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PETERSEN v. STATE12/20/1996
e other side of the coin is that, even when the recipient of these contacts has previously expressed a desire not to be contacted, there may be situations in which a defendant's right to continue the contact is constitutionally guaranteed. For instance, the definition of "nonconsensual contact" is broad enough to include a defendant who repeatedly pickets a government office building or who makes repeated telephone calls to a government office to protest an official's actions.
Nevertheless, the crime of stalking requires proof of more than repeated acts of nonconsensual contact. Under AS 11.41.270(a), the State must prove (1) that the defendant "knowingly" engaged in repeated acts of nonconsensual contact, (2) that the defendant's conduct placed another person in fear of injury or death (or in fear of the injury or death of a "family member" as defined in AS 11.41.270(b)(2)), and (3) that the defendant acted "recklessly" with regard to this result. The question, then, is whether these three additional elements are sufficient to make the definition of stalking constitutional.
Public Encounters
Defendants Petersen and Larson point out that, under AS 11.41.270(b)(3), stalking includes the acts of "approaching . . . [another]
person in a public place" and even "appearing within the sight of that person" in a public place. The defendants suggest that these provisions of the statute are so broad as to effectively forbid people from attending public events, taking public transportation, going to restaurants, engaging in normal shopping, or even walking down the street for business or pleasure — because if the person were by chance to encounter or appear within sight of the alleged stalking victim, the State could charge them with recklessly disregarding the possibility that the other person would be there too.
However, as explained above, the crime of stalking requires proof that the defendant knowingly engaged in repeated acts of nonconsensual contact. Under AS 11.81.900(a)(2), to prove that a person "knowingly" engaged in conduct, the government must establish that the person " aware that [his or her] conduct of that nature". This provides one answer to the defendants' contention that a person might be prosecuted for happening to attend the same public function as the victim or happening to patronize a restaurant or grocery at the same time as the victim. A defendant who inadvertently encounters another person in a public place has not "knowingly" approached or appeared within sight of that person.
This, however, is only a partial answer to the defendants' argument. There may be times when the defendant knows beforehand that the other person will be attending a public function (say, a music festival or a municipal assembly meeting) that the defendant also has a legitimate interest in attending. If the defendant attends the festival or assembly meeting and the other person is there as expected, the defendant will have "knowingly" come within the sight of the other person.
Additionally, the defendants suggest the hypothetical situation of a person who, in the course of promoting a political or social cause, knowingly initiates contact with other people without their consent, either by approaching them on the street, or by telephoning them, or by coming to their home or workplace. For example, a person seeking signatures for a political petition might come door-to-door or might approach people at public gatherings. If the defendant's cause was unpopular, the defendant might reasonably anticipate that most people would not welcome his or her approach.
These objections lose their force when a defendant is charged with firs
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