People v. Relerford, 2016 IL App (1st) 132531 (June). Episode 197 (Duration 7:46)

Trial court declares stalking and cyberstalking unconstitutional; we'll see what the Illinois Supreme Court says.

Facts

Defendant did not get a job at a radio station.

He then proceeded to email the employees and put up thinly veiled threats on facebook. At one point he showed up at the station without permission and was escorted out.

One particular female employee seemed to be singled out.

Stalking Statute

In its current form, section (a) of the general stalking statute provides:

“A person commits stalking when he or she knowingly engages in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to: (1) fear for his or her safety or the safety of a third person; or (2) suffer other emotional distress.”

720 ILCS 5/12-7.3(a)(1), (2).

The general stalking statute defines “course of conduct” as:

“2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person’s property or pet. A course of conduct may include contact via electronic communications.” 720 ILCS 5/12-7.3(c)(1).

The statute further defines “emotional distress” as “significant mental suffering, anxiety or alarm”  and “reasonable person” as “a person in the victim’s situation” 720 ILCS 5/12-7.3(c)(3) & (c)(8).

SCOTUS on the Issue

The United States Supreme Court handed down its decision in Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), which addresses a federal stalking statute.

In Elonis, the Court held that due process precluded the government from convicting a defendant under a federal stalking statute because the defendant’s conviction “was premised solely on how his posts would be understood by a reasonable person.” Id. at ___, 135 S. Ct. at 2011.

The defendant was charged with violating a federal statute that made it a crime to “transmit[ ] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” after he made several Facebook posts about his ex-wife containing violent imagery. Id. at ___, 135 S. Ct. at 2008 (quoting 18 U.S.C. § 875(c) (2006). 

The problem, though, was that the defendant’s conviction “was premised solely on how his posts would be understood by a reasonable person.” Id. at ___, 135 S. Ct. at 2011. The Court explained that imposing criminal liability using a “reasonable person” standard was incompatible with due process requirements:

“Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with ‘the conventional requirement for criminal conduct–awareness of some wrongdoing.’ Having liability turn on whether a ‘reasonable person’ regards the communication as a threat– regardless of what the defendant thinks–‘reduces culpability on the all-important element of the crime to negligence,’ and we ‘have long been reluctant to infer that a negligence standard was intended in criminal statutes.’ Under these principles, ‘what [Elonis] thinks’ does matter.” Id. at 135.

We note that Elonis was decided in 2015.

Thus, neither the legislature, when it amended the stalking statute in 2009, nor the judge who presided over defendant’s trial in 2013, had the benefit of the Supreme Court’s guidance on this issue.

Analysis

Instead, an individual’s conduct is criminal under section (a)(2) if, and only if, the defendant “knows or should know” that it would cause “reasonable person” to “suffer ***emotional distress.” 720 ILCS 5/12-7.3(a)(2).

Subsection (a)(2) contains no requirement that the individual actually intend to inflict emotional suffering on a person. Thus, as currently drafted, subsection (a)(2) bypasses “the conventional requirement for criminal conduct–awareness of some wrongdoing” in favor of a reasonable person standard of criminality.

This is a standard which the due process clause does not permit.

Holding

Accordingly, the court held that subsection (a)(2) of the general stalking statute, of which defendant was convicted and sentenced, lacks a mens rea requirement and is therefore facially unconstitutional under the due process clause of the fourteenth amendment.

Subsection (a)(1) of the general stalking statute violates due process for the same reason as subsection (a)(2), as it does not contain a mental state requirement. Under subsection (a)(1), a defendant can be convicted of stalking if he or she engages in course of conduct and “knows or should know” that the course of conduct would “cause a reasonable person to *** fear for his or her safety or the safety of a third person.” 720 ILCS 5/12-7.3(a)(1) (West 2012).

Like subsection (a)(2), criminality under subsection (a)(1) turns entirely on whether the defendant “knows or should know” how a “reasonable person” would react to the defendant’s conduct, without regard to the defendant’s subjective intentions. The two sections differ only in that subsection (a)(2) requires the victim to suffer emotional distress, whereas subsection (a)(1) requires the victim to fear for his or her safety, or the safety of a third person. Subsection (a)(1) of the general stalking statute is therefore facially unconstitutional under the due process clause of the fourteenth amendment.

Subsections (a)(1) and (a)(2) of the cyberstalking statute are virtually identical to subsections (a)(1) and (a)(2) of the general stalking statute. The principal difference is that the cyberstalking statute specifies that the defendant’s course of conduct involved electronic communications. It necessarily follows then, that subsections (a)(1) and (a)(2) of the cyberstalking statute, which also lack a mens rea requirement, are facially unconstitutional under the due process clause of the fourteenth amendment for the same reason that subsections (a)(1) and (a)(2) of the general stalking statute are unconstitutional.