Predick v. O'CONNOR

ANDERSON, J.

¶ 22. (concurring). At first blush, a court order banishing Margaret O'Connor from Wal-worth county and preventing her from visiting her mother appears to be overbroad and an infringement on her constitutional right to travel. I join in the majority opinion but write separately to make clear that both *338Margaret's dangerous behavior and the need to protect victims' constitutional rights provide grounds for the order of banishment.

¶ 23. In considering the banishment order in the injunction granted Tina, the guiding principle is that a harassment injunction must be narrowly tailored to prohibit only the proven acts of harassment and to avoid improperly impinging upon constitutionally protected behavior. See Bachowski v. Salamone, 139 Wis. 2d 397, 414, 407 N.W.2d 533 (1987). And, the banishment order as a purge condition in the civil contempt involving the Predicks must meet the same standards. See State ex rel. V.J.H. v. C.A.B., 163 Wis. 2d 833, 845, 472 N.W.2d 839 (Ct. App. 1991) (purge conditions must be "feasible and must be reasonably related to the cause or nature of the contempt").

¶ 24. There is no doubt that the banishment order is meant to control conduct that Margaret has engaged in. The record includes evidence that at least on two occasions Margaret used an automobile to harass and physically assault the victims. At the hearings, the Predicks and Tina established that Margaret used an automobile to endanger Tina, her daughter and the Predicks' daughter. Margaret attempted to drive Tina off the road and succeeded in forcing Tina into the oncoming lane of traffic. Majority at ¶ 7. Pamela also testified that on an earlier occasion, Margaret had driven a car at her at a high rate of speed, forcing Pamela to jump off the side of the road. Majority at ¶ 3.

¶ 25. The use of an automobile as a weapon to harass and possibly injure others is dangerous behavior that must be prevented. And, when such behavior is part of ongoing stalking, it becomes even more ominous. Stalking is a gender-neutral crime, Jennifer A. Hueter, Note & Comment, Lifesaving Legislation: But *339Will The Washington Stalking Law Survive Constitutional Scrutiny?, 72 Wash. L. Rev. 213, 215 (Jan. 1997); and, as in this case, the stalker can be a woman known to the victims,1 Carol E. Jordan et al., Stalking: Cultural, Clinical and Legal Considerations, 38 Brandeis L.J. 513, 533 (Spring, 2000).

¶ 26. Stalking is not a benign behavior, "[s]talking is typically an escalating behavior. Without proper *340intervention, a stalker's behavior becomes increasingly disturbing over time and [she] becomes more dangerous to [her] victim. Physical attacks usually follow months of harassing, following, or threatening, and repeated violations of civil protection orders." Jennifer L. Bradfield, Note, Anti-Stalking Laws: Do They Adequately Protect Stalking Victims?, 21 Harv. Women's L.J. 229, 235-36 (Spring, 1998) (footnote omitted). Almost one-half of all victims report that their stalkers directly threaten them. Patricia Tjadean & Nancy Thoennes, Stalking In America: Findings From the National Violence Against Women Survey, National Institute of Justice and Centers for Disease Control and Prevention, Research in Brief at 7-8, exhibit 12 (April 1998), at http://www.ncjrs.org/pdffiles/169592.pdf. The NIJCDC study found that there is a strong link between stalking and other forms of violence in intimate relationships. Id. at 2.

¶ 27. Victims do not just suffer physical injuries from stalking. "Stalking victims suffer profound, long-term emotional injuries at the hands of their stalkers. Many stalking victims experience depression, generalized anxiety, obsessive-compulsive behaviors, and even symptoms of Post-Taumatic Stress Disorder. A number of victims lose time from work, while some never return to work." Bradfield, supra ¶ 26, at 232 (footnote omitted). Some victims also report that the stalking caused their personalities to change and they experienced feeling paranoid, being easily frightened, more aggressive and less trusting. Jordan, supra ¶ 25, at 534.

¶ 28. There can be no doubt that Margaret's use of an automobile in an attempt to run Pamela, her daughter and Tina off the road is an escalating act of violence that the court is required to directly address and fashion effective protection for the victims. The *341court, obviously frustrated by Margaret's repeated violations of the injunction issued to prevent the harassment of the Predicks,2 chose to create a zone of safety for the victims by banishing Margaret from the county.

¶ 29. It is this geographical banishment that Margaret challenges. She is correct that

[t]he freedom to move about is a basic right of citizens under our form of government, in fact, under any system of ordered liberty worth the name. It was not added to our United States Constitution by the enactment of the first ten amendments. It is inherent, not only in the Bill of Rights, but in the original document itself. It has properly been termed "engrained in our history" and "a part of our heritage."

Ervin v. State, 41 Wis. 2d 194, 200-01, 163 N.W.2d 207 (1968). Although, Margaret does not mention it, Wisconsin also recognizes a constitutional right of intrastate travel:

[T]ransitory movement within a community is a constitutionally guaranteed right — the right of freedom of movement. The inherent right of freedom of movement involves the freedom to move about on the sidewalks and streets of a community. This right to freely move about one's community is separate and distinct from the right to interstate travel.

Brandmiller v. Arreola, 189 Wis. 2d 215, 225, 525 N.W.2d 353 (Ct. App. 1994) (citation omitted), aff'd, 199 Wis. 2d 528, 544 N.W.2d 894 (1996).

