Oregon stalking statutes allow a person to petition a court for a civil stalking order, while also making the act of stalking a crime. In many cases, the need and basis for stalking order remedy may overlap with a Family Abuse Prevention Act (FAPA) Order, making it complicated to litigate stalking-related issues in Oregon.
ORS 30.866 - Civil Stalking Order statute
A person may petition a court for a civil stalking order and/or damages for stalking under ORS 30.866. To prove stalking, the petitioner must show that the person whom the order is sought against:
(1) Intentionally, knowingly, or recklessly engages in unwanted contact with the petitioner or a person in the petitioner's household, thereby coercing or alarming the other person.
(2) It is objectively reasonable for a person in the victim's situation to have been alarmed.
(3) The repeated and unwanted contact cause the victim reasonable apprehension regarding the victim's safety (or the safety of the member of the victim's household).
The petitioner may also seek special and general damages for stalking, as well as attorney fees. A preponderance of the evidence standard applies.
Mechanics of Applying for a Stalking Order
The actual procedure for obtaining a stalking order in Oregon may vary greatly depending on the county in which the order is sought. My informal survey shows that Multnomah, Washington, and Lane County do not address stalking in their supplementary local rules. Stalking forms are available online, however, at http://www.ojd.state.or.us/Web/OJDPublications.nsf/Civil%20Stalking%20Protective%20Order?OpenView&count=1000.
ORS 163.732 - Crime of Stalking
A person commits the crime of stalking if:
(1) The person knowingly alarms or coerces another person or a member of that person's immediate family or household by engaging in repeated and unwanted contact with the other person;
(2) It is objectively reasonable for a person in the victim's situation to have been alarmed or coerced by the contact; and
(3) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim's immediate family or household.
Stalking is a Class A Misdemeanor, or a Class C Felony if the defendant has a prior stalking conviction.
ORS 163.750 - Crime of Violating a Stalking Protective Order
This statutes makes it a crime to violate a stalking order previously entered by the court. In contrast, ORS 163.732 criminalizes stalking behavior, regardless of whether a stalking order has been entered by a court.
Stalking Case Law In Oregon - State v. Rangel, 328 Or. 294 (1999)
In State v. Rangel, the Oregon Supreme Court upheld the constitutionality of ORS 163.732. At the same time, the Court narrowed the statute by ruling that "the definition of 'coerce' in ORS 163.730(2) expressly requires proof of a threat." The court further held that "a speech-based contact would be punishable as an element of stalking only if it constitutes a threat."
In State v. Rangel, the court affirmed that the standard for "threat" set forth in State v. Moyle, 299 Or. 291 (1985), dealing with the crime of Harassment, should be also be used in stalking cases. Thus, "a proscribable threat is a communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful facts."
Stalking Case Law In Oregon - Wood v. Trow, 228 Or App 600 (2009)
Key comments by the court include the following:
"Under Article I, section 8, of the Oregon Constitution, unwanted contacts that involve speech are subject to a heightened standard of proof. To qualify as a predicate unwanted contact, any contact that involves speech must constitute a threat . . ."
"The kinds of threatening contacts that may support the issuance of an SPO do not include 'the kind of hyperbole, rhetorical excesses, and impotent expressions of anger or frustration that in some contexts can be privileged even if they alarm the addressee.'"
The court nonetheless affirmed the circuit court's decision to grant a stalking order, because the respondent and engaged in various non-communicative acts, such as parking his car in the petitioner's driveway. The court noted that "Those contacts may not have been overtly threatening in and of themselves. Nevertheless, they provide context for the other, noncommunicative contacts."
The case law creates a much higher standard for stalking when the conduct at issue is communicative in nature. Thus, a person seeking to establish stalking should emphasize the non-communicative aspects of the alleged stalker's behavior, to avoid having to prove explicit threats under the Rangel standard.
For an attorney representing the respondent in a stalking case, the reverse applies - you should emphasize the communicative nature of the respondent's behavior. Because this is a somewhat technical legal argument to make, you might consider waiving a jury in a criminal stalking case.
FAPA Restraining Order vs. Stalking Order
According to the Oregon State Bar Family Law CLE book, a petitioner may be able to get both a FAPA order and stalking order in some situations. However, a stalking order may offer a petitioner better protection, for the following reasons:
1) Unlike a FAPA order, a stalking order does not require a family relationship between the parties.
2) It is easier for a minor to obtain a stalking order compared to a FAPA order.
3) Stalking orders are of indefinite duration.
4) Violation of a stalking order is a crime, while violation of a FAPA order is merely contempt of court.
Recent Caselaw Update - Van Buskirk v. Ryan
In Van Buskirk v. Ryan, 233 Or.App. 170, 172-73, 225 P.3d 118, rev. dismissed, 348 Or. 218, 230 P.3d 20 (2010), defendant wrote unsolicited letters and e-mails to a newspaper employee whom he met at open house and attempted to establish a romantic relationship with her. The court entered a permanent stalking protective order holding that communications themselves did not provide a basis for the entry of stalking protective order because defendant's contact did not contain an unequivocal threats that instills a fear of imminent and serious personal violence and is objectively likely to be followed by unlawful acts. However, newspaper employee established that defendant intentionally engaged in repeated unwanted contacts, that it was reasonable for employee to have been alarmed by contacts, and that the contacts in fact caused employee apprehension regarding her personal safety or safety of members of her family, and therefore, stalking protective order was warranted.
Recent Caselaw Update - V.A.N. v. Parsons
On petition for SPO, if "contact" involves speech, state constitutional article protecting freedom of speech requires proof that contact constitutes a "threat," that is, a communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts; threat must be so unambiguous, unequivocal, and specific to addressee that it convincingly expresses to addressee the intention that it will be carried out. V.A.N. v. Parsons (2012) 296 P.3d 522, 253 Or.App. 768
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