California Stalking and Harassment Laws in Brief
California Penal Code sections 646.9 and 646.10 set forth the legal framework for stalking and harassment in California. Stalking is defined as a course of conduct that places another person in reasonable fear for his or her safety or for the safety of his or her immediate family and that would cause a "reasonable person" to have the same fear for his or her safety and for the immediate family of the "reasonable person." Harassment is defined as unlawful violence or threat of violence that occurs when a person "has engaged in a pattern of behavior consisting of repeated or continuing contact with another person, against the will of the other person, that has caused the other person distress."
The law does not apply if the evolving interactions between people are due to a casual relationship or an association between people that have a mutuality, "such as friends or acquaintances." California Penal Code Section 646.9(b).
Penal Code Section 646.9(a) prohibits stalking of an "other person," which means: (1) any person other than an ‘actor’ or a ‘member of the immediate family of a party; and (2) an employee of a government agency involved in the representation of the interests of the people of the state by the public prosecutor in a criminal action, or an employee of a private entity who is authorized by law to represent the interest of the people of the state in that criminal action.
The law also requires that the stalking conduct occur during a period of time that includes any ‘following’ activity, or the making of harassing communications, that occurs on at least two separate occasions . (It should be noted that the "government agency" language set forth in this section does not extend to employers and employees, as discussed in more detail below.)
The stalking statute allows for a private right of action and provides a civil lawsuit against the defendant for recovery of damages. A plaintiff can recover damages sustained as a result of the stalking, as well as reasonable attorney’s fees.
California Penal Code Section 646.10 makes it unlawful for any person to: (1) use a mechanical device to eavesdrop upon a conversation; (2) use a laser scope for the purpose of invading the privacy of another, e.g., in an attempt to see the inside of a residence; (3) make a "telephonic communication" using "annoying, repetitious, or obscene words, or grossly offensively challenges the person to fight or engages in nonverbal conduct intended to "annoy," "harass," or "molest" any other person; (4) using "harassing telephone calls "without disclosing the caller’s identity; (5) anonymous "multiple sales contract" mailings solely intended to "harass" a person; or (6) sexual exploitation of a minor or adult.
There is no private right of action under this section. This means an individual is not allowed to to bring a claim for damages against someone for violating this section. The remedies available to a plaintiff seeking damages for a violation of this section are limited to injunctive relief and criminal prosecution. A violation of this section is a misdemeanor subject to six months imprisonment, and/or a $1,000 fine.
Elements Required For Stalking Claims
To obtain a conviction for stalking, the prosecutor is required to prove each of the following elements beyond a reasonable doubt:
1. The defendant engaged in a "course of conduct" that was "willful and malicious." California Penal Code § 646.9(b) defines "course of conduct" as:
"two or more acts, including, but not limited to, acts in which a person directly or through third parties, by any action, method, device, or means willfully and maliciously follows, monitors, observes, photographs, surveils, handles, contacts, or otherwise places under surveillance a person for purposes of . . . seriously alarm[ing], annoy[ing], torment[ing] [or] terroriz[ing] the person . . ."
2. The defendant’s course of conduct was directed at a specific person.
3. The defendant knew, or should have known, that his or her actions would cause the victim to reasonably fear his or her safety, or the safety of his or her immediate family. (see CALCRIM 1300)
The victim’s fear must be objectively reasonable. Reasonableness is measured on a case-by-case basis and is typically a question for the jury to decide. A victim’s fear may not just be irrational or caused by the perpetrator’s words, gestures or actions, but must be objectively reasonable. This means that the victim’s fear must be based on non-negligible circumstances. Mere uncertainty does not qualify as a subjective state of mind.
A stalking charge requires a malicious intent rather than a specific purpose. In other words, defendants don’t need to have a particular objective in mind when stalking someone in order to be guilty of the crime.
Understanding the Legal Definition of Harassment
The term "harassment" means unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, harasses, or terrorizes the person, and that serves no legitimate purpose.
Under the harassment laws in California, if a person "seriously alarms, annoys, harasses, or terrorizes" another person, this can result in legal sanctions, including a restraining order. Generally, there are two prongs to harassment under the law: 1. the course of conduct, and 2. the effect of that course of conduct. Harassment does not need to rise to the level of violence or the credible threat thereof. A course of conduct may clearly constitute harassment, e.g., stalking behaviors. However, even a course of conduct, which seems relatively benign and might be harmless, could be harassment if it seriously alarms, annoys, harasses, or terrorizes the person against whom it is directed. Likewise, even a threatening behavior, such as a physical assault, may not be harassment if it is done without a knowing, willful, and purposeful course of conduct. Thus, the effect of a course of conduct, as well as the intent of the actor, are key to determining whether a wrongful course of conduct constitutes harassment.
