The new law makes it easier for individuals to be arrested and charged with stalking.

Under the amendment, persons are exposed to significant penalties for a wider range of conduct.

This article includes discussion on the following topics:

• Arizona stalking laws: myths v. facts;
• Traditional stalking law before the HB 2419;
• Provisions under HB 2419;
• Penalties for stalking; and
• The burden of proof and criminal defense

Stalking: 7 Myths v. Facts

Myth: If a person is not being physically followed by someone then they are not being stalked.

Fact: Arizona’s stalking law A.R.S. 13-2923 includes conduct directed at another person verbally, or in writing; through use of digital, electronic, or wireless communications; through GPS, r surveillance activities.

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Myth: Stalking is a civil offense subject to fines only. It is not a crime.

Fact: Stalking in violation of A.R.S. 13-2923 is a criminal offense. Conduct described under this section is considered a felony. Convictions expose a defendant to prison terms and other serious criminal penalties.

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Myth: A person can be found guilty of stalking if they engage in stalking conduct against a victim one time.

Fact: To be in violation of Arizona’s stalking law A.R.S. 13-2923, the stalking offense must involve a course of conduct rather than one incident.

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Myth: A person may be found guilty of stalking if their actions were unintended or misdirected, if the victim still felt threatened and in fear of harm as a result of the conduct.

Fact: To be in violation of Arizona’s stalking law, the accuser’s must have knowingly and intentionally directed their course of conduct at the victim.

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Myth: Threatening a person is the same as stalking them.

Fact: In Arizona “threatening” is different than stalking. To threaten or intimidate someone is in violation of A.R.S. 13-1202, and classified as Assault.

“Stalking” is considered an Offense Against Public order under A.R.S. 13-2923, in contrast to Assault.

However, charges are often brought concurrently, since a person can be stalked in a threatening manner, and threats may be included in the stalking course of conduct.

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Myth: Social media posts and comments intended to stalk and threaten another person are protected by free speech rights.

Fact: The US Supreme Court has held that true threats are not protected by the 1^st Amendment right to free speech of the United States Constitution (Virginia v. Black 2003; R. A. V. v. St. Paul, 1992). Since this case involves constitutional issues, it could be cited as authority in the event of prosecution for Arizona charges.

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Myth: Written communication causes a reasonable person to feel threatened or stalked is the only evidence needed to convict someone of stalking.

Fact: In Elonis v. United States Supreme Court, June 2015, the United States Supreme Court ruled that it takes more than a “reasonable person” standard to prove criminal liability. Rather, the culpability or stand of mind should also be considered. The accused must have intended to make the threat, and written the communication for the purpose of making a threat in order to be convicted. Arizona’s law also requires culpability to be found guilty of stalking.

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Arizona’s Stalking Law Prior to HB 2419

Under the previous law, a person could be charged with stalking for knowingly or intentionally engaging in conduct directed towards another, that would cause a reasonable individual to fear for their safety or that of an immediate family member.

Actions could only be considered stalking if they in fact, did cause a person to reasonably fear for his safety or an immediate family member’s safety.

Alternatively, stalking could be charged where the victim feared for his or her life or that of an immediate family member’s.

Historically, various types of conduct were considered stalking in Arizona, including situations in which someone maintained physical or visual proximity to another or directed threats toward a victim two or more times.

Stalking could also occur when the perpetrator used electronics, a digital system, or a global position system (GPS) device to watch the victim’s Internet or wireless activity without consent continuously for 12 hours or more, two or more times.

Stalking did not include constitutionally protected actions or those actions that were authorized by law, or consented to by the victim or their parent, if the victim is a minor.

Arizona’s New Stalking Law

Under HB 2419 the definition of stalking has been updated for our electronic age and significantly broadened to protect victims and specified others.

Stalking still includes the actions that have historically constituted stalking in Arizona.

However, under the amended law a person may also be found guilty of stalking if they intentionally or knowingly act in such a way that causes a victim to suffer “emotional distress” or reasonably fear that their property will be destroyed or damaged; or specified others with whom the victim has a relationship will suffer physical injury.

