Michigan provides for the following protections against stalking:
•Criminal Penalties
•Stalking, MCL 750.411h.
•Aggravated Stalking, MCL 750.411i.
•Cyberstalking, MCL 750.411s.
•Civil Remedies
•Personal Protection Orders (PPOs), MCL 600.2950 and MCL 600.2950a.
•Civil Suit for Damages From Stalking, MCL 600.2954.
•Recovery for Intentional Infliction of Emotional Distress.
For purposes of MCL 750.411h, stalking is “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL 750.411h(1)(e). However, “MCL 750.411h does not require that an individual engage in the ‘course of conduct’ with the intent to bring about the harm”; “[t]he plain language of [MCL 750.411h(1)(e)] provides only that respondent willfully engage in the ‘course of conduct.’” SP v BEK, 339 Mich App 171, 184 (2021). “‘Willful’ has been defined as ‘[p]roceeding from a conscious motion of the will; voluntary; knowingly; deliberate.’” Id. at 184, quoting Jennings v Southwood, 446 Mich 125, 140 (1994) (cleaned up).
“In a prosecution for a violation of [MCL 750.411h], evidence that the defendant continued to engage in a course of conduct involving repeated unconsented contact with the victim after having been requested by the victim to discontinue the same or a different form of unconsented contact, and to refrain from any further unconsented contact with the victim, gives rise to a rebuttable presumption that the continuation of the course of conduct caused the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.”1 MCL 750.411h(4).
A person convicted under the stalking statute is guilty of a:
•“misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both[,]” MCL 750.411h(2)(a); or
•“felony punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00, or both” if “the victim was less than 18 years of age at any time during the individual’s course of conduct and the individual is 5 or more years older than the victim,” MCL 750.411h(2)(b); or
• “misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both” “[i]f the victim and the individual are spouses or former spouses, have or have had a dating relationship, have or have had a child in common, or are residents or former residents of the same household,” MCL 750.411h(2)(c).
The court may also place a person convicted under MCL 750.411h on probation for a term of up to five years. MCL 750.411h(3); MCL 771.2a(1). “If a term of probation is ordered, the court may, in addition to any other lawful condition of probation,[2] order the defendant to do any of the following:
(a) Refrain from stalking any individual during the term of probation.
(b) Refrain from having any contact with the victim of the offense.
(c) Be evaluated to determine the need for psychiatric, psychological, or social counseling and if, determined appropriate by the court, to receive psychiatric, psychological, or social counseling at his or her own expense.” MCL 750.411h(3).
A person on probation for violating MCL 750.411h is not eligible for early discharge from probation under MCL 771.2. See MCL 771.2(10)(c).
“A criminal penalty provided for under [MCL 750.411h] may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct or for any contempt of court arising from the same conduct.” MCL 750.411h(5).
Victims of stalking are entitled to restitution. See MCL 780.766(2) (felony offense); MCL 780.794(2) (juvenile offenders); MCL 780.826(2) (misdemeanor offense).
For additional information on restitution, see the Michigan Judicial Institute’s Crime Victim Right’s Benchbook.
a.Constitutionally Protected Activity or Conduct Serving a Legitimate Purpose
“[C]onduct that is constitutionally protected or serves a legitimate purpose cannot constitute harassment or, derivatively, stalking.” Nastal v Henderson & Assoc Investigations, Inc., 471 Mich 712, 723 (2005). See also MCL 750.411h(1)(d), which provides that “[h]arassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.”
In Nastal, 471 Mich at 723, the Michigan Supreme Court addressed the phrase “conduct that serves a legitimate purpose[:]
MCL 750.411h does not itself define ‘conduct that serves a legitimate purpose[.]’ . . . Thus, given the plain and ordinary import of the terms used by the Legislature, we conclude that the phrase ‘conduct that serves a legitimate purpose’ means conduct that contributes to a valid purpose that would otherwise be within the law irrespective of the criminal stalking statute.”3
See also People v White (Carl), 212 Mich App 298, 311 (1995) (The “[d]efendant’s repeated telephone calls to the victim, sometimes fifty to sixty times a day whether the victim was at home or at work, and his verbal threats to kill her and her family do not constitute protected speech or conduct serving a legitimate purpose, even if that purpose is ‘to attempt to reconcile.’”).
b.Vagueness and Overbreadth
“When a vagueness challenge does not involve First Amendment freedoms it must be examined on the basis of the facts in the case at hand[;] . . . [i]n other words, when a defendant brings an as-applied vagueness challenge to a statute, the defendant is confined to the facts of the case at bar.” People v Loper, 299 Mich App 451, 458 (2013). “[A] criminal defendant may not defend on the basis that the charging statute is unconstitutionally vague or overbroad when the defendant’s conduct is fairly within the constitutional scope of the statute.” People v Rogers, 249 Mich App 77, 95 (2001).
