MINUTES OF THE JOINT MEETING OF
SENATE COMMITTEE ON JUDICIARY
AND
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 15, 1993
The joint meeting of the Senate Committee on Judiciary and the Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader, at 6:30 p.m., on Monday, March 15, 1993, in Room 119 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
SENATE COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus
Senator Raymond C. Shaffer
Senator Ernest E. Adler
ASSEMBLY COMMITTEE MEMBERS PRESENT:
Assemblyman Robert M. Sader, Chairman
Assemblyman Gene T. Porter, Vice Chairman
Assemblyman Bernie Anderson
Assemblyman John T. Bonaventura
Assemblyman John C. Carpenter
Assemblyman C. W. Collins
Assemblyman James Gibbons
Assemblyman William D. Gregory
Assemblyman Ken L. Haller
Assemblyman William A. Petrak
Assemblyman John B. Regan
Assemblyman Scott Scherer
Assemblyman Michael A. Schneider
Assemblywoman Stephanie Smith
Assemblyman Louis A. Toomin
GUEST LEGISLATORS PRESENT:
Assemblyman Robert E. Price
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Denice Miller, Senior Research Analyst
Maddie Fischer, Primary Secretary
Marilyn Hofmann, Committee Secretary
Chandra Penderland, Committee Secretary
OTHERS PRESENT:
David F. Sarnowski, Chief, Criminal Justice Division, State of Nevada, Office of the Attorney General, representing Attorney General Frankie Sue Del Papa
Dale A. R. Erquiaga, State of Nevada, Office of the Secretary of State, representing Secretary of State Cheryl A. Lau
Ande Engleman, Nevada State Press Association
Evan Wallach. Nevada State Press Association
Doris Brown, Private Citizen
Patricia Lynch, City Attorney, Reno, Nevada
William C. Gardner, Chief Criminal Deputy, Office of the City Attorney, Reno, Nevada
Diane Loper, Victim Advocate, Office of the City Attorney, Reno, Nevada
VeLaurie Owens, Private Citizen
Melissa Ogg, Private Citizen
Louisa Pravettoni, Private Citizen
Rhonda Rimbey, Private Citizen
Donald York Evans, Attorney at Law
Mindy Murdock, Private Citizen
Sharon E. Claassen, Attorney at Law
Joni A. Kaiser, Executive Director, Committee to Aid Abused Women (CAAW)
Tom Connolly, Private Citizen
Mike McGuire, Private Citizen
Melanie McGuire, Private Citizen
Michelle Shipp, Private Citizen
Paula Treat, Legislative Representative, Nevada Judges Association
Ben Graham, Legislative Representative, Nevada District Attorneys Association
Noel Waters, District Attorney, Carson City, Nevada
George McNally, President, Nevada Trial Lawyers Association
Chairman Sader announced the joint committees were convened to discuss three bills relating to the subject of stalking, i.e., Senate Bill (S.B.) 182, Assembly Bill (A.B.) 199, and Assembly Bill (A.B.) 203.
He said although it was unusual for the two committees to meet jointly, it represented the importance the members placed on the issue of stalking. Mr. Sader said the matter was "one of major public
importance." The chairman stated the joint committees would hear testimony from those interested in commenting on the proposed legislation, just as was done in February in Las Vegas. Mr. Sader indicated no action would be taken at this time on the bills and said he and Senator James would meet to discuss the processing of the three pieces of legislation. He stated their feeling was it was not necessary to have bills proceed through both houses at the same time.
Mr. Sader continued to say both committees had previously heard testimony from prosecutors and a number of stalking victims. He said the committee members were very impressed with the severity of the crime of stalking and how common and widespread it is. Mr. Sader indicated stalking was a precursor for other serious crimes such as rape and murder. He emphasized stalking is a crime which emanates out of the obsession of the stalker, primarily for the victim. Mr. Sader stated this crime "can come from love, from hate, or from other emotions." He said defense attorneys testifying in Las Vegas did not oppose the legislation, but questioned various phrases, words, and the handling of the actual bill draft itself, and "whether it would achieve the purposes."
Mr. Sader stressed both committees understood the nature of the crime and how it has affected many victims and urged those about to testify to be brief in that regard, since the committee members fully realize the seriousness of the crime and how terrorizing it can be.
