to fear for their safety and the safety of others.”
Summary – Colorado Stalking Laws 18-3-602 – To Convict A Defendant Does Not Need To Know That The Alleged Victim Is Suffering Serious Emotional Distress
Colorado’s Harassment By Stalking Law 18-3-602 requires that the Prosecution prove beyond a reasonable doubt that a Defendant’s conduct would cause serious emotional distress to an alleged victim of stalking (using a reasonable person or objective standard of measurement) and that the conduct actually caused the alleged victim to suffer such distress but there is no requirement that the accused know – be aware of – the impact of his or her actions on that victim.
Colorado Stalking Laws 18-3-602 – To Convict A Defendant Does Not Need To Know That The Alleged Victim Is Suffering Serious Emotional Distress
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