A US supreme court ruling making it more difficult to prosecute stalking cases provoked widespread alarm on Tuesday, as lawyers, activists and high-profile stalking victims accused the justices of failing to understand the rapidly growing threat of obsessive online bullying and letting down millions of women forced to live in fear of ex-partners and deranged admirers.
In a 7-2 decision, the supreme court threw out the conviction of a cyberbully in Colorado who became obsessed with a singer he had never met and to whom he sent hundreds of threatening messages. The majority opinion, written by the liberal justice Elena Kagan, argued that stalking victims need to prove not just that they have a legitimate reason to feel threatened – as anti-stalking laws in Colorado and many other states require – but also that the perpetrator has some awareness of the impact of their behavior.
The decision sought to find some consistency between anti-stalking laws and other areas of jurisprudence that carve out exceptions to first amendment free speech rights. It was important, Justice Kagan wrote, not to create unintended consequences for street protesters or political activists who might say intemperate things in the heat of the moment but mean no real harm.
The majority sent the Colorado case back to the lower courts for reconsideration, saying it wanted to offer “enough breathing room for protected speech without sacrificing too many of the benefits of enforcing laws against true threats”.
The court’s critics, however, said this argument failed to take into account how mentally disturbed many stalkers are and the unique threat they can pose even if, in their heads, they do not know that they are doing anything wrong.
“The more deluded the stalker, the more protected the stalking,” University of Miami law professor and anti-cyberbullying campaigner Mary Anne Franks wrote in a scathing online critique of the ruling.
Many activists said it was already difficult to involve the criminal justice system in personal disputes and they feared the ruling would have an even greater chilling effect. Worse, many victims who have secured criminal convictions fear that antagonists who repeatedly threatened to abduct, rape or kill them might be able to appeal their sentences and cite the court’s ruling to get out of prison.
“My phone is blowing up with victims who are absolutely terrified,” said Lenora Claire, a television producer turned advocate who has been dealing with a stalker of her own for the past 14 years, including two years when he was behind bars. “If you even get as far as prosecution, you’ve already been through the gauntlet, navigating the restraining order process, convincing law enforcement to take you seriously … Now I’m told that with this new ruling my stalker could have said his intent was not to scare me and the case against him would have been thrown out.”
Anna Nasset, another stalking victim who was forced to give up her life as an art gallery owner in Washington state and move across the country because of unrelenting threats, said she immediately began to worry that her harasser – serving a 10-year sentence after a 2019 conviction – might soon be free.
“I was in such shock when I heard the news, I started screaming,” she said. “I was driving at the time, and when I got to my friend’s house I threw up. I don’t know what this means for my case, but I’m freaking out … I’ve had a plan in place for when he gets out, but I wasn’t planning on it being this soon.”
Nasset, who trains law enforcement personnel, mental health professionals and the military on handling stalkers, said she was in no doubt that thousands of victims were going through the same anguish. “This decision could directly affect so many lives, our personal safety, our ability to have housing, all of these things,” she said. “Am I going to be shutting down my business, relocating, changing my name? I don’t know.”
Legal experts said the prospects might not be quite this dire, since the evidence in the Colorado case made it likely that the defendant, Billy Counterman, would be convicted on retrial even under the new supreme court standard. Rhonda Saunders, a prosecutor who lobbied for a groundbreaking anti-stalking law in California in the early 1990s, said several states including California already had language in their statutes conforming to the supreme court’s ruling.
Still, Saunders and others said the court had missed an opportunity to show that it understood the insidious nature of stalking – Saunders called it a crime of power and control, a form of “mental terrorism” – and that this failure was likely to have negative consequences in and of itself.
Recent studies show that stalking has become vastly more common in the digital age. Data from the federal government suggests the problem affects 13.5 million people in the US every year, and that one in three women and one in six men are likely to have to deal with a stalker at some point in their lives. Yet many courts and prosecutor’s offices remain ill-equipped to deal with the problem.
“It boils down to training,” Saunders said. “Courts need to understand the tools they have with the laws that they have. And this supreme court ruling is not going to help, because I’m afraid police agencies and prosecutors are going to use it as an excuse not to do the job they are supposed to do.”
Annie Seifullah, a civil litigator with her own history of surviving cyberbullying, said she believed the supreme court could have drawn a greater distinction between stalking and other forms of public speech without sacrificing the first amendment protections Justice Kagan was determined to preserve.
“It’s extremely concerning that this standard essentially brushes a street protester with the same stroke as a persistent obsessive who subjects someone to intense and long-term technologically enabled abuse,” she said. “As the dust settles, I believe we’ll find that a lot of egregious behavior will still fall under this new standard. But some won’t … We need something more tailored to the actual harm here.”