Senator James stated the committees have come to the point where they are trying to fashion legislation in the area of stalking that is fair and equitable. He said he believed the hearings have progressed to the point where the committees can focus on a law that is not over- broad and does not take in unintended activities, in order to "make this the best law possible to address the problem."
Mr. Sader said there was "no question there is going to be a stalking bill...that is going to pass." He indicated the question was that of form, since a criminal law which is fashioned must stand up in court to the challenges that will take place.
SENATE BILL 182: Creates crimes of stalking and aggravated stalking.
ASSEMBLY BILL 199: Creates crimes of stalking and aggravated stalking.
ASSEMBLY BILL 203: Creates crimes of stalking and aggravated stalking.
Mr. Sader indicated he would first call upon the representatives of those state constitutional officers who wished to testify.
The first to testify was David F. Sarnowski, Chief, Criminal Justice Division, State of Nevada, Office of the Attorney General, representing Attorney General Frankie Sue Del Papa. Mr. Sarnowski read the statement of the attorney general, which is attached hereto as Exhibit C. Mr. Sarnowski added he believed the Nevada District Attorney's Association would present amendments to the consolidated bills and indicated the attorney general's office would be supportive of those efforts. He said the intent was to resolve concerns of the joint committees and the criminal defense bar, "...so we do not unduly encroach upon the rights of persons who may be subjected to prosecution under a statute enacted by this body." Mr. Sader asked Mr. Sarnowski to thank Attorney General Del Papa for providing the joint committees with a statement.
The next to speak was Dale A. R. Erquiaga, State of Nevada, Office of the Secretary of State, representing Secretary of State Cheryl A. Lau. He indicated Ms. Lau was the chair of the Nevada Commission for Women and her statement, attached hereto as Exhibit D, was presented on behalf of that commission. Mr. Erquiaga summarized for the joint committees the information and comments set forth on the attachment to Exhibit D.
Mr. Sader asked Mr. Erquiaga to thank the secretary of state for providing her statement.
Speaking next was Assemblyman Robert E. (Bob) Price, who indicated he was the sponsor of one of the three pieces of stalking legislation in front of the committees. Mr. Price pointed out one problem which has arisen regarding the stalking issue, that being the activities of a private investigator who may be conducting a surveillance for a legitimate, lawful reason. Mr. Price read a letter to the committee, which was received by Assemblywoman Myrna Williams. The letter is attached to these minutes as Exhibit E. Mr. Price also provided the committee members with information obtained from a federal labor publication, relating to the Fourteenth Amendment to the United States Constitution. That information is set forth as Exhibit F. He pointed out the necessity of crafting the legislation "narrow enough" to protect persons who are legally conducting activities which could approximate stalking.
The next to testify were Ande Engleman and Evan Wallach, both representing the Nevada State Press Association. Ms. Engleman stated the association was not opposed to the legislation but said there were concerns which might affect the press, and the association's counsel,
Mr. Wallach, would speak to those issues. Mr. Wallach stated:
We have no intention of diluting the seriousness of the problem of stalking...we are familiar with it. What we are concerned with is that this bill may be diluted by being overbroad. We would like to suggest some language that will exclude working members of the press...those performing their duties as members of the press....
Mr. Wallach indicated the language which the association has drafted is set forth on Exhibit G. He indicated the association had tracked the language contained in Nevada Revised Statutes (NRS) 49.275, the "press shield law," and had modified the language for these purposes "to exclude persons who were not working within their capacity as members of the press." He said they believed this was a "relatively narrowly drawn exception."
Testifying as a private citizen affected by the crime of stalking, was Doris Brown, who explained what has happened to her and to her family. Ms. Brown stated she was not being stalked by a former lover or husband, but rather by a person who had done business with her company. Ms. Brown stated:
I stood up to a man 3 years ago...and he didn't like that. When I stood up to him, he started screaming at me...spit on me...struck me in the face...tried to crush my skull...my husband confronted him and he admitted doing this. We made a police report. Because this man is very prominent in the community we live in...I said very foolishly...the man has a family...he could lose his job [if we had him arrested]. Now, with all my heart, I wish we had had him arrested. The man has not stopped. He torments my family...he torments me....
Ms. Brown indicated the police have only been able to tell her to "keep a record of what he does."
