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3.1 Various options for law reform present themselves following the above exposition of the current remedies available to a person who is stalked. These options will briefly be sketched below and should in no way be seen as exhaustive.
3.2 With the exception of the domestic violence protection order, civil remedies are unattainable for the so-called ‘man on the street’ as a victim of stalking. The costs involved in civil litigation are prohibitive. The majority of South Africans do not have ready access to money for retention of a lawyer and even less for an application to the High Court for an interdict. They are faced with very limited options. The most accessible recourse seems to be in terms of the Domestic Violence Act, 1998, whereby a protection order may be obtained. In view of the shortcomings of this remedy as stated above, it is deemed apt to explore the option of expanding the Domestic Violence Act to include the option of a personal protection order against persons who are not in a domestic relationship with the applicant and the option of enacting separate but similar legislation to the Domestic Violence Act for the last-mentioned purpose.
3.3 Some jurisdictions have specific legislation which deals comprehensively with protection orders. Western Australia has the Restraining Orders Act 1997 (WA), which provides for violence restraining orders to protect against acts of personal violence, and misconduct restraining orders to prevent intimidating or offensive behaviour, property damage and disorderly conduct. The distinction between the two orders is based on the defendant’s behaviour, and not on the relationship between the applicant and the defendant. Under the Protection Orders Act 2001 (ACT), applicants may obtain a domestic violence order or a personal protection order.
3.4 Adopting a similar approach to the Domestic Violence Act, 1998 or by combining the two concepts, both domestic and personal, could be beneficial in that it would provide a central legislative basis for protection orders. This could be seen as recognition of the importance of
protection orders as a means of combating violence, abuse and harassment. However a drawback of doing this could be creating the perception that protection orders have been “sidelined” from more serious issues and crimes. This may give the impression that violent actions which prompt the issuing of protection orders are somehow taken less seriously and that consequently stalking is seen as less serious.
3.5 One also needs to bear in mind that much has been written about the unique nature of domestic violence as opposed to violence in other relationships. Domestic violence also involves issues of financial dependence, physical and emotional power and control, and shared emotional history, which sets it apart from non-domestic abuse. These differences may justify separate legislation dealing with domestic and personal violence protection orders only. A dual approach is followed in the Northern Territory, Queensland, South Australia and Victoria.[80]
3.6 The focus of the criminal law is to punish the offender after the commission of an offence has been proved beyond reasonable doubt. While the imposition of criminal sanctions following a breach of the law is a necessary element in our society, it is not always sufficient to protect those who fear for their safety. A person may fear violence at the hands of another in circumstances where the conduct of that person may either not amount to criminal conduct, or may not be able to be proved to the criminal standard. A classic example is obsessive behaviour, such as constant telephone calls or sending disturbing, unsolicited gifts or messages. In domestic situations, it is possible for patterns of intimidation and abuse to continue for years without there being enough corroborating evidence to support a criminal conviction. To alleviate fear in these circumstances, a system of restraining or protection orders operates in every Australian State and Territory, and in many overseas jurisdictions.
3.7 Protection Orders are preventative measures: they are granted based on indications of past behaviour but essentially go to preventing future conduct. However, the question arises whether such orders prevent future conduct.
