Stalking in Washington, D.C.

“Stalking” is defined generally as the following of another person by stealth. Alternatively, it can be the following or loitering near the other person, often surreptitiously, with the purpose of annoying or harassing him/her.

In order to secure a conviction for stalking in D.C., the government must first prove that the defendant engaged in a “course of conduct directed at a specific individual.”  Such a “course of conduct” could include following, monitoring, placing under surveillance, threatening or interfering with someone, either directly or through a third party.  “Course of action” is defined as occurring on two or more occasions, with each 24-hour period serving as a separate occasion.

Second, the government must prove either that the defendant intended to cause the person to fear for his/her safety or the safety of another person or to feel seriously alarmed, disturbed or frightened or to suffer emotional distress or that the defendant knew or should have known would cause any one of these reactions.

The offense does not cover constitutionally protected activities, such as picketing a company during a labor dispute.

The penalty for stalking in D.C. is a maximum fine of $2,500 and/or up to 1 year imprisonment.  There are increased penalties for second or subsequent offenses during a two-year period or for violations of the statute when some type of protective order (e.g., temporary restraining or stay-away order) is in effect.  D.C. Criminal Code 22-3133.

In Beachum v. United States, 197 A.3d 508 (D.C. 2018), the D.C. Court of Appeals upheld the constitutionality of a statute such as this one with mens rea based on negligence:  “Section 22-3133(a)(3) requires that the defendant engage in purposeful conduct directed at a particular individual, but it permits conviction even if the defendant neither knew nor intended that the defendant’s conduct would engender fear, serious alarm, or emotional distress.  Contrary to Mr. Beachum’s contention, however, the Constitution does not forbid crimes that require only a showing of negligence with respect to the element of the crime.”

In Coleman v. United States, 202 A.3d 1127 (D.C. 2019), the court held that, to prove “stalking,” the government must prove beyond a reasonable doubt that the defendant possessed one of the requisite guilty states — intent, knowledge, or should have known — on at least two of the occasions that make up the “course of conduct” alleged to constitute stalking.

Most recently, the court held in Mashaud v. Boone, __ A.3d __ (D.C. 2023), that any content-based speech restrictions under the statute apply only to those narrow categories that are not protected by the First Amendment: threats, obscenity, defamation, fraud, incitement and speech integral to criminal conduct.  Words intended to offend, annoy or embarrass do not fall within the scope of the statute.

In this particular case, a D.C. court issued a civil protection order after the respondent emailed the petitioner’s place of work, contacted the petitioner’s family and friends of Facebook, and published a blog that detailed the petitioner’s affair with the respondent’s wife.

The petitioner was justified in feeling serious emotional distress, and the respondent knew or should have known that his actions would have this effect.  At the same time, the respondent did not threaten or defame the petitioner.  His speech did not incite criminal conduct.  Nor was it obscene or fraudulent.

To speak with an attorney who is experienced with dealing with this type of case, please contact Jamison Koehler at 202-549-2374 or jkoehler@nullkoehlerlaw.net.

Last updated:  August 10, 2023