What Are The Penalties For Stalking In Michigan?

 

Stalking is a pattern of negative behavior directed at a specific person intended to make him or her fear for their safety.  This can occur in the course of a romantic relationship, after a break-up, or even from a total stranger pursuing their own unrequited attraction for someone they admire.  The motives for stalking can stem from an unhealthy fixation on the other person, the desire to have some kind of control over another, or to create an opportunity to actually harm the other person.  It is a serious crime in Michigan that can result in major civil and criminal penalties.

 

CRIMINAL PENALTIES FOR STALKING

Stalking is defined as “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.”  MCL 750.411h(1)(d).  “Course of conduct” means a pattern of conduct composed of a series of 2 or more separate noncontinuous acts evidencing a continuity of purpose.  MCL 750.411h(1)(a).

A person is guilty of stalking, contrary to MCL 750.411h, if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 17.25):

• First, that the individual committed two or more willful, separate, and noncontinuous acts of unconsented contact with the victim. “Unconsented contact” means any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued. MCL 750.411h(1)(e).  Unconsented contact includes, but is not limited to, any of the following:

• • Following or appearing within the sight of that individual.
  • Approaching or confronting that individual in a public place or on private property.
  • Appearing at that individual’s workplace or residence.
  • Entering onto or remaining on property owned, leased, or occupied by that individual.
  • Contacting that individual by telephone.
  • Sending mail or electronic communications to that individual.
  • Placing an object on, or delivering an object to, property owned, leased, or occupied by that individual.

• Second, that the contact would cause a reasonable individual to suffer emotional distress. “Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.  MCL 750.411h(1)(b).

• Third, that the contact caused the victim to suffer emotional distress.

• Fourth, that the contact would cause a reasonable individual to feel terrorized, frightened, intimidated, threatened, harassed, or molested. “Harassment” means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.  MCL 750.411h(1)(c).

• Fifth, that the contact caused the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

A criminal conviction for stalking is punishable as follows:

• If the victim was 18 years or older or the individual is less than 5 years older than the victim, the penalty is a misdemeanor conviction punishable by a fine up to $1,000.00 or up to one year in jail, or both. MCL 750.411h(2)(a).

• If the victim was less than 18 years of age at any time during the individual’s course of conduct and the individual is 5 or more years older than the victim, a felony conviction punishable by a fine up to $10,000.00 or up to 5 years in prison, or both. MCL 750.411h(2)(b).

• The individual can be placed on probation up to 5 years. MCL 750.411h(3).  If a term of probation is ordered, the court may, in addition to any other lawful condition of probation, order the defendant to do any of the following:

• • Refrain from stalking any individual during the term of probation.
  • Refrain from having any contact with the victim of the offense.
  • Be evaluated to determine the need for psychiatric, psychological, or social counseling and if, determined appropriate by the court, to receive psychiatric, psychological, or social counseling at his or her own expense.

• A criminal penalty for stalking may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct or for any contempt of court arising from the same conduct. MCL 750.411h(5).

In addition, a person can be found guilty of aggravated stalking, contrary to MCL 750.411i, if the prosecutor can prove all of the elements of stalking in addition to ONE OF MORE of the following beyond a reasonable doubt (Michigan Criminal Jury Instruction 17.25):

• The stalking was committed in violation of a court order (e.g. PPO, restraining order, injunction, preliminary injunction). MCL 750.411i(2)(a).

• The stalking was committed in violation of a restraining order of which the defendant had actual notice (e.g. condition of probation, condition of parole, condition of pretrial bond release, condition of bond pending appeal). MCL 750.411i(2)(b).

• The stalking included the defendant making one or more credible threats against the victim, a member of his or her family, or someone living in his or her household. “Credible threat” means a threat to kill another individual or a threat to inflict physical injury upon another individual that is made in any manner or in any context that causes the individual hearing or receiving the threat to reasonably fear for his or her safety or the safety of another individual.  MCL 750.411i(2)(c).

• This was a second or subsequent stalking offense after a previous conviction. MCL 750.411i(2)(d).

A person who is found guilty of aggravated stalking is punishable as follows:

• If the victim was 18 years or older or the individual is less than 5 years older than the victim, the penalty is a felony conviction punishable by a fine up to $10,000.00 or up to 5 years in prison, or both. MCL 750.411i(3)(a).

• If the victim was less than 18 years of age at any time during the individual’s course of conduct and the individual is 5 or more years older than the victim, a felony conviction punishable by a fine up to $15,000.00 or up to 10 years in prison, or both. MCL 750.411i(3)(b).

