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PETERSEN v. STATE12/20/1996
minalize conduct. See, e.g., Richards v. Thurston, 424 F.2d 1281, 1284-85 (1st Cir. 1970) (declaring that the guarantee of liberty is "incomplete" if "the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty"). The stalking statutes pose due process problems because they potentially apply to situations where defendants engage in no activity other than going about their daily lives.
For instance, a group of skinheads may routinely ride the municipal bus. Their appearance, their language, and their demeanor may cause other regular bus riders to fear for their safety. The skinheads know that the other bus riders are afraid of them, but they continue to ride the bus. Have the skinheads committed stalking?
Or, to take another example, a person paroled from prison after serving a sentence for sexual abuse of children may be employed at the check-out counter of a grocery. Parents who patronize the grocery become aware of the parolee's background. Although the parents would prefer not to come into contact with the parolee, they inevitably do. Moreover, because of the parolee's background, these parents are afraid for the safety of their children who sometimes stop at the grocery after school to buy snacks. The parolee learns that the parents are afraid, but he continues to work at his job. Has the parolee committed stalking?
In both of these hypothetical situations, the government could plausibly claim that the defendant, through repeated acts of nonconsensual contact as defined in AS 11.41.270(b)(3), has placed another person in fear of injury or death (either for themselves or for a family member). Further, the government could plausibly claim that the defendant consciously disregarded a substantial and unjustifiable risk that his conduct would have this result. Yet the defendant's conduct was not directed at anyone; that conduct consisted of nothing more than riding the bus or pursuing a livelihood.
Thus, the definition of stalking may present troubling cases. However, when a constitutional challenge is leveled against a statute whose main concern is conduct rather than speech, "the possibility of difficult or borderline cases will not invalidate a statute" if there is a "hard core of cases to which . . . the statute unquestionably applies". Stock v. State, 526 P.2d 3, 9 (Alaska 1974). See Broadrick v. Oklahoma, 413 U.S. 601, 615-16, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830, 842 (1973) (Before a statute will be invalidated for overbreadth "where conduct and not merely speech is involved, . . . the overbreadth of statute must substantial[,] . . . judged in relation to the statute's . . . legitimate sweep. [If not], whatever overbreadth may exist should be cured through case-by-case analysis[.]")
For instance, in Holton v. State, 602 P.2d 1228 (Alaska 1979), the supreme court upheld the definition of the offense of contributing to the delinquency of a minor against the defendant's claim that the phrase "immoral conduct" was too vague to be understood by persons of common intelligence. The court ruled that, regardless of the potential vagueness of this phrase, inducing a minor to engage in fellatio came within the "hard core" of that term. 602 P.2d at 1236-37. And in Peratrovich v. State, 903 P.2d 1071 (Alaska App. 1995), this court upheld the definition of "sexual contact" against the contention that the phrase "normal caretaker responsibilities" might be construed too narrowly, thus criminalizing some innocent touchings. We held that, regardless of any potential ambiguity, the defendant's act of touching the victim's breast against her will was part of the core conduct prohibit
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