3.8 The procedure envisaged in section 384 of the Criminal Procedure Act, 1955 is informal, inexpensive and provides a summary way of gaining access to a magistrate’s court. Following an order of the magistrate the respondent is to be brought before the court forthwith. This process does not necessitate service of the order, fixing of a return date or filing of opposing affidavits etcetera. In order to apply this simple procedure to the needs of a person being stalked, this section could be amended accordingly. For example, if the respondent admits the allegations brought against him or her or is found guilty of such transgression the magistrate could be empowered to make one or more of the following orders: issue a restraining order or impose such sentence as the magistrate deems justified, which sentence may be postponed or wholly or partly suspended on condition, for example, that the respondent submits to psychological treatment, anger management or counselling.[81]
3.9 It could be argued that a different conceptual and legal framework is needed for separate acts of harassment which constitute stalking by treating a “series” of these acts as a more serious crime, rather than a stream of unrelated minor offences. [82]
3.10 A series of stalking homicides galvanized public opinion in Australia in the early 1990s when it was recognized that the criminal law had no offence which targeted stalking behaviour. Most Australian jurisdictions have now introduced legislation creating the criminal offence of stalking. This legislation only addresses stalking and is commonly known as Aanti-stalking@ legislation. In New South Wales stalking is defined as the following of a person about, watching, frequenting of the vicinity of, or an approach to, a person=s place of residence, business or work
or any place that a person frequents for the purpose of any social or leisure activity.[83] Stalking in the Northern Territory includes the following: loitering outside where the other person is; interfering with property of the other person; keeping the other person under surveillance or acting in any way that could reasonably be expected to arouse the other person=s apprehension or fear.[84] The South Australian provision is similar to that of the Northern Territory, but it also includes giving or leaving offensive material.[85] In Queensland stalking includes the following: loitering near, watching or approaching another person or their place of work, residence or where they visit, telephoning, interfering with property, giving or leaving offensive material, harassing, intimidating, or threatening another person.[86]
3.11 The United States of America initially promoted legislation of this nature following a spate of celebrities being stalked by crazed fans. Currently 49 states and the District of Columbia have enacted stalking laws, and several have amended their statutes.[87] Canada and the United Kingdom have enacted similar legislation aimed at combating stalking and harassment.
3.12 Section 562 of the New South Wales Crimes Act[88] provides that it is an offence to stalk or intimidate another person: A person who stalks or intimidates another person with the intention of causing the person to fear physical or mental harm is liable to imprisonment for 5 years, or to a fine of 50 penalty units or both.
3.13 Stalking has only been recognised as a criminal offence in comparative jurisdictions relatively recently, in addition to the aforementioned jurisdictions there is similar legislation in Ireland and New Zealand.[89]
3.14 The widespread enactment of anti-stalking legislation internationally aimed to fill a perceived gap in the law. Previously, people who were subjected to persistent unwanted attention had no legal remedy if the behaviour in question was not in itself criminal.
3.15 In New South Wales the stalking and intimidation offence was inserted into the Crimes Act in 1993 by way of the Crimes (Domestic Violence) Act 1993 (NSW). Originally it only applied to people who were in a domestic relationship and in the context of domestic violence. In 1994 this limitation was removed, recognising that stalking and intimidation can occur regardless of whether or not the parties are in a domestic relationship by way of the Crimes (Threats and Stalking) Amendment Act 1994 (NSW). In 1999, the offence was expanded again. Previously, the offender had to cause fear of “personal injury”, which failed to recognise that stalking, as an expression of power and control, may not aim to arouse fear of physical violence. As amended, it is an offence to cause fear of “physical or mental harm”. [90]
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Questions
17. Does stalking present a problem which deserves intervention? If so,
should this intervention be legislative?
18. Indicate which of the options described would in your opinion be the
most suitable to address the phenomenon of stalking
19. Do other legislative or non-legislative options exist which would be
more appropriate to address the phenomenon of stalking?
20. Persistent unwanted attention may have a significant impact on a
person’s life, although no fear of harm is caused. What should the
threshold be? In other words should one exclude behaviour which is merely
irritating or annoying?
21. Some jurisdictions include behaviour causing detriment. In Queensland
“detriment” includes prevention or hindrance from doing an act a
person is lawfully entitled to do, for example changing a bus route or form of
transport from that which he or she would ordinarily use to travel to work.
Should an offence of stalking or intimidation cover behaviour causing detriment
or distress, or should it be limited to behaviour causing fear?
22. If in your opinion the criminal law option is the appropriate
response, how would you define stalking and should an exception be made for
freedom of the press regarding news-gathering and news-reporting activities? In
other words, should news organisations be exempted by way of a specific
defence?