MCL 750.411h is not unconstitutionally vague because (1) it is not overbroad, nor does it infringe on a defendant’s right of free speech under the United States and the Michigan Constitutions; (2) it provides fair notice of the prohibited conduct; and (3) it does not “‘confer[] unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed.’” White (Carl), 212 Mich App at 309-313, quoting Michigan State AFL-CIO v Civil Svc Comm (After Remand), 208 Mich App 479, 492 (1995).4
c. Statutory Presumption
MCL 750.411h(4) does not unconstitutionally shift the burden of proof of an element of the offense to the defendant. See People v Ballantyne, 212 Mich App 628, 629 (1995) (adopting the reasoning of White (Carl), 212 Mich App at 313-315).5 In White (Carl), 212 Mich App at 313-314, the Court of Appeals held that the language of MCL 750.411h(4) and MCL 750.411i(5) (“evidence that the defendant continued to engage in a course of conduct involving repeated unconsented contact with the victim after having been requested by the victim to discontinue the same or a different form of unconsented contact, and to refrain from any further unconsented contact with the victim, shall give rise to a rebuttable presumption that the continuation of the course of conduct caused the victim to feel terrorized, frightened, intimated, threatened, harassed, or molested”) does not violate due process or equal protection because “there certainly exists a rational connection between such conduct and the presumption that the victim would feel harassed or frightened by its continuation[,]” which satisfies the constitutional requirement. White (Carl), 212 Mich App at 313-314. Additionally, “[MCL 750.411h(4) and MCL 750.411i(5)] must be read in connection with MRE 302(b), [wherein] . . . it is clear that the burden of proof on each and every element of the offense of stalking remains with the prosecution, and it is mandated that the jury be so instructed.” White, 212 Mich App at 314-315.
An indictment for stalking “may be found and filed within 6 years after the offense is committed.” See MCL 767.24(10). However, “[a]ny period during which the party charged[6] did not usually and publicly reside within this state is not part of the time within which the respective indictments may be found and filed.”7MCL 767.24(11). “The extension or tolling, as applicable, of the limitations period provided in [MCL 767.24] applies to any of those violations for which the limitations period has not expired at the time the extension or tolling takes effect.” MCL 767.24(12).
See People v Blackmer, 309 Mich App 199, 202 (2015) (finding that because “the plain and unambiguous language of the . . . nonresident tolling provision [of MCL 767.248] provides that the limitations period [is] tolled for any period in which a defendant [is] not customarily and openly living in Michigan[,]” a “[d]efendant’s subjective intent [to return to Michigan following his or her term of incarceration in another state] is irrelevant[, and] . . . the statute of limitations [is] tolled from the time defendant [leaves] Michigan”).
5.Technical Probation Violation
MCL 771.4b(1) (providing for a period of incarceration for technical probation violations that increases in length as the number of violations increases) does not apply to a probationer who is on probation for a violation of MCL 750.411h, or an offense involving domestic violence as that term is defined in MCL 400.1501.9 MCL 771.4b(6). There is a rebuttable presumption that no arrest warrant will issue for a technical probation violation. MCL 771.4b(7). Instead, the court will issue a summons or show-cause order to the probationer for the alleged technical probation violation. Id.
MCR 6.445(A) expressly provides that “[t]he court must issue a summons, rather than a bench warrant, upon finding probable cause to believe a probationer has committed a technical violation of probation . . . .” (Emphasis added.) The court may overcome the presumption that a summons will issue (rather than a bench warrant) if “the court states on the record a specific reason to suspect that one or more of the following apply:
(1) The probationer presents an immediate danger to himself or herself, another person, or the public.
(2) The probationer has left court-ordered inpatient treatment without the court’s or the treatment facility’s permission.
(3) A summons has already been issued for the technical probation violation and the probationer failed to appear as ordered.” MCR 6.445(A). See also MCL 771.4b(7)(a)-(c) (providing substantially the same information as does MCR 6.445(A)(1)-(3)).
At arraignment for the alleged violation, the court must “inform the probationer whether the alleged violation is charged as a technical or non-technical violation of probation, and the maximum possible jail or prison sentence.” MCR 6.445(B)(2).10 See also MCL 771.4b(8) (hearing on a technical probation violation must occur “as soon as is possible”).
If, after the probation violation hearing, the court finds that the probation violation was proved, the court must inform the probationer “whether the violation is a technical or non-technical violation of probation.” MCR 6.445(E)(2). If a probationer pleads guilty to a probation violation, the court must, among other things, “establish factual support for a finding that the probationer is guilty of the alleged violation and whether the violation is a technical or non-technical violation of probation.” MCR 6.445(F)(4).
“In lieu of initiating a probation violation proceeding under MCR 6.445, the court may allow a probationer to acknowledge a technical probation violation without a hearing.” MCR 6.450(A). The acknowledgment must be written11 and must provide the probationer with the specific information stated in MCR 6.450(A).12 Specifically, and among other provisions, the acknowledgment must inform the probationer that acknowledging a technical violation could delay his or her eligibility for early discharge. MCR 6.450(A)(5); MCR 6.441. See also MCL 771.4b(2) (permitting written acknowledgment of a technical probation violation without a hearing).
“An individual who engages in stalking is guilty of aggravated stalking if the violation involves any of the following circumstances:
(a) At least 1 of the actions constituting the offense is in violation of a restraining order and the individual has received actual notice[13] of that restraining order or at least 1 of the actions is in violation of an injunction or preliminary injunction.
(b) At least 1 of the actions constituting the offense is in violation of a condition of probation, a condition of parole, a condition of pretrial release, or a condition of release on bond pending appeal.
(c) The course of conduct includes the making of 1 or more credible threats against the victim, a member of the victim’s family, or another individual living in the same household as the victim.
(d) The individual has been previously convicted of a violation of [MCL 750.411i] or [MCL 750.411h].” MCL 750.411i(2).
