In 1995, California broke legal ground and was the first state in the nation to codify the civil tort of stalking, paving the way for nearly all states to subsequently codify similar laws. As the innovative statutory stalking model, California Civil Code 1708.7 needs reexamination to update its structure to suit today’s demands.
In current form, the statute is rarely used. The burdens of using the statute are too great, and the nefarious conduct it thus permits too egregious to ignore.Claims abound from those severely distressed by domestic violence that the proximity to immediate physical danger the stalking law condones is terrifying; the permitted bounds of victims’ substantial emotional distress too broad. Victims suffering outside the statute’s ambit are left to anxiously anticipate the moment when the severity of abuse reaches an apex sufficient, hopefully at a moment not too late, to seek the law’s protection. What the law does not prohibit, it permits. The traumatic psychological roll inflicted upon victim’s of domestic violence, short of danger to life, should not be permitted.
The current statute allows persons meaning ill-will to continuously stake out victims’ residences, children’s schools, places of work and worship. It permits continuous unauthorized surveillance. The victims, suffocated by persistent leers and scrutinous observations, loses rightful ownership over the dimensions of their personal and private lives. The victims are left powerless to re-assert their personal and private boundaries, left to the surveillers’ whim of when they decide to move beyond their dangerously bizarre fixation. The victims of relentless unauthorized surveillance thus suffer the torment of powerlessness.
Increasingly, other states have recognized and protected the vital and delicate psychological interests that are victim to persistent unauthorized surveillance. As of this writing, at least 13 states have adopted surveillance as an actionable component to their civil stalking laws, responsibility protecting psychological serenity and simultaneously prohibiting reprehensible conduct. It is time for California to do the same.
Should the stalking law be modified to include unauthorized “surveillance” as a predicate act upon which to impose liability, provided that all other elements of the claim are met? Should the stalking law be modified to recognize “substantial emotional distress” as a valid injury?
AB 1356 would amend Section 1708.7 of the Civil Code to include “place under surveillance” within the proscribed activities in section (a)(1).
Likewise, the requirement that, as a result of the defendant’s pattern of conduct, the plaintiff feared for the plaintiff’s, or specified relatives of the plaintiff’s, safety, would be amended to include the plaintiff’s proof of “substantial emotional distress” as satisfying this prong of the statute.
The requirement that the plaintiff prove that the defendant intended to place the plaintiff, or specified relatives of the plaintiff, in fear of their safety, would be amended to allow the plaintiff to prove that the defendant acted in reckless disregard for the safety of the plaintiff, or specified relatives of the plaintiff, to satisfy this prong of the statute. Likewise, the requirement that the plaintiff unequivocally communicate to the defendant that the defendant cease and abate the defendant’s conduct would not apply in situations where the plaintiff proves such a communication would be impractical or unsafe.
The amendment further defines “credible threat” to include indirect actions taken by others working on the defendant’s behalf, and other actions by the defendant that cause the plaintiff harm. Additionally,the amendment would define “follow”, among other things, as the defendant’s movement in relative proximity to the plaintiff.
“Place under surveillance” is included in the amendment to particularly define what conduct constitutes surveillance, and specifically excludes the activities of licensed private investigators and various law enforcement and government agencies.
The “substantial emotional distress” standard is defined, for clarity, to not require a showing that plaintiff suffered physical ailments, but rather that the defendant reasonably caused the plaintiff substantial fear, anxiety, or emotional torment.
Finally, the statute would be amended to recite that the statute is an exercise of the police powers of the State of California.
California Civil Code 1708.7 currently imposes civil liability upon those who engage in a “pattern of conduct”, the intent of which is to “follow”, “alarm” or “harass” the plaintiff, and the plaintiff proves the same with corroborating evidence. “Follow” and “alarm” are statutorily undefined. “Harass” requires the plaintiff to be seriously alarmed, annoyed, tormented, or terrorized, and the plaintiff must likewise prove that the harassing conduct would cause a reasonable person to suffer substantial emotional distress, and must also cause substantial emotional distress to the plaintiff.
“Pattern of conduct”, by definition, excludes constitutionally protected activity, and requires evidence of a continuity of purpose among a series of acts over a period of time.
As a result of the pattern of conduct, the plaintiff must fear for his or her safety, or the safety of specified relatives to the plaintiff.
Then, the plaintiff must prove either: (i)(a) as part of the pattern of conduct, the defendant made, with the intent and ability of act upon, a “credible threat” to the plaintiff, or the specified relatives of the plaintiff; (b) on at least one occasion, the plaintiff clearly and definitively demanded that the defendant cease and abate his or her pattern of conduct; and, (c) the defendant must continue his or her pattern of conduct after such demand is made; or, (ii) defendant violated a restraining order issued pursuant to Section 527.6 of Code of Civil Procedure, prohibiting any acts set forth in section (a) the stalking statute.
“Credible threat” is defined as an overt or implied communication that causes the plaintiff to fear for his or her safety, or that of specified relatives of the plaintiff.
If the plaintiff proves the defendant violated the stalking statute, plaintiff may obtain, among other cumulative remedies, general, special, and punitive damages, and equitable relief, including an injunction.
California pioneered America’s first anti-stalking law in 1990 in response to the stalking and murder of actress Rebecca Schaeffer. Now, it lags behind a growing number of states that have included “surveillance” in their stalking laws to reflect societal changes in the 21st century. Such states include: New York, Illinois, Colorado, Hawaii, Georgia, Idaho, New Mexico, South Carolina, and Wyoming. The District of Columbia has also joined the distinguished list.