stalking

July 14, 2023

The Bar is Raised for Stalking Convictions by U.S. Supreme Court

Billy Raymond Counterman sent hundreds of thousands of Facebook messages years to local country singer Coles Whalen over the course of about five years. Whalen was finally unnerved enough to file stalking charges against Counterman. The mountains of comments left Whalen feeling frightened enough that she ultimately felt she had to leave her Colorado home in order to keep herself and her family safe. Counterman was eventually convicted of stalking and sent to prison, which is something that a 7-2 majority of Supreme Court Justices found to be a miscarriage of justice.

The Messages Counterman Left

What was so disturbing about Counterman’s Facebook messaging? The comments ranged from wholly innocuous to a bit disturbing and, later, to plainly mean. Friendly (but maybe a little unusual and questionable) were pledges from Counterman to bring Whalen fresh garden tomatoes for her to enjoy, as well as comments about how stunning she looked during a recent performance he had attended. Ultimately that turned into expletive-filled outbursts accusing Whalen of being no good for human relations, and ending with, “Die, don’t need you.”

What Constitutes a Threat?

Whalen’s attorney contended that when the volume, frequency, and tone of the messages she received were viewed in total, it became clear that the comments were a precursor to violence. The best way to ensure Whalen’s safety would be to put Counterman for a good, long time. That argument worked in court. Even so, Whalen’s sense of security was darkened, affecting family life, her ability to perform, and her overall sense of contentment.

On the other hand, Counterman’s attorney argued that his client had no intention of harming Whalen, and he most certainly did not comprehend the negative implications of his messages because he suffered from mental illness. His interpretation of the messages was that they were harmless, and therefore silencing him would be an attack on his First Amendment Right to free speech. The law required intent, reasoned the attorney, and should not require one to foresee the reaction of others prior to sending a message.

One D.C.-based attorney, John Elwood, summed it up by saying that if someone’s words are not intended as threats, there is no intent to harm, and therefore a conviction cannot be warranted. The Supreme Court agreed.

California’s Stalking Law

Under California law, stalking becomes a criminal offense once the threats or harassment gets to the point that the victim feels their safety is at risk. That leaves many wondering if the recent Supreme Court decision will have an impact on stalking charges here in the state, as they did in Colorado, or if the impact will be only on federal stalking charges.

Stalking Penalties

An initial charge of stalking could lead to a year in jail and a fine of $1,000. If felony stalking is charged based on a threat of significant harm or death, a defendant could face up to three years behind bars and $10,000 in fines. If the charges are part of a three strikes conviction, it jumps to a mandatory 25-year prison sentence. Continue reading

November 13, 2020

Man Arrested for Stalking UC San Diego Student

by David M. Boertje

On Thursday, September 8, a 22-year-old man was arrested in connection with charges of stalking. The man allegedly was stalking a San Carlos woman who is attending UC San Diego. According to the San Mateo County Sheriff’s Office, Jonathan Derasacosta was arrested for stalking the UC San Diego female student. The Sheriff’s offices also said that this was not the first time that Derasacosta was arrested for stalking the same woman. In 2019, Derasacosta was arrested two times on suspicion of stalking this UC San Diego student.

According to reports, the female student built a relationship with Derasacosta before she traveled to Southern California for school. When the COVID-19 crisis took place government officials decided that some people in jail should be released to reduce the risk of contracting the virus. Derasacosta was one of these individuals who was released in early 2020.

The report of Derasacosta’s actions includes that he went to the victim’s home in San Carlos. While she was taking online classes, she saw Derasacosta use a substance that was red in color, and may have potentially been blood, use it to write her name on a wall. The female victim did not know that Derasacosta moved to San Diego when she started college at UC San Diego.

The actions Derasacosta took resulted in an arrest for suspicion of stalking, committing a felony while on bail, and disobeying a court order. The authorities are asking the public for any information that they can supply.

What is Stalking in California?

California’s penal code 646.9 PC says that the crime of stalking includes following, harassing, and threatening other people so much so that the person you are attacking is concerned for their safety. Stalking in California is considered a wobbler charge, which means that it can be either charged as a misdemeanor or a felony. Time served for a conviction of a California stalking charge can mean you will spend as much as five years in jail or prison.

Some examples of legitimate stalking include:

Making excessive calls to another party when they have not asked to be called or have asked you to stop. Also, making threatening statements while on the phone.
Sending unwanted gifts regularly that have threatening notes.
Disputes with neighbors where you are making threatening statements on a daily or weekly basis about the dispute and your dissatisfaction with their actions or inactions.

To combat charges or stalking some strategies include:

Downplaying the threat and showing that it was not believable.
Saying that the plaintiff was making up stories and that the crimes you are being accused of have never happened.
No intent to cause terror or fear in the plaintiff ever existed.
You were engaging in behavior that was protected under the constitution.

September 9, 2015

California Stalking Laws

by David M. Boertje

Each year 7.5 million people are stalked, with 61% of the victims being female. 44% of the victims are stalked by a former intimate partner. In the current digital era, studies indicate that the rates of stalking and harassment have increased, and areas such as Southern California have higher rates than other parts of the nation. Stalking, cyber-stalking, harassment, and bullying are all similar bad acts. Sometimes it can be the result of a misunderstanding or vindictive accuser. Other times, spouses dealing with divorce start accusing each other of stalking or harassment.

What is Stalking?

California Penal Code 646.9 defines stalking as following, harassing, and/or threatening another person to the point where s/he fears for his or her safety, or the safety of his or her family. As with the standard for threats, one must have had a ‘reasonable fear’ in order to fulfill the standard for stalking.