For purposes of MCL 750.411i, stalking is “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL 750.411i(1)(e). “In a prosecution for a violation of [MCL 750.411i], evidence that the defendant continued to engage in a course of conduct involving repeated unconsented contact with the victim after having been requested by the victim to discontinue the same or a different form of unconsented contact, and to refrain from any further unconsented contact with the victim, gives rise to a rebuttable presumption that the continuation of the course of conduct caused the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.”14 MCL 750.411i(5).
A person convicted under the aggravated stalking statute is guilty of either a:
•felony punishable “by imprisonment for not more than 5 years or a fine of not more than $10,000.00, or both[,]” MCL 750.411i(3)(a); or
•felony punishable “by imprisonment for not more than 10 years or a fine of not more than $15,000.00, or both” if “the victim was less than 18 years of age at any time during the individual’s course of conduct and the individual is 5 or more years older than the victim,” MCL 750.411i(3)(b).
The court may also place a person convicted under MCL 750.411i on probation “for any term of years, but not less than 5 years.” MCL 750.411i(4); MCL 771.2a(2). “If a term of probation is ordered, the court may, in addition to any other lawful condition of probation,[15] order the defendant to do any of the following:
(a) Refrain from stalking any individual during the term of probation.
(b) Refrain from having any contact with the victim of the offense.
(c) Be evaluated to determine the need for psychiatric, psychological, or social counseling and, if determined appropriate by the court, to receive psychiatric, psychological, or social counseling at his or her own expense.” MCL 750.411i(4).
Note: If a prisoner serving a sentence for aggravated stalking under MCL 750.411i is paroled and the victim has registered to receive notification about that prisoner, the prisoner’s parole order must require that the prisoner’s location be monitored by a global positioning monitoring system during the entire parole period. MCL 791.236(18).16 See the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 5, for more information on victim notification.
A person on probation for violating MCL 750.411i is not eligible for early discharge from probation under MCL 771.2. See MCL 771.2(10)(d).
“A criminal penalty provided for under [MCL 750.411i] may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct or for contempt of court arising from the same conduct.” MCL 750.411i(6).
Victims of aggravated stalking are entitled to restitution. See MCL 780.766(2) (felony offense); MCL 780.794(2) (juvenile offenders).
For additional information on restitution, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 8.
a.Legitimate Purpose
MCL 750.411i(1)(d) expressly excludes from the definition of harassment “constitutionally protected activity or conduct that serves a legitimate purpose.”
MCL 750.411i(1)(d) “cannot be read as excluding from its definition of ‘harassment’ conduct that is clearly illegitimate, notwithstanding an ‘ends justifies the means’ argument that the conduct serves a legitimate purpose.” People v Coones, 216 Mich App 721, 726 (1996) (the defendant’s conduct of forcibly entering his wife’s home after she refused to let him in and repeatedly attempting to contact her in violation of a temporary restraining order and conditions of the defendant’s bond, constituted harassment under MCL 750.411i(1)(d), despite the defendant’s argument that he contacted his wife for the legitimate purpose of preserving their marriage).
See also White (Carl), 212 Mich App 298, 311 (1995) (the “[d]efendant’s repeated telephone calls to the victim, sometimes fifty to sixty times a day whether the victim was at home or at work, and his verbal threats to kill her and her family do not constitute protected speech or conduct serving a legitimate purpose, even if that purpose is ‘to attempt to reconcile’”).
b.Vagueness and Overbreadth
“When a vagueness challenge does not involve First Amendment freedoms it must be examined on the basis of the facts in the case at hand[;] . . . [i]n other words, when a defendant brings an as-applied vagueness challenge to a statute, the defendant is confined to the facts of the case at bar.” People v Loper, 299 Mich App 451, 458 (2013). “[A] criminal defendant may not defend on the basis that the charging statute is unconstitutionally vague or overbroad when the defendant’s conduct is fairly within the constitutional scope of the statute.” People v Rogers, 249 Mich App 77, 95 (2001).
MCL 750.411i is not unconstitutionally vague because (1) it is not overbroad, nor does it infringe on a defendant’s right of free speech under the United States and the Michigan Constitutions; (2) it provides fair notice of the prohibited conduct; and (3) it does not “‘confer[] unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed.’” White (Carl), 212 Mich App at 309-313, quoting Michigan State AFL-CIO v Civil Svc Comm (After Remand), 208 Mich App 479, 492 (1995).17
c.Statutory Presumption
MCL 750.411i(5) does not unconstitutionally shift the burden of proof of an element of the offense to the defendant. Ballantyne, 212 Mich App at 629 (adopting the reasoning of White (Carl), 212 Mich App at 313-315).18 In id. at 313-314, the Court of Appeals held that the language of MCL 750.411h(4) and MCL 750.411i(5) (“evidence that the defendant continued to engage in a course of conduct involving repeated unconsented contact with the victim after having been requested by the victim to discontinue the same or a different form of unconsented contact, and to refrain from any further unconsented contact with the victim, shall give rise to a rebuttable presumption that the continuation of the course of conduct caused the victim to feel terrorized, frightened, intimated, threatened, harassed, or molested”) do not violate due process or equal protection where “there certainly exists a rational connection between such conduct and the presumption that the victim would feel harassed or frightened by its continuation[,]” which satisfies the constitutional requirement. White (Carl), 212 Mich App at 313-314. Additionally, “[MCL 750.411h(4) and MCL 750.411i(5)] must be read in connection with MRE 302(b), [wherein] . . . it is clear that the burden of proof on each and every element of the offense of stalking remains with the prosecution, and it is mandated that the jury be so instructed.” White (Carl), 212 Mich App at 314-315.
d.Double Jeopardy
“The double jeopardy provision of the United States Constitution, US Const, Am V, and its counterpart in the Michigan Constitution, Const 1963, art 1, § 15, protect citizens from suffering multiple punishments and successive prosecutions for the same offense.” White (Carl), 212 Mich App at 305.
