Someone may be following you, contacting you repeatedly, or refusing to leave you alone. People often use “harassment” and “stalking” interchangeably, but California law does not. The same conduct can lead to a civil protective-order case through a civil harassment restraining order (CHRO), a criminal case, or both. The proceedings occur in different courts, have different parties, proof standards, and consequences.
This article explains the difference between criminal stalking, a civil harassment restraining order, and a civil lawsuit for stalking damages. It also explains how those proceedings can overlap and what that means for both sides.
Civil Harassment Vs. Criminal Stalking: The Short Answer
Criminal stalking under California Penal Code section 646.9 is a crime prosecuted by the State of California. It requires proof beyond a reasonable doubt that a person willfully, maliciously, and repeatedly followed another person, or willfully and maliciously harassed them; made a credible threat; and acted with the intent to place them in reasonable fear for their safety or their immediate family’s safety. It is a wobbler, meaning it may be charged as a misdemeanor or felony. Each element matters as a pattern or a threat by itself may not be enough.
A civil harassment restraining order (CHRO) under California Code of Civil Procedure section 527.6 is a protective court order sought by the person asking for protection. It can be based on unlawful violence, a credible threat of violence, or a qualifying course of conduct. For the course-of-conduct ground, no credible threat or intent to frighten is required. The conduct must have no legitimate purpose and must cause actual and objectively reasonable substantial emotional distress. A CHRO is meant to prevent future harm and it is not intended to punish past conduct.
The same facts can support both proceedings, and they can go forward at the same time. A CHRO does not automatically create a felony stalking charge. However if the prosecutor in a criminal case proves a new stalking violation while a qualifying order protecting the same person is in effect, California Penal Code section 646.9(b) carries a two-, three-, or four-year state-prison term.
Harassment Vs. Stalking: What Is The Difference?
In ordinary speech, “harassment” and “stalking” often describe unwanted pursuit but California law treats them differently. Civil harassment is the basis for a protective order known as a civil harassment restraining order. Criminal stalking is a specific crime with added elements and a higher burden of proof. The same conduct may support a CHRO but not criminal stalking, or it may support both. A decision not to file criminal charges does not mean there is no basis to file a CHRO.
The Elements Of Criminal Stalking
California Penal Code section 646.9 makes stalking a crime. The prosecutor must prove each element beyond a reasonable doubt. The following are the elements of criminal stalking in California:
The pattern. The person must willfully and maliciously follow someone repeatedly, or willfully and maliciously harass them. For stalking, harassment means a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes them and serves no legitimate purpose. A course of conduct means two or more acts showing continuity of purpose.
Plus a credible threat. The threat may be verbal, written, electronic, or implied by a course of conduct. It must be made with the intent to place the target in reasonable fear for their safety or their immediate family’s safety and with the apparent ability to carry it out. It can include a threat to a pet, service animal, emotional-support animal, or horse.
Plus the specific intent. The defendant must intend to place the target in reasonable fear. The prosecutor does not have to prove that the defendant intended actually to carry out the threat.
Plus actual, reasonable fear. The target must actually and reasonably fear for their safety or their immediate family’s safety.
Each element of criminal stalking matters in a stalking case. The same course of conduct can establish both the pattern and an implied credible threat, but the prosecutor still must prove every stalking element. A repeated pattern without a credible threat may not establish stalking. A threatening statement without the required course of conduct may be another offense, such as criminal threats under Penal Code section 422, depending on the facts. Because this is a criminal case, the prosecutor must meet the reasonable-doubt standard and the accused has the rights that apply in a criminal prosecution.
Constitutionally protected activity does not count as a course of conduct or credible threat. California Penal Code section 646.9 also does not apply to conduct during labor picketing. Conduct can be unwanted or upsetting without automatically being criminal stalking.
Criminal Stalking (PC 646.9) Vs. Civil Harassment (CCP 527.6)
| Feature | Criminal Stalking (PC 646.9) | Civil Harassment (CCP 527.6) |
|---|---|---|
| What It Is | A crime prosecuted by the State of California | A protective injunction sought by a person who has suffered harassment |
| Who Brings It | A public prosecutor, usually the county district attorney | The person who has suffered harassment |
| Standard of Proof | Beyond a reasonable doubt | Clear and convincing evidence |
| Credible Threat Required? | Yes. It may be verbal, written, electronic, or implied by a pattern | No for a qualifying course of conduct; it is an alternative ground |
| Intent to Cause Fear Required? | Yes. Intent to place the target in reasonable fear | No separate intent to frighten element |
| Procedure / Rights | Criminal case; jury and constitutional trial rights apply | Court hearing, no jury; the judge may consider relevant hearsay and decides its weight |
| Main Outcome | Conviction; jail, prison, or probation and a criminal record | Stay-away or no-contact orders; up to five years, renewable; the court may award prevailing-party costs and attorney’s fees |
| Purpose | Punishes a completed criminal offense | Prevents future harassment |
| Record / Other Effects | Criminal conviction; other collateral consequences may follow | Civil case and CLETS entry; no criminal conviction. Firearms and ammunition are prohibited while an order is in effect |
| Timing | Depends on the law- enforcement investigation and criminal-court schedule | TRO request decided the same day or next judicial business day if filed late; hearing usually within 21 days, or 25 days for good cause |
How A Civil Harassment Restraining Order Affects A Stalking Case
Criminal stalking is one way to establish the civil statute’s unlawful-violence ground. However a petitioner does not have to prove stalking to obtain a CHRO. A CHRO can also be based on a credible threat of violence or a qualifying course of conduct that causes actual and objectively reasonable substantial emotional distress.
