Wisconsin’s stalking statute reaches a wide range of conduct, much of it ambiguous in real life: the line between persistent and threatening, between hopeful and harassing, between attentive and obsessive. The statute draws those lines around a course-of-conduct standard, a serious-emotional-distress effect, and a knowledge requirement. Those three elements are the case, and each is a defense path.
What the State Must Prove
Under § 940.32, the State must prove the defendant intentionally engaged in a course of conduct directed at a specific person, that the defendant knew or should have known the conduct would cause that person to suffer serious emotional distress or fear bodily injury or death, and that the conduct in fact caused that effect.
The penalty tier turns on aggravators:
| Statute | Trigger | Class | Maximum |
|---|---|---|---|
| § 940.32(2) | Basic stalking | Class I felony | 3.5 years / $10,000 |
| § 940.32(2m) | Aggravated: deadly weapon, victim under 18, violation of restraining order, prior violent-crime conviction, etc. | Class H felony | 6 years / $10,000 |
| § 940.32(3) | Most serious: act causes great bodily harm or death, or use of a dangerous weapon | Class F felony | 12.5 years / $25,000 |
What “Course of Conduct” Actually Means
A course of conduct under § 940.32(1)(a) is a series of two or more acts, carried out over time however short or long, that show a continuity of purpose. One act is not enough. Two acts with no apparent connection are not enough either: the State must establish that the acts together show purpose.
The statute lists ten categories of qualifying conduct:
- Maintaining a visual or physical proximity to the victim.
- Approaching or confronting the victim.
- Appearing at the victim’s workplace or contacting the victim’s employer or coworkers.
- Appearing at the victim’s home or contacting the victim’s neighbors.
- Entering property owned, leased, or occupied by the victim.
- Contacting by phone, text, electronic message, email, or other electronic means; causing the device to ring or notify repeatedly or continuously.
- Sending material by mail or through a third party.
- Placing an object on, or delivering an object to, property owned, leased, or occupied by the victim.
- Surveillance: photographing, videotaping, audio-recording, or otherwise tracking the victim’s movements.
- Causing damage to the victim’s home, vehicle, or other property.
Conduct that is unpleasant but does not fit one of those categories is generally not stalking, even if it caused real distress. Conduct that fits a category but did not produce serious emotional distress in the actual victim is also not stalking.
The Knowledge Element
The defendant must have known, or should have known, that the conduct would cause the victim to suffer serious emotional distress or fear bodily injury or death. This is a negligence-style standard at the floor: the defendant does not have to subjectively intend the distress, but a reasonable person in the same position would have to recognize the conduct’s likely effect.
The defense most often arises where:
- The defendant believed the contact was welcome (an ex-romantic partner where signals were mixed).
- The contact was for a legitimate purpose (custody exchange, debt collection, business communication).
- The defendant had no reason to think the conduct was distressing because the victim never communicated that.
- The defendant has cognitive or mental-health issues that affected the should-have-known analysis.
Constitutional Defenses
Stalking statutes routinely face First Amendment challenges in Wisconsin and other states. Conduct that is otherwise constitutionally protected (peaceful protest, journalism, lawful free expression) is not converted into stalking by the fact that it caused someone discomfort. Courts have read the statute narrowly to avoid criminalizing protected speech or association, but a defense rooted in constitutional protection requires careful framing of the underlying conduct.
Defenses We Regularly Raise
- Single act, not a course of conduct. The State must prove two or more qualifying acts. A defense that breaks the alleged “course” into isolated incidents with no continuity of purpose can defeat the charge.
- No serious emotional distress in fact. The statute requires the conduct to actually cause the distress. An alleged victim who continued normal contact, did not change routine, did not seek help, or who first reported the conduct months later opens a real challenge to this element.
- Lack of knowledge. The defendant did not know and could not reasonably have known the contact was distressing. Particularly available where the alleged victim never communicated that the contact was unwelcome.
- Legitimate purpose. Custody exchanges, business contact, debt collection, legal-process service, child-welfare reporting all create legitimate-purpose defenses.
- Constitutionally protected conduct. Peaceful expression, journalism, lawful association.
- Mistaken identity. Anonymous online accounts, package deliveries, drive-by surveillance allegations all create real ID challenges.
- The contact was reciprocal or invited. Mutual texting, ongoing relationship, intermittent reconciliation all complicate the State’s proof of unwelcome conduct.
Stalking and Restraining Orders
A stalking charge often follows a domestic-abuse or harassment restraining order. Once an order is in place under § 813.12 or § 813.125, any contact that violates the order can support a separate criminal violation, and patterns of contact can support an aggravated stalking charge. See our restraining-order violation page for the parallel exposure.
The defense priority in stalking-with-restraining-order cases:
- Move to clarify or modify the order if any contact is incidentally unavoidable (shared workplace, child custody, joint property).
- Preserve every communication that supports a legitimate-purpose defense.
- Document any communication initiated by the alleged victim that contradicts the no-contact narrative.
- Get the underlying restraining-order petition file and any prior denials of similar petitions.
What to Do If You’re Charged
- Do not contact the alleged victim under any circumstances. Even to apologize, even to clarify intent. New contact during the case is itself a new charge.
- Preserve every communication on both sides. Texts, emails, social-media DMs, voicemails. Save them off-device. The State will subpoena what it needs; the defense needs the complete record.
- Identify witnesses to any disputed encounters. Coworkers, neighbors, family. Independent perspective on whether the alleged “course of conduct” actually fits the statute is critical.
- Document any history that contextualizes the contact. Prior relationship, prior business, prior shared activity. The course-of-conduct element reads differently against a backdrop of preexisting connection.
- Engage counsel before any plea conversation. Stalking-to-harassment reductions are routinely available where the State’s proof on a single element is thin.
Related Practice Areas
- Restraining order and harassment-injunction violations
- Domestic violence and assault
- Battery and assault, § 940.19
- Strangulation and suffocation, § 940.235
- Disorderly conduct, § 947.01
- Witness or victim intimidation
Contact Cafferty & Scheidegger the day a stalking charge is filed or threatened. Free consultation; call or text 24/7 at (262) 632-5000.