No double jeopardy violation occurred when the defendant was separately charged with misdemeanor stalking under a township ordinance19 and then subsequently charged with aggravated stalking under MCL 750.411i, because the two separate convictions “arose out of two distinct occurrences or episodes[.]”20 White (Carl), 212 Mich App at 306-308 (as analyzed under the “successive prosecutions strand of the Double Jeopardy Clause”). Specifically,
“As evidenced by [MCL 750.411i(2)(d)], the Legislature apparently intended that prosecutors may use . . . a misdemeanor conviction as one of several vehicles for establishing aggravated stalking where threats to kill or injure another have been made. We therefore conclude that [the] defendant’s convictions of violating a township antistalking ordinance and attempted aggravated stalking did not violate double jeopardy principles because the incidents did not arise out of a single criminal act, occurrence, episode, or transaction.” White (Carl), 212 Mich App at 308.
Note: The White (Carl) Court also “reject[ed] [the] defendant’s unsupported assertion that stalking is a continuous act or offense for which he could receive only one punishment.” White (Carl), 212 Mich App at 306.
Similarly, the Double Jeopardy Clause of the Federal and Michigan Constitutions is not violated where “the Legislature intended to impose multiple punishments for both of [the] defendant’s convictions of aggravated stalking and criminal contempt for violating the temporary restraining order[]” when it enacted MCL 750.411i(6). Coones, 216 Mich App at 727-728 (stating that “the power to define crime and fix punishment is wholly legislative, [and] the Double Jeopardy Clause is not a limitation on the Legislature”).
An indictment for aggravated stalking “may be found and filed within 6 years after the offense is committed.” See MCL 767.24(10). However, “[a]ny period during which the party charged[21] did not usually and publicly reside within this state is not part of the time within which the respective indictments may be found and filed.”22 MCL 767.24(11). “The extension or tolling, as applicable, of the limitations period provided in [MCL 767.24] applies to any of those violations for which the limitations period has not expired at the time the extension or tolling takes effect.” MCL 767.24(12).
See People v Blackmer, 309 Mich App 199, 202 (2015) (finding that because “the plain and unambiguous language of the . . . nonresident tolling provision [of MCL 767.2423] provides that the limitations period [is] tolled for any period in which a defendant [is] not customarily and openly living in Michigan[,]” a “[d]efendant’s subjective intent [to return to Michigan following his or her term of incarceration in another state] is irrelevant[, and] . . . the statute of limitations [is] tolled from the time defendant [leaves] Michigan”).
5.Technical Probation Violation
MCL 771.4b(1) (providing for a period of incarceration for technical probation violations that increases in length as the number of violations increases) does not apply to a probationer on probation for a violation of MCL 750.411i, or an offense involving domestic violence as that term is defined in MCL 400.1501.24 MCL 771.4b(6). There is a rebuttable presumption that no arrest warrant will issue for a technical probation violation. MCL 771.4b(7). Instead, the court will issue a summons or show-cause order to the probationer for the alleged technical probation violation. Id.
MCR 6.445(A) expressly provides that “[t]he court must issue a summons, rather than a bench warrant, upon finding probable cause to believe a probationer has committed a technical violation of probation . . . .” (Emphasis added.) The court may overcome the presumption that a summons will issue (rather than a bench warrant) if “the court states on the record a specific reason to suspect that one or more of the following apply:
(1) The probationer presents an immediate danger to himself or herself, another person, or the public.
(2) The probationer has left court-ordered inpatient treatment without the court’s or the treatment facility’s permission.
(3) A summons has already been issued for the technical probation violation and the probationer failed to appear as ordered.” MCR 6.445(A). See also MCL 771.4b(7)(a)-(c) (providing substantially the same information as does MCR 6.445(A)(1)-(3)).
At arraignment for the alleged violation, the court must “inform the probationer whether the alleged violation is charged as a technical or non-technical violation of probation, and the maximum possible jail or prison sentence.” MCR 6.445(B)(2).25 See also MCL 771.4b(8) (hearing on a technical probation violation must occur “as soon as is possible”).
If, after the probation violation hearing, the court finds that the probation violation was proved, the court must inform the probationer “whether the violation is a technical or non-technical violation of probation.” MCR 6.445(E)(2). If a probationer pleads guilty to a probation violation, the court must, among other things, “establish factual support for a finding that the probationer is guilty of the alleged violation and whether the violation is a technical or non-technical violation of probation.” MCR 6.445(F)(4).
“In lieu of initiating a probation violation proceeding under MCR 6.445, the court may allow a probationer to acknowledge a technical probation violation without a hearing.” MCR 6.450(A). The acknowledgment must be written26 and must provide the probationer with the specific information stated in MCR 6.450(A).27 Specifically, and among other provisions, the acknowledgment must inform the probationer that acknowledging a technical violation could delay his or her eligibility for early discharge. MCR 6.450(A)(5); MCR 6.441. See also MCL 771.4b(2) (permitting written acknowledgment of a technical probation violation without a hearing).