Ms. Brown indicated she received pornography in the mail which she believes was caused by the man in question. A sample of what she has received was provided to the committee members, and is attached hereto as Exhibit H. Ms. Brown stated, "He puts me on every pornographic mailing list around." She added:
I am a wife...I am a mother...I am a Sunday school teacher, and I am raped every time I open the mail and I find things like this [see Exhibit H] addressed to me. Every time I go to the police they say, 'We just have to keep track of this.'
Ms. Brown stated she and her husband have been in business in Douglas County for 17 years, and the "stalker" has destroyed that business. She testified:
He finds out who my clients are and he contacts them. He drives up and down my street...a dead end road...he has no business on my street. He has poisoned my dogs, turned out my horses, and intercepted my mail.
Included with Exhibit H is a photograph of mail addressed to the Brown family, which Ms. Brown indicates became "held back" at the post office, where the perpetrator is an employee. She stated this picture represented only one-third of the mail which was held back and which she received four months late. Ms. Brown stated the mail was "sitting on the floor in a tub in the post office" and indicated she knew what had happened.
Ms. Brown stated her family thought eventually one of them would be seriously harmed and added the "stalker" had already tried to run her husband off the road. She added:
There are people who are obsessed with an idea in their head and they won't give it up. He tells people very boldly, 'What is anybody going to do to me...I work for the government...I am a minority...and no one can touch me.' He tells people, 'I am going to teach her a lesson.' I have no idea why this man is doing this. He is just obsessed...we are not dealing with normal people when we are dealing with stalkers...we are dealing with someone who has a thought in their mind and has taken it to the furthest extreme they can take it, to destroy someone's life. At this point in time, he has almost destroyed us mentally, emotionally, financially...and there is nothing we can do to him...nothing.
Mr. Sader advised Ms. Brown the legislation they propose would cover most of the activities she has described.
Appearing next were Patricia Lynch, City Attorney, Reno, Nevada, William C. Gardner, Chief Criminal Deputy, Office of the City Attorney, Reno, Nevada, and Diane Loper, Victim Advocate, Office of the City Attorney, Reno, Nevada. Ms. Lynch indicated the office takes domestic violence cases "very, very seriously," and stated Ms. Loper works with victims, prepares them for trial and provides support to them during the process. Ms. Lynch indicated the office has prosecuted many stalkers. She provided the members of the joint committees with a copy of an article appearing in the Reno Gazette-Journal on January 24, 1993. (Exhibit I) Ms. Lynch stated several
of the victims mentioned in the article were present at the hearing and may testify. Ms. Lynch continued:
Those [cases] are very serious, and we are handling them as misdemeanors. We do the best we can, but we are not really well-equipped to handle cases that are this serious. We handle them under 'disturbing the peace,' 'harassment,' or 'violation of temporary orders of protection' and 'extended orders of protection.' We do not have serious sanctions... the maximum penalty is 6 months in jail or $1,000 fine... that is all we can get. We have no system of parole or probation...it is very informal. We think there is a big hole here and you need much stronger criminal sanctions.
Ms. Lynch indicated in many of the cases she has seen the victims are women who have ended up buying guns, and some have almost had to use them. She added, "This is domestic terrorism at its worst...these people are scared for their lives, and they are being forced to be armed...this is not what we want...." Ms. Lynch said not all municipal courts are "courts of record," although Reno and Sparks are. She stated, "If you are not a court of record, the defendant gets a trial de novo...a brand new trial in district court." Ms. Lynch indicated if they had to have a "brand new trial" in some of the stalking cases, "...we would never make it...it just wouldn't happen." She continued:
If you are in other jurisdictions in the State of Nevada, and the law doesn't change...and you are just going in on harassment...the victim is going to have to go through it twice, if the defendant appeals. I think that is important to take it out of that category. You would do that if you make it a gross misdemeanor.
Mr. Gardner asked the committee members to consider, when finalizing a piece of legislation "which will hopefully go to the Governor," the matter of time in prison. He said:
To get to the level of a felony conviction...you have to get caught and convicted twice of aggravated stalking. ...Robbers currently serve...a potential penalty of 1 to 15 years...1 to 10 for burglary...1 to 10 for grand larceny. ...I will tell you these stalkers are every bit as dangerous as a robber, and probably more dangerous as burglars, thieves and other felons. The realities of prison overcrowding and the realities of the criminal justice system mean if someone were to be convicted of 'felony aggravated stalking' for a second offense, probation many times is likely. Short prison terms for these offenders are likely, and similar to our felony DUI laws...many of these offenders get 1 to 2 years, which really translates into as few as 67 days in the Nevada State Prison...The repeat offenders, if they don't kill, may serve as little as 2 years on a maximum 6-year sentence ...by imposing or at least extending to a realistic term of 1 to 15 years, a sentencing judge would have the discretion to give someone as long as 15 years, which many of these people probably deserve, and it would provide at least some consolation and breathing room for the victims...but even a 15-year term translates into as few as 5 or 6 years....
