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Stopping the Shadows It was not until the late 1980’s that Californians began to recognize that the act of stalking was not being effectively addressed by existing state laws. That recognition began with the death of actress Rebecca Schaeffer, who was killed by a fan who had stalked her for over two years. The need for stronger legislation was further realized with the death of four Orange County women who were killed within a five-week period, despite the fact that restraining orders prohibiting stalking were issued against their assailants. 1 The later incidents prompted the introduction of a bill that later became California Penal Code section 646.9, stalking. Stalking is generalized as a crime of intimidation. A victim of stalking is made afraid by the willful or intentional acts of another person. Before this bill, police could not legally do anything for a victim of stalking unless the stalker acted on the threats made, which in several cases was too late. In 1990, California became the first state to pass a law making stalking a crime. Since then, all fifty states have enacted stalking laws.According to statistics compiled by the Center for Policy Research (November 1995-May 1996), 1 in 12 women and 1 in 45 men will be stalked during their lifetimes and 1,006,970 (1%) women and 370,990 (0.4%) men are stalked annually in the United States. Of these stalking victims, 55% of female victims and 48% of male victims reported the stalking to the police. Of those reporting, only 13% of female victims and 9% of male victims, whose stalkers were charged criminally, had their cases prosecuted. However, of those stalkers charged, only 52% of female victims and 60% of male victims had their cases result in a conviction. 2 These low numbers have much to do with the drafting of the stalking laws throughout the United States. Since there is not a clear, consistent definition of stalking throughout state laws, significant variations exist as to when the crime of stalking will be prosecuted. Local police might pick a person up for allegedly stalking a victim, but when the prosecutor receives the case, the alleged stalker is charged with a different crime, which is why the number of stalking cases in most jurisdictions does not reflect the actual number of stalking incidents. For example, California’s existing statute requires prosecutors to prove specific intent, which places significant emphasis on the stalker’s motivation. This becomes a problem when the person reported as being a stalker does not intend to cause the victim fear. In some cases, the person may simply want to start a relationship or patch up an old one. According to the California statute, if the stalker does not intend to cause the victim to be afraid, he is not guilty of stalking.3Currently, legislation was proposed that would amend California’s stalking law. (Cal. Penal Code §646.9) Under current California law, any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible thereat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty of the crime of stalking. (Cal. Penal Code §646.9) "Harasses" is defined as a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the victim, with no legitimate purpose. (Cal. Penal Code §646.9) "Credible threat," as applied in this law, means a verbal or written threat or a threat implied by a pattern of conduct made with the intent to place the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. (Cal. Penal Code §646.9) It is not necessary to prove that the stalker had the intent to actually carry out the threat. Senate Bill No. 1320 (2001-2002 Reg. Sess.) modifies the definition of stalking and deletes some of the elements that a prosecutor must establish to prove the crime of stalking. The bill would start by clarifying the language in the statute relating to "willfully, maliciously, and repeatedly." Currently, appellate courts have interpreted this language to mean different things. For instance, in People v. Heilman, 25 Cal. App. 4 th 391 (1994), the court interpreted this language as "any person who willfully, maliciously, and repeatedly follows or any person who willfully or maliciously harasses another person." In People v. McCray, 58 Cal. App. 4th 159 (1997), the court interpreted the willful, maliciously, and repeatedly language to apply only to following, but not harassing. Senate Bill 1320 clarifies that the "willfully, maliciously, and repeatedly" language applies to either harassing or following. The amended statute will read, "Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person ...."This bill also changes the definition of "course of conduct" used in the statute. Originally, "course of conduct" is defined in the statute as a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. (Cal. Penal Code §646.9) Senate Bill 1320 amends this language to define "course of conduct" as two or more act occurring over a period of time, however short, evidencing a consistent purpose. A pattern of conduct is no longer required, so two acts become sufficient to establish harassing under the stalking statute. Finally, this bill will