MCL 750.411s(1) provides that “[a] person shall not post a message through the use of any medium of communication, including the internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the victim’s consent, if all of the following apply:
(a) The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim.
(b) Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.
(c) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
(d) Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.”28
Cyberstalking under MCL 750.411s does not include:
•“an internet or computer network service provider who in good faith, and without knowledge of the specific nature of the message posted, provides the medium for disseminating information or communication between persons.” MCL 750.411s(3).
•“constitutionally protected speech or activity.” MCL 750.411s(6).
See also MCL 750.145d(1)(b), which makes it unlawful for a person to use the internet, a computer, computer program, computer network, or computer system to communicate with another person for the purpose of committing, attempting to commit, conspiring to commit, or soliciting another person to commit stalking under MCL 750.411h or aggravated stalking under MCL 750.411i.
1.Jurisdictional Requirements for Prosecuting Crime in Michigan
MCL 750.411s(7) contains the following jurisdictional requirements:
“A person may be prosecuted in this state for violating or attempting to violate [MCL 750.411s] only if 1 of the following applies:
(a) The person posts the message while in this state.
(b) Conduct arising from posting the message occurs in this state.
(c) The victim is present in this state at the time the offense or any element of the offense occurs.
(d) The person posting the message knows that the victim resides in this state.”
“A person who violates [MCL 750.411s(1)] is guilty of a crime as follows:
(a) Except as provided in subdivision (b), the person is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $5,000.00, or both.
(b) If any of the following apply, the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00, or both.
(i) Posting the message is in violation of a restraining order and the person has received actual notice of that restraining order or posting the message is in violation of an injunction or preliminary injunction.
(ii) Posting the message is in violation of a condition of probation, a condition of parole, a condition of pretrial release, or a condition of release on bond pending appeal.
(iii) Posting the message results in a credible threat being communicated to the victim, a member of the victim’s family, or another individual living in the same household as the victim.
(iv) The person has been previously convicted of violating [MCL 750.411s] or [MCL 750.145d], [MCL 750.411h], or [MCL 750.411i], or . . . MCL 752.796, or a substantially similar law of another state, a political subdivision of another state, or of the United States.
(v) The victim is less than 18 years of age when the violation is committed and the person committing the violation is 5 or more years older than the victim.” MCL 750.411s(2).
A person charged under MCL 750.411s may also be “charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate [MCL 750.411s].” MCL 750.411s(5).
Victims of cyberstalking are entitled to restitution. See MCL 780.766(2) (felony offense); MCL 780.794(2) (juvenile offenders).
For additional information on restitution, see the Michigan Judicial Institute’s Crime Victim Right’s Benchbook.
“According to the language of MCL 750.411s(8)(i), posted messages can be prohibited even if they are truthful, but by the same token MCL 750.411s cannot be read to prohibit constitutionally protected speech, MCL 750.411s(6).” TT v KL, 334 Mich App 413, 442-443 (2020).
First Amendment. While the First Amendment protects the freedom of speech, its protections are not without limitations. See TM v MZ (On Remand), 326 Mich App 227, 237-238 (2018). For example, the First Amendment does not protect defamatory speech. Id. at 240. “A defamatory statement is a statement asserting facts that are and can be proven false.” TT, 334 Mich App at 443-444. Some statements are per se defamatory such as false accusations of criminal activity. Id. at 444. Similarly, “the speech-integral-to-criminal-conduct exception to the First Amendment . . . has been recognized in relation to criminal stalking statutes.” Id. at 446. However, this exception is limited in Michigan because MCL 750.411s(6) indicates “that it does not prohibit constitutionally protected speech[.]” TT, 334 Mich App at 447. “[W]hen the argument is raised that MCL 750.411s is being used to prohibit constitutionally protected speech relating to a matter of public concern, it must be determined whether the postings are intended solely to cause conduct that will harass a private victim in connection with a private matter or whether the publication of the information relates to a public figure and an important public concern.” Buchanan v Crisler, 323 Mich App 163, 188-189 (2018). See Section 5.3(C)(2) for more information about the interplay between MCL 750.411s and issuing a PPO to enjoin conduct that may be protected by the First Amendment.
“The court may order a person convicted of violating [MCL 750.411s] to reimburse this state or a local unit of government of this state for the expenses incurred in relation to the violation in the same manner that expenses may be ordered to be reimbursed under . . . MCL 769.1f.” MCL 750.411s(4).
An indictment for cyberstalking “may be found and filed within 6 years after the offense is committed.” See MCL 767.24(10). However, “[a]ny period during which the party charged[29] did not usually and publicly reside within this state is not part of the time within which the respective indictments may be found and filed.”30 MCL 767.24(11). “The extension or tolling, as applicable, of the limitations period provided in [MCL 767.24] applies to any of those violations for which the limitations period has not expired at the time the extension or tolling takes effect.” MCL 767.24(12).
See People v Blackmer, 309 Mich App 199, 202 (2015) (finding that because “the plain and unambiguous language of the . . . nonresident tolling provision [of MCL 767.2431] provides that the limitations period [is] tolled for any period in which a defendant [is] not customarily and openly living in Michigan[,]” a “[d]efendant’s subjective intent [to return to Michigan following his or her term of incarceration in another state] is irrelevant[, and] . . . the statute of limitations [is] tolled from the time defendant [leaves] Michigan”).
