Constitutional Questions Poised by New Illinois Stalking Law

September 26th, 2009

I.  Introduction and Background

 Illinois lawmakers and Governor Quinn have signed a new stalking law with some far-reaching implications, including whether normal business activity or protests could be considered stalking.

The law defines stalking as “. . . when he or she knowingly engages in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to: (2) suffer other emotional distress.” Engaging in a “course of conduct” includes “non-consensual conduct” which includes “conduct which is initiated OR continued without the victim’s consent, including, but not limited to being in the physical presence of the victim; appearing in the sight of the victim; approaching or confronting the victim in a public place.”

II. Hypothetical Situations of Normal Happenings Which this New Law Arguably Prohibits with its Language, Making the Law  Arguably Unconstitutionally Vague and Arguably Violating the Due Process Clause of the U.S. Constitution

This law, passed by well-intentioned by the lobbying of well-intentioned but overly-emotional victims of violent crimes and murder, actually can reasonably be interpreted to make it a class 4 felony for the following scenarios:

a) A Gallup Pollster on election day approaches a voter outside a polling place and asks whom he/she voted for, even if the pollster left them alone if the person declined to answer. The pollster engaged in “non-consensual conduct”, by “approaching a person”. This conduct could cause some 30 percent of the population to suffer ‘emotional distress’ by being asked a question about a private matter: for whom they voted. It is common knowledge some people don’t like to share their views on politics. This pollster knowingly approached someone, who has a 30 percent chance of suffering “emotional distress” from their question. This appears, from the language of the law, to even apply if the pollster left the person alone when the subject of the poll declined to answer. Being asked a private question could cause someone to suffer ‘emotional distress.

 (b) A group of protesters picketing a Television Station for broadcasting a rape victims’ name could be engaging in unprotected, non-exempt, “non-consensual conduct” since the TV station employees might feel “emotional distress” about having protesters decrying the employees’ work in their “line of sight.” The rape victims’ advocate group could be considered “stalking” the TV station employees. 

c) A woman goes on a trip to Southern Illinois with her husband and happens to land in the same store as one of her ex-boyfriends at a mall, whom she had no clue happens to live there. She hasn’t thought about him in years, and doesn’t see him. But he sees her! At Carson Pirie Scott, he notices her looking at cologne with her husband. The awkwardness of seeing his ex-girlfriend with her new husband, after his desire to end a relationship with her, even if she doesn’t SEE him but he sees her, is “unwanted contact” under the stalking law because she remains in his line of sight and has arguably engaged in “Non Consensual Contact” of having the misfortune to fall within ex-boyfriend’s “line of sight” even if she does so not happening to see him herself.

III. Counter-Argument Regarding Statutory Exemptions

Someone might argue with scenario “b” saying “Section (c) (9) (d) ( of the law, which contains Exemptions (1) ‘This Section does not apply to any individual or organization (i) monitoring or attentive to compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements.”

IV. Equal Protection and First Amendment Arguments Against Laws’ Exemption

Measures However, the exemption’s language only specifically mentions “public or worker safety laws, wage and hour requirements.” When interpreting statutes, Courts prefer specific language to govern over general language. So the only protected activities could limit behavior related to “public or worker safety laws, wage and hour requirements,” but not activities associated with other laws.

My response to the counter-argument would suggest the language in this clause specifically limits protected activity to individuals “attentive to compliance with public or worker safety laws” only with a vague reference to “statutory enforcement.” This could produce some truly absurd results, so extreme the issue may never be raised.

