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Virginia criminal defense- Court of Appeals on stalking

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As much as I relish my role as a criminal defense lawyer, that does not deny that we have people in the world who can scare the crap out of others, to say the least.

Ironically on Valentine’s Day, the Virginia Court of Appeals affirmed a misdemeanor conviction for stalking against Alfred Banks, Jr., who would not take D.B.’s firm, years-long replies of “not interested” and “do not contact me” that responded to his insistence that they were meant to spend their lives together. Banks v. Virginia,  ___ Va. App. ___ (Feb. 14, 2017).

In Virginia, criminal stalking takes place when “on more than one occasion” the defendant “engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s family or household member.” Va. Code § 18.2-60.3.

Although First Amendment jurisprudence provides significant protections for free speech, a potential stalker should not rely on the First Amendment to shield his or her behavior from a conviction.

Banks found the evidence sufficient to convict Bank:

“Although the appellant never actually touched D.B. or made specific verbal threats of harm, explicit threats are not the only means by which someone can instill reasonable fear in another. See Parker, 24 Va. App. at 685-86, 485 S.E.2d at 152 (affirming stalking conviction based on a ‘barrage of unwelcome phone calls’ even though the defendant did not overtly threaten the victim). Based on the evidence, the jury was not plainly wrong in concluding that the appellant’s actions would place an ordinary, reasonable person in fear of death, criminal sexual assault, or bodily injury. The jury could reasonably conclude that the appellant’s fifteen-year absence before he contacted D.B. again would cause a reasonable person to be more fearful, not less. It is entirely logical that D.B. viewed the appellant’s fixation on her as more threatening due to its long duration and unpredictability. Further, the evidence supported an inference that the appellant’s persistence and ability to locate her would reasonably cause D.B. fear as the target of his obsession.”


Of course, Virginia’s stalking statute applies to all stalking, including by those having no romantic interest in their alleged victim. Va. Code § 18.2-60.3.