D.Personal Protection Orders (PPOs)
Civil protection orders against domestic violence supplement the protections provided by criminal law. In Michigan, a civil protection order against domestic violence is known as a personal protection order (PPO). A brief discussion of PPOs is contained in this subsection. For a detailed discussion, see Chapter 5.
The Legislature created two types of PPOs, categorized according to the relationship between the parties. Because domestic abuse is not always confined to parties living in the same household, these two types of PPOs encompass a broad range of interpersonal contexts. The two types of PPOs are:
(1) Domestic relationship PPOs under MCL 600.2950 are available to enjoin behavior (including stalking) that interferes with the petitioner’s personal liberty, or that causes a reasonable apprehension of violence if the respondent is involved in certain domestic relationships with the petitioner as defined by the statute. MCL 600.2950(1).
Note: If the respondent falls into any one of the following categories described in MCL 600.2950(1), and engages in prohibited conduct, a domestic relationship PPO may be appropriate:
•The petitioner’s spouse or former spouse.
•A person with whom the petitioner has had a child in common.
•A person who resides or who has resided in the same household as the petitioner.
•A person with whom the petitioner has or has had a dating relationship.
(2) Non‐domestic relationship PPOs under MCL 600.2950a:
(a) Non-domestic stalking PPOs under MCL 600.2950a(1) are available to enjoin a person, regardless of that person’s relationship with the petitioner, from engaging in stalking (MCL 750.411h), aggravated stalking (MCL 750.411i), or cyberstalking (MCL 750.411s).
(b) Non-domestic sexual assault PPOs under MCL 600.2950a(2) are available to victims of sexual assault, victims who have received obscene material under MCL 750.142, and petitioners who have been placed in reasonable apprehension of sexual assault by the respondent. The respondent may be enjoined from any of the conduct listed in MCL 600.2950a(3).
E.Civil Suit for Damages Resulting from Stalking
MCL 600.2954 provides a civil remedy for damages resulting from stalking:
“(1) A victim may maintain a civil action against an individual who engages in conduct that is prohibited under [MCL 750.411h] or [MCL 750.411i], . . . for damages incurred by the victim as a result of that conduct. A victim may also seek and be awarded exemplary damages, costs of the action, and reasonable attorney fees in an action brought under this section.
(2) A civil action may be maintained under subsection (1) whether or not the individual who is alleged to have engaged in conduct prohibited under [MCL 750.411h] or [MCL 750.411i] . . . has been charged or convicted under [MCL 750.411h] or [MCL 750.411i] . . . for the alleged violation.”
Note: “As used in this section, ‘victim’ means that term as defined in [MCL 750.411h].” MCL 600.2954(3).
F.Recovery for Intentional Infliction of Emotional Distress
The intentional infliction of emotional distress tort provides for a recovery in certain circumstances where a victim suffered from extreme emotional distress.
“The tort of intentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress.” Haverbush v Powelson, 217 Mich App 228, 233-234 (1996), citing Roberts v Auto-Owners Ins Co, 422 Mich 594, 602 (1985); Johnson v Wayne Co, 213 Mich App 143, 161 (1995).
Liability for intentional infliction of emotional distress may be found “only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.” Haverbush, 217 Mich App 234, citing Johnson, 213 Mich App 161. In Haverbush, 217 Mich App at 234-235, the Court of Appeals found that the defendant-perpetrator’s “conduct could appropriately be determined sufficiently extreme and outrageous to justify recovery for intentional infliction of emotion distress” because “a rational trier of fact could find that [the defendant-perpetrator’s] conduct was so outrageous in character and so extreme in degree that it went beyond all bounds of common decency in a civilized society[ where] [the defendant-perpetrator] engaged in an escalating series of acts over a two-year period in which she: (1) sent a barrage of letters to [the victim], to [the victim’s] daughter, and to [the victim’s] future in-laws, in which [the defendant-perpetrator] called [the victim] a compulsive liar, threatened [the victim’s] fiancee with physical harm, and threatened to tell [the victim’s] colleagues that he had harassed [the defendant-perpetrator]; (2) left lingerie on [the victim’s] vehicles and at his residence several times; (3) left an ax and a hatchet on [the victim’s] vehicles, after having asked him how his fiancee would like to have an ax through her windshield; (4) told a co-worker several times that someone should ‘ice’ [the victim]; and (5) wrote several letters threatening to move in with him even though he was engaged and would soon be married.”
“[E]motional distress ‘includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.’ However[,] . . . ‘[t]he law intervenes only where the distress inflicted is so severe that no reasonable man [or woman] could be expected to endure it. . . . Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant[-perpetrator’s] conduct is in itself important evidence that the distress has existed.’” Haverbush, 217 Mich App at 235, quoting 1 Restatement Torts, 2d, §46, Comment j, p 77-78. In Haverbush, 217 Mich App at 235-236, the victim established severe emotional distress where his testimony established that “(1) [] [the defendant-perpetrator’s] letter accused [the victim] of harassment, (2) [] [the victim] was especially fearful after [the defendant-perpetrator] left the ax and the hatchet on his vehicles, (3) [] [the defendant-perpetrator’s] letters caused [the victim] great concern that she was going to interfere with his wedding, (4) [] [the victim] was worried about his reputation because of what [the defendant-perpetrator] said about him to others, (5) [] [the victim] was concerned with his patient’s safety, and (6) [] [the defendant-perpetrator’s] actions affected the way he did his work.”
