ARS § 13-2923 is the Arizona statute that defines the crime of stalking. You commit this offense if

1. you intentionally or knowingly engage in a course of conduct directed towards a specific person, and
2. the conduct causes that person to either suffer emotional distress or reasonably fear for their safety or the safety of an immediate family member.

A violation of this law is a felony offense punishable by a prison sentence of up to seven years.

Examples

• Sending messages to an “ex” over social media that say, “we’re meant to be together – one way or another.”
• Entering an alleged victim’s household every week and leaving messages that read, “sleep well tonight.”
• Making nightly phone calls and text messages to a neighbor and stating, “keep your noise down or else.”

Defenses

People facing stalking charges can try to challenge them with a legal defense. A few common defenses include showing that:

• the Constitution protected the defendant’s acts,
• the victim’s fear was not reasonable, and/or
• the accused did not act intentionally or knowingly.

Penalties

If a person violates ARS 13-2923 and the “victim” was placed in fear of death or feared the death of an immediate family member, then stalking is charged as a Class 3 felony. A Class 3 felony is punishable by up to seven years in prison.

If, however, the “victim” did not fear death, but rather suffered emotional distress or only feared for their or their family’s safety, then stalking is charged as a Class 5 felony. A Class 5 felony is punishable by up to four years in state prison.

In this article, our criminal defense attorneys will discuss what the law is under this statute, defenses available if charged, the penalties for a conviction, and related crimes.

1. How does Arizona law define “stalking”?

People violate Arizona’s stalking law if they:

1. intentionally or knowingly engage in a course of conduct,
2. direct that conduct towards another person, and
3. cause that person to either suffer emotional distress or reasonably fear for their safety or the safety of an immediate family member.ⁱ

A “course of conduct” means any of the following:

1. maintaining visual or physical proximity to a specific person or directing verbal, written or other threats to that person on two or more occasions over a period of time.
2. using any electronic, digital, or global positioning system device to surveil a person or a person’s wireless activity without authorization, and
3. communicating words or images via electronic mail or electronic communication at a person without authorization or without a legitimate purpose. ⁱⁱ

For purposes of this statute, an “immediate family member” includes a:

• spouse,
• parent,
• child,
• sibling, or
• any other person who regularly resided within the “victim’s” household in the past six months.

The term also includes a person with whom the “victim” has or had a romantic or sexual relationship with.ⁱⁱⁱ

“Emotional distress” means significant mental suffering or distress under this law.^iv

Note that a person can also commit this criminal offense by causing a person to fear for the life of their domestic animal.^v

Note, too, that a “victim” does not have to suffer physical injury for a person to be guilty under this statute. The main focus is on whether a course of conduct would have caused a reasonable person to experience fear.

2. Are there defenses to ARS 13-2923?

Criminal defense lawyers draw upon several legal strategies to help defendants challenge stalking allegations. Three of these include showing that:

1. the accused engaged in constitutionally protected activity.
2. the victim’s fear was not reasonable.
3. the defendant did not act knowingly or intentionally.

2.1 Constitutionally protected activity

The language of this statute specifically provides that it does not criminalize constitutionally protected activity, or some other activity authorized by the law. For example, a person is not guilty of stalking if he occasionally protests outside of a politician’s office. This is activity protected by the First Amendment of the Constitution.

Therefore, it is always a defense for a defendant to show that the Constitution protected his/her conduct.

2.2 No reasonable fear

Recall that a “victim” must reasonably fear injury or death for a defendant to be convicted of stalking. A defense, then, is for accused persons to show that a person’s fear was not reasonable.

2.3 No intentional act

Also, recall that people are only guilty under this statute if they act intentionally or knowingly. This means it is always a defense for people to show that they did not act in this manner. For example, a person is not guilty of stalking if he occasionally “butt dials” someone with offensive music playing in the background.

3. What are the penalties?

Violations of this law are felony offenses (as opposed to misdemeanors).

The crime is charged as a Class 3 felony if, in reaction to a course of conduct, the “victim” feared his/her own death or the death of an immediate family member. A Class 3 felony is punishable by up to seven years in state prison.

The crime is charged as a Class 5 felony if, in reaction to a course of conduct, the “victim” did not fear death, but rather suffered emotional distress or only feared for their or their family’s safety. A Class 5 felony is punishable by a prison term of up to four years.

Note that the above prison terms can increase if the defendant has:

• any prior felony convictions, and/or
• an extensive criminal record.

4. Are there related offenses?

There are three crimes related to stalking. These are:

1. harassment – ARS 13-2921,
2. threatening and intimidating – ARS 13-1202, and
3. domestic violence – ARS 13-3601.

4.1 Harassment – ARS 13-2921

Per ARS 13-2921, harassment is the crime where people engage in conduct, that is directed at a specific person, and the conduct causes a reasonable person to be seriously alarmed, annoyed, or harassed.

While stalking must cause a person to experience fear, harassing only has to result in a “victim” being alarmed, annoyed, or harassed.

Also, while stalking is charged as a felony, harassing is charged as a misdemeanor offense.

4.2 Threatening and intimidating – ARS 13-1202

Per ARS 13-1202, threatening and intimidating is the crime where people either threaten to:

1. physically injure someone,
2. cause a serious public inconvenience (such as the evacuation of a building), or
3. injure another person to promote a street gang, a criminal syndicate, or a racketeering enterprise.

Unlike stalking, there is no reasonable test under this statute. A person is guilty of a crime even if the “victim” was not reasonably threatened.

4.3 Domestic violence – ARS 13-3601

Per ARS 13-3601, domestic violence is the crime where:

1. the defendant commits a crime that is specifically mentioned in the statute, and
2. the defendant is in a certain relationship with the “victim” (for example, married to or in a romantic or sexual relationship with the victim).

Stalking is one of the crimes specifically mentioned in ARS 13-3601.

This means if a defendant commits stalking, and the crime is committed against someone that he/she is in a certain relationship with, then that person can be charged with both:

• stalking, per ARS 13-2923, and
• domestic violence, per ARS 13-3601.

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