Entertainment Law Issue - Los Angeles Lawyer
By Rhonda B. Saunders
From fan to fanatic
WHILE UNWANTED ATTENTION MAY BE A PRICE OF FAME, A VARIETY OF MEASURES CAN BE INVOKED TO DETER STALKERS
Shortly before he murdered actress Rebecca Schaeffer on July 13, 1989, Robert Bardo wrote to his sister, "I have an obsession with the unattainable. I have to eliminate what I cannot attain." As a result of the Schaeffer stalking and murder, and the vicious physical attack on actress Theresa Saldana by drifter Arthur Jackson, the California legislature passed the first antistalking law in the United States in 1990.(1) This law has evolved over the past six years and has become more effective in defining and addressing this increasingly common crime.
Stalking is currently defined in Penal Code Section 646.9 as:
Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking.
The seriousness of the crime of stalking is seen in the facts surrounding the Theresa Saldana and Rebecca Schaeffer cases.
While living in Scotland in 1982, Arthur Jackson saw Theresa Saldana in a movie and was immediately attracted to her. Jackson realized that they could never have a “normal” relationship, so he came to the United States specifically to kill her, get caught, receive the death penalty, and be with her forever in the afterlife.
In Los Angeles, Jackson hired a private detective agency to locate Saldana. The agency obtained her address through DMV records. On March 18, 1982, he went to Saldana’s home where he stabbed her 10 times. A witness disarmed Jackson, which saved Saldana’s life.
Although Jackson was convicted of attempted murder and sentenced to prison for 12 years, he continued to send Saldana numerous threatening letters. In 1988, he was charged with and convicted of threatening Saldana and sentenced to an additional 7 years in prison.
In 1986, while living in Tucson, Arizona, Robert Bardo saw Rebecca Schaeffer on the television series “My Sister Sam.” He began writing fan letters to her, and she sent him a handwritten card and autographed picture, which validated his delusion of their “mutual attraction.” In 1988, after four unsuccessful attempts to meet Schaeffer, Bardo saw Schaeffer in a movie and grew infuriated when he saw her in bed with a male character.
Ironically, Bardo read in a magazine how Arthur Jackson located Theresa Saldana’s home address through the DMV and obtained Schaeffer’s address in the same manner.(2) Bardo went to Schaeffer’s house and shot her once through the chest. She died at age 21.
California’s stalking law would not have protected Schaeffer and Saldana. In 1991, Penal Code Section 646.9 required that a stalker make a “credible threat of death or great bodily injury” toward the victim, placing the victim in reasonable fear of death or great bodily injury. Saldana and Schaeffer were not aware of the threats made against them by their stalkers. Even if they had known, the threats themselves were implied and not direct.
Major revisions were made to Penal Code Section 646.9 in 1994, enhancing the ability of law enforcement officials and prosecutors to protect victims of stalking. Currently, to convict a defendant of the crime of stalking, the prosecutor must prove the following elements beyond a reasonable doubt: (3)
1) A person willfully, maliciously, and repeatedly followed or harassed another person.(4)
2) The person following or harassing made a credible threat.
3) The person who made the threat did so with the specific intent to place the other person in reasonable fear (5) for his or her safety or the safety of the immediate family of such person(s) (6)
If a court or restraining order is in effect at the time the stalking occurs, the defendant can be charged with aggravated stalking.
From 1991 through 1993, stalking was a misdemeanor punishable by a maximum of one year in the county jail when no restraining order was in effect. Under the current law, a first-time convicted stalker can be sentenced to up to three years in state prison, even without a restraining order.(7) If a court or restraining order is in effect or if the defendant had previously been convicted of felony stalking against any person, he or she could be sentenced to up to four years in state prison.
Most important, the term “credible threat” has been redefined to include not only a verbal or written threat, but also “a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct” The threat or threats do not need to be direct.
