MINUTES OF THE

      SENATE COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      April 19, 1993

 

 

 

The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:00 p.m., on Monday, April 19, 1993, in Room 224 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda.  Exhibit B is the Attendance Roster.

 

 

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

 

STAFF MEMBERS PRESENT:

 

Dennis Neilander, Senior Research Analyst

Sherry Nesbitt, Committee Secretary

 

OTHERS PRESENT:

 

Beverly R. Hill, Member of the Public

Cecilia Lampley, Member of the Public

Kerry Haggard, Member of the Public

Jason Hegne, Member of the Public

R.J. Barchard, II, Member of the Public

Edy Rooke, Member of the Public

Susan A. Lentz, Member of the Public

Joni A. Kaiser, Lobbyist, Committee to Aid Abused Women, Nevada   Network Against Domestic Violence

Andrea L. Engleman, Lobbyist, Nevada Press Association, Inc.

Heather Shafer, Legislative Intern, University of Nevada, Reno

Noel S. Waters, Lobbyist, Nevada District Attorney's             Association, District Attorney, Carson City, Nevada

Doris Brown, Member of the Public

Roberta Gang, Lobbyist, Nevada Women's Lobby, Reno

Samuel P. McMullen, Lobbyist, Nevada Broadcasters Association

Diane Loper, Member, Nevada Women's League

Rosemary Witt, Member, Nevada Nurses Association

Janet L. Gilbert, Lobbyist, League of Women Voters

Ben Graham, Lobbyist, Nevada District Attorney's Association

Fred John, Boyfriend of Beverly R. Hill

 

Senator James opened the hearing on Assembly Bill (A.B.) 199.

 

ASSEMBLY BILL 199:            Creates crimes of stalking and                         aggravated stalking.  (BDR 15-41)

 

Senator James advised that A.B. 199 has been heard twice by the Senate Committee on Judiciary.  The bill was heard in joint session with the Assembly Committee on Judiciary on February 17, 1993 in Las Vegas, and again on March 15, 1993, in Carson City.  He advised there were originally three identical bills addressing the crime of stalking.  By the drawing of lots, the two committee chairman agreed that A.B. 199 would be processed and the other bills held.  Senator James advised the Assembly Committee on Judiciary had an additional hearing on March 26, 1993.  On April 5, 1993, the bill passed out of the Assembly.  He stated a few changes were made to the bill in the assembly. 

Senator James advised that there had been a great deal of testimony on A.B. 199.  He stated a great number of courageous people who had been victims of this activity, not yet criminal in Nevada, came forward in both joint hearings to testify.  He stated the testimony was very compelling and he believed everyone on both committees was deeply moved by that testimony.  He stated he believed the Senate Committee on Judiciary needed to review the statute to determine its effectivness, not only to address the potential crime, but also to be certain the statute will not be unconstitutional.  He stated if persons wished to be heard on the aspect of stalking itself, the committee would be pleased to hear their testimony, but reminded those present that the committee has heard much testimony, and to please keep their comments brief. 

 

Beverly R. Hill, Member of the Public, testified in support of A.B. 199.  Ms. Hill stated that she has been stalked by her former husband since 1988, and there has never been a law to protect her.  She obtained a restraining order approximately 5 years ago, which  was effective for a short time.  The restraining order was broken, and her stalker was arrested and restrained from bothering her for 1 year.  She stated that since 1988, with the exception of that 1 year, she has been stalked every day.  She wants a law on the books which will protect her.  She submitted to Senator James a copy of a 10-page log of her most recent complaints.  She stated she took this log to the police station a few days before.  She was told she had enough to support the issuance of a restraining order, however, the stalking not only involves her, but also her live-in boyfriend.  She stated her boyfriend is being stalked not only at their residence, but at his place of employment and the places they go to eat and date.  She stated that her boyfriend has been constantly harassed, even as recently as the previous Friday and Saturday.  She stated they are sleeping with guns and she has not opened the blinds or drapes in her home for 5 years.  She stated she feels like a prisoner in her own home.  She asked that the committee please pass A.B. 199.  She advised her written log is something she would not wish to have published in the paper, as she is involved in a volatile situation.

 

Senator James advised Ms. Hill that there were members of the media present.  He also advised her that if she submitted the log to the committee it would become public record. 

 

Ms. Hill stated she has lived with fear long enough and wished to submit the log in hopes it would help to get something done.

 

Senator James advised Ms. Hill that if she wished to give the log to him, he would use as much discretion as was legally possible.

 

Jason Hegne, Member of the Public, provided oral testimony in support of A.B. 199.  He advised that he is a personal protection specialist.  He stated he is hired by people when they feel that a threat made against them is potentially real, and have nowhere else to turn.  He advised that to ensure a threat does not become reality, he constructs a protection plan which keeps his client away from threatening situations.  He stated that having a law of this nature is the only way he can guarantee his clients' safety, as it is impossible at this time to stop the threat itself.  He stated in states where anti-stalking laws exist, private security persons are able to work closely with the court systems and law enforcement to ensure the safety of law abiding citizens. 

