When Does Behavior Become Stalking?

Apps exist that can unmask your calls. Just FYI.

Hinkson v. Stevens, 2020 VT 69

By Jacob Oblak

 

Legal theory and jargon aside, it’s worth remembering that legal issues don’t just grow on trees or appear in your garden or get thought up by random law professors just for fun. Real cases start with a story. Real people have memories and stories that inevitably differ from other people’s memories and stories. That’s why courts exist, to resolve such differences in the legal realm. So, here we go. 

                                                                                        

Plaintiff, Ms. Hinkson, had a husband who is referred to as C.D. Defendant, Mr. Stevens, had a romantic partner who is referred to as L.S. Good luck tracking the initials.

 

L.S. apparently was checking out potential employment at C.D.’s employer. Then, C.D. and L.S. had a “sexual encounter” (SCOV’s description). The couples vehemently disagreed over whether this incident was consensual, with Stevens and L.S. believing it was nonconsensual and Hinkson and C.D. believing it was consensual. L.S. civilly sued C.D. and the employer for sexual harassment, and they came to a settlement agreement that included a non-disclosure agreement.

 

Another third party filed a similar lawsuit against C.D. and the employer alleging sexual harassment. Keep in mind this is happening at the end of 2017 into 2018, so right as the #MeToo movement was taking off. So L.S. then chose not to follow the non-disclosure agreement, and numerous news articles detailed the sexual assault allegations, including some written by L.S. and by Defendant Stevens that contained unvarnished, sharp opinions of C.D. and his alleged actions. Stevens went even further, which brings us to the relevant part of the story for purposes of this SCOV decision. 

 

During this time, Stevens sent emails to a friend of Hinkson’s, questioning why this friend continued to associate and go on summer vacations with C.D. in light of his alleged actions. Over several months, Stevens called and immediately hung up or texted Hinkson’s cell phone 151 times from a four different number with no caller ID (masked). 

 

Stevens mailed three shipments of books about rape culture to Hinkson. SCOV found it important to specifically name these books, so here they are: 

-       The Last Season written by Defendant Stevens himself 

-       Rape and the Justice System in a College Town by Jon Krakauer 

-       I Never Called It Rape by Robin Warshaw

-       Rape is Rape: How Denial, Distortion, and Victim Blaming Are Fueling a Hidden Acquaintance Rape Crisis by Jody Raphael (along with a note saying “Hi [C.D.], Enjoy your gift! From [defendant]”) 

-       Asking For It: The Alarming Rise of Rape Culture - and What We Can Do About It by Kate Harding

 

Finally, one day Stevens was sitting at a coffee shop in Stowe with a two to-go cups and a pastry bag. Hinkson happened by the coffee shop at the same time, and Stevens simply sat at his table nearby staring at Hinkson without leaving or eating or doing anything else until Hinkson left. 

 

Hinkson sued Stevens filed for a civil order against stalking, which has lots of prongs and which you can read in your spare time here. Let’s skip to the trial court’s findings to hone in on the issues. 

 

The trial court found specifically that Stevens’ actions (the 151 calls/texts and coffee shop incident) amounted to “monitoring” Hinkson under the statute. The trial court also found that Stevens’ sending all those books about rape to Hinkson amounted to an implied threat of retribution or retaliation. Finally, the trial court found that a “savvy person” with Stevens’ background, experience, and professed interest and research into dismantling rape culture would have known that all these actions would cause emotional distress on a woman. At SCOV, Hinkson also argued that Stevens’ behavior was threatening. 

 

SCOV reverses. The SCOV majority of three justices, led by Justice Robinson, first mention that even though the six month no stalking order had long since expired, many negative collateral consequences are associated with stalking orders, so this case is not moot. They address the merits. 

 

First, the civil stalking statute is parallel to the criminal stalking statute, and their definitions of words have to mean the same things. The Legislature made 2016 changes to the civil stalking statute that makes it even more closely mirror the language of the criminal one. And because violating the criminal one carries with it criminal sanctions, SCOV interprets the civil statute as if it carried the same sanctions because he’d face the same analysis if the State had decided to charge him criminally (it hadn’t). So SCOV will interpret the civil statute narrowly, just like it interprets the criminal one. 

 

So, there have to be two distinct acts meeting the stalking definitions to amount to stalking. SCOV starts with the phone calls. According to common dictionaries, “monitoring” means keeping track of, observing for a special purpose, systematically viewing and collecting information, or supervising. SCOV says perhaps if someone were calling lots of times for the purpose of seeing if or when someone is home, that could fall into the definition. But simply calling 151 times without some special purpose or data collection or location tracking just isn’t enough to constitute monitoring. The calls also didn’t contain any threatening content at all, even if Hinkson felt threatened. 

 

The shipments of books were also not threatening, because Stevens made no threat or implication any kind of physical harm, including rape. SCOV finds that to amount to a threat that can be prohibited, it must be a “true threat” or one of physical harm. So even if the books were a threat of retribution, that wouldn’t be enough to rise to the level of a true threat. 

 

The same goes for the emails Stevens sent and the article he wrote. These did not articulate any kind of threat of physical harm. Criticizing alleged dishonesty or expressing “great antipathy” is not a threat, much less a threat of physical harm. Furthermore, an implied threat of social consequences (shunning and the like) is not a true threat under the civil or criminal stalking statutes. 

 

Lastly, SCOV finds that because none of the other instances amounted to an act that fell within the stalking statute, SCOV doesn’t have to decide whether the coffee shop incident does because even if it did, it’s only one act and you need two or more to have a “course of conduct.” 

 

Chief Justice Reiber and specially assigned retired judge Howard dissent. The dissent emphasizes that the civil stalking statute is meant to be remedial (providing a remedy to a plaintiff) rather than punitive in nature (punishing a defendant). Thus, the major theme throughout the dissent is that the Legislature intended the civil stalking statute to be interpreted more broadly and liberally than the criminal statute. 

 

The dissent would have found that the phone calls were “monitoring” according to dictionary definitions, based mainly on the fact the calls were anonymous or masked, late at night, from 4 different numbers, and the sheer volume of 151 of them. The dissent would have also found that the shipments of books – sent by a man who was well-versed in anti-rape literature and aware of the potential impact of the shipments on a woman in this context – amounted to a threat. 

The dissent would have found that all of those acts, combined with the coffee shop incident, were a course of conduct that met the requirements of the civil stalking statute, and would have affirmed the judgment.