reduce the burden required to establish harassing conduct. Previously, this harassing conduct must be such that would cause a reasonable person to suffer substantial emotional distress and must actually cause the victim to suffer substantial emotional distress. (Cal. Penal Code §646.9) Senate Bill 1320 removes the substantial emotional distress requirement. It is important that people be made aware of the crime of stalking, and educated about the danger of stalking, and the lack of intervention available. Some states have gone further than just making stalking a crime and have included other stalking-related provisions in their statutes. Florida, Idaho, Indiana, Maine, Maryland, Missouri, Montana, Nevada, New Hampshire, Oregon, South Carolina and Wyoming allow police officers to make warrantless arrests in stalking cases where there is probable cause. 4 In Illinois, stalking can be a non-bailable offense if the stalker is a serious threat to a person’s safety.5 California provides for automatic and emergency protective orders to be issued by a judicial officer when a peace officer states reasonable grounds to believe that a person is in immediate and present danger of stalking and that the order is necessary to prevent the occurrence or reoccurrence of stalking activity,6 and in Georgia the court at sentencing may order a psychiatric evaluation and require treatment as a condition of probation.7 Alaska, Connecticut, Florida, Iowa, Louisiana, Michigan, Minnesota, Missouri, New Mexico, North Carolina, Rhode Island, and Vermont have established sentencing enhancements in cases where the victim is a minor or when there is a protective order in place against the perpetrator, and in Hawaii, Idaho, Montana, Nebraska, New Hampshire, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee and Texas, there is a heightened crime classifications for stalkers who commit second stalking offenses.8In 1998 the California Secretary of State established the SAFE AT HOME program to help victims of domestic violence, and in 2000 the program was expanded to help stalking victims. 9 SAFE AT HOME is a confidential address program used to help stalking victims keep their new address confidential. A stalking victim who can provide evidence that she or he is being stalked is eligible for the SAFE AT HOME program. Acceptable forms of evidence include police reports, documentation from a professional from whom the victim of applicant sought assistance in dealing with the stalking, or any other evidence that supports the victims’s sworn statement. Stalking victims can apply for the program at designated victim assistance facilities in California. For more information, call toll-free 1-877-322-5227 or visit <www.ss.ca.gov/safehome>.Additional information on stalking and victims’ rights, can also be found at The National Center for Victims of Crime Stalking Resource Center < http://www.ncvc.org/src/index.html> , the Violence Against Women Online Resources <http://www.vaw.umn.edu>, and Survivors of Stalking at (813) 889-0767.There is great need for this amended legislation in California. Earlier stalking laws in California were so vague that cases were not being reported to the police, and district attorneys were electing not to charge under the statute, because the perpetrator’s behavior did not fall within the legal definition of stalking. The new legislation will take affect January 1, 2003 and will make it easier for victims to obtain legal action against their stalkers and district attorneys will have an easier time prosecuting the cases. Notes 1. Nancy K.D. Lemon, Domestic Violence & Stalking: A Comment on the Stalking Code Proposed by the National Institute of Justice (Dec. 1994) Violence Against Women Online Resources < http://www.vaw.umn.edu/BWJP/stalking.htm> (as of June, 20, 2002).2. The National Center for Victims of Crime, Stalking Resource Center, Stalking in America - National Violence Against Women Survey (NVAW) (2000.) <http://www.ncvc.org/src>3. Comment, California’s Antistalking Statute: The Pivotal Role of Intent (1998) 28 Golden Gate U.L. Rev. 221, 256. 4. Geanne Rosenberg, Status and Features of Stalking Laws Across the US (July 1998) Compiled for APB from Stalking and Domestic Violence - Third Annual Report to Congress Under the Violence Against Women Act with additional information provided by Neal Miller, principle associate at the institute for Law and Justice, Alexandria, Va. < http://www.apbnews.com/safetycenter/family/2000/01/05/stalking_table/html> (as of June 25, 2002).5. 725 Ill. Comp. Stat. 5/110-4, -6.3 (2001) 6. Cal. Penal Code § 646.9(a) (enacted by Chapter 169). 7. Geanne Rosenberg, supra. 8. Geanne Rosenberg, supra. 9. Cal. Sect. of State, Safe at Home: A Confidential Address Program (2000.) Represses Memories and
