Stalking
A person commits the offense of stalking when he or she follows under O.C.G.A. Section 16-5-90(a), places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. The statute requires proof of a course of conduct, meaning a pattern of harassing and intimidating behavior rather than a single isolated incident. Contact may occur in person, by telephone, by mail, by broadcast, by electronic communication including email, text message, and social media, or by any other device or method. A first offense of stalking is a misdemeanor carrying up to twelve months imprisonment and a $1,000 fine. A second or subsequent conviction for stalking is a felony under O.C.G.A. Section 16-5-90(c).
Consider this scenario: After a breakup, your ex-partner claims you repeatedly drove past their home, sent dozens of text messages, and showed up at their workplace. This pattern of behavior may be charged as stalking or aggravated stalking in Georgia.
Aggravated Stalking
Aggravated stalking under O.C.G.A. Section 16-5-91(a) occurs when a person, in violation of a bond to keep the peace, a condition of pretrial release, a temporary restraining order, a temporary protective order, a permanent restraining order, a permanent protective order, a condition of probation, or a condition of parole, follows, places under surveillance, or contacts another person for the purpose of harassing and intimidating the other person, or when the conduct places the victim in reasonable fear of death or bodily harm to themselves or a member of their immediate family. Aggravated stalking is a felony carrying one to ten years imprisonment and a fine of up to $10,000. The violation of a protective order or similar court order elevates the offense to a felony regardless of the specific nature of the stalking conduct.
Proving Stalking
The state must prove the following elements beyond a reasonable doubt for a stalking conviction: the defendant engaged in following, surveillance, or contact directed at the victim; the conduct occurred without the victim’s consent; the conduct constituted a pattern or course of conduct rather than a single incident; and the purpose of the conduct was to harass and intimidate the victim. For aggravated stalking, the state must additionally prove either that the defendant was subject to a protective order, bond condition, or similar court directive at the time of the conduct, or that the conduct placed the victim in reasonable fear of death or bodily harm. The harassment and intimidation element requires proof of the defendant’s subjective purpose, making intent a critical contested issue in many stalking prosecutions.
Consent, Legitimate Purpose, and First Amendment Defenses
Conduct that occurs with the victim’s consent does not constitute stalking. Additionally, conduct undertaken for a legitimate purpose, such as serving legal process, conducting a lawful investigation, lawful picketing, exercising First Amendment rights to speech and assembly, or engaging in constitutionally protected communication, may not satisfy the stalking definition even if the victim finds the conduct unwelcome. A skilled defense attorney will evaluate whether the defendant’s conduct had a legitimate purpose that negates the harassment and intimidation element. Georgia courts must carefully distinguish between conduct that constitutes criminal stalking and conduct that, while unwelcome, falls within constitutionally protected expression or legitimate activity.
Electronic Stalking and Cyberstalking
Georgia’s stalking statute encompasses electronic communications of all types, including emails, text messages, social media contacts, GPS tracking, spyware installation, and the use of technology to monitor or track a victim’s location or activities. The use of technology to repeatedly contact, monitor, or harass a victim without consent falls within the statutory definition. The key move for your attorney is to examine whether the electronic evidence has been properly authenticated under O.C.G.A. Section 24-9-901, whether the defendant was actually the person who sent or initiated the electronic communications, and whether the communications were consensual, mutual, or initiated by the alleged victim. In cases involving shared electronic accounts, household devices, or workplace communications, attribution of the communications to the defendant may be disputed.
Protective Order Violations and Sentencing
When stalking occurs in violation of a protective order under O.C.G.A. Section 19-13-4 (family violence protective orders) or O.C.G.A. Section 16-5-94 (stalking protective orders), the offense is automatically elevated to aggravated stalking. Your defense may involve examine the validity of the underlying protective order, whether the defendant received proper service, and whether the alleged conduct actually violated the specific terms of the order. A protective order that does not specifically prohibit the type of contact alleged may not support an aggravated stalking charge on the order violation theory. Stalking convictions frequently result in conditions prohibiting contact with the victim, geographic restrictions, electronic monitoring, and requirements to participate in counseling. Effective defense requires your attorney to negotiate conditions that the client can realistically comply with while maintaining employment and necessary daily activities.