18 U.S. Code § 2261A - Federal Stalking Laws
The crime of stalking is typically filed in state court and prosecuted by a local district attorney. Still, when unlawful stalking crosses state lines, occurs within the United States or maritime jurisdictions, or uses the mail system or any form of interstate electronic communications, stalking could be charged as a federal offense.
Today, with the internet and social media, communicating with other people electronically is standard procedure, but this form of communication can be used to stalk someone.
Stalking typically involves a physical presence by an alleged perpetrator near the victim. Still, many stalking crimes involve the use of electronic means to communicate with a victim that causes harm or emotional distress.
Simply put, the difference between traditional stalking and cyberstalking is how the conduct occurs.
The Violence Against Women Act (VAWA) of 1996, a landmark legislation passed by Congress, included an anti-stalking law to strengthen protections for victims and close gaps in state laws. This law is a shield for those who are vulnerable to stalking.
Called the "Interstate Stalking Punishment and Prevention Act," it makes it a federal offense for someone to cross state lines with the intent to harm or harass someone.
It is codified in Title 18 U.S. Code 2261A, imposes harsher penalties, and expands the definition of "stalking" to include electronic communications. If you're convicted of the federal crime of stalking, you are facing up to five years in federal prison.
What Does the Law Say?
18 U.S. Code. 2261A stalking says, "Whoever (1) travels in interstate or foreign commerce or is present within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel or presence engages in conduct that-
(A) places that person in reasonable fear of death or serious bodily injury to
(i) that person,
(ii) an immediate family member (as defined in section 115) of that person,
(iii) a spouse or intimate partner of that person or
(iv) the pet, service animal, emotional support animal, or horse of that person; or
(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of subparagraph (A); or
(2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that-
(A) places that person in reasonable fear of the death of or serious bodily injury to a person, a pet, a service animal, an emotional support animal, or a horse described in clauses (i), (ii), (iii), or (iv) of paragraph (1)(A); or
(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A), shall be punished as provided in section 2261(b) or section 2261B, as the case may be."
What Is Federal Stalking?
According to federal law, 18 U.S.C. 2261A, you are guilty of stalking when you travel across state lines or into federal jurisdiction with the intent to kill, injure, harass, intimidate, or place another person in fear of death or physical injury.
As noted, this law also covers mail or electronic communication threats, including phone, email, and social media posts. This law prohibits many types of behavior, such as the following:
- When you place someone under surveillance with the intent to kill, injure, harass, or intimidate them.
- When you engage in a course of conduct causing someone a reasonable fear of death or serious bodily injury to themselves, their spouse, immediate family member, or their pet, service animal, or horse.
- When you cause or attempt to cause substantial emotional distress to the victim or act in a way that would be reasonably expected to do so.
- When you act with the intent to kill, injure, harass, or intimidate the victim.
The term "bodily injury" means any act, except one done in self-defense, that results in physical injury or sexual abuse. The term "course of conduct" means a pattern of conduct composed of 2 or more acts, evidencing a continuity of purpose.
To convict, the federal prosecutor must demonstrate that you engaged in a 'course of conduct ', meaning a pattern of behavior composed of two or more acts of stalking, rather than a single instance. In other words, stalking is not just a one-time incident of harassment, but a repeated pattern of behavior.
Simply put, stalking is a pattern of behavior, not a single incident of harassment. The term "harass" means to use repeated words, conduct, or actions that serve no legitimate purpose other than to annoy, alarm, or cause distress.
What is Sextortion?
Another federal crime that occurs electronically is called sextortion. This crime occurs when someone threatens to distribute explicit or nude photos and images of someone unless they receive something of value from the victim.
The alleged perpetrator actor is typically seeking something of value from the victim. For example, they might claim they will text their nude photos to family and friends unless they give them a certain amount of money.
Notably, It does not matter if the perpetrator threatening to expose the images received them willingly, meaning the victim voluntarily sent the nude or explicit images to them. If the accused does not have permission to send the images to others, they could be accused of committing a federal crime.
What Are Related Federal Statutes?
18 U.S. Code Chapter 110A, domestic violence and stalking, has several federal laws, including the following:
- 18 U.S.C. 2261 - Interstate domestic violence.
- 18 U.S.C. 2261A - Stalking.
- 18 U.S.C. 2261B - Enhanced penalty for stalkers of children.
- 18 U.S.C. 2262 - Interstate violation of protection order.
- 18 U.S.C. 2263 - Pretrial release of defendant.
- 18 U.S.C. 2264 - Restitution.
- 18 U.S.C. 2265 - Full faith and credit given to protection orders.
- 18 U.S.C. 2265A - Repeat offenders.
- 18 U.S.C. 2266 - Definitions.
California Penal Code 646.9 PC, stalking becomes a crime under state law if you follow, harass, and threaten someone to the point that the person fears for their safety. Stalking can be charged as a misdemeanor or a felony.
What are the Penalties?
Violation of U.S.C. 2261A is a federal felony. If you are convicted of federal stalking charges, you may face the following penalties:
- Up to five years in federal prison and
- A fine of up to $250,000.
Notably, the actual federal punishments imposed by the court will typically depend on the severity of your crime.
What Are the Stalking Defenses?
Suppose you were accused of stalking at the federal level. In that case, a federal criminal defense lawyer can use different strategies to obtain the best possible outcome, as discussed below.
Perhaps we can argue there was a lack of intent. To convict you of violating 18 U.S.C. 2261A, the prosecutor has to prove, beyond a reasonable doubt, that you intended to kill, injure, harass, intimidate, or place another person in fear.
Simply put, without this required intent, you cannot be found guilty of stalking. Perhaps we can argue that your repeated phone calls and emails were only attempts to reach out to the alleged victim, and you were not deliberately trying to annoy, harass, or frighten the victim.
Perhaps we can argue a First Amendment right to free speech, which protects your right to freedom of speech and expression, including many comments you make online or in a text message.
Perhaps we can argue that your behavior does not constitute harassment, meaning it did not serve the purpose of annoying or alarming someone. This could be used as a complete defense against federal stalking charges.
For additional information, contact our law firm, Cron, Israels & Stark, based in Los Angeles, California.