Stalking And The Counterman Case

On June 27 (2023), The US Supreme Court threw out the conviction of Billy Raymond Counterman, who had been sentenced (in Colorado) to a custodial sentence of four and a half years for stalking a female musician. The case is significant a one and has some potentially far-reaching effects, concerning not only stalking, but also possible claims regarding self-defense. A significant aspect of what defines stalking and harassment cases is how the person targeted perceived the actions and behaviors of their stalker/harasser as opposed to how the stalker/harasser intended their behavior to be interpreted e.g., an ex-intimate partner may have sent flowers to their ex every week thinking/believing that what they were doing was cute and romantic, however the person receiving the gift may have interpreted it as being a threat or act of intimidation e.g., “don’t think that you no longer belong to me”. In the Counterman case it appears that the Supreme Court has taken the position that just because someone makes a threat, it shouldn’t be interpreted as a threat if the person never intended to act upon it, and that this protects such utterances under the first amendment. It assumes that the target of Counterman’s campaign should have in some way been able to interpret and know that Counterman’s “threats” weren’t genuine and that he never intended to act on them. Once the perception of a threat becomes less important/significant than the intention behind it, which can only be ascertained to be null and void when an event hasn’t occurred – the person making the threat hasn’t acted upon it – then the person they have targeted loses the few legal protections they have regarding stalking/harassment e.g., would attempting to obtain a restraining order against someone who constantly made threats via social media be an infringement of that person’s civil liberties because they say in their defense that these were just words and had no actual meaning etc? Without getting caught up in all of the potential legal consequences, I want in this article to look at how to prevent stalking campaigns from potentially starting in the first place, and the one single most important thing to do when you find yourself targeted.

The Counterman case is statistically rare in terms of stalking, and without taking anything away from the woman targeted (a local singer/musician), a campaign that statistically speaking was unlikely to result in physical violence e.g., stalking of stranger/celebrities is less likely to result in actual violence, than campaigns committed by ex-partners. In saying that, the Colorado court which sentenced Counterman to four and a half years obviously felt that his online threats were serious enough to warrant such a sentence, and that the things he said/wrote were not protected by free speech rights (something that they actively considered and debated when deciding the verdict, but which the Supreme Court disagreed with and over-turned). As ex-intimate partners are the most likely individuals to engage in stalking campaigns, I want to first look at the best ways to end relationships, so that they don’t open up the window for potential campaigns. In such incidents, stalkers are unable to give up on the relationship and want to continue it in whatever way they can. Sometimes, with the initial goal of trying to convince the other party to get back together with them. However, when this doesn’t happen, they often continue their harassment campaign because they simply don’t know how to stop acting and behaving in this way, or their motive changes to one of punishment and vindication (for the injustice of the relationship being ended/taken away from them etc.). This means that when ending a relationship, it is important to draw a line under them, and make sure that there is no room for the other person to think/believe that the relationship could be rekindled/restarted etc. Trying to soften the blow by using phrases like, “it’s not you it’s me”, and/or, “I’m just not ready for a serious relationship at this time”, can be interpreted in a number of different ways. “It’s not you, it’s me” type phrases make it seem like the problem isn’t with the partner or the relationship, rather it’s a personal failing; something which can be worked on. If someone says they are not ready for a serious relationship “at this time” then they may be at a later date etc. When ending a relationship, everything has to be clear with little to no room for interpretation.

Even when ending a relationship clearly and cleanly it doesn’t mean that the other individual will respect what you want. If your relationship is with a narcissist or someone who has narcissistic characteristics etc., you may find that they go into full “attack” mode and look to destroy you in every conceivable way. They may spread false rumors about you, “share” personal information with others and generally attempt to ruin your reputation. Their stalking and harassment campaign may involve them trying to get you to notice that they are engaging in these things. For most stalkers their goal is to have you be thinking about them all the time e.g., every time you pick up your phone you worry that there may be an unread text message from them etc. For stalking campaigns to work, the stalker needs fuel to keep engaging and that usually requires some form of feedback e.g., having the person they are victimizing beg for them to stop, or even making deals with them to get them to stop etc. In the Counterman case the person he was stalking gave him feedback that his campaign was having an effect, even though she never responded to his requests on social media; by blocking the accounts he kept creating to communicate with her, he was getting confirmation that what he was doing/saying was having an effect. Although in one sense he was being ignored, in another he wasn’t, and this provided encouragement.     

Having worked with people who have been the subjects of stalking campaigns, I can say that dealing with a stalker is exhausting, unnerving and unsettling even when you are fairly sure it is not going to result in physical violence. At face value, the different forms these campaigns tend to take, and the tools that are used e.g., constant emailing, phoning etc., in isolation often don’t seem particularly frightening, but when they are combined to create a constant wall of noise they are deafening and overpowering. Just because someone makes the argument that they were never going to act on a threat, doesn’t take away the power and influence of that threat, over the person being threatened, just as someone who is blackmailing another person doesn’t lose the effect of blackmail even if at the end of the day they had no intention of revealing the information/secret they had acquired.