Childhood Sexual Abuse in California Courts Childhood Sexual Abuse in the United States Statistics for the year 2000 released by the National Information Clearing House state that there were a total of 879,000 children found to be maltreated. Of that number, 10% or approximately 87,900 were child sexual abuse cases. There are two types of childhood sexual abuse cases in which a victim comes forward many years later. Type one is the situation in which a victim remembers the molestation, but is not aware until later that any harm has occurred. Type two cases are those in which the victim has repressed all memories of the abuse until he or she recalls them at a later date. Legislative History Statutory time bars on the filing of civil suits do have exceptions. In some cases, plaintiffs do not know when a wrong has occurred and may not discover their cause of action until after the statute of limitations has expired. In response to such cases, courts have fashioned the "delayed discovery doctrine." Under the delayed discovery doctrine, the statute of limitations does not begin to run until the plaintiff has discovered, or in the exercise of reasonable diligence should have discovered, all of the facts, which are essential to the cause of action. Victims of childhood sexual abuse who have repressed memories of the trauma fall under this category, because until the victims recall the abuse they have no knowledge that a crime has occurred. Until recently, an adult victim of childhood sexual abuse in California would have to bring his or her claim as an assault and battery and infliction of emotional injury rather than the specific tort of childhood sexual abuse. However imple-mentation of California Code of Civil Procedure ("hereafter" CCP) Section 340.1 in January 1, 1987, and amended in 1991, victims can now recover damages suffered as a result of childhood sexual abuse. This cause of action must be commenced within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness was caused by the sexual abuse, whichever period is later. In other words, if a victim represses the memories of sexual abuse, but later recalls the abuse when he or she is 40 years old, for example, the victim has up to three years to bring a cause of action. The statute has not always been so liberal in extending the statute of limitations. Prior to the 1991 amendment of CCP §340.1, victims of childhood sexual abuse could only bring an action against their perpetrators within three years of the incident, or if the victim was a minor, within three years of reaching the age of majority. Thus, if a victim had repressed memories of abuse, but recalled them later than three years after the incident, he or she would be barred from bringing a claim. What has caused the California courts to move in such a different direction in a span of only ten years? The answer: a growing acceptance of the theory of repressed memories. While this theory has not been completely adopted by the scientific community because of the competing theories on how memory works, advances in psychotherapy and other medical sciences have helped give a voice to many victims. Many scientists in the medical community believe that memory is impossible to repress, or that memory can be manipulated by outside forces or subtle suggestions. Others believe that childhood events that are later recalled might just have been childhood fantasy or dreams. Still other scientists have stated that the way humans’ process memory does not change when a traumatic event occurs. For example, if a person is hit by a car, or assaulted, these scientists theorize that the victim does not automatically start to recall things differently than before. However, recent innovations in noninvasive imaging technologies, improvements in electroencephe-lography, and advances in psychopharmacology have led many to a greater understanding of the brain and, in turn, to understanding of memory, psychopathology and treatment. These current medical advances have allowed countless adult victims of child abuse to come forward and to seek justice for injuries that have long since occurred, but that have nevertheless had a lasting negative impact on their lives. The current flood of claims brought against Catholic priests across the United States signals that our society is accepting the concept of repressed memories as true and that justice should, and can, be achieved despite the length of time between crime and the legal claim. Recovering Memories of Childhood Sexual Abuse Oftentimes an adult who has experienced childhood sexual abuse will develop other problems such as severe depression, alcoholism/drug addiction, an inability to form intimate and trusting relationships, and sexual dysfunction. The discovery that sexual molestation is the cause of these problems is often the impetus to bring the abuser to justice. Once memories begin to return, the victim is faced with many paths in which to begin the healing process. The victim may seek to confront the abuser, or may choose to work past the abuse. However, many adult victims begin the healing process with a desire to see the law punish the abuser and acknowledge that a wrong has occurred. This quest for justice serves to give the victim the feeling that a wrong has been righted and also to relieve the victim from feelings of guilt and shame. Thus, an adult victim will often seek to bring a civil suit against the perpetrator, even though many years have elapsed since the incident of abuse occurred. Currently, at