Note: “‘The intensity and duration of the distress are factors to be considered in determining its severity.’” Haverbush, 217 Mich App at 235, quoting 1 Restatement Torts, 2d, §46, Comment j, p 77-78.
“[S]eeking and receiving medical treatment is [not] a condition precedent to satisfying the element of extreme emotional distress.” McCahill v Commercial Union Ins Co, 179 Mich App 761, 771 (1989) (nonstalking case).
1 See M Crim JI 17.25, Stalking.
2 See MCL 771.3, which provides probation conditions that must be included in the sentence of probation as well as probation conditions that may be included.
3 In Nastal, 471 Mich at 714, the Michigan Supreme Court found that “surveillance by licensed private investigators that contributes to the goal of obtaining information, as permitted by the [Professional Investigator] Licens[ur]e Act, MCL 338.822[(e)(i)-(v)], is conduct that serves a legitimate purpose.” At the time Nastal was decided, former MCL 338.822(b) allowed an investigator to obtain only five types of information. However, the statute was subsequently amended and now contains three more types of information an investigation business may obtain. See 2008 PA 146. It is unclear whether the Nastal holding applies to the new types of information available for procurement.
4 This holding was also extended to apply to MCL 750.411i (aggravated stalking). See Section 2.4(B) for more information on aggravated stalking.
5 In Ballantyne, 212 Mich App at 629, the Court of Appeals based its holding on the language of MCL 750.411i(5) (aggravated stalking). Presumably, this holding would extend to MCL 750.411h(4), which contains the exact same language. The Court rejected the defendant’s argument that MCL 750.411i(5), “which creates a rebuttable presumption that [the] defendant’s acts caused the victim to feel terrorized, impermissibly shift[ed] the burden of proof of an element of the offense to [the] defendant[;] [w]e reject [the defendant’s] argument for the reasons set forth in this Court’s opinion in White [(Carl)], [212 Mich App at 313-315 (which discussed both MCL 750.411h(4) and MCL 750.411i(5)], where this identical issued was raised sua sponte by a panel of this Court. While the opinion in White is arguably dictum regarding this issue, we agree with both the reasoning and conclusion and adopt it as our own.” Ballantyne, 212 Mich App at 629. See Section 2.4(B) for more information on aggravated stalking.
6 “The term ‘party charged’ simply refers to the party . . . who [is] charged with a crime to which the limitations and tolling provisions of MCL 767.24 apply.” People v James (Joel), 326 Mich App 98, 109 (2018) (the authority relied on by the trial court “for the proposition that, for the tolling provision to apply, defendant must have been a ‘suspect’ or an ‘accused’ prior to the expiration of the untolled limitations, [was] inapposite”).
7 “[T]he tolling provision in MCL 767.24 [does not] violate [a nonresident] defendant’s constitutional right to interstate travel or . . . equal protection under the law[.]”People v James, 326 Mich App 98, 101, 103, 104, 108, 112 (2018) (“the tolling provision [in MCL 767.24] only applies when a party is not usually and publicly residing in Michigan and, therefore, it does not restrict in any way a person’s right to travel within, across, or outside of Michigan’s border”; “residents and nonresidents are not similarly situated for equal-protection purposes,” and there are rational grounds for “[t]he Legislature [to] distinguish[] between Michigan residents and nonresidents for purposes of tolling the statute of limitations for certain crimes, . . . including the investigation, prosecution, and . . . the very discovery of previously unreported crimes”). Although the James Court discussed the nonresident tolling provision that was formerly found in MCL 767.24(8), MCL 767.24(8) contains substantially similar language as the current provision found in MCL 767.24(11).
8 The Blackmer Court discussed the nonresident tolling provision that was formerly found in MCL 767.24(1). However, it contains substantially similar language as the current provision found in MCL 767.24(11).
9 See Section 1.1 for the definition of domestic violence found in MCL 400.1501. In addition, MCL 771.4b(1) does not apply to violations of MCL 750.81, MCL 750.81a, or MCL 750.411i. These offenses are discussed in Section 2.3(A)(4), Section 2.3(B)(5), and Section 2.4(B)(5), respectively.
10 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, for more information about arraignments and other pretrial procedures.
11 See SCAO Form MC 521, Technical Probation Violation Acknowledgment.
12 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, for detailed information about probation and the requirements of a written acknowledgment of a technical probation violation.
13 In People v Threatt, 254 Mich App 504, 506-507 (2002), the Court of Appeals found that MCL 750.411i does not define actual notice, but because the term is not ambiguous, the Court refused “to construe the term in a manner that incorporate[d] the service requirements of MCL 600.2950a[;]” rather, the Court held that actual notice can be inferred from “evidence [that] is sufficient to enable a rational trier of fact to find beyond a reasonable doubt that [a] defendant [has] actual notice of the PPO.” In Threatt, 254 Mich App at 507, “evidence [was] sufficient to establish that [the] defendant had ‘actual notice’ of the [restraining] order” where “[t]he complainant’s testimony demonstrated that [the] defendant made several statements from which his knowledge of the [Personal Protection Order (PPO)] could reasonably be inferred, that he had evaded service, and that [the] defendant spoke with both the complainant and an investigator about the PPO.”
14 See M Crim JI 17.25, Stalking.
15 See MCL 771.3, which provides probation conditions that must be included in the sentence of probation as well as probation conditions that may be included.