Mr. Gardner urged the committees, "...knowing how dangerous these people are and how so few are really amenable to treatment," to consider a 1- to 15- year term. He stressed a higher prison term was warranted in these cases.
Ms. Loper stated she has "seen a lot of stalkers and a lot of women being stalked" in the 15 years she has been a victims' advocate. She requested the committees pass "the very strongest law possible...and not allow it to be watered down...."
Mr. Sader asked Ms. Loper if any of the victims who had accompanied her to the hearing wished to testify. The first to step forward was VeLaurie Owens, who testified she has been the victim of a stalker for 4 years. She stated the stalker has ignored five restraining orders, issued by two different states. Ms. Owens said she has moved "numerous times from state-to-state and city-to-city" and has not been able to pursue her life with regard to employment, family and relationships. She indicated any friend and acquaintance would be in jeopardy "at all times." Ms. Owens continued:
My life...my health has been endangered...it has caused me severe health problems. I suffer from seizures because of this. It is tortuous torment...absolutely endless...and they [the stalkers] find you wherever you go. They are extremely obsessive and extremely dangerous. They cannot be underestimated in the least, or treated lightly.
Ms. Owens stated she believed the laws at this time do not protect victims in any way. She said the person stalking her was arrested, received probation "...and a slap on the hands." Ms. Owens indicated she has moved seven times from shelters to safe homes since she was last attacked in December, 1992. She added, "I can't have a home...I cannot be near my daughters." Ms. Owens indicated she had been followed from Nevada to Southern California and her daughters had also been followed. She concluded:
I can't stress enough how threatening they are and what they do to you on a daily basis...they steal your freedom...I will never have my freedom back again." ...He has mentally, emotionally and physically taken my life away, and I will never be the same.
Ms. Owens stated she did not want to carry a gun but has had to buy a weapon. She said stalkers "have no remorse and just keep coming after you on a daily basis." Ms. Owens indicated the stalker will soon be released from jail after "trying to strangle me," and she said she feels she will have to change her identity and go to a different state, although she has moved over 30 times in 4 years, with the stalker finding her every time.
Ms. Owens urged the committee members to establish the crime as a felony, not a misdemeanor. She stressed the importance of public awareness and the possible establishment of a "stalking network" which contained the names of stalkers. Ms. Owens also suggested forming support groups for victims of stalkers.
The next to testify was Melissa Ogg who testified she has been stalked by a former spouse for over 2 years. Ms. Ogg said she has been held at gunpoint on several different occasions, once in front of her 18-month-old daughter. She also recollected with emotion an occasion when the person took her to the desert and threatened to kill her. Ms. Ogg said she has had a protection order for over a year, "...which is a piece of paper which might as well say nothing on it." Ms. Ogg said the stalker has many charges against him but goes by her place of employment, her home and the home of her boyfriend. She said she has an unlisted telephone number, but it has been obtained by the former spouse and he is calling her again. Ms. Ogg stressed the importance of a stronger sentencing structure and said she believed a victim should be notified whenever a stalker is going to be released from prison. She said she was afraid to own a gun, because she has three children. Ms. Ogg concluded, "I just hope everybody here knows how important this is."
Two women who were both stalked by the same person, Louisa Pravettoni and Rhonda Rimbey, testified together. Their story was set forth in the article attached as Exhibit I. Ms. Rimbey indicated she left her husband in 1991 and hid with members of her family. She said she felt her family was in danger, because her former husband told her if she left him, he would kill her and her family and any of her contacts. Ms. Rimbey stated before she left her home, her husband held a gun to her head and threatened her. She said after that time, he called her at her place of employment at least 15 times each day. She indicated when he would reach her, he would say, "You're dead...I'll find you and I'll take care of you." Ms. Rimbey said her former spouse would constantly call her family, friends and coworkers to attempt to find where she was. She added, "My [family] had to take me to work and pick me up...I felt like a child." Ms. Rimbey stressed she never feels safe and cannot go anywhere except to work and home.
