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SALT LAKE CITY — Late last year, a Utah man went through a breakup — an everyday occurrence, but one that is prompting a bill that could potentially change the state's criminal stalking code.
"What had happened was he'd had a bad breakup with his ex-girlfriend, and of course when they were breaking up, she said, 'I never want to talk to you again, see you again,'" said Rep. Candice Pierucci, R-Herriman, sponsor of HB21.
At the suggestion of his mental health counselor, the man later sent his ex-girlfriend a letter saying he had "no hard feelings" and he appreciated their time together, Pierucci said.
Then the woman, a professional photographer, posted a photo on social media of the man and his family. He commented on the photo, asking her to remove it.
Later that night, police showed up at his door, demanded to see his phone, and arrested him for stalking, Pierucci said.
The Salt Lake County District Attorney's Office declined to file charges against the man. When asked about the case, the officer who arrested the man cited "ambiguity and vagueness" in the current code that allowed for the arrest, according to Pierucci.
"It was a traumatic experience for my constituent. He had to pay an attorney, and he had to go to jail for that evening. And he was clearly not stalking his ex-girlfriend," she said.
To prevent similar situations in the future, she's proposing a bill for the upcoming session of the Utah Legislature.
Currently, Utah law requires two separate stalking incidents to occur before a person can be charged with stalking. Pierucci's bill would require three such incidents to occur before a person could be charged with stalking.
Current Utah law defines stalking as following a specific person, surveying, photographing, or threatening them, and other types of harassment that can include cyber harassment. Under the proposed bill, three or more incidents would only qualify as stalking if they also show evidence of "a continuity of purpose."
The bill is a result of work over the summer with groups like the Utah Sentencing Commission, courts, prosecutors, defense attorneys and victim advocates, Pierucci said.
"And we worked through and kind of got the language to a place where everyone could be satisfied and felt like it was adding purpose, a more targeted language while still protecting our victims," she said.
But Alex Merritt, victim advocate with the Utah Crime Victims Legal Clinic, says now isn't the time to make it harder for victims to get protection as she's seen more stalking cases in 2020 than in any of her past years in the job.
"The problem with stalking is you have stalkers who respond two ways. They either get a stalking injunction or get charged with stalking, and then they realize what they're doing is wrong and they stop. Or they don't stop ever. And by changing this, you're putting a higher burden on the victim," Merritt said.
Will Carlson, deputy Salt Lake County district attorney, and his team analyzed other states' stalking codes and found in many of them an "intent or purpose restriction," according to Pierucci. A few states require three or more acts of stalking to constitute a crime, while most others use language like "repeated acts," or "a series of acts."
"This would really just help add that intent, and clearly in my constituent's case there wasn't this continuity of purpose (of stalking) between the two actions, so I think this would be really helpful," she said.
Merritt said she is concerned that adding that clause to the law would create another "burden" for people seeking help when it can already be difficult to prove a stalking case.
The problem with stalking is you have stalkers who respond two ways. They either get a stalking injunction or get charged with stalking, and then they realize what they're doing is wrong and they stop. Or they don't stop ever. And by changing this, you're putting a higher burden on the victim.
–Alex Merritt, Utah Crime Victims Legal Clinic victim advocate
"And with the enhancement of technology and with the way victims are being stalked, these stalkers are getting more clever, so by adding this and (requiring) more instances and making it a harder standard to prove in general, we're making it harder for a victim to get protection," Merritt said.
Carlson said during a recent Criminal Code Evaluation Task Force meeting that the bill likely won't prevent his office from prosecuting true, serious stalking cases.
"Shifting from two to three acts, our office did not see as a substantial barrier because the stalking cases that we see overwhelmingly have a huge number of acts in the course of conduct," Carlson said during the meeting.
If someone commits only one or two "egregious" acts of stalking like threatening violence, they can still face other charges, Carlson noted.
When asked for her thoughts on the case of the man who prompted the bill, Merritt said she believes that example is the exception rather than the rule.
"More often than not, I see the complete opposite of that — where it's hard to fight for the system to work versus cops arresting people after seemingly really two simple things that might not have actually been stalking," Merritt said.
While Merritt acknowledges she can understand why some would support the bill, she believes it would be "a step backward" for protecting victims.
The bill received support from the task force and will next move to a vote in a legislative committee during the upcoming legislative session.
Pierucci said legislators will likely need to continue working on the issue as some sections in the state's criminal code are "10 to 15 years behind" due to societal changes caused by the prevalence of social media.
She was surprised that in her constituent's case, an Instagram comment was considered by police as an instance of stalking.
"I think this will be a good start in the right direction in obviously having more targeted language," Pierucci said.
