The movement to protect women against domestic violence resulted in passage of new criminal laws penalizing behavior characterized as “stalking.”[1176]  The constitutionality of some of these new, vague, and broad statutes may be questionable.  Constitutional challenges to state stalking statutes have been successful on a number of occasions.[1177]

            The federal stalking statute is codified at 18 U.S.C. § 2261.   There is an argument that the federal definition of “stalking” should control, but there is as yet little authority for this specific proposition.

 

            A California stalking conviction was held not to constitute a crime of violence aggravated felony, although it would trigger deportation as a domestic violence conviction.[1178]

 

[1176] Annot., Validity, Construction and Application of Stalking Statutes, 29 ALR 5th 487; Domestic Violence, Stalking and Anti-stalking Legislation: An Annual Report to Congress Under the Violence Against Women Act (March, 1996).

[1177] See A Bridge to Cape Fear: Stalking in a Brave New World, 17 Criminal Practice Report 39 (Feb 19, 2003).

[1178] Matter of Hernandez-Sandoval, A90 062 193 (BIA Nov. 21, 2001) (California conviction of stalking, in violation of Penal Code § 646.9(a) (West 1999), was not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), since it did not constitute a crime of violence, because there was no element of use or threat to use physical force, under 18 U.S.C. § 16(a), and there is nothing in the California statute that indicates that physical force may be used in committing the offense, under § 16(b), even though it may involve a risk that harm may occur), distinguishing Matter of SS, 21 I. & N. Dec. 900 (BIA 1997).

Ninth Circuit

DOMESTIC VIOLENCE - STALKING
Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. Mar. 2, 2007) (California conviction of stalking, in violation of Penal Code 646.9, did not constitute aggravated felony crime of violence under categorical or modified categorical analysis, but not discussing whether this offense constituted "stalking" within the meaning of the domestic violence ground of deportation, INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i).)

     The argument that the stalking ground of deportation implicitly requires a protected victim, while the California stalking offense does not, appears weak. The statute defining the DV deportation ground expressly requires certain protected victims for the crime of domestic violence, and for the child abuse, abandonment, or neglect ground, but the stalking ground does not. The government could argue that this was an intentional omission by Congress. INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) ("Where Congress includes particular language in one section of a statute but omits it in another section of the same statute, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."). Thanks to Lory Rosenberg.