NNEDV Disappointed in SCOTUS’ Counterman v. Colorado Decision

June 30, 2023

The National Network to End Domestic Violence (NNEDV) is disappointed in the Supreme Court of the United States (SCOTUS) decision in Counterman v. Colorado to throw out the conviction of a Colorado man who was sentenced to four and a half years in prison for stalking a singer-songwriter over several years, including sending menacing and threatening messages over Facebook. According to this ruling, all jurisdictions must now show offenders understood the threatening nature of their communication.

In a 7-2 decision, the Supreme Court ruled Colorado courts applied the wrong test in determining whether Counterman’s statements were “true threats.” Instead of focusing on whether a reasonable person would regard the man’s statements as a threat of violence (which is the objective test Colorado courts applied), SCOTUS ruled that Colorado should have applied a recklessness standard. This standard requires that the state prove a speaker is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway.’ Counterman’s conviction was thrown out, and the case was returned to the lower courts, where prosecutors can decide whether to retry the case under the new standard set by the Supreme Court.  

Many jurisdictions’ stalking statutes already have the intent requirement set by Counterman and, even for those jurisdictions that do not, this ruling does not create insurmountable barriers to justice. However, this decision demonstrates SCOTUS’s lack of understanding of the lived experiences of victims of stalking—the dangerous, sometimes lethal threat it imposes on victims and the barriers to seeking safety and justice. Stalking is already difficult to prosecute and victims’ concerns are already not taken seriously. This decision may embolden stalkers and have a chilling effect for victims seeking safety and justice. Based on what NNEDV and our member coalitions are seeing, it is already creating unnecessary panic and serious concern among victims of stalking who are not sure whether they will be protected in the future.

NNEDV will work with national partners and our 56 member state and territorial coalitions against domestic violence to ensure victims of stalking who seek safety and justice from the criminal legal system receive it, no matter where they live.

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The National Network to End Domestic Violence (NNEDV) represents the 56 state and U.S. territorial coalitions against domestic violence. NNEDV is a social change organization working to create a social, political, and economic environment in which domestic violence no longer exists. NNEDV works to make domestic violence a national priority, change the way society responds to domestic violence, and strengthen domestic violence advocacy at every level.