Interstate stalking ban survives constitutional challenge in Sixth Circuit.

The Sixth Circuit has upheld the criminal conviction of a man who crossed state lines with the intent to harass and injure his ex-wife. The court ruled that the statute banning interstate stalking, enacted in 1994 as part of the Violence Against Women Act (VAWA), is a permissible exercise of Congress's Commerce Clause authority. (United States v. Al Zubaidy, 283 F.3d 804 (6th Cir. 2002).)

In 1997, Aathra Al-Shimary ended a severely abusive marriage after she learned that her husband, Emad Al-Zubaidy, was having a sexual relationship with another woman. She moved twice with the couple's three children, first from Nebraska to Illinois and then to Michigan, to be near her relatives. Al-Zubaidy followed her each time, threatened her and her family, and assaulted Al-Shimary at least twice, once with a baseball bat.

Al-Zubaidy was convicted in 2000 for interstate stalking in violation of VAWA. Upholding the conviction, the Sixth Circuit cited the U.S. Supreme Court's ruling in United States v. Lopez. (514 U.S. 549 (1995).) The court noted that under Lopez, the Commerce Clause empowers Congress to enact three types of legislation: It may regulate the channels of interstate commerce; it may regulate and protect the instrumentalities of interstate commerce; and it may regulate intrastate activity that has a substantial effect on interstate commerce.

The court held that the antistalking statute clearly fits in the first category. The court distinguished Lopez, which held unconstitutional the federal Gun-Free School Zones Act, and United States v. Morrison, which invalidated a VAWA provision that created a federal civil remedy for victims of gender-motivated violence. (529 U.S. 598 (2000).) Because the statutes at issue in those cases regulated intrastate activities, they were required to demonstrate that those activites had a substantial effect on interstate commerce. In contrast, the court noted, the antistalking statute is "spared" the substantial-effects test "because it regulates a channel of commerce--prohibiting persons from crossing state lines to engage in unlawful conduct."

"The Sixth Circuit's legal analysis is solid," said Erwin Chemerinsky, a law professor at the University of Southern California. "The court carefully fit this particular section of VAWA into the U.S. Supreme Court's analysis in Morrison, which invalidated part of VAWA, but not all of it." (For a discussion of Lopez and Morrison, see Erwin Chemerinsky, The Revival of Federalism Continues, TRIAL, Mar. 2001, at 78.)

David Debold, the U.S. attorney who argued the government's case in Al-Zubaidy, agreed. "The dividing line is clear between statutes that regulate interstate activity and those that don't," he said.

The Fourth and Eighth circuits have also upheld the constitutionality of the antistalking statute. (United States v. Young, No. 98-4742, 1999 WL 1203783 (4th Cir. Dec. 16, 1999); United States v. Vollmer, No. 00-1093, 2001 WL 21234 (8th Cir. Jan. 10, 2001).)

Chemerinsky said such rulings are rare because the federal government tends to leave prosecution of domestic violence cases to the states.

Diane Alexander of the Stalking Resource Center in Washington, D.C., a program of the National Center for Victims of Crime, said that successful prosecution of stalking cases is also rare at the state level. "Stalking is a complicated crime to pursue. Because of the level of proof required by many state stalking laws, it's often easier to pursue a different, related crime, such as assault," she said.

Alexander added that the Washington, D.C., metropolitan area is "a perfect example of an area where the federal antistalking law could be prosecuted. If a violator crosses from Maryland to Virginia, that's federal stalking."

The Stalking Resource Center is working to raise awareness of antistalking laws and train law enforcement and court personnel. Prosecutors need to know that they may be able to "kick it up a notch," and bring federal charges against stalkers, Alexander said.