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F I S C A L I M P A C T R E P O R T

SPONSOR Leavell

DATE TYPED 02/08/05 HB

SHORT TITLE Cyberstalking as Harassment and Stalking

SB 99

ANALYST McSherry

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

Indeterminate Recurring General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Corrections Department

Department of Public Safety

Office of the Attorney General

Administrative Office of the Courts

Public Defender

SUMMARY

Synopsis of Bill

Senate Bill 99 proposes to amend the existing “Harassment and Stalking Act” to include the use

of electronic devices (computer, pager, cell phone, fax machine, telephone, audio equipment or

an device that can produce an electronically generated image, message or signal) as a form of

stalking and harassment.

The definition of stalking is proposed to be amended to require the alleged stalker to “intention-

ally act in a way that would place a reasonable person in reasonable apprehension of death, bod-

ily harm, sexual assault, confinement or restraint,” rather than the current statute which requires

a person to “intend to place another person in reasonable apprehension of death, bodily harm,

sexual assault, confinement or restraint.

The bill proposes that the location of offense when an electronic device is used to commit an of-

fense could be considered either the location from which the harassment was sent, or the location

the harassment was received.

Senate Bill 99 -- Page 2

Significant Issues

The Public Defender (PD) asserts that currently, harassment and stalking are specific intent

crimes, meaning that a person must do the acts with the intent to place another in reasonable ap-

prehension of death, bodily harm, etc. PD further points out that the proposed bill would remove

the intent requirement, and that simply performing the described acts, and doing them in a way

that would place a reasonable person in fear, would be illegal. This proposed change would ex-

pand the category of persons who may be criminally liable under the statute even though they

had no intent to place another in fear.

The penalty for a first violation of the act is a misdemeanor. The penalty for a second or subse-

quent violation is a fourth degree felony.

New criminal laws may increase the caseload of the state courts, the Corrections Department, the

Public Defender and the Public Safety Department.

According to the Attorney General’s Office (AGO), the inclusion of electronic communication in

the Harassment and Stalking Act does not present any significant issues, because the law as it

appears without the amendment does not prohibit a person from being convicted for using an

electronic device.

PERFORMANCE IMPLICATIONS

According to AGO, the proposed change in statute language to “intend to place” from intention-

ally act will make it easier to secure convictions in stalking situations.

FISCAL IMPLICATIONS

The Public Defender predicts that the enacting of this bill would result in more people being sub-

jected to criminal liability, although the exact number cannot be known at this time.

There is no appropriation in the bill.

The Corrections Department (CD) predicts that enactment of the bill could increase costs to the

Department as a result of the new crime. While the Department cites that currently, the number

of convictions is likely to be minimal, the Department further predicts that as technology devel-

ops, the violations of this offense could increase. CD asserts that virtually all prosecutions

would result in Probation and Parole involvement that could lead to a significant impact upon the

Department in the future.

The contract/private prison annual costs of incarcerating an inmate is $20,720 per year for males.

The cost per client to house a female inmate at a privately operated facility is $26,313 per year.

Because state owned prisons are essentially at capacity, any net increase in inmate population

will be housed at a contract/private facility.

The cost per client in Probation and Parole for a standard supervision program is $1,452 per year.

Senate Bill 99 -- Page 3

The cost per client in Intensive Supervision programs is $2,852 per year. The cost per client in

department-operated Community Corrections programs is $4,371 per year. The cost per client in

privately-operated Community Corrections programs is $9,151 per year. The cost per year for

male and female residential Community Corrections programs is $20,725.

AOC cites that there will be a minimal administrative cost for statewide update, distribution, and

documentation of statutory changes. Any additional fiscal impact on the judiciary would be pro-

portional to the enforcement of this law and commenced prosecutions.

ADMINISTRATIVE IMPLICATIONS

The Corrections Department reports that the Department would be able to absorb the additional

burden due to the fact that the numbers of persons convicted would be minimal.

New laws, amendments to existing laws, and new hearings have the potential to increase

caseloads in the courts.

TECHNICAL ISSUES

The Public Defender states that by lowering the intent requirement from the specific intent to place an-

other in fear, to intent to perform an act, the number of persons who may be criminally liable would in-

crease and convictions become easier to obtain. For example, a person who does an act which he or she

means as a joke but which actually puts another in fear could be found guilty of stalking. Because the

person intended the act, even if without a desired effect, if it causes another to fear harm, the person could

be found guilty of stalking.

According to the Office of the Attorney General, The Uniform Jury Instructions may need to be revised.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

According to AGO, under current statute if a stalker who truly believes his activity is not causing

the victim fear of death, bodily harm, or sexual assault arguably this stalker would not be con-

victed.

POSSIBLE QUESTIONS

1.

Is the intent of the bill to change the currently held “intent” requirement as well as to add

the additional electronic communication device harassment and stalking.

EM/njw