Md. senator: Legislation will fill loopholes in state stalking law

One in six women and one in 17 men report being impacted by stalking, and the number of stalking survivors in the United States grows by 7.5 million annually. Yet Maryland’s Administrative Office of the Courts has archived an average of less than 20 stalking convictions a year over the past five years. This suggests that less than one in 10,000 incidents of criminal stalking led to a conviction in Maryland — despite a robust new stalking statute that took effect in October 2016.

The law’s implementation clearly has been an abject failure.

Although frequent, stalking is a unique criminal offense because it may involve otherwise non-criminal behavior that, over a course of conduct, tips into the category of a criminal misdemeanor, which carries a maximum five-year sentence in Maryland. Successful prosecution of stalkers requires adequately documented evidence of this preemptory non-criminal behavior, until reaching the criminal threshold, then proving that threshold has been breached beyond a reasonable doubt.

This evidentiary burden may help explain why many stalking survivors chose to seek a peace order or protective order instead of pursuing criminal charges. Criminal charges and civil protective and peace orders — each issued by the same district court commissioner — serve different purposes, but when the same criminal behavior is implicated, law enforcement should be proactive and at bare minimum assist with evidence collection and archival.

Stalking survivors usually tell friends or family about the escalating stalking behavior before notifying law enforcement, because they may not realize the severity and nature of the crime that has occurred — or they may fear repercussions from their abuser if they report the crime to authorities. Law enforcement may not keep adequate records of non-criminal behavior at the new lower criminal threshold, especially if no report is ever made to them about the behavior as it was occurring. Unfortunately, this may also help explain why many stalkers are only identified after they are arrested for a more serious violent crime against their same target of obsession.

Stalking is not classified as a crime of violence in Maryland, but it is a blood relative. Almost 70 percent of femicide victims were physically abused, and almost 90 percent of those victims were stalked prior to the abuse that ended in murder. A five-year penalty is not going to deter someone from committing acts that are motivated by their obsession, especially when the chances of being held accountable are so low. The solution is not to dissuade a perspective perpetrator by raising the penalty when there is little chance of being penalized, but rather through improving the enforcement mechanisms, starting with survivor awareness, empowerment and the closing of loopholes for non-domestic related stalking in existing law.

In response to my troubling discovery about the failure to enforce Maryland’s criminal stalking statute, I am proposing legislation to fill additional loopholes in the criminal response to this unique crime. Beyond enhanced evidence collection and increased criminal prosecution, Maryland must prevent all guilty stalkers from possessing guns and ensure that violating a condition of pretrial release for stalking triggers immediate and unconditional arrest.

As the law has been broadened in Maryland to criminalize stalking behavior before it manifests in violence, there may be more probation before judgement rulings that are appropriate for first-time offenses occurring with non-domestically related relationships. These criminal guilty pleas should result in the loss of gun ownership until the crime is expungable. And violations of pre-trial release conditions for stalking must trigger an arrest, for the public’s immediate safety.

There is much more work to do in the fight against stalking, but step one remains raising awareness and familiarity with our state stalking criminal law and anti-stalking resources in Maryland.

Please support our awareness efforts this month, the 15th national stalking awareness month, through visiting www.stalkingawarenessmonth.org and reviewing the Maryland Coalition Against Sexual Assault Stalking Brochure at mcasa.org/assets/files/StalkingBrochure-8.5x14.pdf.

Susan C. Lee, a Democrat, represents Montgomery County in the Maryland State Senate; her email is Susan.Lee@senate.state.md.us.

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