Safe Havens

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).