By H. Michael Steinberg Experienced Colorado Criminal Defense Lawyer
The crime of stalking, by its very nature, involves the repeated and unwanted attention by one person that causes fear or emotional distress in another – the alleged victim.
Colorado law explicitly defines the crime of stalking at C.R.S. 18-3-602, as an offense when an individual makes credible threats or repeatedly follows, approaches, contacts, or surveils another person in a manner that invokes fear for their safety.
The escalation from misdemeanor harassment charges to felony stalking charges occurs when there are aggravating factors, such as prior convictions for similar offenses or violations of protective orders aimed at safeguarding the victim.
Felony stalking is treated with a kind of heightened severity due to its potential for escalating into more violent acts. It is the analysis of the sections of the law that can escalate the charge that has been seriously impacted by the 2023 Colorado Supreme Court case of Counterman v Colorado.
The Impact Of Counterman And The Meaning Of Free Speech Under The First Amendment As Applied To Colorado Felony Stalking Cases
Felony stalking in Colorado is a serious crime that has recently garnered significant legal and public attention, following the landmark case of Counterman vs Colorado.
On June 27, 2023, the United States Supreme Court analyzed the constitutionality of the language in Colorado’s felony menacing statute – C.R.S. § 18-3-602(1)(c)
‘The law prohibits “repeatedly . . . making any form of communication” in a manner that would cause a reasonable person to suffer serious emotional distress and caused serious emotional distress pursuant to C.R.S. § 18-3-602(1). Counterman v. Colorado, 600 U.S. 66 (2023).
Here are the relevant sections of the Colorado Felony Stalking Law that may be affected by the decision – C.R.S. § 18-3-602(1)
(1) A person commits stalking if directly, or indirectly through another person, the person knowingly:
(a) Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship;
or
(b) Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues;
or
(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.
(2) For the purposes of this part 6:
(a) Conduct “in connection with” a credible threat means acts that further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat.
(b) “Credible threat” means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person’s safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. The threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.
(c) “Immediate family” includes the person’s spouse and the person’s parent, grandparent, sibling, or child.
(d) “Repeated” or “repeatedly” means on more than one occasion.
(3) A person who commits stalking:
(a) Commits a class 5 felony for a first offense except as otherwise provided in subsection (5) of this section; or
(b) Commits a class 4 felony for a second or subsequent offense, if the offense occurs within seven years after the date of a prior offense for which the person was convicted.
(4) Stalking is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401(10).
(5) If, at the time of the offense, there was a temporary or permanent protection order, injunction, or condition of bond, probation, or parole or any other court order in effect against the person, prohibiting the behavior described in this section, the person commits a class 4 felony.
(6) Nothing in this section shall be construed to alter or diminish the inherent authority of the court to enforce its orders through civil or criminal contempt proceedings; however, before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the judicial district of the court where the proceedings are to be heard and the district attorney for the judicial district in which the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions.
….
In Counterman, the United States Supreme Court made clear the criteria that must be applied to decide whether or not certain speech qualifies as a real danger under the First Amendment.
An objective standard that is applied and used by the majority of federal courts of appeals is whether or not a reasonable person would understand the statement as a threat of violence.
In contrast, a subjective test currently used by the Ninth and Tenth Circuits (including Colorado) inquires whether the speaker intended for the recipient to feel threatened.
This conflict in federal circuits set the stage for an analysis of state courts, such as Colorado, which differ from one another in similar ways. Some states, for example, use a hybrid test that takes into account the speaker’s subjective intent in addition to whether or not a reasonable person (an objective standard) would interpret a statement as threatening and beyond the protections of the First Amendment.
The Counterman case has focused attention on how courts use and interpret anti-stalking laws in relation to constitutional fundamental rights like free speech and free expression. Following the decision, continuous communications, as in the Counterman case, must now be examined in light of both state law and constitutional safeguards.
The decision has raised new and challenging issues regarding the boundaries between criminal activity and free speech.
In the Counterman case, the Defendant’s persistent online messages forced a detailed scrutiny of the line between protected speech and criminal behavior. The courts are now tasked with protecting individuals from genuine threats while respecting fundamental civil liberties, making felony stalking an evolving area of criminal law.
A Closer Look At The Impact Of Counterman vs Colorado
The case of Counterman vs Colorado revolves around the complex legal and ethical dimensions of stalking, particularly in the digital age. The defendant, Billy Ray Counterman, was accused of felony stalking after repeatedly sending alarming and unsolicited messages to a local musician via social media.
It was clear that Counterman’s actions led the alleged victim to experience significant emotional distress and fear for her safety, prompting her to contact law enforcement.
At trial, the prosecution argued that Counterman’s persistent communication constituted credible threats under Colorado’s felony stalking statute. The prosecutor highlighted the nature and volume of his messages as evidence of his intent to cause fear or emotional harm.
On the other hand, the defense lawyer contended that Counterman’s messages were protected under the First Amendment, arguing more specifically that the messages did not contain explicit threats but expressions of admiration and benign interest. The Counterman court faced the challenge of balancing freedom of speech with an individual’s right to feel safe from harassment.
