Where is Stalking prohibited in the Virginia Code?

Stalking violates Virginia Code Section 18.2-60.3. That Section provides that

A. Any person…who on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person's family or household member is guilty of a Class 1 misdemeanor.

Will a single act constitute stalking?

No. Section 18.2-60.3 directly contemplates that more than once action must be taken to convict for stalking. That doesn’t mean that a person can't and won't be charged with another offense. It simply means, the action doesn’t fall within Virginia stalking.

What intent is needed to be convicted for stalking?

The intent requirement in the Virginia stalking statute is a bit confusing. Prior to 2001, the statute required specific intent by the accused to place the victim in reasonable fear of death, sexual assault or bodily injury. Parker v. Commonwealth, 24 Va. App. 681 (Va. Ct. App. 1997). Specific intent essentially means that the defendant specifically mean to cause fear in the victim, and the fear wasn’t just incidental.

However, in 2001, the statute was amended to insert the words “when he knows or reasonable should know.” In a civil protective order case, Stephens v. Rose, 762 SE2d 758 (2014), the Court abided by this statutory change in finding the defendant had committed stalking sufficient to warrant the protective order because he should have known his actions would cause reasonable fear.

A review of the case law regarding actual criminal cases (at least that we could find) failed to discovery any “reported” criminal cases approving of the 2001 change. However, in a few “unreported cases, including Frazier v. Com., No. 0725-06-2, 2007 WL 2174905 (Va. Ct. App. July 31, 2007), the Court indeed convicted the defendant because he knew or should have known his actions would case fear in the victim. In Frazier, the defendant was a complete stranger to victim. Despite this, the defendant managed to find the victim multiple times after she moved to unpublished addresses, and also called her at her unpublished phone number, making unwanted advances towards her.

Is stalking a misdemeanor or a felony?

The Virginia stalking statute provides that a first offense is a Class 1 Misdemeanor. However, stalking can constitute a felony:

B. Any person who is convicted of a second offense of subsection A occurring within five years of a prior conviction of such an offense when the person was also convicted within the five-year period prior to the instant offense of a violation of (i) § 18.2-51, 18.2-51.2, 18.2-51.6, 18.2-52, or 18.2-57 and the victim of that crime was the same person who is the victim of the stalking activity in the instant conviction, (ii) § 18.2-57.2, or (iii) a protective order, is guilty of a Class 6 felony.

C. Any person convicted of a third or subsequent conviction of subsection A occurring within five years of a conviction for an offense under this section or for a similar offense under the law of any other jurisdiction is guilty of a Class 6 felony.

In addition to jail, are there other consequences of a stalking conviction?

Yes, a conviction also required that a protective order be issued against the defendant prohibiting contact with the complainant or their family or household members.


James S. Abrenio
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