Stalking & Protective Order Violations
Va. Code §§ 18.2-60.3, 18.2-60.4 and 16.1-253.2 — which order was violated decides the statute
1. Stalking — § 18.2-60.3
Subsection B reaches any person who, "on more than one occasion engages in conduct, either in person or through any other means, including by mail, telephone, or an electronically transmitted communication, directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person's family or household member."
Elements
- On MORE THAN ONE occasion A single incident is not stalking. Two occasions is the statutory floor.
- Conduct directed at another person In person OR by any other means — mail, telephone, or electronically transmitted communication are named expressly.
- Intent to place that person in reasonable fear — OR knowledge, actual or constructive, that it does Two alternative mental states; the second is objective ('knows or reasonably should know').
- Fear of death, criminal sexual assault, or bodily injury To that person OR to that person's family or household member. Fear of property damage or harassment alone is not enough.
Grading
| Offence | Class |
|---|---|
| Stalking — § 18.2-60.3(B) | Class 1 misdemeanor |
| Second offence within FIVE years of a prior conviction under this section, or a substantially similar offence in any other jurisdiction — § 18.2-60.3(C) | Class 6 felony |
The elements, and what "reasonable fear" means
Parker v. Commonwealth Record No. 2124-95-2 (Va. Ct. App. May 13, 1997), Court of Appeals of Virginia (published), 1997
binding
"In order to obtain a conviction under Code § 18.2-60.3, the Commonwealth must prove three elements. First . . . the defendant engaged in multiple instances of conduct directed at a person . . . . Second . . . this conduct caused that person . . . to experience reasonable fear of death, criminal sexual assault, or bodily injury. Third . . . the defendant either intended to cause this fear or knew that it would result from his or her conduct."
⚠️ Parker states the protected class as the victim "or that person's spouse or child" — the 1997 text. The section now reads "family or household member", which is WIDER. The three-element structure holds; do not quote its scope as current.
Parker v. Commonwealth (reasonable fear) Record No. 2124-95-2 (Va. Ct. App. May 13, 1997), Court of Appeals of Virginia (published), 1997
binding
"By qualifying the word fear with the word 'reasonable,' the General Assembly intended to limit the reach of Code § 18.2-60.3 to conduct that would render an ORDINARY, REASONABLE PERSON IN THE VICTIM'S CIRCUMSTANCES in fear for his or her physical well-being." The standard is objective and the proscribed conduct "does not vary with the particular psychological makeup of the victim" (quoting Woolfolk, 18 Va. App. at 849, 447 S.E.2d at 535). On that basis the Court REJECTED a vagueness challenge to the section.
Cuts both ways. An unusually fearful complainant does not lower the bar — but "in the victim's circumstances" means the history between the parties is part of the objective picture, so put that history in evidence.
2. Protective Orders — Which Statute Applies
Matching the order to the violation statute
| Order issued under | Violation statute |
|---|---|
| § 19.2-152.8 (emergency), § 19.2-152.9 (preliminary), § 19.2-152.10 (protective order) | § 18.2-60.4 |
| § 16.1-253.1, § 16.1-253.4, § 16.1-278.14, § 16.1-279.1 — FAMILY ABUSE orders; also § 20-103(B) and full-faith-and-credit orders under § 16.1-279.1(F) | § 16.1-253.2 |
§ 16.1-253.2 is further limited to violations of provisions prohibiting (i) going or remaining upon land, buildings or premises, (ii) further acts of family abuse, or (iii) certain other conduct — read the section for the full list before charging.
3. Protective Order Violations — Penalties
§ 18.2-60.4 and § 16.1-253.2
| Offence | Punishment |
|---|---|
| First offence | Class 1 misdemeanor |
| SECOND offence within 5 years of the prior conviction, where either the instant or the prior offence was based on an act or threat of violence | Mandatory minimum 60 DAYS |
| THIRD or subsequent offence within 20 years of the FIRST conviction, where either the instant or one of the priors was based on an act or threat of violence | Class 6 felony, mandatory minimum SIX MONTHS |
The table applies to BOTH statutes — but the carve-out below does not. Read it before relying on a mandatory minimum.
