Two divorce cases introduce the difference between criminal stalking and legally acceptable information gathering.

It’s January, a common time of year when many relationships see one or both partners questioning whether they should remain together. One partner may have discovered damaging information about their spouse, such as a gambling addiction or an affair. For another spouse, they may be overcome by desperation or resentment that their partner wants out. For whatever reason, sometimes partners, or ex-partners, feel the need to hire a private investigator to follow the other, or even take it upon themselves. In many cases, this is completely legal. But is there ever a situation in which following someone, or employing someone else to do so, could lead to jail time?

Absolutely. Like most legal quandaries, it comes down to the facts. All states view stalking as a crime. So what constitutes stalking? Every state has a slightly different definition of stalking, but there appears to be a general consensus as to certain considerations. A Judge would look at whether the person (partner or agent of the partner) is following the other for a “legitimate purpose,” and whether or not the person being followed is aware of the conduct such that they experience fear or apprehension.

Let’s examine two distinct scenarios.

First, wife claims that she is disabled due to a shoulder injury, and therefore cannot work. If true, her husband is at risk of paying an elevated level of spousal support even though he believes the wife is misrepresenting, even faking, an injury. If he hires a private investigator to follow the wife to track her activity in public, without wife’s knowledge, this is much less likely to be considered stalking. This is because wife isn’t aware she is being followed and because the investigator has a defined and limited scope of duties for purposes of litigation in divorce proceedings. The information will ultimately result in a report to be used in divorce negotiations or trial.

Let’s take another example: Wife leaves husband due to an incident of physical abuse. Overcome by depression, he starts calling wife repeatedly to apologize, even though she has asked him to stop. He starts showing up at her house and sitting in his car outside at night. She then sees him in the parking lot of the grocery store staring at her while she walks to grab a cart, even though he lives half an hour from the grocery store. Wife likely would be jarred by husband’s behavior. This conduct is much more likely to constitute criminal stalking. Husband, if pressed, could probably not articulate a defined, “legitimate” purpose for following wife, such as information gathering for legal proceedings, and wife is certainly aware that her husband, who recently physically assaulted her, is now following her despite requests for him to stop.

Stalking should never be taken lightly. Know the signs. If you believe you are a victim of criminal stalking, take control of the situation by documenting your experience, adopting additional security measures, and considering a restraining order. Know the facts: 66% of female victims and 41% of male victims are stalked by a current or former intimate partner. There are many resources available to help, including the Stalking Resource Center online and WEAVE here in Sacramento.


ABOUT THE AUTHOR: Jenny E. Bain is a family law attorney with FORESTER PURCELL STOWELL PC, based in Folsom, California. She can be reached at or 916 293 4000. This information is general in nature and should not be construed as legal advice.

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