Ms. Pravettoni stated she "met the same gentleman," who was a co-worker, in 1991. She stated he "seemed like a nice person" and they became friends. Ms. Pravettoni said he appeared to have a lot of problems because he was going through a divorce, "...a terrible divorce, from what he told me." She said a few months after they met, she "started backing away." She said she had "a friend" start visiting her and the stalker started showing up at her home several times each day, and began calling "continuously." Ms. Pravettoni indicated she took a trip to California and while she was gone, the stalker called over 17 different people in that state to find where she was. Apparently, she said, he found her personal telephone book. Ms. Pravettoni stated when she returned, she asked the person not to call or see her any further. At that point, she said, the stalker told her, "If you don't see me, you won't see anybody, ever," at which point he began following her everywhere she went. Ms. Pravettoni stated the perpetrator placed an advertisement in the Reno newspaper in her name, indicating she was hiring strippers. She said he also put putty into her doorway so she could not get into her home. She indicated he filed police reports which stated she was doing things to him such as stealing his gun. Ms. Pravettoni further stated the stalker threatened her if she did not leave Nevada and indicated "things might start to happen to her car." She said her son and family, as well as herself, have been threatened with death. Ms. Pravettoni related an occasion when the stalker held up a sign for her to see which said, "You're dead, bitch." After this incident, she related, she went to the police and who told her, "I wasn't married to him...I didn't have any children by him...I never lived with him... so I didn't qualify for a restraining order." She said eventually she was granted a restraining order, after the case was reviewed. Ms. Pravettoni stated the perpetrator did spend some time in jail, but as soon as he was released, the calls from him began again, although she had changed to an unlisted number.
Ms. Pravettoni urged the committee to enact legislation to cover a situation such as hers, especially with respect to restraining orders.
The next to testify was Donald York Evans, a criminal defense attorney. Mr. Evans was accompanied by his client, Mindy Murdock, who was a victim of a stalker, but did not testify personally. Mr. Evans pointed out a person who smokes marijuana ("pot") in their own home is committing a felony, but what happened to Ms. Brown, who testified earlier, would not be considered a felony. Mr. Evans stated, "I am not in favor of more laws...but this is a law that we need." He said at this time there is no means to restrain stalkers and "put them behind bars." Mr. Evans indicated his client, Ms. Murdock, "...did everything right." He said she kept records and went to the authorities, but it took 14 months and 14 separate court dates with three separate courts before the perpetrator was jailed. Mr. Evans stated the man has "surfaced again" after 2 years, indicating a misdemeanor charge "...is of no consequence to these people whatsoever." He said, "The only way to get anyone's attention in the criminal justice system today is to charge them [the stalkers] with a felony." Mr. Evans stated this type of crime is dangerous, serious and violent which should be treated as such. He said he and his client "used every avenue available to us under the law to proceed against this individual, without success, because there was nothing with any teeth in it...to hold somebody in jail...." Mr. Evans stated the law enforcement community will not give the serious attention which is needed in this type of crime, if it is not a felony.
Mr. Evans indicated violation of a court-ordered restraining order should be a felony, rather than a gross misdemeanor. He urged the joint committees to seriously consider the numerous crimes within the state which are felonies "...when what is happening to these women is not." Mr. Evans stated he found that to be a travesty.
Speaking next was Sharon E. Claassen, an attorney, who presented written testimony, set forth as Exhibit J. She stated the presence of the joint committees "was a real showing" they were serious about passing stalking legislation. Ms. Claassen said she has represented battered women for 13 years and has shared some of the frustrations of the restraining order legislation already passed. She said her main concern was passage of a bill "which would have some effect and not be just a gesture." Ms. Claassen echoed other testimony which indicated a classification of "gross misdemeanor" would not have any effect. She said the individuals they were dealing with involving stalking, would not be stopped by a misdemeanor charge and added, "They are beyond that." Ms. Claassen said she had reviewed legislation passed in Kentucky, which states if it is proven an individual has conducted any stalking act with a weapon "on or about his person," it is an automatic felony. She also referred to language in the suggested legislation before the joint committees which referred to "issuance of an order." Ms. Claassen stated she did not believe an order was appropriate and would not be the signal to send to persons "in this kind of activity." She suggested deletion of the provision regarding an order and removal of any stalking crimes from the bail schedules. Ms. Claassen indicated she would rather see a provision which would require any individual who was arrested on a stalking offense be taken before a magistrate for a bail hearing. She said conditions of bail could be set forth at that time, which might include "stay-away orders." Ms. Claassen closed by expressing her appreciation for the concern shown by the joint committees.