Two conditions on every enhancement
- The timing window — 5 years from the PRIOR conviction for a second offence; 20 years from the FIRST conviction for a third Note the different anchors. The third-offence window runs from the first conviction, not the most recent.
- An act or threat of VIOLENCE in either the instant offence or a qualifying prior A purely technical violation with no violence in the history does not trigger the mandatory minimum.
4. Defence Attacks & Responses
| Defense attack | Prosecution response |
|---|---|
| One incident isn't stalking. | Correct — § 18.2-60.3 requires more than one occasion. Chart every contact; the statute counts occasions, not days. |
| He never threatened anyone. | No threat is required. The element is that the conduct places the person in reasonable fear of death, criminal sexual assault or bodily injury, and the mental state can be satisfied objectively. |
| There's no proof he intended to cause fear. | Intent is one of two alternatives — "knows or reasonably should know" suffices. And contact after ACTUAL NOTICE that it was unwanted is prima facie evidence of the element. |
| The order was a family abuse order, so § 18.2-60.4 doesn't apply. | A genuine defect if § 18.2-60.4 was charged. The correct statute is § 16.1-253.2. Match the order to the statute before the warrant issues. |
| He's already been held in contempt for this. | Then the conviction is barred as to that act — § 18.2-60.4 says conviction bars a finding of contempt for the same act, and the reverse posture needs checking before proceeding. |
| That order was issued under § 19.2-152.10(C), so there's no mandatory minimum. | Right under § 18.2-60.4 — and wrong under § 16.1-253.2, which carries no such exclusion. Check which statute the order issued under before conceding. |
| She's unusually anxious — an ordinary person wouldn't have been afraid. | The standard is objective but situated: conduct that would place "an ordinary, reasonable person IN THE VICTIM'S CIRCUMSTANCES" in fear for physical well-being (Parker). The parties' history is part of those circumstances, so put it in evidence. |
| The prior is too old for the enhancement. | Check which anchor applies: 5 years from the PRIOR conviction for a second offence, 20 years from the FIRST conviction for a third. And confirm violence featured in the instant or a qualifying prior. |
5. Before You Charge
- STALKING: every incident charted with a date and a jurisdiction
- More than one occasion established
- The fear alleged is of death, criminal sexual assault, or bodily injury To the victim or a family or household member. Harassment alone is not the offence.
- Actual notice that contact was unwanted — when, how, and by whom
- Venue supported under § 18.2-60.3(D)
- PROTECTIVE ORDER: the issuing statute identified § 19.2-152.8/.9/.10 → § 18.2-60.4. Family abuse orders → § 16.1-253.2.
- Service of the order proved
- Prior violations pulled, with conviction dates
- Enhancement windows checked against the correct anchor (5 years from prior; 20 from first)
- Act or threat of violence in the instant offence or a qualifying prior
- Contempt posture resolved — conviction bars contempt for the same act
- If armed: subsection B — a CLASS 6 FELONY under both statutes, standing alone
- Carve-out checked: § 19.2-152.10(C) orders are excluded from the § 18.2-60.4 enhancements but NOT from § 16.1-253.2's
6. Annotated Authority
Annotated authority — research layer, not printed on the PDF
Parker v. Commonwealth Rec. No. 2124-95-2 (Va. Ct. App. May 13, 1997), Va. Ct. App., 1997
AFFIRMED on both grounds. THE THREE ELEMENTS: "First, the Commonwealth must prove the defendant engaged in MULTIPLE INSTANCES OF CONDUCT directed at a person or that person's spouse or child. Second, . . . that this conduct CAUSED that person or their spouse or child TO EXPERIENCE REASONABLE FEAR of death, criminal sexual assault, or bodily injury. Third, . . . that the defendant EITHER INTENDED TO CAUSE THIS FEAR OR KNEW THAT IT WOULD RESULT from his or her conduct." And the court HELD § 18.2-60.3 IS NOT UNCONSTITUTIONALLY VAGUE "either on its face or as applied", nor overbroad.