 

Ms. Edy Rooke provided oral testimony in support of A.B. 199.  She advised she has been a Carson City resident for 19 years and was stalked and harassed for 10 of those years.  She stated the sheriff's department was powerless to help her, even though they were well aware of the situation, and she believed she would still be harassed had her stalker not died.  She stated that being constantly watched, followed, having her friends annoyed, and receiving crank phone calls had left its mark on her, even though it has been 5 years since she has been harassed.  She gave an example of checking her property, which is something she has done for so long it is now second nature.  She stated that her experience with stalking happened before "Caller I.D." was a reality, and Nevada Bell finally put a trap on her phone.  She stated that Nevada Bell identified her stalker and charges were brought against him.  However, since it was such a minor crime, they admonished him and nothing was done.  She advised that her telephone number has always been unlisted, and the stalker was always able to obtain the number.  She changed her telephone number three times in 6 months.  She stated her life was verbally threatened on two occasions, and only she heard the threats.  She was advised by the sheriff's department that she could get a restraining order, which was basically a piece of paper which would say "he shouldn't have killed her."  Her stalker was observed on several occasions by other people watching her house and place of employment and watching through binoculars as she walked down the street.  Her vehicle was vandalized and anyone who visited her home was followed and annoyed.  She stated these things and many more are documented at the Carson City Sheriff's Department.  She said she used to borrow a Doberman Pinscher to stay in her house at night.  Her problem has ended, but she would like to see something done so other people do not have to endue the same sort of thing.

 

Senator Jacobsen asked what penalty Ms. Rooke believed should be invoked.

 

Ms. Rooke stated when she was being harassed, all she wanted was for it to stop, but law enforcement officials had no mechanism to accomplish this.  She did not care if the person was punished.  She believes there should be a punishment, but does not know what it should be. 

 

Senator Jacobsen asked if Ms. Rooke's friends or others close to her were aware of what was happening.

 

Ms. Rooke replied that everyone she knew was aware of what was happening.  She stated her house is located on a dead-end road, and can be seen from a fair distance.  When a car would leave, her stalker would pull in behind that car.  On several occasions, he tried to run people off the road.  She stated there were never witnesses.  She advised there was no law which stated this person could not drive up and down her road. 

 

Senator Jacobsen asked if Ms. Rooke ever received a threat in writing.

 

Ms. Rooke replied that there was a death threat made to a man she was dating at the time, but it had been done by cutting letters out of a magazine and pasting them on paper.  Therefore, there was no way to prove who did this.  Nothing was ever stated to her in writing.

 

Noel S. Waters, Lobbyist, Nevada District Attorney's Association, District Attorney, Carson City, Nevada, provided oral testimony in support of A.B. 199.  He advised the Nevada District Attorney's Association (NDAA) approves of the bill as reprinted.  He advised the NDAA would ask consideration of two changes in the language of the bill.  He referred to page 1 of the bill enumerating the penalty provisions for aggravated stalking.  He read from the bill:

 

            . . .stalking, and in conjunction therewith, threatening a person with the intent to place them in fear of death or substantial bodily harm.

 

He advised the bill as currently written states the first offense is a gross misdemeanor, and the second offense a felony with a 1 to 6 year prison sentence.  The NDAA requests the delineation of the provision for the first offense being a gross misdemeanor and making the crime of aggravated stalking a felony, without an aggravated scale of commission.  He advised there are two reasons for this request.  First, the NDAA believes the realities of the situation are that a felony provision for punishment merits more attention, both on the part of the potential offender and law enforcement.  He believed this is merited based upon the testimony he has heard.  Secondly, the NDAA asked that the bill be made effective July 1, 1993.  He believed this is commensurate with the interest and demand which has been seen.  He has been informed that the press association has also proposed an amendment regarding clarification of the exception provisions of the bill.  He stated the NDAA has no opposition to any appropriate language in that regard.  He advised the intention of the NDAA was that the phrase "without lawful authority" on page 2, line 11, would cover those situations where the stalking statute should not be applied.  He advised these exceptions would cover process servers, evictions, investigative reports and constitutionally protected conduct.  He agreed there may be merit in making a specific exception underscoring the freedom of the press and its members' rights to perform their duties. 

 

Senator Jacobsen asked what are the parameters for a judge under a felony.

 

Mr. Waters stated he believed there are currently 22 statutes which provide for minimum mandatory time before eligibility for parole.  He stated other than that, unless the statute specifically provides that the offense is not subject to probation, the judge would have the opportunity to consider probation.  He advised for a felony offense, a person may be placed on supervised probation for up to 3 years.  He stated that the NDAA's recommendation would be a felony one to six provision.  He advised that under that language a court would have discretion to place the individual on probation rather than to sentence the individual to prison, if appropriate for a first offense.  This allows the judge a considerable amount of latitude to consider the degree of aggravation, the circumstances of the offense, the past criminal history, and conduct of the defendant.  He stated the realm of punishment would range from probation upon reasonable terms and conditions up to 6 years in the Nevada State Prison.  He believed that currently this would mean approximately 1 year in prison.

 

Senator Jacobsen asked if the judge would be more lienient if children were involved.

 

Mr. Waters replied that in his experience with harassment and that type of conduct, one of the main considerations is the nature of the conduct itself measured in an objective way.  He stated this is determined by how frightening and upsetting the behavior would be to a reasonable person.  He advised another thing considered is the past history of the individual.  For example, other kinds of anti-social activities engaged in.  He stated that the attitude or expressed wishes of the victim is also considered.  He advised that in some instances, there is no desire to have the offender punished by incarceration, but to have the person enter counseling or utilize some type of mechanism to insure he or she does not repeat the conduct.  He stated in some cases the offender is providing financial support for the victim or victims.  He believed the courts considered all of these factors in making a determination of an appropriate sentence. 