Here’s another example: If supporters of abortion rights or opponents of abortion picket an abortion clinic to express their views on the subject, both the abortion rights supporters and abortion opponents under Illinois’ new “stalking” law might be engaging in “Non-Consensual Conduct” with the abortion staff, causing the abortion clinic staff “emotional distress” interrupting their workday having to face the aggravation of a protest while they are trying to do their jobs. But if a union of abortion clinic nurses pickets the abortion clinic due to a wage dispute with the owners, their protest constitutes protected political activity under Illinois’ anti-stalking law because the otherwise “Non-Consensual Contact” involved wages and hours rather than the legalization of abortion. In my opinion, this so-called “exemption” clause constitutes an Equal Protection violation of the United States Constitution Amend XIV, because it draws irrational distinctions between different types of political speech, one which a court may reasonably consider ’stalking’, another which it does not.

The U.S. Supreme Court has ruled that all political speech is highly valued by the U.S. Constitution.  But Illinois law appears to know better:  only political speech related to wages and hours appears to now enjoy legal protection.  Other political speech could be considered stalking.

 V. “Stalking Orders of Protection”

This law was well-intentioned, but according to its literal language, all of these aforementioned behaviors could constitute a class 4 felony. The Illinois General Assembly had noble motives in mind while passing the law. Among other provisions of the new anti-stalking measure, someone can obtain an Order of Protection for the arguably above-described “stalking” behaviors known as a “Stalking Order of Protection.”

 For example, under previous Illinois Law, a celebrity visiting Illinois followed with non-threatening love letters from an obsessed fan, with whom she had no prior “dating relationship” could not obtain an Order of Protection under the Illinois Domestic Violence Act of 1986, 750 ILCS 60/1 et. seq.

The Domestic Violence Act allows Orders of Protection, that is, preventing the person against whom the Court directs the Order from initiating any conduct, such as a phone call, to their victim, or face immediate arrest without a warrant. If no Order of Protection were in effect, a violent or harassing relative could not face immediate arrest for making one phone call, and the victim would therefore face more danger for harm. Such Orders of Protection could be obtained Ex Parte, that is, without notice to the offender, for 14 days and have immediate effect, thus making police enforcement of the victim’s safety more immediate. But the Illinois Domestic Violence Act 750 ILCS 60/1 et. seq. only allows victims who suffer unwanted abuse from a person whom they previously dated, had a child in common, resided in the same household, or someone with whom a victim had some kind of direct family-like relationship.

So the former boyfriend of a woman writing constant unwanted love letters could obtain an Order of Protection in Illinois against the ex-girlfriend, previously, but not the celebrity getting unwanted love letters from a fan. The problem involved victims of unwanted and upsetting repeated contact from non-relatives, such as celebrities dealing with overly-zealous fans, and the lack of immediate police protection for these people if the fans’ disturbing contact did not contain a direct threat of violence. I’m sure lawmakers saw this situation as unfair and causing unneeded danger in situations where persons engaged in socially unacceptable, but not illegal, conduct.

VI. Possible Benefits of the New Law in Unexpected Areas for Harassing Phone Calls From Debt Collectors

 The only positive news about this law: the next time a prospective client visits me, receiving constant phone calls from a credit card company about an unpaid balance, I can advise them they may wish to file in the local court for a “Stalking No Contact Order” against the credit card company that makes constant phone calls. After all, calling someone 20 times a day at home to collect a debt reasonably could constitute a “course of conduct” which would cause a “reasonable person” substantial emotional distress. It certainly could constitute “non-consensual communication.” When the credit card corporation’s agent receives service of the Ex Parte (without a hearing for the Defendant) Stalking No Contact Order, the next morning when the phone rings at my client’s house, the police have to arrest the lady at the credit card agency making the debt collection call if she happens to do so in Illinois. That’s despite her aggravating garden-variety excuses she may offer, such as, “its not harassment because we’re a collection agency” and “don’t blame me! I’m just doing my job!”

Previously, no Order of Protection could be obtained against the Credit Card Company, unless my client also happened to have dated the agent of the Credit Card Company under the Illinois Domestic Violence Act.

VII.  Conclusion

 As the law does not take effect until January 1, 2010, we shall wait and see how Courts interpret the dangerous and vague language of this new statute.  However, I do see some benefits to the law.

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September 25th, 2009

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