The next to testify was Joni A. Kaiser, Executive Director, Committee to Aid Abused Women (CAAW). Ms. Kaiser submitted a written statement, including attachments, which is set forth herein as Exhibit K. She expressed the need for statewide consistency regarding the court programs presented by the National Council of Juvenile and Family Court Judges, as set forth in Exhibit K.
Speaking next was Tom Connolly, who presented a written speech, attached as Exhibit L.
The next persons to appear before the joint committees were Mike and Melanie McGuire, representing themselves and an organization known as Parents of Murdered Children. Mrs. McGuire stated they spoke for their daughter, Kathy, who was stalked by a roommate and murdered in February, 1991. She emphasized the need for "tougher stalking laws."
Michelle Shipp spoke as a private citizen who was a victim of a female stalker whom she has never met except casually. Ms. Shipp stated:
I did a book drive for the women in prison...she contacted me...I met her for a cup of coffee...she gave me a box of books...three months later, she is sitting outside my house. She watches me go to work...she watches me come home. She sits in the park on the street I have to pass to get home.
Ms. Shipp indicated she called the police because she did not know who was sitting in front of her house at midnight, and the police provided her with the name of the woman. She stated she is lucky she has policemen living on her street that watch out for her. Ms. Shipp indicated there is nothing illegal about the woman's activities, since she stays on public streets. Ms. Shipp said she knows nothing about the woman except her name and does not understand why she is being followed. She added she is afraid because she does not know if the woman will hurt her. She concluded, "Hearing the rest of the stories tonight makes me realize how afraid I am...I feel terrorized...I don't sleep anymore."
The next to speak was Paula Treat, representing the Nevada Judges Association and the Northern Nevada Peace Officers. Ms. Treat indicated both her clients have urged her to request stalking bills, since they are very concerned about the issue. She said her clients request the bills be "as tough as possible."
Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence, provided her written testimony, which is attached as Exhibit M. Ms. Meuschke was unable to be present to testify.
The last to testify were Ben Graham, Legislative Representative, Nevada District Attorney's Association, George McNally, Nevada Trial Lawyers Association and Noel S. Waters, District Attorney, Carson City Nevada. Mr. Sader indicated Mr. Waters has worked on amending language in the legislation. The chairman indicated legislation such as this was "characteristically challenged on constitutional grounds, either on the First Amendment issue, freedom of assembly, or void-for-vagueness standards. He said one of the largest concerns held by legislators is to "try to pass a bill which will withstand the challenge that will arise as soon as people are prosecuted."
Mr. Graham recalled testimony which was held in Las Vegas and the documents provided to the committees at that time regarding statutes in other states. He said the district attorney's association and the trial lawyers have been working on language which "hopefully would meet the needs which have been presented, provide adequate remedies and reflect penalties for the severity of the crime. Mr. Graham said the issue was not limited to females, since men have reported stalking incidents as well.
Mr. Waters presented a position letter to the joint committees, which is attached as Exhibit N. He agreed with earlier testimony regarding the need for "stalking legislation." Mr. Waters stated one concern regarding the enforceability of a bill dealing with stalking was a "clear-stated ability to separate lawful or legitimate activity from unconsented to and illegitimate activity." He said a large portion of the testimony reflected lawful activity, such as "walking down the street," even if the party was shadowing someone as he or she was doing so. Mr. Waters stated the district attorney's association and the trial lawyers have attempted to offer a revision of the stalking legislation to define and make allowances for legitimate activities." He said their proposal was intended to define the term, "without lawful authority," to include acts "which are initiated or continued without the other person's consent, and which are not otherwise authorized by specific constitutional or statutory law...." Mr. Waters continued to outline suggestions set forth on Exhibit N,, which would only change the definitions in section 1 of the statute (Chapter 200, NRS.) He referred to page one of the suggested amendments to section 1 and discussed each paragraph therein.
