A bill that would require Utah victims to provide more evidence that they’re being stalked before they can get a protective order has been passed by a committee — despite pleas against it from victim advocates and attorneys.
Stalking victim Megan Mullineaux said she already hasn’t been able to get help under the state’s current statute, after a former partner has shown up at her house, her workplace and even when she was at a remote camping site. She said the proposed change will only make the process harder for those who need protection.
“It’s been extremely taxing and extremely difficult to prove, as it is now,” she said.
The measure — HB21 — proposes redefining stalking. Currently, a victim has to show they’ve experienced two or more encounters with a perpetrator that induced fear or caused emotional distress. By meeting that legal definition, a victim can then qualify for a protective order or injunction, and charges can be filed against the assailant.
But under the bill from Rep. Candice Pierucci, R-Herriman, a victim would have to prove their aggressor had a “continuity of purpose.” That means having evidence of a pattern of behavior that proves the contact was for a consistent reason, with the direct intent to stalk. Pierucci originally proposed also raising the required numbers of acts to three, but has since pulled back on that.
Overall, “it makes the law more targeted,” Pierucci said during the House Law Enforcement Committee meeting Wednesday.
She said she felt compelled to push for the stricter definition after a constituent came to her who had been arrested for stalking. The man, she said, went through a bad breakup with his girlfriend. A therapist later told him to send the woman a letter about how he felt, and he did. After that, he also commented on a picture she had posted on social media that included him, directing her to “Please remove.”
Pierucci said the woman went to police with those two incidents, and an officer showed up at the man’s house and booked him into jail on suspicion of stalking.
“It was a traumatic experience for my constituent,” the lawmaker said. She did not disclose the man’s name, so his criminal record could not be checked.
Attorney alleges unfair treatment
Pierucci said the man spent the night in jail but was never charged. An attorney with the Salt Lake County District Attorney’s Office confirmed during the committee meeting that it chose not to prosecute the case.
William Carlson, the prosecutor who reviewed it, said at first he thought that meant the law was working as it should. The man did not suffer any legal consequences.
But after talking with Pierucci, Carlson said, he began to support the stronger language about an alleged stalker’s purpose. The man, he noted, still had to spend the night in jail and paid fees to hire a lawyer — who also testified during the committee meeting that he felt the man was treated “unfairly.”
Carlson acknowledged that the change would make the law “more restrictive” for victims and that cases of stalking would be “harder to prosecute.” But, he believes, the change is small and would help balance the scales so that people aren’t arrested for stalking without much evidence, he said.
Carlson said that the District Attorney’s Office will still be able to “file charges in the situations that it’s needed.” And just because something doesn’t meet the new definition, he added, doesn’t mean it’s legal. For instance, someone, could still be prosecuted for threatening a former romantic partner, he said.
Steve Burton, the lawyer hired by the man who was arrested, said he wishes the change went even further. As it stands, he said, he believes a person can be “unlucky” and be accused of stalking for just accidentally bumping into someone.
Change is unnecessary, advocate says
Alexandra Merritt, a victim advocate with the Utah Crime Victims Legal Clinic, pushed back.
Right now, she said, Utah’s statute defining what qualifies as stalking is considered one of the best in the country for aiding victims in getting protection from the court — and even then, the bar is already high enough to avoid unfounded accusations. She pointed to Mullineaux, a victim she has worked with to try to get help.
The man who Mullineaux said is stalking her has shown up uninvited several times, including following the graduate student on campus at the University of Utah and at her workplace there at the Natural History Museum of Utah. Mullineaux described how the man has been “remarkably clever and adaptable” and been able to “hide or disguise his purpose” so there’s little evidence.
For example, he founded a scientific organization, she said, and started contacting her co-workers at the museum to try to reach her. He also claimed it was coincidence when he showed up at her campsite, while she was vacationing in a remote spot in Utah, 300 miles away from where either of them works.
“I don’t know how it’s happening,” Mullineaux said. “He’s been able to make excuses for all of it.”
She and Merritt have sent a cease and desist contact notice to the man. And the U. banned him from the natural history museum “but concluded that there was insufficient evidence to indicate he had stalked me on campus,” Mullineaux said.
Mullineaux hasn’t yet attempted to get a protective order through the courts, the first legal recourse with stalking, because she was already told she didn’t have enough proof and she worries about facing the man in the justice system.
(Rick Egan | The Salt Lake Tribune) Victims advocate, Alexandra Merritt, argues against the HB21 on stalking amendment before the House Law Enforcement and Criminal Justice Committee, on Wednesday, Jan. 27, 2021.
Charges for stalking usually only come after an alleged perpetrator has violated an injunction, which comes after a protective order and requires an evidentiary hearing with proof that the stalking more than likely occurred. Mullineaux can’t even get past the first step in the process.
The question of evidence
Stalking can quickly escalate, including to an assault. That’s what happened with student-athlete Lauren McCluskey at the U. She reported to police before her 2018 murder that she was being stalked and harassed; they didn’t take her concerns seriously, according to a later independent review.
Most cases are like that, Merritt said, where a victim is having to bring evidence to police or a judge to try to prove their case alone. The change to require evidence of a “continuity of purpose” would make that much harder, the victim advocate said.
“That would be hard for an attorney,” added Bethany Warr, an attorney also with Utah Crime Victims Legal Clinic. “I can’t even imagine what that would be like for a victim.”
Merritt also pointed to rates of stalking increasing at universities across the state. According to data analyzed by The Salt Lake Tribune, there were 84 reports of stalking among the 10 public and private colleges here in 2018. In 2019, that jumped to 145. Merritt said she used to handle one or two cases a year. Now, she’s responding to at least one a month.
“I see it getting more intense and more violent,” she added. “This does the exact opposite of what our victims need.”
She acknowledged that the case Pierucci referenced as the basis for the bill was unfortunate. But, Merritt said, she believes it does prove that the current system already works and the accused wasn’t charged.
“And that’s just one case,” she said, adding she believes there are hundreds of victims who don’t get the help they need.
Pierucci, though, said others who have been accused of stalking have reached out to her since the bill became public.
Also speaking against the bill was James Swink, the Cache County attorney, who called it “unnecessary.” Matt Bartley talked on behalf of his partner, who is also trying to get an injunction.
“The stalker is aware of what he’s doing and covering his tracks very well,” Bartley noted. “It’s making it all very difficult to prove.”
Winning unanimous support
The largely Republican committee voted unanimously to support the measure and move it forward to the House floor. Only conservative members spoke on the bill, with one suggesting it would protect people in rural areas who might casually bump into someone and be accusing of stalking.
Merritt again said the current law already makes it so that couldn’t be prosecuted; most cases involve showing up repeatedly, sending unwanted messages or taking pictures of an individual without their consent.
Rep. Matthew Gwynn, R-Farr West and a member of the Utah Fraternal Order of Police, said he believes it will help police officers, too, to be more targeted in who they arrest. The bill was additionally favored by the Utah Commission on Criminal and Juvenile Justice.
Pierucci said it aligns Utah’s stalking code with the statutes of 16 other states.