 

Senator Jacobsen was concerned about children becoming victims in these cases.

 

Mr. Waters believed that when this type of conduct is occuring, the family shares in the misery.  He did not believe children would be protected by undue leniency in these situations.  He also advised that families members are not always involved in these situations.

 

Senator McGinness asked if Mr. Waters provided similar testimony in the assembly regarding the deletion of line 15 or making the first offense a felony.

 

Mr. Waters responded that this was discussed in a general way but that he did not testify in that regard.  He stated he had a hand in drafting the amendments to the first page and one-half of the remainder of the bill, which did pass muster with the Nevada Trial Lawyers Association. 

 

Senator McGinness asked if a no contact restriction could be a condition of probation, if granted on the first offense.

 

 

Mr. Waters said he would expect this to be an ordinary term or condition of probation in these cases.  He added that the legislature could expressly provide this, stating that if the court affords the individual probation the person must receive counseling and that no contact with the victim is a condition of probation. 

 

Senator Titus recalled that the committee had heard terrible stories from people who have been victims of stalking, and yet a harassment statute exists in the statutes.  She asked why these cases are not being enforced as harassment.

 

Mr. Waters believed there is a distinction between the crime of harassment and stalking.  He advised that the offense of harassment arises out of five different kinds of threats made toward another person.  He stated the offense of stalking is much broader regarding acts, and there is a distinction between the laws.  He advised the crime of harassment is one in which law enforcement sometimes suffers under problems of proof.  The crime must be proven beyond a reasonable doubt and often one witness states the activity occurred, and another states it did not occur. 

 

Senator Titus asked if Mr. Waters did not think this same problem would be present with the stalking statute.

 

 

Mr. Waters stated he believed some of the same problems will exist regarding the shadowing of people, being around their place of employment, using the mails in threatening ways, and similar actions intended to frighten the individuals.  He stated he believed the potential of problems in proving these types of offenses is always possible.  He acknowledged the statute would not be a universal panacea for all of the terrible stories to which witnesses have testified.  He has heard many witnesses testify to things which are already crimes, including assault and battery.  He stated he believed this is a problem with the system in terms of priorities given to different kinds of offenses, and protections afforded to different classifications of people. 

 

Mr. Waters was aware of discussion in the legislature concerning allowing phone conversations to be recorded.  He knew some devices are currently being used in Massachusetts which are essentially like ankle bracelets, monitoring individuals placed on probation.  The victim wears a pendant or a bracelet which glows red or buzzes when the offender comes close.  He advised this gives the victim time to run or call for help.  He stated these things would help regarding the burden of proof in cases of stalking.

 

Senator Titus recalled hearing arguments for the harassment statute.   She did not wish to have the stalking law put on the books and then have the victims encounter the same problems getting the laws enforced, as is now true with the harassment statute.

 

Mr. Waters stated he did not believe this would be the case.  He advised that in his experience and in conversations with other district attorneys, he believed these offenses are taken very seriously, and everyone can sympathize with the aspects of intentional terror involved. 

 

Senator Jacobsen expressed concern regarding the language stating whether or not a person has legal authority to harass someone.  He did not know in what instance this would be, but would not want a person considering themselves a victim to be able to charge a law enforcement officer with harassment.

 

Mr. Waters stated he believed A.B. 199, as written, offers good safeguards for this.  He stated the intent is to answer the problem of the unduly sensitive victim who feels that someone trying to collect a bill is harassing them.  A.B. 199 requires that the victim actually be harassed, frightened, or terrorized, and that the average reasonable person in the same circumstances would feel the same. 

 

Senator Jacobsen referred to some phone calls received which are not pleasant.

 

Mr. Waters agreed this happens and stated there are people who serve process, do repossessions and others who have jobs to do which another person might find offensive or intimidating.  He reiterated his belief that the law has been written to allow for this, using the reasonable man standard.  He advised this standard would be applied in these cases.  He did not believe the stalking offenses would result in many warrantless arrests.  The reason for this belief is that the offense requires proof of a course of conduct, that being more than one act over the course of time. 

 

Senator James referred to page 1 of the bill.  He expressed concern regarding the use of the word "harassed."  He stated harassment is a separate crime, and asked Mr. Waters what definition he saw as being attached to the word "harassed."  He asked if the harassment statute would be referred to, and did not believe this was the meaning intended.

 

Mr. Waters noted that the original version of A.B. 199 had the words "harassed or molested" in the provision to which Senator James referred.  He stated one of the early drafts of the bill said "to cause a reasonable person to feel terrorized, harassed, intimidated or frightened."  He believed the offense of harassment and aggravated stalking would probably merge, and that a provision exists which provides for this merger.

 

Senator James confirmed that this provision exists in the bill.  He questioned whether ambiguity exists in using the term "harassment," indicating a different type of activity than that spoken to in the harassment law. 

 

Mr. Waters stated he believed there is potential ambiguity because of the way the term "harassment" is legally defined in the current statute.  In his view, the word "harassment" could be removed using reliance on the other exemplary definitions present, or substitute the word "molested" or another definition.

