What Constitutes Stalking in GA?

Stalking is a pattern of conduct that is designed to harass or intimidate the alleged victim.

The offense of stalking, as outlined in O.C.G.A. § 16-5-90(a)(1) of the Georgia Code, has three basic elements. Subsection (a)(2), which has a much more lenient intent requirement, is violating a restraining or other protective order. In court, the state must prove each element beyond any reasonable doubt.

The (a)(2) shortcut illustrates the need for alleged victims to obtain restraining orders, as well as the need for defendants to fight these orders. In these situations, officers can arrest defendants simply because they were in a prohibited place or engaged in a prohibited activity, regardless of their intent.

Protective orders are normally civil matters. But stalking is a criminal matter. Therefore, a Norcross criminal defense lawyer can use a full range of procedural and substantive defenses to beat these charges in court or force prosecutors to make a favorable plea bargain offer. Either outcome is a win, given the harsh direct and indirect consequences of a stalking conviction.

Following, Watching, or Contacting

The -ing at the end of each word makes a huge difference. In court, prosecutors must prove the defendant engaged in a knowing and willful course of conduct directed at a specific person, which caused severe emotional distress because it placed such person in reasonable fear for such person's safety or the safety of a member of his or her immediate family.

In subsection (a)(2) matters, simply being in the wrong place at the wrong time, even once, could lead to a stalking conviction. But in (a)(11) cases, the state must prove at least one prior stalking violation.

The alleged victim’s own statement probably is not enough since the burden of proof is so high. Prosecutors probably need additional evidence, such as surveillance camera footage or an audio recording. In many cases, a Norcross criminal defense lawyer can exclude such evidence.

Furthermore, the pattern of harassing and intimidating behavior must serve no legitimate purpose. If Harry constantly annoys Sally about child visitation, stalking charges probably wouldn’t hold up in court, even if Harry subtly threatened Sally.

Without Consent

In legal matters, consent is usually effective until withdrawn. If Sally met Harry at her workplace to clear the air, she consented to future meetings at her workplace until she told Harry to stay away.

Furthermore, even in sexual battery matters, Georgia law rather loosely defines “consent.” In many cases, assent is sufficient.

For this reason, law enforcement officers often do not respond to (a)(1) disturbance calls, at least right away. They do not want to hear Harry’s story and Sally’s story and then decide if an offense occurred. (a)(2) cases are different. If Harry was in a prohibited place or engaged in prohibited conduct, he’s going to jail, regardless of the other circumstances.

Purpose of Harassment and Intimidation

Most family violence crimes require proof of physical injury, no matter how slight. Stalking is different. Emotional injury is sufficient. However, that emotional injury must be objectively reasonable. If Sally saw Harry at the supermarket a few times, even if Harry acted somewhat aggressively, most people wouldn’t fear for their safety. Sally’s abuse-related mental or emotional condition, like Post Traumatic Stress Disorder, could change the picture.

Work With a Gwinnett County Criminal Defense Attorney

Stalking is a serious crime in Georgia. For a confidential consultation with an experienced criminal defense lawyer in Norcross, contact Zimmerman & Associates, Attorneys at Law. We routinely handle matters throughout the Greater Atlanta area.