least twenty-one states extend the statute of limitations in civil cases in which a victim of child sexual abuse has repressed all memory of the incident. The numbers are especially remarkable, because as late as 1986 no states allowed such cases. It is only recently that the courts have acknowledged the possibility that a victim who has suffered such a devastating trauma as childhood sexual abuse might repress his or her memories; some however, nevertheless see this as a movement in the right direction. Again, in light of the recent problems that have emerged with Catholic priests and adult victims speaking out, the concept of repressed memories may gain greater acceptance by those states that are still resisting extending the statute of limitations. With an increase in understanding of repressed memory, perhaps the public can focus on ways to protect our children and to prevent these crimes from occurring in the first place. Seeking New Approaches to a Growing Problem Almost every evening on the 6 o’clock news a crime is reported. The headline chimes with a saddening familiarity: "A young male is in critical condition tonight after gunfire erupted outside a local restaurant. An investigation into the cause is now underway." Behind the headline of every violent crime often lies an unheard story. It is the story of the victim who struggles for answers, support, and closure. The unfamiliar waters of the justice system typically offer little guidance for many victims, because the primary focus of criminal justice is on punishing the offender. The overwhelming focus on the offender can be largely attributed to retributive principles whereby punishment is justified when a person chooses to violate society’s rules. 1 Courts therefore become the instrument for delegating punishment, while the victims are left to pick up the pieces from the inflicted harm.In the 1970s and 1980s an ancient concept called restorative justice emerged in the United States 2 as a new approach to growing concerns of victims who felt unsatisfied with the lack of avenues available in the justice system. Restorative justice dramatically changes the way society views crime. Rather than seeing crime as a violation of law, restorative justice looks at crime as an act against another individual or community.3 It gives the victim a face, a name, and most importantly, restorative justice gives the victim a voice.Restorative justice is based on several fundamental principles: (1) Crime is an offense against human relationships; (2) Victims and the community are central to justice processes; (3) The first priority of the justice system is to assist victims; (4) The second priority is to restore the community; (5) Offenders have personal responsibility to their victims and communities; and (6) Offenders will develop improved competency and understanding as a result of the restorative justice experience. 4 At its most basic level, restorative justice seeks to restore society by holding the offender directly accountable to the individuals he violated. By implementing restorative justice concepts, the goal is to increase victim involvement and decrease human harm.According to Milton Braswell, Assistant Deputy Director, Department of the California Youth Authority, restorative justice is a "philosophical approach as to how the justice system works. The idea is for the offender to leave in a better position than when he or she entered the correctional system." 5 Because restorative justice is a "philosophical approach" there is not one standard cookie cutter model that defines the concept. However, numerous states, including California, have implemented programs which encompass restorative justice concepts of victim-offender mediation and victim impact statements.Victim-Offender Mediation Victim-offender mediation provides a victim with an opportunity to meet his or her offender in a safe, structured setting and engage in a mediated discussion of the crime. 6 With the assistance of a trained mediator, the victim may communicate to the offender how the crime has affected his or her life and ask the offender questions about the crime itself.7 During the mediation session, the victim is often directly involved in developing a restitution with the offender. The goal of this victim-offender mediation includes providing offenders the opportunity to personally learn how their actions have harmed individuals and providing both victims and offenders the opportunity to develop a mutually acceptable plan that addresses the harm caused by the crime.8There is encouraging data concerning the effectiveness victim-offender mediation programs. According to a study (Umbreit, 1994) of victim-offender mediation programs with juvenile offenders, victims who met with offenders were more likely to be satisfied (79%) with the justice system than similar victims who underwent the typical court process (57%). Additionally, offenders who met with their victims were far more likely to successfully complete their restitution obligation (81%) than similar offenders who did not participate in mediation (58%). 