A "course of conduct" is defined under CA statute as:
"…a pattern of conduct over a period of time evidencing a continuity of purpose, including following or stalking another…"
"Pattern of conduct" means two or more acts, including, but not limited to, acts in which the defendant directly, indirectly, or by an agent, follows, stalks, or harasses another …
"Following" means to follow a person in person or by any means, including, but not limited to, by mail or electronic communication.
"Stalks" means engaging in a course of conduct on at least two occasions that serves no legitimate purpose and would cause a reasonable person to ultimately fear for his or her safety, or the safety of his or her immediate family. For example, the defendant might write or send texts to you about anything, even though you don’t communicate back, and repeatedly seek to meet with you. This type of behavior could still be stalking.
"Harass" means to engage in the knowing and willful course of conduct involving repeated or continuing actions of following, stalking, or disturbing the peace of another, or another’s immediate family. The defendant might shout at you, either in person or on the telephone, often while drunk. He or she might be prone to regular, sometimes violent outbursts. This type of behavior would also be harassment.
"Disturbing the peace" means any unauthorized and unconsented touching of a person’s hair or clothing or other personal items closely connected with the person’s presence that is likely to provoke a violent reaction. The defendant might touch you or, for example, get up in your face or yell at you at a party to make a scene. This would be disturbing the peace.
Civil and Criminal Consequences of Stalking and Harassment
A person convicted of harassment, including stalking, can be sentenced to up to a year in jail for a misdemeanor conviction. Alternatively, they could face 16 months, 2 years, or 3 years in state prison for a felony conviction, as well as a fine of up to $1,000.
A person who violates a restraining order against harassment can be jailed for up to a year (for a misdemeanor) or face imprisonment for 16 months, 2 years, or 3 years in state prison (for a felony). This includes having the police called because someone is being harassed, and the police find that it is being done in violation of a restraining order.
In addition, a person convicted of any crime that involves stalking may be prohibited from owning, purchasing, or possessing a firearm.
A conviction for stalking is a felony and may result in 16 months, 2 years, or 3 years in state prison. Depending on prior convictions, a person found guilty of felony stalking may be required to register with the police for as long as they are deemed a threat. There are no plea bargains available for this type of crime. Furthermore, there is no statute of limitations within which the crime must be prosecuted. California Penal Code § 646.9 – Stalking.
Protective Measures and Restraining Orders
For individuals who have a reasonable apprehension of future harm, be it physical or mental, there are multiple protective measures and restrictions available in California. While some of these remedies can be broad in scope, some are limited in the scope of their protections. It is important for the victim and the attorney working on their behalf to understand the parameters of each remedy available, as well as the other factors involved with obtaining the remedy.
Restraining Orders (Civil) One option for victims of stalking and harassment in California is to seek a restraining order at any civil court in the state. Such a restraining order may prohibit the defendant from engaging a number of behaviors, including:
Restraining Orders (Criminal) California law also provides stalking and harassment victims with the option of seeking a restraining order in criminal court. In order to obtain such an order, the victim must have had the defendant charged with a any number of different crimes:
5000. This section shall be known, and may be cited, as the "Protection of Victims of Stalking Act of 1990." 5001. The Legislature finds and declares that the stalking of another person is a serious and alarming crime. The Legislature further finds and declares that this behavior often profoundly disrupts the lives of victims and creates havoc for their families and employers . In recognizing the seriousness of conduct, the Legislature intends to strengthen the penal law dealing with stalking and harassing conduct. The Legislature further intends to provide a civil harassment restraint order remedy to prevent this behavior from escalating to a specified degree and creating greater danger for the victim. 5002. For the purposes of this division the following definitions shall apply: (a) "Harassment" is unlawful violence, a threat of unlawful violence, or a knowing and wilful course of conduct involving 2 or more acts directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct shall be unlawful where it would cause a reasonable person to suffer substantial emotional distress, and must be such as would cause a reasonable person to suffer substantial emotional distress.
(b) "Course of conduct" means any two or more of the following acts committed by any person against another person simultaneously or at different times: (c) "Credible threat of violence" means a knowing and willful statement or conduct which would make a reasonable person believe that a threat is credible, and would thereby cause that person reasonably to be in sustained fear of his or her safety or that of his or her immediate family.
