Stalking, as defined by California’s domestic violence laws, occurs when an individual maliciously and willfully follows or harasses and threatens his or her intimate partner, intending to place that partner in fear for his or her safety. Intimate partners involved in a same sex relationship include those who are or were civilly united, those who have children together, those who are or were living together and those who are or were dating. If convicted of this crime, the defendant faces up to one year in the county jail and up to a $1,000 fine if convicted of a misdemeanor or up to one year in the state prison if convicted of a felony. Both a misdemeanor and a felony conviction carry additional penalties, but jail or prison is generally the defining characteristic of a criminal sentence.

Civil penalties may also face an individual accused of stalking his or her intimate partner. Both civil and criminal punishment may be sought against the offender and are not mutually exclusive, which means that an individual accused of stalking may face both civil penalties and criminal prosecution.

The major differences between a civil suit and criminal prosecution for D.V. related stalking are found in the title and role of the accuser, in the “burden of proof” and in the penalties. In a civil case, the victim (who becomes known as the plaintiff) sues the defendant for the “tort” of stalking. In a criminal court, it is the prosecutor who actually files the charge, despite the common misconception that it is the victim who “presses charges.”

The “burden of proof” is the standard that the prosecutor or plaintiff must meet to prevail. In a criminal case, the prosecutor must prove that the defendant is guilty “beyond a reasonable doubt,” which is the highest burden. In a civil case, the plaintiff must only prove that the defendant is liable by a “preponderance of the evidence,” which means that it is more likely than not that the defendant stalked him or her. Although the burden of proof is higher in a criminal trial, a civil trial alleging stalking requires more evidence. For example, a criminal charge for stalking an intimate partner can be filed based only on the accusation of the victim. However, in a civil trial, the plaintiff must provide independent corroborating evidence. Another example is that in a criminal case, it is not necessary for the alleged victim to have asked his or her partner to stop stalking him or her, but in order to file a civil suit, the plaintiff must have clearly and definitively told the defendant to stop stalking him or her, unless the defendant was already under court order to refrain from such behavior.

Civil penalties also differ from criminal penalties. A civil suit penalizes the defendant financially whereas a criminal case can result in jail or prison. A plaintiff sues in civil court for two things – money and sometimes protection. In a stalking case, both would be sought. If the defendant is found liable, he or she may be ordered to pay the plaintiff “general” damages (damages that are awarded when an exact dollar amount can’t be calculated, an example being pain and suffering), “special” damages (out of pocket expenses for hospital bills, counseling, damage to personal property, etc.) and “punitive” damages, which are over general and special damages to punish the defendant for stalking his or her intimate partner. In addition, if the defendant were found liable, his or her intimate partner would receive a civil protective order that would prohibit further stalking or other types of abuse by the defendant.

Stalking is a serious matter, whether charged criminally or alleged in a civil suit. The GLBT supportive, California domestic violence attorneys at the Kavinoky Law Firm have mastered the defenses available to this DV offense and maintain an excellent reputation for success. They can also provide referrals to gay-friendly civil defense lawyers where appropriate. Contact them today for a free consultation and for the best representation.