• The individual can be placed on probation for ANY term of years, but not less than 5 years. MCL 750.411i(4).  If a term of probation is ordered, the court may, in addition to any other lawful condition of probation, order the defendant to do any of the following:

• • Refrain from stalking any individual during the term of probation.
  • Refrain from having any contact with the victim of the offense.
  • Be evaluated to determine the need for psychiatric, psychological, or social counseling and if, determined appropriate by the court, to receive psychiatric, psychological, or social counseling at his or her own expense.

• A criminal penalty for stalking may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct or for any contempt of court arising from the same conduct. MCL 750.411i(6).  For example, it was not a violation of the individual’s constitutional rights against double jeopardy when he is both punished for the conviction of aggravated assault and punished for violating the underlying PPO that was an element of the aggravated stalking violation.  People v Coones, 216 Mich App 721, 727-728; 550 NW2d 600 (1996).

 

CIVIL PENALTIES FOR STALKING

A victim of stalking may maintain a civil action (e.g. sue in court for money) against an individual who engages in conduct amounting to stalking under MCL 750.411h or aggravated stalking under MCL 750.411i.  The victim can recover damages incurred by the victim as a result of that conduct (e.g. cost of security system, expenses for psychological counseling and therapy), and the victim may also seek and be awarded exemplary damages, costs of the action, and reasonable attorney fees for bringing the civil stalking action.  MCL 600.2954(1).  A civil action can be brought whether or not the stalker was charged or convicted in criminal court.  MCL 600.2954(2).

In addition, stalking behavior can be grounds for the victim to get a personal protection order (PPO).  The circuit court can grant a non-domestic PPO if “the petition alleges facts that constitute stalking as defined in section 411h or 411i, or conduct that is prohibited under section 411s (cyberstalking), of the Michigan penal code… [but] [r]elief may be sought and granted under this subsection whether or not the individual to be restrained or enjoined has been charged or convicted under section 411h, 411i, or 411s of the Michigan penal code…”. MCL 600.2950a(1).  A PPO can be put in force for up to one year, but can be extended upon motion of the victim if the judge feels it appropriate to do so.

If the victim and the stalker were in a domestic relationship (e.g. married, have a child in common, dating relationship), then the victim can obtain a domestic PPO much easier if there is “reasonable cause” that the other person committed or may commit one of the following:

• Assaulting, attacking, beating, molesting, or wounding the victim.

• Threatening to kill or physically injure the victim.

• Removing minor children from the victim having legal custody of the children, except as otherwise authorized by a custody or parenting time order issued by a court of competent jurisdiction.

• Interfering with the victim’s efforts to remove the victim’s children or personal property from premises that are solely owned or leased by the individual to be restrained or enjoined.

• Interfering with the victim at his or her place of employment or education or engaging in conduct that impairs the victim’s employment or educational relationship or environment.

• Engaging in conduct that is prohibited under MCL 750.411h (stalking) or MCL.750.411i (aggravated stalking) of the Michigan Penal Code.

• Any of the following with the intent to cause the victim mental distress or to exert control over the petitioner with respect to an animal in which the petitioner has an ownership interest:

• • Injuring, killing, torturing, neglecting, or threatening to injure, kill, torture, or neglect the animal.
  • Removing the animal from the petitioner’s possession.
  • Retaining or obtaining possession of the animal.

• Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.

For violating an issued PPO, the judge has the power to impose both civil contempt and criminal contempt sanctions against the offender. The penalties for civil contempt include paying any fine (up to $7,500.00), costs or expenses of the proceeding, or coerce the offender to comply with the order by threat of imprisonment up to 93 days until compliance is achieved. MCL 600.1715. If there was an actual loss or injury to the victim, the court can also order civil sanctions to compensate the victim for out-of-pocket expenses that include attorney’s fees. MCL 600.1721. The penalty for criminal contempt, whether the offender pleads guilty or is found guilty after a hearing, is up to 93 days in jail or a fine up to $500.00, or both. MCR 3.708(H)(5)(a); MCL 600.2950(23); MCL 600.2950a(23). The court may also impose other conditions on the existing PPO. MCR 3.708(H)(5).

 

THE BOTTOM LINE

Anyone facing stalking charges in civil or criminal court needs skilled legal counsel on their side to aggressively protect their rights.  Prosecutors and judges will not take these allegations lightly.  The risk of lengthy probation, possible incarceration, significant fines and reimbursements of attorney fees or costs is simply too great.  A criminal defense lawyer can ensure that the prosecutor is held to their burden of proving guilt beyond a reasonable doubt.

If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.