Practical value: Note the third element is disjunctive — INTENT OR KNOWLEDGE. Proving the defendant knew the fear would result is very often easier than proving he wanted it, and the statute does not require the harder one. ⚠️ A STATUTORY-HISTORY TRAP LIVES IN THESE FACTS. Parker's earlier 1994 conviction was under A PRIOR VERSION of § 18.2-60.3, on a warrant charging conduct "with the INTENT TO CAUSE EMOTIONAL DISTRESS". The current section turns on REASONABLE FEAR of death, criminal sexual assault or bodily injury. When a prior stalking conviction is offered for enhancement, READ THE VERSION IN FORCE ON THE DATE OF THAT OFFENCE — the elements are not the same.
Parker v. Commonwealth (reasonable fear) Rec. No. 2124-95-2 (Va. Ct. App. May 13, 1997), at 7-8, Va. Ct. App., 1997
THE OBJECTIVE STANDARD, and it is what saves the statute from vagueness. "By qualifying the word fear with the word 'REASONABLE,' the General Assembly intended to LIMIT THE REACH of Code § 18.2-60.3 to conduct that would render AN ORDINARY, REASONABLE PERSON IN THE VICTIM'S CIRCUMSTANCES in fear for his or her physical well-being." That objective standard "protects citizens who engage in NON-THREATENING DAY-TO-DAY CONTACT with others FROM SURPRISE PROSECUTION", because the proscribed conduct "DOES NOT VARY WITH THE PARTICULAR PSYCHOLOGICAL MAKEUP OF THE VICTIM."
Practical value: CUTS BOTH WAYS, AND PROSECUTORS SHOULD SAY SO FIRST. "In the victim's circumstances" lets in the history of the relationship — Parker's was described as abusive, over years — so conduct that looks innocuous in isolation can be measured against what went before. But the standard is OBJECTIVE: a victim's unusual susceptibility does not supply the element, and the defence will quote the same sentence.
Woolfolk v. Commonwealth 18 Va. App. 840, 849-50, 447 S.E.2d 530, 535, Va. Ct. App., 1994
The vagueness standard Parker applies: penal statutes need only define crimes to "'A REASONABLE DEGREE OF CERTAINTY'" (quoting Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952)). Woolfolk also supplies the phrase Parker leans on — that proscribed conduct "does not vary with the particular psychological makeup of the victim."
Practical value: The answer to a vagueness challenge in one line: certainty is a matter of degree, not of exhaustive definition.
Colten v. Kentucky 407 U.S. 104, 110, U.S., 1972
The framing Parker adopts: there are "inherent difficulties in drawing criminal statutes BOTH GENERAL ENOUGH to take into account A VARIETY OF HUMAN CONDUCT and SUFFICIENTLY SPECIFIC to provide FAIR WARNING that certain kinds of conduct are prohibited."
Practical value: Useful because stalking statutes attract vagueness attacks precisely for being general. Colten says generality is a necessity of the drafting task, not a defect.
Higginbotham v. Commonwealth 216 Va. 349, 352, 218 S.E.2d 534, 537, Va., 1975
On a sufficiency challenge "we view the evidence IN THE LIGHT MOST FAVORABLE TO THE COMMONWEALTH, granting to it ALL REASONABLE INFERENCES fairly deducible therefrom."
Practical value: The standard that carries a stalking conviction on appeal, because the element in issue is usually an inference about state of mind drawn from a course of conduct. ⚠️ Also annotated on INDECENT-LIBERTIES, where the Supreme Court applied it in Commonwealth v. Bower to reinstate a conviction the Court of Appeals had set aside.
Coleman v. City of Richmond 5 Va. App. 459, 466, 364 S.E.2d 239, Va. Ct. App., 1988
Cited by Parker in the constitutional analysis of the statute.
Practical value: ⚠️ Parker cites it in passing; ITS OWN OPINION HAS NOT BEEN READ. Listed so the citation Parker relies on is recorded, not so it can be cited for a proposition — read it before relying on it.