 

Senator Adler stated he would prefer to see the word "harassment" in the bill for that reason.  He advised if stalking is charged and the action turns out to be harassment, those actions would be covered by this statute as well, and the prosecution would not lose, based upon a technicality. 

 

Senator James stated he had a problem with including another crime within the definition of stalking.  He advised he would consult with legislative counsel as to the possible effect of doing this.  Regarding the proposed amendment, he asked how Mr. Waters believed that increasing the punishment for aggravated stalking to a felony would square with the punishment for harassment.  He advised the punishment for harassment is a misdemeanor, and as had been previously stated, aggravated stalking is essentially the same conduct.

 

Mr. Waters stated he did not believe stalking was essentially the same, although some aspects are similar.  He stated that harassment is defined as the communication of a threat which causes apprehension and fear.  He advised this is a complete crime when those specified kinds of threats are expressed.  He stated the stalking provisions, in his view, are much broader as are their intentions.  He believed that, in and of itself, is a rational basis for making a distinction between the two crimes.  He further stated that raising the penalty for aggravated stalking is justified by the nature of the aggravation.  He did not view any legal entanglement arising from the bill's current language. 

 

Senator Jacobsen asked the dictionary definition of stalking.

 

Mr. Waters advised that he had looked up the definition, but did not recall precisely what it was.  He said it has the aspects of a measured pacing of a hunter, or something to this effect.  He stated the crime itself defines stalking in a legal sense.

 

Senator James advised there was an amendment proposed at one time to define the word "stalks," however it was not included in the revised bill. 

 

Mr. Waters recalled the language Senator James referred to had definitions by way of example, enumerating the elements of the crime.

 

Senator Jacobsen asked how many complaints had been received in Carson City in a one year period.  He asked if stalking had become increasingly more aggravated.

 

Mr. Waters stated, in terms of activities which would qualify as stalking, he probably gets at least 10 through the sheriff's office.  Included in these are complaints regarding domestic violence and harassment.  He advised that in other instances, many of the offenders do not carry the activities far enough to be a violation of law.

 

Senator Jacobsen stated his belief that it is in some people's nature to heckle other people.

 

Mr. Waters agreed and believes there are also some individuals who would not be deterred by law.

 

Doris Brown, Member of the Public, testified in support of A.B. 199.  Ms. Brown defined stalking as dealing with someone who is obsessed in his or her mind to get even, in whatever way possible, with another person.  She advised it is not a matter of causing a few problems, but rather it is all the offender thinks about.  Ms. Brown believed "harass or molest" had been included in the bill at one time.  She stated that her stalker is a postal employee, who has access to her life.  She gets pornography in the mail from this person.  She advised this person is not a former lover or former spouse, but someone who became obsessed during a business dealing with her.  She refused to do something he asked her to do, he told her she would do whatever he asked.  She stated this person swung at her, spat in her face, and struck her across the face.  This incident occurred 3 years ago.  Ms. Brown filed a complaint with Lieutenant Stan Pope of the Douglas County Sheriff's Department.  It was after she filed the complaint that the stalking began.  She advised when she spoke to the joint judiciary committees she felt as if a burden had been lifted, but her problems became worse.  She inquired through the district attorney's office about obtaining a restraining order.  The district attorney said she would need to do this through a private attorney, which she discovered would cost $1,500.  She stated something is needed to protect the victim.  She has discovered, by filing numerous police reports, that the stalker is protected.  She has been told to just keep everything on record.  Her stalker has followed her, stolen her mail, come to her place of employment, interfered with her business dealings, driven up and down her street in front of her house, poisoned her dogs, and turned out her horses.  She would like to have the ability to do something about these things.  She advised this activity does not simply involve the heckling of another person.  She stated these offenders are obsessed with destroying another's life.  She stated she believed the word "molest" should be included in the bill.

 

Senator Jacobsen asked if Ms. Brown's neighbors and friends are aware of these activities, and if they offer any encouragement.

 

Ms. Brown advised when the activities began, five postal employees offered help.  After she had testified before the joint judiciary committees she felt brave enough to give her evidence to a person whom she believed to be a postal inspector.  She advised this person turned out to be a public relations person for the United States Postal Service, who basically went to the post office and asked her stalker if he was doing these things to Ms. Brown.  At that point, all of the employees who had said they would come forward stated they would not help her.  The meeting at which she handed over the evidence was held at the sheriff's department.  She receives calls from many people telling her where the stalker is and what he is doing.  She advised the stalking activities are focused on her, however her family is also being harassed.  She has asked a psychiatrist to analyze what is going on.  The psychiatrist has stated the stalker has a need to dominate, has a sexual obsession, and has  a need to destroy because Ms. Brown appeared to be successful. 

Senator Jacobsen asked Ms. Brown if she believed a tough stalking law would stop her stalker.

 

Ms. Brown stated she believes the law includes a gross misdemeanor as a first offense with mandatory counseling, it would help.  She stated that someone needs to know that people perpetrating these activities cannot be pathological and consistently fool everyone.  Also, the person him or herself needs to know that they cannot get away with what they are doing.

 

Senator Jacobsen stated that to him, stalking seemed to be like setting a trap.  He believes the legislation needs to include a trap, so that if a perpetrator breaks the law, he or she is caught.

