Stalking, according to Florida Statutes 784.048, refers to the act of:
- Willfully, maliciously, and repeatedly
- Following, harassing, or “cyberstalking” another person.
Significantly, it can be considered stalking even if someone only so much as continually sends unwanted text messages to another person.
A charge of aggravated stalking can come about if both of the aforementioned elements of the offense of stalking are present, and in addition, at least one of the following conditions are met:
- The alleged stalker makes a “credible threat” to the victim;
- The victim already had an injunction or protective order prohibiting the stalker from contacting the victim; or
- The victim was less than 16 years old.
A “credible threat” refers to a threat against the victim or someone close to the victim that causes the victim to fear for that person’s safety. In addition, the alleged stalker must appear to have the ability to actually carry out that threat in order for the threat to be credible.
Simple stalking is a first degree misdemeanor, punishable in Florida by up to 1 year in jail and a $1,000 fine. The judge can also impose a restraining order of up to 10 years in prison if you are convicted of stalking.
Aggravated stalking is a third degree felony, with a maximum penalty of 5 years in jail and a $5,000 fine. If the aggravated stalking occurred in violation of a previously issued injunction or no contact order, then the judge must set a minimum sentence of at least 21 months in prison (almost 2 years).
Constitutionally Protected Activities
It is not always easy to differentiate between stalking and exercising one’s constitutional rights. A skilled lawyer can argue that one’s “stalking” activities are actually protected by the U.S. or Florida constitutions, and thus cannot be criminal. For example, organized protesting should not be considered stalking because it is protected by the First Amendment rights to free speech and assembly.
Communication that is intended to fulfill a legitimate purpose, such as legal or business matters, cannot be considered stalking. In order to use this defense, you must show that the communication was for such a legitimate purpose, and that it wasn’t merely a guise for harassment. For instance, communications for the purpose of pursuing child support should not fall under stalking.