Title 18 U.S. Code § 2261A - Federal Stalking Laws
Stalking is a crime in every state, but when the act of stalking crosses state lines, occurs within U.S. territories or maritime jurisdictions, or utilizes U.S. mail or electronic communications at an interstate level, stalking can be charged as a federal crime—potentially with much greater penalties.
With increased internet and social media use, communicating with others electronically is now a standard procedure. Unfortunately, this also means the ways some crimes are committed, such as stalking.
Traditionally, stalking involves a physical presence by the alleged perpetrator near the victim. However, now, many stalking offenses involve using electronic means to communicate continually with someone in a way that causes harm or emotional distress.
Thus, the difference between stalking and cyberstalking is how the conduct is carried out, but the underlying impact on the alleged victim is the same.
18 U.S.C. 2261A says, “Whoever (1) travels in interstate or foreign commerce or is present within the jurisdiction of the United States, with the intent to kill, injure, harass, intimidate, or place under surveillance, or intimidate another person, and in the course of, or as a result of, such travel or presence engages in conduct that (A) places that person in reasonable fear of the death of, or serious bodily injury to (i) that person; (ii) an immediate family member (iii) a spouse or intimate partner of that person….”
Subsection (2) says it's unlawful for someone to engage in lewd conduct when they “use the mail, any interactive computer service o electronic communication service of interstate commerce, or any other interstate or foreign commerce facility.”
If you're charged with the federal crime of stalking under Title 18 U.S.C. 2261A, you could face up to five years in prison if convicted. Let's review this federal law in more detail below.
Background of the Law
As part of the Violence Against Women Act (VAWA) of 1996, Congress also included an anti-stalking law to strengthen protections for victims and close any gaps in the law.
This law, called the Interstate Stalking Punishment and Prevention Act, made it a federal crime to cross state lines with intent to harm or harass another person.
This law is now codified under Title 18 U.S. Code 2261A, imposing stricter penalties and expanding the definition of “stalking” to include electronic communications.
What Is Considered Stalking Under Federal Law?
Under 18 U.S.C. 2261A, a person is guilty of stalking when they travel across state lines or into federal jurisdiction, including maritime boundaries or Indian territory, with the intent to kill, injure, harass, intimidate, or place another person in fear of death or physical injury.
This statute also covers mail or electronic communication threats, including phone, email, and social media posts.
Specifically, 18 U.S.C. 2261A affords a comprehensive range of behaviors considered stalking. These include the following:
- Acting with the intention to kill, injure, harass, or intimidate the victim. Note the wide span between “kill” and “intimidate”—both are treated equally under federal law;
- Placing the victim under surveillance with intent to kill, injure, harass, or intimidate them;
- Engaging in a “course of conduct” that causes the victim to be in reasonable fear of death or serious bodily injury to themselves, their spouse/partner, an immediate family member, or that person's pet, service animal, or horse;
- Causing or attempting to cause substantial emotional distress to the victim or acting in a way that would be reasonably expected to do so.
Other things to know about this law:
- To be convicted of federal stalking, federal prosecutors must demonstrate that you engaged in the course of conduct, meaning two or more acts that constitute stalking, rather than a single instance. In other words, stalking is a pattern of behavior, not a single incident of harassment;
- Under the law, to harass someone means to use repeated words, conduct, or actions that serve no legitimate purpose other than to annoy, alarm, or cause distress.
What Are Some Examples?
EXAMPLE 1: Tommy develops an unhealthy fixation on Jessica, a girl he met in college. When Jessica graduates and returns home to another state, Tommy finds her address, travels to her house, sits outside in his car, and watches her comings and goings.
Jessica knows about his unhealthy fixation and is greatly unnerved by his behavior. Tommy could be charged under 18 U.S.C. 2261A because he crossed state lines in surveilling her and caused her reasonable emotional distress—even if he made no overt threats against her.
EXAMPLE 2: Andrew is angered because David broke up with him. Andrew is a musician, and David begins emailing and texting him, threatening to “break his hands” so he can't play.
He also makes unannounced visits to David's gig at the bar, glaring at him while he plays.
While Andrew may be charged with stalking and other crimes under state law, he will probably not be charged with federal stalking because his in-person and emailed threats were local and didn't involve crossing any state lines.
What Are the Related Federal Laws?
18 U.S. Code Chapter 110A domestic violence and stalking has several federal statutes that are related to Title 18 U.S. Code 2261A stalking, including the following:
- 18 U.S.C. 2261 – Interstate domestic violence;
- 18 U.S.C. 2261B – Enhanced penalty for stalkers of children;
- 18 U.S.C. 2262 – Interstate violation of protection order;
- 18 U.S.C. 2263 – Pretrial release of defendant;
- 18 U.S.C. 2264 – Restitution;
- 18 U.S.C. 2265 – Full faith and credit given to protection orders;
- 18 U.S.C. 2265A – Repeat offenders;
- 18 U.S.C. 2266 – Definitions.
Penalties for Federal Stalking Crimes
Violating U.S.C. 2261A is a federal felony. If convicted of federal stalking charges, you may face up to five years in prison and a fine of up to $250,000. However, the actual penalties that the court imposes will largely depend on the severity of your crime.
What Are the Defenses for 18 U.S.C. 2261A?
Several strategies may be available to a federal criminal defense lawyer when charged with federal stalking, depending on the facts and circumstances of your case. These are discussed below.
Perhaps we can argue there was a lack of intent. To be convicted under 18 U.S.C. 2261A, the prosecutor must demonstrate that you intended to kill, injure, harass, intimidate, or place another person in fear.
Without this intent, you cannot be found guilty of the crime. For example, perhaps in your mind, your repeated phone calls and emails were simply attempts to reach out, and you were not deliberately trying to annoy, harass, or frighten the victim.
Perhaps we can argue that you have a First Amendment right to free speech. The First Amendment protects your right to freedom of speech and expression, including sarcastic comments you make online or in a text message.
Suppose your behavior does not constitute harassment, meaning it did not serve the purpose of annoying or alarming another person. In that case, you may have a valid defense against federal stalking charges.
You can contact our law firm for a case evaluation by phone or using the contact form. We provide legal representation across the United States on federal criminal matters. Eisner Gorin LLP is located in Los Angeles, CA.