 

Ms. Brown agreed, and stated she noticed there is no provision in the bill for an automatic restraining order.  She stated in a misdemeanor, the perpetrator would be cited, would appear in court and would continue the activity.  She stated the victim would have to go through the whole process again.

 

Senator Adler did not believe the courts would operate in this way.  He advised that generally the court would sentence the stalker to a period of time in jail, probably the full year sentence on the misdemeanor, and suspend part of the sentence based upon the stalker staying away from the victim.  He stated in that event, if the stalker came near the victim, the court would impose the full sentence and fine.  He could not imagine a judge not imposing this type of a sentence.

 

Senator James responded to Senator Titus' concern regarding enacting this bill and having a problem of inability to enforce the law.  He stated no matter how the legislature feels, if something is enacted which an attorney for a defendant or another group can get stricken down as unconstitutional, then everything done in the legislature would be thrown back into limbo.  The next session of the legislature would have to enact a law which is constitutional.  He has had concerns regarding the constitutionality of the bill as drafted. These concerns have been exacerbated by the fact that he received a copy of a March 10, 1993 opinion of the Florida Circuit Court for Broward County.  He stated he believed the opinion was not in circulation to give the Assembly accessibility.  He stated the opinion in this case, Florida v. Kahles, deals with a law very similar to A.B. 199 in the way it is drafted and constructed.  This raises some very serious questions about the proposed stalking law being dealt with here.  He asked the Senate Committee on Judiciary to continue to be sensitive to the issue of stalking and the compelling testimony, but also to be aware of the potential constitutional problems.  He stated the way A.B. 199 is constructed, it says the activity of stalking is illegal if it is without lawful authority.  It then defines "without lawful authority" to include:

 

      Acts initiated or continued without the victim's consent and which are not otherwise authorized by specific constitutional or statutory law, regulation or order of a court of competent jurisdiction.

 

Senator James advised the bill then has the following exclusion:

 

      The provisions of this section do not apply to picketing which occurs during a strike, work stoppage or any other labor dispute.

 

He advised that the Florida law defines "course of conduct" as:

 

      A pattern of conduct composed of a series of acts over a period of time, however short, evidencing continuity of purpose.

 

He stated this is essentially the same as the course of conduct definition in A.B. 199.  The Florida law then says:

 

      Constitutionally protected activity is not included within the meaning of course of conduct.  Such constitutionally protected activity includes picketing or other organized protests.

 

Senator James advised the Florida court struck this statute down on that language, with the following opinion:

 

      Because the statute does not sufficiently define or enumerate the constitutionally protected activity, i.e., speech, exempted from the statute, the vagueness of the statute merges with its overbreadth and violates both constitutional precepts.  Where a legislative enactment is susceptible of application to protect its speech, it is constitutionally overbroad and facially invalid.  Since the statute does not anywhere specifically exempt protected speech from its scope, it is unconstitutionally overbroad.

 

Senator James advised this opinion was issued in a lower court in Florida, but the opinion cites Lewis v. New Orleans as state supreme court authority.  Senator James' concern centers on the construction of A.B. 199, regarding the definition of course of conduct and without lawful authority, but excluding only one type of protected activity, which is picketing and work stoppages. 

 

Senator Adler asked if Senator James had a suggestion regarding possible amendments to eliminate this problem.

 

Senator James advised that Andrea L. Engleman, Lobbyist, Nevada Press Association, would propose language which her association has suggested.

 

Ms. Engleman provided oral testimony.  She read the written testimony of Evan Wallach, General Counsel, Nevada Press Association.  A copy of this written testimony is attached as Exhibit C.  Ms. Engleman stated an additional concern of her association was that a stalker would be able to question the constitutionality of A.B. 199.  She noted that she was stalked by an ex-husband from July to December of 1981.  She agreed with the testimony of other victims.  She stated the victim must go to an attorney and pay a great deal of money in order to have a restraining order enacted.  She advised the Nevada Press Association wants to see some sort of legislation in place, but wants to be sure that the legislation will do the job intended.

 

Senator Adler referred to the proposed amendment with regard to continuity of purpose directed at a specific person.  He asked if that should not say "person or persons."

 

Ms. Engleman agreed this change should be made.

 

Senator Jacobsen asked if Ms. Engleman personally knew any other people who had been stalked.

 

Ms. Engleman replied she probably does, but that this is something women sometimes confide to other women.  However, the story is told in confidence, and is forgotten because the listener is asked not to say anything.

 

Senator Jacobsen asked what Ms. Engleman thought should be the penalty for stalking.

 

Ms. Engleman stated it was difficult to say.  She related that her father is a quadriplegic and at one point she and her parents were terrorized.  They did not even have a weapon in the house with which to protect themselves.  She advised she left her parents because she felt she was bringing harm to them by being there.  She said in some cases, the offenders are mentally deranged and all the laws in the world would not make any difference.

 

Senator Jacobsen asked if Ms. Engleman believed the law would have an effect on common, ordinary actions of people.

 

Ms. Engleman stated this was a concern of her association.  They feared that in normal activities of a citizen, a person could use the law to harass someone else, creating a reverse sort of harassment.  She advised Mr. Wallach had reviewed A.B. 199 to be certain that, under its provisions, people going about their normal course of occupation or activity could not be harassed.