9Victim Impact Statements The victim impact statement has been the traditional voice of the victim throughout the justice system. The victim impact statement is similar to victim-offender mediation in that the victim provides a description, either orally or in writing, of how the crime affected their lives. Statements are most commonly used by courts at sentencing and parole hearings. Under California State law, victims have the "right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his, her, or their views concerning the crime, the person responsible, and the need for restitution." 10 The law further requires that the court imposing sentence "shall consider the statements of victims."11 States utilizing victim impact statements are one step closer to implementing the restorative justice philosophy into the criminal justice system.Applications of restorative justice principles and programs receive the greatest use in juvenile justice systems. 12 California adopted restorative justice as the model for juvenile law in 1999 with the signature of Governor Gray Davis of bill AB 637. The bill revised Section 1700 of the Welfare and Institutions Code to read:The purpose of this chapter is to protect society from the consequences of criminal activity and to that purpose community restoration, victim restoration, and offender training and treatment shall be substituted for retributive punishment and shall be directed toward the correction and rehabilitation of young persons who have committed public offenses. 13Prior to this bill, the mission of the Department of the Youth Authority made no mention of community or victim restoration. Today, the California Youth Authority has a Victim Services Division that provides services such as accompaniment for victims making impact statements and "impact of crime classes" for offenders. 14While restorative justice policies are known to be developing in more than 45 states, 15 there are limitations to incorporating new principles into a long established system. The most obvious limitation to overcome, as pointed out by Mr. Braswell, is changing the minds of those people who do not believe that offenders can change within the correctional system.16 Additional limitations exist in the actual implementation of programs like victim-offender mediation. The participation of all parties, including the offender and the victim, must be voluntary. The more violent the crime is in nature, the less likely a victim will agree to meeting the offender. As a result, victim-offender mediation is often confined to minor infractions or misdemeanors such as property damage. Additionally, a few judges have expressed concerns as to whether victims are emotionally capable of rationally participating in the victim offender process.17 As with any hot-topic issue, there will always be political and economic obstacles facing any attempt to change our current justice system.Those who have been direct victims of crime understand the gravity of harm that can be caused by one single act of anger or hatred. But the impact of criminal behavior has no boundaries. Victims, offenders, families, friends, communities, and society as a whole feel the effects of crime. The philosophy of restorative justice is to bring all parties together in hopes of building a better and safer society. 1 Dressler, Understanding Criminal Law, (3d Edition, YEAR) p. 16. 2 U.S. Department of Justice., Balanced and Restorative Justice, Program Summary (undated) p. 5. 3 U.S. Department of Justice., Balanced and Restorative Justice, Program Summary (undated) p. 7. 4 National Center for Victims of Crime, A Road Map to Restorative Justice in Corrections (2002) <http://www.ncvc.org/newsltr/restjust.htm> (as of May 31, 2002). 5 Interview with Milton Braswell, Assistant Deputy Director, Department of the California Youth Authority (June 25, 2002). 6 Office of Juvenile Justice and Delinquency Prevention, A Comparison of Four Restorative Conferencing Models: Victim-Offender Mediation (February 2001) p. 1. 7 Office of Juvenile Justice and Delinquency Prevention, A Comparison of Four Restorative Conferencing Models: Victim-Offender Mediation (February 2001) p. 2. 8 Office of Juvenile Justice and Delinquency Prevention, A Comparison of Four Restorative Conferencing Models: Victim-Offender Mediation (February 2001) p. 2. 9 Office of Juvenile Justice and Delinquency Prevention, A Comparison of Four Restorative Conferencing Models: Victim-Offender Mediation (February 2001) p. 3. 10 Cal. Penal Code § 1191.1 11 Cal. Penal Code § 1191.1 12 U.S. Department of Justice, Restorative Justice Fact Sheet: Victim Impact Statements (undated) p. 9. 13 Welfare & Institution Code § 1700 14 Interview with Milton Braswell, Assistant Deputy Director, Department of the California Youth Authority (June 25, 2002). 15 Umbreit, What is Restorative Justice? (April 15, 1999) <http://ssw.che.umn.edu/rjp/BART.htm> (as of May 21, 2002). 16 Interview with Milton Braswell, Assistant Deputy Director, Department of the California Youth Authority (June 25, 2002). 17 U.S. Department of Justice, Office for Victims of Crime Bulletin (October 2000) p. 7.
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