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PETERSEN v. STATE12/20/1996
r realizes (or intends) that listeners will perceive his speech as harassing or annoying. Id. at 364.
Although we concluded in McKillop that the portion of the harassment statute outlawing anonymous telephone calls had to be construed narrowly to remain consistent with First Amendment protections, the stalking statute differs significantly from the harassment statute. Telephone contact with another person constitutes "stalking" under AS 11.41.270 only when the telephone contact is part of a series of knowing acts of nonconsensual contact with the victim or a family member, and only when the defendant, through this course of conduct, recklessly places another person in fear of injury or death (or in fear that a family member will suffer injury or death).
Placing another person in fear of injury or death by making a telephone call or a series of telephone calls can be likened to assault (but without the element of imminency). Compare AS 11.41.230(a)(3), which forbids a person from recklessly placing another person in fear of imminent injury "by words or other conduct". The defendants in the present appeals do not argue that they are constitutionally entitled to threaten other people over the telephone. However, they assert that a person could be prosecuted under the stalking statutes for making telephone calls that place another person in fear even when the other person's fear is completely unreasonable.
The defendants point out that, under AS 11.81.900(a)(3), a person acts "recklessly" with respect to a result (here, that another person will be placed in fear of injury or death) if that person "is aware of and consciously disregards a substantial and unjustifiable risk" that the result will occur. The defendants argue that a person might need to call an estranged spouse or lover for perfectly legitimate, non-threatening reasons, yet at the same time realize that the recipient of the calls is paranoid and will likely feel threatened (albeit unreasonably) by the calls. The defendants contend that, if this hypothetical person makes the telephone calls, he or she can be prosecuted for stalking since he or she will have "consciously disregard " the risk that the telephone calls would make the other person fearful.
The answer to the defendants' contention is that the definition of "recklessly" not only requires proof that the defendant consciously disregarded the risk that his or her conduct would cause the prohibited result, but also requires proof that this risk
was "unjustifiable", and that the risk was "of such a nature and degree that disregard of it constitute a gross deviation from the standard of care that a reasonable person would observe in the situation". Based on these two clauses of AS 11.81.900(a)(3), this court held in Wyatt v. State, 778 P.2d 1169, 1170 (Alaska App. 1989), and reaffirmed in DeHart v. State, 781 P.2d 989, 990 (Alaska App. 1989), that proof that a defendant "recklessly" placed another person in fear of injury implicitly requires proof that the victim's fear was reasonable.
When the legislature enacted the stalking statutes, the legislature also adopted a letter of intent specifying that the phrase "recklessly places another person in fear" used in AS 11.41.260(a) was to be construed in conformity with DeHart. See 1993 Senate Journal 1026-27. We therefore conclude that the stalking statutes do not prohibit telephone calls or other nonconsensual contacts made for legitimate purposes, even when the defendant knows that the person contacted may (or will) unreasonably perceive the contact as threatening.
Constitutionality of the Stalking Statutes: Summary
The constitutional arguments raised by t
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