Mr. Waters stated it appears some of the persons who engage in stalking are not in a "malicious state of mind," but rather are compulsive and obsessive with a need to control. He said they feel the law should be very broad in order to cover willful stalking, whether or not it is malicious.
Mr. Waters stressed "another area for improving the ability to prove these kinds of cases" appeared in the definition of "course of conduct." He pointed to the suggested language contained in section 6(a) of the statute, as set forth in Exhibit N. He said the language would "address in a provable way a pattern of activity to separate that pattern from an action which might be argued to be inadvertent or accidental...."
Mr. Waters referred to penalties and the discussions in that area with respect to how strong the law should be "in light of the social problems presented." He said he did not disagree with the witnesses who testified earlier but said they often have a problem with application of the penalties provided. He suggested a 1- to 6- year felony penalty "may bear some looking at, based upon the fact we want to be consistent with other areas of our law." He pointed out involuntary manslaughter carried a 1- to 6-year penalty and voluntary manslaughter carried a 1- to 10-year penalty. Mr. Waters stated he believed the need was for "a little truth in sentencing." He indicated prison officials say, "If you want a person to be in prison for a year, they had better get a 6-year sentence."
Mr. Waters concluded by saying all of his statements were made with the agreement of the trial lawyers association. He added:
Speaking for myself, if you want to put some teeth into this law, you might consider a requirement of court-ordered counseling if probation is going to be allowed...you might allow the court with the consent of the victim to require the offender to wear a proximity device, similar to the ankle bracelets they have now under house arrest...a low watt transmitter, intended to activate within 200 feet...the victim would wear a pendant or bracelet that will either buzz or light up when the stalker is around.
Mr. Waters stated some stalkers "may well learn from a misdemeanor offense...you can hammer some of them flat and they will not learn anything...they will continue...when they get out of jail." He said with respect to a repeat offender, "The third offense misdemeanor stalker or the second offense felony stalker ought to have mandatory prison time with no probation, no suspended sentence and no messing around."
Mr. McNally added to Mr. Waters' statement by saying:
Instead of putting teeth into this bill, this bill may be the teeth that start it out...they may be baby teeth, but until this bill is passed...or whatever message this legislative session sends out, the deterrence factor I think needs to be here we can't gage, because we don't know what motivates the intent of the deranged stalker...at least this is leading us in a direction to do something about these problems....
Mr. Sader asked Mr. McNally if he had a comment regarding Mr. Waters' suggestion regarding a proximity device or mandatory counseling. Mr. McNally answered it might be wise if it was a first offense stalking conviction. He said he did not believe this would be "offensive to anybody" in either the trial lawyers association or the criminal defense bar.
Senator Adler referred to a DUI offense which is considered a serious social problem, "...but we don't consider it enough to make it a felony for the first offense...we have minimum sentences and counseling options." He asked the witnesses if they agreed with that approach for a first offense under the stalking statute. Mr. Waters answered he would have no problem with that approach. He pointed to the potential fiscal impact on the county jail systems. He expressed earlier testimony that people who "will be deterred" would be by a minimum sentence on the first offense.
Mr. Graham stated the district attorney's association had initially urged the statute be effective upon passage and approval, but indicated that might not be appropriate. However, he added, "something before October 1st would be desirable."
Mr. Toomin referred to the Massachusetts law which went into effect recently, and said it seemed "pretty stringent." He asked Mr. Graham if he knew of any constitutional challenges had been made to that law. Mr. Graham said their research had revealed no instances of challenges having gone through the courts at this time in Massachusetts or any other state. Mr. Toomin also pointed out the Massachusetts law covered penalties for ignoring restraining orders, which he stated is not addressed severely enough in the Nevada legislation. Mr. Graham said the position of the parties developing the legislation was to make suggestions to the committees, and it was up to the committee members to consider the testimony presented and "go where it leads you."
Mr. Schneider asked Mr. Graham if numbers regarding fiscal impact could be provided to the joint committees. Mr. Graham stated he would attempt to obtain figures from Washoe County and Clark County.
There being no further business to come before the joint committees, Mr. Sader adjourned the meeting at 8:00 p.m.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
_____________________________________
Assemblyman Robert M. Sader, Chairman
DATE: _______________________________
_____________________________________
Senator Mark A. James, Chairman
DATE: _______________________________
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Senate Committee on Judiciary
Assembly Committee on Judiciary
March 15, 1993
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