There is criminal stalking and there is civil stalking. Criminal stalking can only be brought against a person by a prosecutor. Civil stalking can be brought against an alleged stalker by any person who is being stalked. The elements for proving stalking are the same whether it be criminal or civil. The stalker must have engaged in a course of conduct (two or more instances of stalking) which either put the person in fear for his safety or caused the person “emotional distress.”
The stalking statute actually defines “emotional distress” as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required.” The problem with this codified definition is that it still remains extremely vague. If “emotional distress” does not require medical or other professional treatment how can somebody possibly prove that he has suffered from “emotional distress.” This almost makes it appear that a plaintiff (the person who is allegedly being stalked) need only say he suffered emotional distress and thus it must be so.
Fortunately, the Utah Court of Appeals has given some guidance on how to approach the emotional distress issue, specifically, what needs to be shown to satisfy this element of the statute. In Ellison v. Stam, 135 P.3d 1242, 2006 UT App 150 (Utah App. 2006), the court addressed whether the definition of “emotional distress” for purposes of the stalking statute could be borrowed from the Utah common law tort of intentional infliction of emotional distress (IIED). In short, the court found that it was entirely appropriate for the trial court to apply the IIED definition of “emotional distress” to the stalking statute, that is, “Emotional distress results from conduct that is outrageous and intolerable in that it offends the generally accepted standards of decency and morality.” Ellison at paragraph 21.
Thus, in addition to having to prove significant mental or psychological suffering, the defendant should insist that the court adopt the Ellison ruling and require the plaintiff to prove that defendant acted outrageously and intolerably and in such a way that offends decency and morality. The Ellison standard makes it much more difficult for plaintiffs and for the state to prove stalking.