An active order can matter in a later stalking case because under California Penal Code section 646.9(b), a person who commits a new violation of section 646.9(a) while a temporary restraining order, injunction, or other court order is in effect prohibiting that conduct against the same protected person faces a two-, three-, or four-year state-prison term. However, the order does not turn every later contact or every violation into felony stalking as each stalking element must still be proven.
For the person seeking protection, one should document the conduct and preserve evidence. A CHRO can provide immediate civil protection. For the restrained person, one should read the order carefully and follow each term. A knowing and intentional violation of a CHRO may itself be a misdemeanor under California Penal Code section 273.6, whether or not it is stalking.
The Civil Lawsuit For Stalking
California also recognizes a civil tort of stalking under California Civil Code section 1708.7. It is different from a restraining order as it can be used to seek damages and injunctive relief.
The plaintiff must prove a pattern of conduct intended to follow, alarm, surveil, or harass them, supported by independent corroborating evidence. The pattern must cause either reasonable fear for safety or actual and objectively reasonable substantial emotional distress. The plaintiff must also prove either a credible threat made with intent to cause reasonable fear or reckless disregard for safety, plus a clear and definite demand to stop followed by continued conduct unless a demand was unsafe or impractical, or a violation of a qualifying restraining order.
Available remedies include general, special, and punitive damages, plus injunctive or other equitable relief. In simple terms, the criminal case punishes, a restraining order protects, and the tort may financially compensate the person harmed.
When Civil And Criminal Cases Run At The Same Time
The same conduct can be addressed in more than one proceeding at the same time: a CHRO petition in civil court, a criminal investigation or prosecution in criminal court, and sometimes a civil damages claim in civil court.
Different outcomes are not contradictions. The legal elements and burdens differ depending on where the case is filed. A court may issue a CHRO on clear and convincing evidence even when no criminal charge is filed or a criminal case cannot be proven beyond a reasonable doubt. A prosecutor’s decision not to file does not decide the civil case and a CHRO does not prove a criminal charge.
Statements can affect a related case. Get legal advice before filing a declaration or testifying if an investigation is open as there may be Fifth Amendment or other strategic issues to consider..
Immigration consequences can be serious. Federal law separately lists stalking as a deportability ground, but the Board of Immigration Appeals has held section 646.9(a) is not categorically a deportable crime. In the Ninth Circuit, it is a crime involving moral turpitude. A noncitizen should get immigration-specific advice before resolving a stalking case.
Frequently Asked Questions About Harassment Vs. Stalking
Are Harassment And Stalking The Same Thing In California?
No. A CHRO is a civil remedy whereas criminal stalking is a crime requiring the prosecutor to prove all elements beyond a reasonable doubt, including a credible threat and an intent to create reasonable fear. The civil standard is different and does not require an intent to frighten.
Why Wasn’t My Stalker Criminally Charged?
Sometimes prosecutors cannot prove one or more stalking elements beyond a reasonable doubt. A repeated pattern can still support a CHRO without proving criminal stalking. Prosecutors also have discretion about filing criminal charges.
Can The Same Conduct Lead To Both A Restraining Order And Criminal Charges?
Yes. A CHRO petition and a criminal investigation or prosecution can run at the same time. The parties, burdens of proof, and possible results differ. Someone facing both should get coordinated advice before making statements in either case.
Does Getting A Restraining Order Help A Future Prosecution?
Yes, but it does not automatically create a stalking case. A qualifying order may increase the penalty if the prosecutor later proves a new stalking violation under section 646.9(a) against the same protected person. A knowing and intentional violation of a CHRO may also be a misdemeanor crime.
Can I Sue A Stalker For Money?
Yes. Civil Code section 1708.7 permits a civil stalking claim when its specific elements are proved. Available remedies can include general, special, and punitive damages and injunctive relief.
This article provides general information, not legal advice. Consult a qualified attorney about your case.