Stalking is a crime of conduct, not necessarily of words. For example, a stalker may send a note stating, “I love you,” but enclose a bullet in the envelope. The credible threat made by the stalker must be against the safety of the victim or the victim’s immediate family.(8) It no longer needs to be a threat of “death or great bodily injury.”(9) The test of credible threat is whether or not a reasonable person would fear for his or her safety, or the safety of his or her immediate family, and whether this threat actually caused substantial emotional distress to the victim. (10)
Substantial emotional distress can be shown through the victim’s actions, such as hiring a bodyguard, adding additional security at home and at work, avoiding public appearances, or seeking psychological counseling. Stalking takes a heavy psychological toll on its victims and those around them. In a typical reaction to the emotional stress of being stalked, one victim said, “I have given up all hopes of ever having a safe life. For the rest of my life, I will be looking over my shoulder, expecting to see him there.”
Imprisonment of the perpetrator does not necessarily end stalking. Many stalkers, such as Arthur Jackson, will continue to send letters or make phone calls to their victims while in jail or prison. However, new charges of stalking can be filed against them, and telephone and mail privileges can be restricted. The inmate could also lose “good time/work time” credits toward an earlier release date.
Other provisions of Penal Code Section 646.9 provide that the sentencing court may issue a restraining order valid for up to 10 years and, in certain cases, require the stalker to register as a sex offender.” Failure to comply with these terms can result in new criminal charges against the defendant
When the defendant is about to be released from jail or prison following a conviction for stalking or a felony offense involving domestic violence, the victim, family members of the victim, and witnesses to the offense, upon their request, have the right to be notified by the department of corrections, county sheriff, or director of the local department of corrections, “not less than 15 days prior to the release.”(12) The notification form that is completed by the victim, family member, or witness contains a section in which they can request certain terms of parole, such as ordering the stalker to stay 35 miles away from their homes or work, and to have no contact with them in person, by phone, fax, letter, or through third parties.
Stalking is a chronic behavior that can continue for many months or years,(13) and incarceration or restraining orders may not diminish the stalker’s obsession. However, he or she can be returned to prison for up to a year if the terms of parole are violated. This procedure can be repeated twice, for a maximum of up to three additional years in prison.
In addition to Penal Code Section 646.9, several other California statutes can be
invoked against accused stalkers.
• Penal Code Section 12021(a)(1) and (c) (1) provide that it is a crime for any person who is convicted of stalking (felony or misdemeanor) to possess or have custody or control of a firearm.
• Civil Code Section 1708.7 establishes the tort of stalking, whereby a victim can sue the stalker for general, special, and punitive damages.
• Government Code Section 6254 allows a victim of stalking, upon request, to block from the public record his or her name and address in reports generated by the police.
• Code of Civil Procedure Section 527 allows victims of harassment or threats to obtain a civil restraining order at no cost to them,
• Code of Civil Procedure Section 527.8 permits a stalking victim’s employer to obtain a restraining order against someone who is stalking or harassing an employee.
Despite the protections offered to stalking victims through state laws, it is not uncommon for stalkers to cross state lines to pursue their victims. Congressman Ed Royce, author of California's first stalking law, recently introduced the Interstate Stalking Punishment and Prevention Act, which makes it a federal felony to stalk someone across state lines or on federal property.(14) The act, signed into law on September 23, 1996, also makes a restraining order issued in one state enforceable in other states.
In addition to or in lieu of a charge of stalking, the crime of making a terrorist threat is often charged. According to Penal Code Section 422, terrorist threat is defined as:
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safely.(15)
The crime of terrorist threat differs from stalking in that it is truly a crime of words, not necessarily a crime of conduct. The words themselves must be a direct (not implied) threat of death or great bodily injury. Section 422 does not require a “pattern of conduct.” One threat is sufficient The threat must place the victim in reasonably sustained fear.(16) Although the statute states that the threat must be “so unequivocal, unconditional, immediate and specific,” case law has held that the language of the statute does not mean that the suspect must be standing in front of the victim with a weapon in his or her hand when he or she makes the threat.