 

Senator Jacobsen asked if Ms. Engleman saw any potential for competition, for example businesses accusing one another of harassment. 

 

Ms. Engleman stated she believed that could happen with almost any statute, and it would be up to the court to decide.  She believed the Nevada courts are adept in recognizing this type of behavior.

 

Senator Jacobsen asked if Ms. Engleman viewed the bill as referring more to a one-to-one basis.

 

Ms. Engleman replied this is how she viewed the bill, and this had been her experience.

 

Samuel P. McMullen, Lobbyist, Nevada Broadcasters Association, provided oral testimony.  Mr. McMullen voiced the support of his association for the bill itself, and for the amendments proposed by Mr. Wallach.  He stated he believed the changes in elements of the crime would definitely be supported by the association. 

Senator James asked if the change from "authorized behavior" to "protected behavior" squares with constitutional jurisprudence.

 

Mr. McMullen replied that "authorized" has a more affirmative nature, indicating that something has to be specified.  However, the cloak of the constitution can protect reasonable and regular conduct.  He advised the rationale was that if the behavior was not specifically authorized, but was protected, there might be a need to broaden the language to cover all of those activities.  He stated that, instead of making exempting activities, the drafters of the amendments went to the elements of the crime.  He stated he believed this would allow a prosecutor to look to the specific elements of the crime and decide whether the elements have been satisfied. 

 

Senator James asked if Mr. McMullen believed that "including but not limited to" gives rise to any problems.  Senator James advised that Dennis Neilander, Senior Research Analyst, had some question regarding the use of the phrase without an exclusive list.

 

Mr. McMullen replied this would be a good question to ask the prosecutors present at the hearing.  He stated if this language did anything to jeopardize the exemptions, it would not be serviceable.

 

Senator Jacobsen referred to Mr. McMullen's relationship with the gaming industry and asked if he had not seen customers who came here happy travelers, lost their money, and wanted to blame or find fault with someone.  He asked if Mr. McMullen viewed A.B. 199 as a problem for the gaming industry.

 

Mr. McMullen stated he believed he would view this as a function of the construction of the entire bill.  He referred to the burden which someone must get over to get to a chargeable crime, and stated the behavior cannot be a quick allegation.  He stated he believed the words "course of conduct" and its definition provides a good set of elements which have to be together in order to charge a person with this offense. 

 

Senator Adler stated the phrase "but not limited to" was needed, because so many activities and occupations exist which would fall under this phrase. 

 

Ms. Engleman advised an attempt was made to cover those types of activities under subsection 3 of the bill.  Additionally, she advised subsection 4 protects demonstrators.

 

Senator James agreed with Senator Adler's assessment.  He did not believe this phrase jeopardized the proposed exemptions set forth by the Nevada Press Association.

 

Mr. McMullen referred to previous testimony regarding the use of the word "harassed."  He stated he believed the stalking issue speaks more to the common usage of the word, rather than the technical and legal definition in the crime.  He advised that it might be valuable to add other common usage words, such as annoy or torment.  In his opinion, terrorize and intimidate are more like threaten.  He believed "harassed" is an important term, as it contains an aspect of conduct.  He looked up the definition in the dictionary, and two synonyms are torment and annoy.  He stated he would hate to have the word deleted and lose that aspect of conduct.  He advised the dictionary definition of stalking includes tracking, or to pursue someone menacingly. 

 

Senator James stated he would not want an unclear legislative record.  He did not believe the committee intends to adopt any dictionary definition of the word stalking for the courts to use.  It is a crime and defined as to certain activity with specific elements.  Senator James advised the assembly deleted from the bill the words "threatened" and "molested."  He stated the trial lawyers association had a problem with the word "annoy" as being constitutionally vague. 

 

Senator Adler stated his problem with removing "harassed" is that it is the only verbal description in the definition.  He believed the ability to prosecute a charge of aggravated stalking could be lost if this word is removed.  He asked, as an example, how someone would communicate to a person that they intended bodily harm, if not verbally.  He stated with the word "threaten" having been removed, if "harassed" is removed as well, only a pantomime could communicate the intention of the offender.

 

 

Mr. McMullen agreed the word "harassed" should not be removed, and believes the description is possibly too limited, even with that word present.

 

Senator James stated he was comfortable that the intent of the committee is not to confuse "harass" with the crime of harassment, which is separate.

 

Ms. Engleman referred to Senator Jacobsen's earlier question regarding penalty.  She stated that the victim of a stalker wants one thing, and that is for the stalker to disappear and leave him or her alone.  She said whatever would accomplish that is probably what a victim would most want.

 

Senator Jacobsen asked if stalking indicates the presence of an accomplice or a decoy.

 

Mr. McMullen stated that under the legal definition of the crime, stalking can be committed individually.

 

Senator James asked Mr. Waters to provide input regarding the amendments proposed by Mr. Wallach.