*342¶ 30. Margaret fails to acknowledge that the victims also have a constitutional right to travel and that right includes the right to move freely about the sidewalks and streets of the community. See id. When private citizens have competing constitutional rights, it is the duty of the court to achieve a balance between the exercise of those rights, vis-a-vis each individual asserting the constitutional right and the citizenry as a whole. Here, the court had to balance Margaret's right to travel throughout Walworth county against the rights of the victims to move freely and safely throughout Walworth county. In achieving that balance, the court properly considered that on two occasions Margaret had misused the constitutional right to travel by attempting to run the victims off the road. The court also properly considered the safety of all who travel in Walworth county. Because Margaret had endangered others while exercising her right to travel, the court appropriately concluded that to ensure the victims and the citizenry as a whole could freely and safely travel within Walworth county, Margaret had to be banished from the county.

¶ 31. Margaret also fails to acknowledge that another of the victims' constitutional rights is implicated —the right to privacy. This right was discussed as early as 1928 by Justice Brandéis, who referred to it as "the right to be let alone — the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

¶ 32. How the right to privacy interplays with the right to travel was explained by the Washington Supreme Court in State v. Lee, 957 P.2d 741 (Wash. 1998). That case involved a challenge that the State's stalking law was overbroad because it potentially infringed on *343the right to walk or wander in the community. Id. at 751. While the Washington Supreme Court's opinion related to the constitutionality of a statute, its analysis can easily be adopted when considering Margaret's overbreath challenge to the terms of the harassment injunction and to the terms of the purge condition. The Washington Supreme Court acknowledged that the right to travel is a basic right under the United States Constitution and a state law's primary objective cannot be to impede the right to travel. Id. The court then observed, "There is an acknowledged constitutional right to be free from governmental interference, but the United States Constitution does not create a right for any person to interfere with the rights of other persons." Id. at 751-52.

¶ 33. The Washington Supreme Court then turned to the right to privacy:

The United States Supreme Court has recognized the "right of privacy" may be created by specific constitutional guaranties although the "right of privacy" does not exist in any specific provision of the United States Constitution.... Personal rights found in the guaranty of privacy are fundamental to or implicit in the concept of ordered liberty. If the right of privacy offers any protection, that protection must include the right to be left alone.
In the case of stalking, as evidenced by these cases, the State has a legitimate interest in restraining harmful conduct. It may do so under the police powers. Individuals have a constitutional right to move about as long as they are not committing a crime. The stalking statute ... does not interfere with one's legitimate freedom of movement or right to travel, but applies to conduct between two or more persons when one wishes to be left alone and to be free of interference by the other. The statute is a reasonable exercise of the police powers in protecting privacy interests of a segment of *344society from invasive oppressive behavior and harmful conduct. One person's freedom of movement gives way to another person's freedom not to be disturbed.

Id. at 752-53 (footnotes omitted).

¶ 34. Likewise, in this case, the harassment injunction and purge condition are meant to control Margaret's conduct toward the victims who wish to be left alone and to be free to travel openly and safely on the streets of Walworth county. Because Margaret has proven that she is an imminent danger to the victims, when she is in Walworth county her right to travel must give way to the victims' freedoms to travel and to be left alone. The only alternative available to the court was to create a zone of safety by banishing Margaret from Walworth county.

At least four distinct categories of stalkers have been recognized. A stalker who suffers from delusional erotomania truly believes that the victim, who may not even know of the stalker's existence, is in love with him. This type of stalker usually attempts to establish an intimate relationship with his victim through verbal, written, or physical contact, and believes that his victim reciprocates his desire for a relationship despite the absence of any actual reciprocity. Unlike a delusional erotomaniac, a stalker suffering from borderline erotomania knows that his victim does not reciprocate his feelings. However, this type of stalker may express intense fury when his victim does not develop reciprocal feelings. Borderline erotomaniacs usually have had some emotional involvement with the victim, although even an innocent glance may trigger the stalker. Borderline erotomaniacs often exhibit the same stalking behavior as delusional erotomaniacs: continually writing letters, making telephone calls, sending gifts, and following their victims. The third type of stalker is the "former intimate" stalker. Unlike the delusional or borderline erotomaniac, the former intimate stalker has had an intimate relationship with his victim. A former intimate stalker typically has a history of abusive relationships; many cases involving this type of stalker result in assault or death. A former intimate stalker is profoundly emotionally dependent on his former partner and exhibits a strong need to control her; he "is unable to tolerate the panic and 'abandonment anxiety' that result when his partner leaves the relationship." Finally, the sociopathic stalker differs from the other three types in two distinct ways: he does not try to establish an intimate relationship with his victim and he looks for specific, pre-defined criteria in a victim.

Jennifer L. Bradfield, Note, Anti-Stalking Laws: Do They Adequately Protect Stalking Victims ?, 21 HaRV. Women's L. J. 229, 236 n.26 (Spring, 1998) (citations omitted).

The existence of an injunction does not guarantee protection for the victim; close to seventy percent of all protective orders are violated by the stalker. Patricia Tjadean & Nancy Thoennes, Stalking In America: Findings From the National Violence Against Women Survey, National Institute of Justice and CenteRS FOR Disease ContRol and Prevention, Research in Brief at 12, exhibit 20 (April 1998), at http://www.ncjrs.org/pdffiles/169592.pdf.