Recent Case Examples and Legal Interpretation
Among the most notable California cases in recent years is the 2016 decision in Park v. Board of Trustees of California State University, 2 Cal.App.5th 856 (2016). In Park, the California State Court of Appeals considered the elements of intentional infliction of emotional distress in the employment context. The Plaintiff in that case, a former employee of California State University, alleged severe emotional distress as a result of what he believed was a systematic campaign by his supervisor to harass and intimidate him. The court examined the requirements for intentional infliction of emotional distress, ultimately upholding the Plaintiff’s claims and awarding $312,000 in damages.
In the 2014 case Aitken v. 7-Eleven, Inc., 201 Cal.App.4th 1000 (2011), the California Court of Appeals held that a business may be vicariously liable for harassment that an employee has suffered from a third party on business premises. The Plaintiff in this case was a female cashier at a 7-Eleven store. Throughout her employment, she was hooted at, propositioned, and even assaulted and raped by a customer. Despite strict security policies in place at her store, the Defendant failed to implement procedures that would have protected her. When no action was taken following the Plaintiff’s complaints, the Plaintiff left her job. The appellate court upheld a finding of harassment by the Defendant in that it upheld its duty to furnish to its employees a work environment free from sexual harassment or hostility.
In the 1980 case Miller v. National Broadcasting Company, 187 Cal.App.3d 713 (1980), Plaintiff Barbara Miller sued members of the staff and board of directors of a social club operated by Defendant NBC. Plaintiff’s husband was employed by the Defendant as an investigative reporter. Plaintiff was involved in the operation of the club, and worked closely with her husband. Following the untimely death of Plaintiff’s husband, several members of the club continued to express their sympathy toward her during club events. According to the complaint, the fellow club members continued to refer to her deceased husband in an abusive way, and at times, used sexually charged terms in their banter with her. Plaintiff alleged that the Defendants’ use of these terms constituted severe sexual harassment. The court denied the Defendant’s motion to dismiss the case, allowing Miller to pursue her claims.
The 2005 case Brewer v. Second New St. Baptist Church, 133 Cal.App.4th 343 (2005), involved a Plaintiff who had worked as a singer for the First New St. Baptist Church in Los Angeles. Within two weeks of her hiring, the Plaintiff alleged that other members of the church began to sexually harass her and homophobic harassment of the same nature. Plaintiff performed only private concerts at the church, and never performed in front of any members of the congregation. Nonetheless, the Plaintiff filed a harassment claim against the Church for sexual harassment, and also for making unwanted sexual advances. The trial court granted summary judgment in the Church’s favor. The court, however, summarily reversed, determining that a church could be liable for an independent tort when it caused serious injury to a parishioner and knew or should have known about the injury.
Most recently, in Decker v. Allmont, 128 Cal.App.4th 282 (2005), the California court of appeals held that inflammatory comments made at a party to a work colleague, and in his presence, were enough to create a triable issue of fact in a hostile workplace harassment case. In Decker, the plaintiff alleged that the defendant, during the course of a social function attended by the plaintiff, made several incendiary comments to another guest. The plaintiff complained to management, but the defendant continued to attend social functions. The plaintiff terminated his employment because of the continuing incidents with the defendant. The court held that a judge in reviewing the case could not decide that there was no hostile intent in the remarks, and therefore the lawsuit should not be dismissed.
How Victims Can Get Assistance and Resources
California provides various resources to assist victims of stalking and harassment, including hotlines, support groups, legal assistance, and referrals to mental health professionals. These resources, some of which are specific to particular communities or circumstances, may help victims find the support needed to move past this experience.
One useful starting point is the California Victim Assistance Program (CalVCP), an office of the California Victim Compensation Board. CalVCP distributes information on victim compensation as well as a comprehensive list of resources for victims of violent crime. These resources include:
The National Center for Victims of Crime, which operates under a grant from the National Institute of Justice , runs the Stalking Resource Center. The Center provides a variety of online information and resources for stalking victims, investigators, and prosecutors as well as those who work with these individuals such as law enforcement officers, forensic scientists, and policy makers. The Center includes National Victim Assistant Helpline, which allows all victims of crime to reach a victim assistance agency in their area or receive referrals.
Other useful resources for stalking and harassment victims include:
These resources provide guidance for victims, while simultaneously increasing awareness of the crime and the resources available through the law. Potentially abusive conduct is best dealt with early, before it escalates. Thus, victims are encouraged to use these resources to obtain guidance about their situation and the best steps to take.