 

Mr. Waters stated he had no objection to the proposed amendments.  He advised that he had discussed the amendments with Ben Graham, Lobbyist, Nevada District Attorney's Association, and that Mr. Graham had no objections.  He understood Senator James' concern and that of the committee regarding specific provisions.  He recalled discussion in the assembly regarding this issue and believed Mr. Wallach had proposed language dealing with activities of the press.  He recalled concern regarding a list of exceptions overlooking something, which would complicate the law.  He believed this is what prompted the more generalized idea of acts not authorized by specific constitutional or statutory law.  He believed the proposed amendment was reasonably clear.  His only concern was the overlap between activity which is and is not constitutionally protected.  For example, it is his understanding that people have the constitutional right to travel across state lines.  He advised one of the annoying aspects of harassment is an individual shadowing another person, driving up and down the street in front of their house and so forth.  The question would be whether this activity is constitutionally protected by freedom to go abroad, or freedom to travel.  He did not believe this was the case, and did not believe a jury would think it was.  However, he could see a defense attorney arguing the question, and that was why his association initially sought to make it a more generalized type of activity.  He advised there are limits in statutory construction in being manageably brief and reasonably precise.  His only concern is that maybe that limit is being exceeded with this bill.  Mr. Waters also referred to the word "specific" which had been chosen to be removed.  He stated it should remain in the language of the bill for the reasons mentioned.  He believed there is sufficient constitutional or statutory law covering the rights of the press that "specific" will not be offensive if it remains. 

 

Referring to the language "acts which are initiated or continued without the victim's consent," Mr. Waters stated the word "continued" was in the bill as originally drafted.  He stated he believed this word should remain in the bill also.  He stated a contact may start with consent.  However, when the action becomes annoying, harassing or threatening, the consent is taken away. 

 

Senator Adler agreed with keeping the word "specific."  He stated actions arise which emanate out of the constitution which are not specific guarantees under the constitution.  He referred to an example of a stalker who claimed to have a liberty interest in parking his or her car next to the curb.  He advised there are specific constitutional guarantees of the press and others.  He stated there might be a semantical argument if non-specific constitutional guarantees are included in the bill. 

 

Senator James advised he was considering having a work session after the committee meeting to vote on A. B. 199.  He stated, however, if there is a problem with the word "specific" there is a large problem with the bill.  He views this language just the opposite of what Senator Adler said.  He stated the reason Mr. Wallach took "specific" out was that he did not want a constitutional problem to be created by having to rely on a specific constitutional provision.  He gave the example of the right to travel.  A person does not have the right to travel and to stalk someone.  Senator James stated this should be treated as any other constitutional provision.  He gave the following examples:  a person has the right to freedom of speech, but not to shout "fire" in a crowded building.  A person has the right to wave his or her arm in the air, but not to wave it if someone's face is there.  A person has the right to privacy, but not if it interferes with someone else's rights.  He therefore believes this is the right way to approach the issue.  This is what makes it constitutional, and why Mr. Wallach's removing the word "specific" makes the bill workable.  He stated he believes this was the crux of the proposal.  If the act is protected under the constitution, it is not stalking.  However, at the point at which it interferes with someone else's right, it is no longer protected.    

 

Mr. Waters said he understood Senator James' concerns.  He stated he was attempting to look also at the potential application of this law to factual situations.  He can foresee some areas which have communicative aspects which arguably involve, for example, free speech or right of association.  He stated the following of someone to their annoyance has some impact on the constitutional right to travel.  He added that the general right to be let alone oftentimes is the motivation which applies.  He stated he believed in cases such as this there is a great deal of value in the legislative history, to review testimony at hearings to get a sense of the sentiment of the people deciding on the bill.  He does have concerns that there be something which addresses a specific constitutional or statutory authorization, right or protection, rather than to be too generalized.  His concern is that people will seek refuge in this unjustifiably.  He understands Senator James' concern that the protection be stated and expressed, and the bounds of the stalking law are not overstepped.

 

Senator Adler stated he could understood Senator James' concern, but had some of the same concerns as Mr. Waters.  It bothers him that a situation could occur where stalking is charged and a defense attorney discovers a right which he states exempts his client.  He believed the defense attorney should have to point to a specific statute which exempts the action, such as the one for process servers or automobile repossessors.  He confirmed that specific language for labor disputes and the press is already contained in the bill.  He stated if the word "specific" is removed, a clarification is needed that exemptions  enumerated in the bill are defined rights. 

 

Diane Loper, Member, Nevada Women's League, provided oral testimony in support of A.B. 199.  She stated she is a victim advocate in the Reno City Attorney's Office.  She quite often deals with victims of stalking.  She stated she is in a position to be in contact with victims, whether they have just come out of a relationship or are being stalked by a stranger.  She stated she believed A.B. 199 is good for the most part.  She wished to clarify, responding to Senator Jacobsen's question, that stalking does not occur in an intact family unit.  She advised most often the victims are recently out of a relationship, but one which has already gone bad.  She stated a person being stalked knows that the activity is stalking and not something else.  She advised that if there are children in the family unit, the children are also terrorized.  Regarding penalties, Ms. Loper stated that plea bargaining is the most important reason to make stalking a felony.  She referred to page 3, section 2, of the bill and stated if the desire is to protect the victim, she believed the language should be changed from "may issue" to "must issue."  She stated it is very important that a no contact order be issued.

 

Senator Jacobsen stated he believed everyone has the right to be hard to get along with at one time or the other depending upon how a person feels and what are their emotions.  He stated everyone at times says something they do not really mean and immediately regret having made the statement.  He asked how the line is drawn between a threat and, for example, an accusation.

