What is a Stalking Order?
A stalking order is a court order issued in Oregon to protect people from unwanted harassment and threats by other people. A stalking order can generally be issued in the absence of a prior criminal conviction, and without the person being accused of any crime having a right to contest the issuance of the stalking order. In other words, a stalking order can be obtained in Oregon without the requirement of the issuance of a criminal warrant . This makes a stalking order a potentially powerful tool to compel a person to cease contact or threatening behavior, or face the penalty of being criminally charged with the crime of violating a stalking order.
The Oregon statute which defines this type of order is ORS 30.866. ORS 30.866 sets out the following definition of "stalking":
"Stalking" means:
(a) A knowing course of conduct directed at a specific person that causes that person serious and sustained distress; and
(b) The knowing engagement in pphysical conduct that causes physical harm to another person.
Qualifying for a Stalking Order in Oregon
In Oregon, a person may file a petition for a stalking protective order under ORS 30.866 if the person has been the victim of, a credible threat of or is affected by repeated and unwanted contact, which must be a deliberate and unlawful act that has substantial adverse effects on the other person. Petitioners may file for a stalking protective order even if the stalker is not physically present in Oregon. ORS 163.730(6) defines "contact" merely as "something conveyed" where "conveyed" is defined as "delivered, communicated or transmitted." This broad definition includes voicemail messages, cellphone text messages, emails and social media posts. Petitioners may seek a stalking protective order against individuals who are (i) adults; (ii) minors over the age of 16; or (iii) minors under the age of 16 if the minor petitioner is authorized to petition on behalf of a minor under the age of 16 or the minor has the consent of his/her parent or guardian.
How to Obtain a Stalking Order
A victim of repeated, unwanted and harassing behavior with a reasonable fear that the perpetrator may commit a further act of such behavior will generally qualify for a stalking order. If there is no mutual dispute over the facts, a situation where the perpetrator has actually been convicted of stalking or an evidentiary hearing should be granted. If the parties have a dispute over the facts, and there has not been a previous finding of stalking, then the court will set a hearing (also known as a restraining order hearing). The hearings are assigned to the family court, and they are handled in the same way as contempt hearings except that the judge may order that the victim be protected before the hearing.
The hearing will be presided over by the designated family court judge (sometimes called the presiding judge). The judge may determine that there is an emergency situation and can issue the protection order prior to the hearing. Alternatively, the judge may allow the order to expire if there is a failure to prove the claim at the hearing. There must be an evidentiary hearing where the judge will listen to the claims of both parties and will issue a decision on the merits of the application. An evidentiary hearing must take place within 21 days after the temporary order is issued. While the hearing is in progress, the judge may issue temporary relief as appropriate for the circumstances that include requiring the stalking victim to refrain from violating the order, prohibiting the stalker from having contact with the victim, prohibiting the stalker from being present at any location the victim is likely to be, allowing the stalker to have contact with minor children during visitation if those children are present when the stalking victim is present, ordering the stalker to pay attorney fees in the matter if the stalker has the financial means to do so and also costs of any witness who was subpoenaed by either party (if the judge finds that the witness was important) and issuing any other relief that is necessary for the safety and protection of the victim.
Burden of Proof and Stalking Order Standards
Violations of ORS 30.866(1) are generally known as stalking under the law. Stalking is defined as engaging in a course of conduct directed at a specific individual, or individuals, that would cause reasonable persons to have substantial anxiety about their personal safety or the safety of another, or to suffer substantial emotional distress.
A course of conduct is defined as three or more acts within a three-year period, including one act of the type described in the statute. An act is any type of harassment or communication that is abusive, indecent, obscene, lewd, lascivious, threatening, or that places the person in fear of serious and immediate unlawful injury.
In order to obtain a stalking order there must be evidence that on three or more occasions:
Additionally the victim may have to show that the stalking resulted in a harm to their physical safety, physical health, mental health, property, business or personal effects. Stalking does not have to cross state lines and it is legal action in addition to a quick protective order.
Duration and Enforcement of a Stalking Order
A stalking order in Oregon lasts for one year, but may be extended indefinitely if the petitioner and respondent are in violation of any terms of the order. The petitioner may also file for an extension if they fear for their safety. For long-term stalking orders or when an individual files for a dissolution of marriage, the terms of the order typically last until review by a judge or until the judge prescribes an indefinite length for the order . Petitioners and respondents can petition the court to dismiss the order if they are no longer in fear of the other individual or can come to an agreement outside of the presence of the court. A valid stalking order must be enforced by local law enforcement, and policemen who do not act upon an official order face severe fines and penalties. Any person found to be in violation of a stalking order may face additional criminal charges and penalties.
Penalties for Violating a Stalking Order
In Oregon, any individual who has knowledge of the existence (or existence and contents) of a stalking protective order and who willfully participates in the violation of the stalking protective order may be charged with a class A misdemeanor. If the individual participates in the violation of the stalking protective order by possession or use of any instrumentality (machine, tool, weapon, or other device), including electronic devices, that is readily capable of causing injury or death to another person, then the person willfully participates and may be found guilty of committing a stalking protective order violation in the first degree. As seen from this language of the law, a violation can be a misdemeanor or a felony. A first offense stalking protective order violation is in the class A misdemeanor range, and if convicted there is a maximum jail of up to one year. A stalking protective order violation in the first degree (a felony), however, has a range of punishment of 2-5 years in prison and/or a fine of $125,000.
Information and Help for Victims
In Oregon, there are numerous organizations dedicated to assisting victims of stalking. The most well-known is the National Stalking Resource Center, which provides a plethora of information to assist victims nationwide. In every state, the process for obtaining a stalking order is different, and legal resources are available to help navigate the court process. In these legal service organizations, attorneys specializing in stalking orders and restraining orders can help victims handle all aspects of the petition process . Attorneys with specialties ranging from tax law to criminal law can also assist stalking victims, as stalking pertaining to other pending legal cases is often an issue; an attorney may be able to assist throughout all facets of the legal issue. Legal aid is provided on a sliding scale according to income level, and no one will be denied assistance due to their inability to pay. Victim advocacy organizations are also available to victims of stalking and other relationship violence. These organizations serve to educate victims, provide them with resources and assistance, and put them in touch with appropriate legal aid and other advocacy groups. Many of these organizations provide free legal aid as well.