23. Is it necessary to provide for defences and exclusions, for example
that stalking does not include acts done for a legal purpose, or does this state
the obvious?
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3.16 The offence of stalking is by nature imprecise, as behaviour which is otherwise considered quite ordinary becomes threatening in context. Stalking is difficult to define as a concept, some actions falling within the ambit of stalking may constitute a legitimate pursuit of a love interest but seen in a different context could engender immense fear in the object of the attention. It is difficult to define at what point the behaviour warrants criminal sanction. Consequently it is difficult to set clear parameters in legislation.
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Question
24. In describing stalking as an offence an element of vagueness seems to
be inevitable. Do you foresee any difficulty in terms of the legal requirement
that a law should reflect with certainty which actions constitute a criminal
offence, failing which no crime exists?
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3.17 No legal intervention will prevent all forms of stalking, but it is essential that the legal system provide the greatest protection and remedies possible.
3.18 Admittedly prevention is a difficult issue, requiring a comprehensive response extending beyond legislation. Any evidence that violence is not being effectively prevented could point to the need for better implementation of the legislation, for more legal or community support services, or greater community education, rather than faults with the law.
3.19 Prior to the Domestic Violence Act there was limited protection available for people who feared that they would become victims of violent activity in the immediate future. While the general criminal law prohibited personal violence offences it became glaringly apparent that the criminal law alone was insufficient to deter violence in interpersonal relationships. The criminal law of course only applies after the violence has occurred, and conviction can only be secured if the offence is proved beyond reasonable doubt. Consequently this does little to deter future violence.
3.20 The Commission also takes heed of the view that twentieth-century lawmakers have been spurred into action by a moral panic surrounding “celebrity stalking”, and have hastily enacted anti-stalking laws, creating a legal shell waiting to be filled.[91]
3.21 The issues raised in the issue paper need to be debated thoroughly. The comments of all parties who are interested, experienced in or affected by stalking in whatever form are therefore of vital importance to the Commission. Respondents are welcome and once again encouraged to raise issues which have not been addressed and which would serve the purpose of delineating the scope of this investigation.
[80] Domestic Violence Act 1992 (NT), Justices Act 1928 (NT), Domestic Violence (Family Protection) Act 1989 (Qld), Peace and Good Behaviour Act 1982 (Qld), Domestic Violence Act 1994 (SA), Summary Procedure Act 1921 (SA), and the Crimes (Family Violence) Act 1987 (Vic).
[81] A similar suggestion was made pertaining to domestic violence in the South African Law Commission Commission Paper 509 Domestic Violence (Project 100) Minority report (1998).
[82] The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 78.
[83] JA Riordan (Editor in Chief) The Laws of Australia (Title 17 Family Law) Sydney: the Law Book Company 1995.
[84] The Laws of Australia paragraph [46].
[85] The Laws of Australia paragraph [46].
[86] The Laws of Australia paragraph [72].
[87] Clark & Van der Walt >Stalking: Do we need a Statute?=(1998) South African Law Journal 729 at 733.
[88] New South Wales Law Reform Commission Discussion Paper 45 Apprehended Violence Orders: Part 15A of the Crimes Act November 2002, at pp 134.
[89] See the Protection from Harassment Act 1997 (UK); Non-Fatal Offences Against the Person Act 1997 (Ireland) s 10; Criminal Code, RSC 1985, cl C-46 (Canada) s 264; Harassment Act 1997 (NZ) as quoted in New South Wales Law Reform Commission Discussion Paper 45 Apprehended Violence Orders: Part 15A of the Crimes Act November 2002, at pp 134.
[90] New South Wales Law Reform Commission Discussion Paper 45 Apprehended Violence Orders: Part 15A of the Crimes Act November 2002, at pp 135.
[91] Orit Kamir ‘Every breath you take: stalking narratives and the Law’ (2001) 10 Griffith LR.
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