The specified others now include:

• Someone with whom the victim has a prior or current romantic or sexual relationship;
• A victim’s family member;
• A victim’s pet;
• Someone with whom the victim regularly lives or has lived within the six months before the last stalking incident;
• A victim’s livestock

The amendment defines emotional distress as significant distress or mental suffering that may require professional counseling or treatment.

However, under the new law, prosecutors will not have to prove that the victim actually needed or had counseling or treatment as a result of the emotional distress.

Conduct considered stalking may include direct or indirect actions committed more than one time by the accused or through a third party.

Additionally, stalking now encompasses communications in words, language, or images through email, or in an electronic communication, to a victim without authorization and without a legitimate purpose.

This includes communications or threats using text messaging, cell phone or mobile device communications, posts and comments on social media.

The amendment will become effective August 6, 2016.

Arizona Penalties for Stalking Convictions

This substantial broadening of the law, serves to harshly punish those who are convicted of engaging in a wide range of activities considered to be stalking conduct.

Under the new law, there are presumptive terms of imprisonment depending on the class of felony for which you receive a conviction.

Felonies in Arizona range from Class 1 to Class 6 felonies with Class 1 being the most serious of crimes.

Under the new law, stalking which causes a person to reasonably fear for their safety or that of specified others, is categorized as a class 5 felony.

Class 5 Felonies call for presumptive terms of 1.5 years in prison. If aggravated circumstances are involved, the prison term is raised to 2.5 years.

If someone commits an act of stalking that causes a victim to reasonably fear that they or specified others will die, the stalking offense charges will be brought as a class 3 felony.

The presumptive prison term for a class 3 felony is 3.5 years. If there were aggravated circumstances surrounding the incident, the defendant can receive an aggravated term of 8.75 years in prison.

For example, a defendant could receive 3.5 years in prison if they are convicted of stalking as a result of causing a person to reasonably be fear that the accused would cause death to his or her livestock.

Felony charges commonly call for large fines, fees, costs, restitution, community service, probation a felony criminal record, loss of the right to vote, and bear arms. Other penalties may be ordered at the discretion of the court.

Criminal Defense for Accusations of Stalking in Mesa, AZ

“Prepared to Defend”

No one is immune from being accused of a crime including that of stalking. A complaint or an arrest is not a conviction.

But a person must obtain an effective criminal defense attorney to protect their rights and defend their charges.

The burden of proof lies with the prosecution and the state to prove beyond a reasonable doubt that the defendant is guilty.

Under the statutory Arizona jury instructions, jurors would be advised of law that applies to stalking A.R.S. section 13-2923, mental culpability, or state of mind of defendant with regard to the actions, and the statutory definitions of “knowingly” and “with intent”.

The Arizona jury instructions for stalking charges may be subject to revisions after the new amendments become effective.

In Arizona only about 2 to 3 percent of criminal cases need to go to trial the majority, 97 to 98 percent of cases are resolved prior to trial.

Favorable resolutions outside of trial may include reduction of charges, negotiated agreements, reduction of a felony to a misdemeanor, or dismissal of a portion or all of the charges.

James Novak is a former prosecutor who can provide aggressive, knowledgeable strategies that increase your chances of avoiding the harsh sentencing associated with stalking.

James Novak, of the Law Office of James Novak, provides a free initial consultation for active charges in his service area. He will discuss your matter with you, and provide you with options for defense. Call or contact The Law Office of James Novak today for a confidential and free consultation at (480) 413-1499.

Additional Resources

• A.R.S § 13-2923 (Stalking)
• A.R.S. § 13-702 (First Time Offenders; Sentencing)
• Arizona Constitution Article 2, Section 8 (Privacy Rights)
• Arizona House Bill 2419
• Maricopa County Superior Court | Protective Order Center
• Arizona Resources | Domestic Violence Shelter Directory

Other Articles of Interest

• Arizona’s New Drug DUI Law – Ignition Interlock Device No longer Required Penalty
• Arizona Supreme Court Rules on Voluntariness of Consent in DUI Testing Case
• Your Right to Request Change of Judge in Arizona Criminal Court
• Right to Counsel before DUI Breath Test
• Consent to search, includes Drug K-9 search of Vehicle

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