After thorough deliberation, it was determined that Counterman’s conduct went beyond mere expression; it exhibited a pattern of behavior designed to instill fear and disrupt the victim’s life.
The decision in Counterman vs Colorado underscored several critical points of legal analysis:
1. The case reaffirmed that digital communications can be punished under traditional stalking statutes if they causes legitimate fear or emotional distress in another.
2. The case also illustrated how courts should interpret intent of the perpetraot and the impact on the victim in cases involving online interactions.
3. Finally, he case highlighted the ongoing need for a legal framework to evolve alongside technology while ensuring constitutional protections are upheld.
People v. Counterman is now a pivotal reference in understanding how modern forms of communication intersect with criminal behavior and legal standards concerning stalking crimes.
Legal Definition And The Elements Of Felony Stalking
To summarize, felony stalking involves a pattern of behavior wherein an individual knowingly and repeatedly follows, approaches, contacts, or places another person under surveillance in a manner that would cause a reasonable person to suffer serious emotional distress or fear for their safety or the safety of their immediate family.
The elements that are required to establish the crime of felony stalking beyond a reasonable doubt include a demonstrable pattern of conduct that manifests over time rather than isolated incidents.
This conduct can encompass a variety of actions, such as repeated phone calls, messages, physical following, or any form of persistent communication intended to harass or intimidate the victim.
The law specifies that the perpetrator must act with knowledge; that is, they must be aware that their behavior will likely provoke fear or emotional distress in the victim. Certain aggravating factors must be present for the charge to escalate to a felony level under Colorado law.
These factors include, but are not limited to:
making credible threats against the victim’s life or safety;
violating protective orders;
possessing weapons during any instance of stalking;
and having prior convictions related to similar offenses.
The Counterman case clarifies these elements by emphasizing both the subjective intent of the Defendant and the objective impact on the victim. It highlights how crucial it is for courts to assess not only whether the stalker’s actions were intended to cause distress but also whether those actions would reasonably be expected to do so from an objective standpoint.
Thus, felony stalking in Colorado necessitates proving both intent and impact through a sustained course of conduct designed—or reasonably expected—to instill fear or significant emotional turmoil in its victims.
The Court’s Analysis And Decision In Counterman
In Counterman, the Court explored the legal boundaries of felony stalking, a crime that involves repeated and unwanted contact that causes emotional distress or fear for safety. Counterman’s persistent and unsolicited communications with the alleged victim were found, in the end, to be alarming and threatening by the victim.
However, the Supreme Court’s analysis did not end there.
The Court’s analysis also centered on whether Counterman’s actions constituted a credible threat and whether his intent aligned with the statutory requirements for felony stalking under Colorado law. The Court scrutinized the nature of Counterman’s messages, evaluating their content, frequency, and context.
It recognized that while some messages could be perceived as innocuous in isolation, their cumulative effect painted a different picture. The victim testified about her escalating fear due to the Defendant’s incessant communications, which led her to change her daily routine and seek security measures—factors indicative of substantial emotional distress.
Another critical component of the Court’s deliberations was determining whether Counterman had “knowingly” engaged in conduct that would cause such distress or fear. The defense argued that without explicit threats or evidence of intent to harm, Counterman’s behavior fell short of felony stalking criteria. However, the Court emphasized that the statute also covers conduct where an individual should have known their behavior would likely cause such reactions.
Ultimately, the United States Supreme Court upheld Counterman’s conviction by affirming that his repeated communications met the threshold for causing significant emotional distress and reasonably instilled fear in his victim. This watershed decision underscored the importance of considering both subjective experiences of alleged victims and objective standards when evaluating stalking cases—a precedent reinforcing protections against harassment while balancing free speech concerns.
Impact Of The Counterman Decision On Future Stalking Cases
The decision in People v. Counterman has set a significant precedent that will undoubtedly influence the adjudication of future stalking cases in Colorado. By scrutinizing the line between protected speech and criminal conduct, the ruling underscores the importance of context and intent in assessing whether a series of communications constitutes felony stalking.
One critical impact is the heightened awareness of how digital communication can be weaponized to instill fear and distress. The court’s analysis emphasizes that messages sent via social media or other electronic means must be evaluated by their content and cumulative effect on the victim.
This nuanced approach ensures that courts consider whether a reasonable person would perceive these communications as threatening. The decision highlights the necessity for law enforcement and prosecutors to meticulously document patterns of behavior rather than isolated incidents and not rush to judgment or to satisfy some form of confirmation or hindsight bias.
People v. Counterman refines legal standards surrounding stalking offenses in Colorado, promoting a more comprehensive understanding that aligns with modern communication dynamics while ensuring victims receive appropriate protection under the law.
Summary And Conclusion – Colorado Felony Stalking 18-3-602 After Counterman vs Colorado.
Hopefully, the Counterman case will serve as an influential reference point for legal practitioners and lawmakers who aim to balance free speech rights with safeguarding individuals from harassment and intimidation.
The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate when it was drafted, but it cannot account for changes that occurred after it was uploaded.
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