 

Ms. Loper stated the course of conduct, which is well covered in the bill, would establish this.  A person would not be charged with stalking if the action only occurs once.  The conduct would have to happen over a period of time for the person to be charged with stalking.  She stated the person being stalked becomes fearful after a period of time.  The fear normally does not begin with the first occurrence.

 

Senator Jacobsen advised that stalking seems to be the wrong word for this behavior.  He said stalking seems to him to apply more to an animal or a bird, than to one human trying to outsmart the other. 

 

Ms. Loper agreed this is part of the problem, but it goes beyond those characteristics.  She stated ultimately the victims fear death, and people who are victims really believe they will die.

 

Mr. Hegne offered additional testimony.  He stated his concern regarding the exclusion suggested by the media.  He advised that prominent individuals, with whom he deals in his profession, elicit news.  He was concerned about giving the media unlimited rights under the exclusions in A.B. 199.  He advised that there are some reporters who are over-zealous when getting a story, and they will use devious means to accomplish their goals.  He gave examples of this problem. 

 

Senator Jacobsen asked if Mr. Hegne saw a professional answer to this problem.

 

Mr. Hegne stated he has found that it is better to work with the media than against them.  He advised that most of the time they have a good relationship, the story is provided to the satisfaction of the press, and Mr. Hegne can continue to do his job.  His concern was the reporters who go to extremes, and stated there is really nothing that can be done to work with these people.  He was concerned about there being a law on the books which would give the press the right to state they could not be stopped.

 

Senator Jacobsen asked if Mr. Hegne saw a professional answer between he and the victim.

 

Mr. Hegne replied he did not, except for him to apply his techniques in a more aggressive fashion, restricting the client's freedoms and abilities to do what he or she wanted to do. 

 

Senator Jacobsen asked if Mr. Hegne felt the current laws are adequate.

 

Mr. Hegne did not feel they were.  His concern regarding A.B. 199 was that the clause excluding the press would give them free reign.

 

Mr. Fred Jahn testified in support of A.B. 199.  Mr. Jahn is the boyfriend of Beverly Hill, who testified earlier in the hearing.  Mr. Jahn advised he met Ms. Hill approximately 1 year ago, and Ms. Hill told him she had been stalked since 1989.  Mr. Jahn took it lightly at first.  He did, however, observe the individual following Ms. Hill, sneaking around corners, and the other things to which Ms. Hill testified.  Mr. Jahn advised that eventually, the offender began stalking him.  Mr. Jahn stated the stalker has appeared at site, has tried to interfere with the job, and has talked to the capital police, stating he had permission to be there.  Mr. Jahn said he had never spoken but a few words to the stalker until recently, when Mr. Jahn was challenged on the street.  Mr. Jahn has observed this person continually stalking him.  The stalker has told Mr. Jahn's co-workers malicious stories about Ms. Hill.  The offender has been seen in the neighborhood and has terrified the neighbors to the point where they tell Ms. Hill.  Mr. Jahn stated he would very much like to see the stalking bill become law, as this person is denying him his freedom.  Mr. Jahn does not wish to deny the offender his freedom, but believes something is wrong with the man which needs to be addressed. 

 

Senator James confirmed there was no further testimony on A.B. 199.  He advised a work session would be held regarding the bill at the next committee meeting.  He closed the hearing on A.B. 199.

 

Senator James advised he had received from the assembly an amendment to Senate Bill (S.B.) 75.

 

SENATE BILL 75:         Requires division of child and family services of department of human resources to take certain actions if powers and duties relating to investigation of prospective adoptive home are assigned to division.  (BDR 11-410)

 

Mr. Neilander explained S.B. 75 came out of an interim study of the State of Nevada, Division of Child and Family Services.  He stated part of the study recommended that some of the duties be transferred to the Welfare Division.  The amendment states that if these duties are transferred, the Division of Child and Family Services shall adopt the regulations regarding adoption.  He suggested perhaps the assembly was not aware that this was the purpose, or perhaps the transfer of the powers did not happen.  He advised the amendment was based on the interim study's other recommendation that those powers be transferred over. 

 

Senator James confirmed that the committee would need more information from the assembly.

 

      SENATOR SMITH MOVED TO NOT CONCUR WITH THE AMENDMENT.

 

      SENATOR MCGINNESS SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATORS ADLER AND SHAFFER WERE ABSENT FOR THE VOTE.)

 

      * * * * *

 

Senator James advised the Senate Committee on Judiciary had a request to introduce Bill Draft Request (BDR)  2-1324.  Senator James briefly explained the BDR.

 

      SENATOR SMITH MOVED FOR COMMITTEE INTRODUCTION OF BDR 2-1324.

 

      SENATOR TITUS SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATORS ADLER AND SHAFFER WERE ABSENT FOR THE VOTE.)

 

      * * * * *

 

Senator James confirmed there was no further business to come before the committee.  The meeting was adjourned at 3:55 p.m.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

            RESPECTFULLY SUBMITTED:

 

 

 

                                    

            Sherry Nesbitt,

            Committee Secretary

 

 

 

APPROVED BY:

 

 

 

 

                                

Senator Mark A. James, Chairman

 

 

DATE:                            

??

 

 

 

 

 

 

 

Senate Committee on Judiciary

April 19, 1993

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