16 If, at the time the prisoner was paroled, no victim of that crime had registered to receive notification, but a victim registers to receive notification after the prisoner’s parole, the parole order must immediately be modified to include the requirement that the prisoner’s location be monitored by a global positioning system. MCL 791.236(18).
17 This holding was also extended to apply to MCL 750.411h (stalking). See Section 2.4(A) for more information on stalking.
18 In Ballantyne, 212 Mich App at 629, the Court of Appeals rejected the defendant’s argument that MCL 750.411i(5), “which creates a rebuttable presumption that [the] defendant’s acts caused the victim to feel terrorized, impermissibly shift[ed] the burden of proof of an element of the offense to [the] defendant[;] [w]e reject [the defendant’s] argument for the reasons set forth in this Court’s opinion in White [(Carl)], [212 Mich App at 313-315], where this identical issued was raised sua sponte by a panel of this Court. While the opinion in White is arguably dictum regarding this issue, we agree with both the reasoning and conclusion and adopt it as our own.”
19 “[M]isdemeanor stalking under [the] township ordinance parallel[s] [MCL 750.411h].” White (Carl), 212 Mich App at 308.
20 “[T]he August 6, 1993, felony stalking warrant specified that on June 9, 1993, [the] defendant repeatedly or continuously harassed the victim in violation of a restraining order and made a credible threat to kill her or inflict physical injury upon her, in violation of MCL 750.411i. The August 17, 1993, misdemeanor warrant noted, however, that on July 17, 1993, [the] defendant unlawfully stalked, pursued, or terrorized the victim by calling her place of employment at least ten times threatening to kill her, her children, and her father, in violation of the [township] antistalking ordinance.” White (Carl), 212 Mich App at 306.
21 “The term ‘party charged’ simply refers to the party . . . who [is] charged with a crime to which the limitations and tolling provisions of MCL 767.24 apply.” People v James (Joel), 326 Mich App 98, 109 (2018) (the authority relied on by the trial court “for the proposition that, for the tolling provision to apply, defendant must have been a ‘suspect’ or an ‘accused’ prior to the expiration of the untolled limitations, [was] inapposite”).
22 “[T]he tolling provision in MCL 767.24 [does not] violate [a nonresident] defendant’s constitutional right to interstate travel or . . . equal protection under the law[.]” People v James, 326 Mich App 98, 101, 103, 104, 108, 112 (2018) (“the tolling provision [in MCL 767.24] only applies when a party is not usually and publicly residing in Michigan and, therefore, it does not restrict in any way a person’s right to travel within, across, or outside of Michigan’s border”; “residents and nonresidents are not similarly situated for equal-protection purposes,” and there are rational grounds for “[t]he Legislature [to] distinguish[] between Michigan residents and nonresidents for purposes of tolling the statute of limitations for certain crimes, . . . including the investigation, prosecution, and . . . the very discovery of previously unreported crimes”). Although the James Court discussed the nonresident tolling provision that was formerly found in MCL 767.24(8), MCL 767.24(8) contains substantially similar language as the current provision found in MCL 767.24(11).
23 The Blackmer Court discussed the nonresident tolling provision that was formerly found in MCL 767.24(1). However, it contains substantially similar language as the current provision found in MCL 767.24(11).
24 See Section 1.1 for the definition of domestic violence found in MCL 400.1501. In addition, MCL 771.4b(1) does not apply to violations of MCL 750.81, MCL 750.81a, or MCL 750.411h. These offenses are discussed in Section 2.3(A)(4), Section 2.3(B)(5), and Section 2.4(A)(5), respectively.
25 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, for more information about arraignments and other pretrial procedures.
26 See SCAO Form MC 521, Technical Probation Violation Acknowledgment.
27 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, for detailed information about probation and the requirements of a written acknowledgment of a technical probation violation.
28 See MCL 750.540 for information on a person’s willful and malicious disconnection, interruption, prevention, obstruction, and unauthorized reading, copying, or usage of telecommunication services.
29 “The term ‘party charged’ simply refers to the party . . . who [is] charged with a crime to which the limitations and tolling provisions of MCL 767.24 apply.” People v James (Joel), 326 Mich App 98, 109 (2018) (the authority relied on by the trial court “for the proposition that, for the tolling provision to apply, defendant must have been a ‘suspect’ or an ‘accused’ prior to the expiration of the untolled limitations, [was] inapposite”).
30 “[T]he tolling provision in MCL 767.24 [does not] violate [a nonresident] defendant’s constitutional right to interstate travel or . . . equal protection under the law[.]” People v James, 326 Mich App 98, 101, 103, 104, 108, 112 (2018) (“the tolling provision [in MCL 767.24] only applies when a party is not usually and publicly residing in Michigan and, therefore, it does not restrict in any way a person’s right to travel within, across, or outside of Michigan’s border”; “residents and nonresidents are not similarly situated for equal-protection purposes,” and there are rational grounds for “[t]he Legislature [to] distinguish[] between Michigan residents and nonresidents for purposes of tolling the statute of limitations for certain crimes, . . . including the investigation, prosecution, and . . . the very discovery of previously unreported crimes”). Although the James Court discussed the nonresident tolling provision that was formerly found in MCL 767.24(8), MCL 767.24(8) contains substantially similar language as the current provision found in MCL 767.24(11).
31 The Blackmer Court discussed the nonresident tolling provision that was formerly found in MCL 767.24(1). However, it contains substantially similar language as the current provision found in MCL 767.24(11).