ZALC - Issue Paper 22 (Project 130): Stalking - CHAPTER 1: THE AMBIT AND THE EXTENT OF THE PHENOMENON OF STALKING

1.1 The Oxford dictionary defines stalking as “the action of pursuing or approaching (wild animal, enemy) stealthily”.^[13] The term stalker in relation to the pursuit by one person of another is not defined. The concept of stalking seems to have evolved and has taken on an artificial meaning with harassment of another person as the central theme. The concept of stalking has expanded from originally referring to prowling to include the use of electronic and telephonic mechanisms to survey or harass a person. If one were to define stalking broadly in a modern context, it would refer to any type of harassing and intimidating conduct that causes a person to fear for his or her safety. In its report on stalking the Law Reform Commission of Hong Kong states that stalking, like shoplifting and vandalism, is a description rather than a legal concept.^[14] Further, that although stalking is not a new phenomenon it is only recently that such behaviour has been labelled a separate and distinct class of anti-social behaviour.

Question

1. What constitutes or should constitute “stalking” in the South African legal context?

METHODS EMPLOYED BY STALKERS

1.2 Stalking involves “a series of discrete, individual acts, each one building upon the next”.^[15] It is not a single occurrence but involves a course of conduct that extends over a period of time. The methods employed by stalkers to harass a victim can involve a series of actions which in isolation may be unlawful, such as making obscene telephone calls, using threatening language and committing acts of violence. On the other hand, stalkers frequently exhibit behaviour which

is perfectly legal and socially acceptable in isolation. This apparently harmless conduct, such as following someone or sending gifts, can be intimidating if done persistently and against the will of another person. Taken together, and in the context of the relationship between the stalker and the victim, seemingly innocuous behaviour becomes wrongful and dangerous.^[16]

1.3 A typical stalker would engage in a series of acts that, viewed collectively, present a pattern of behaviour that annoys or alarms the person at whom the conduct is directed. Occasionally, a stalker may become more threatening and violent as time passes. The stalking activity may escalate from what may initially be annoying, alarming but lawful behaviour to the level of dangerous, violent and potentially fatal acts. Stalking may therefore be a precursor to crimes such as assault, wounding, criminal intimidation, sexual offences and even murder.

1.4 Methods employed by stalkers are varied and include excessive telephone calls, unsolicited calls made at inconvenient times, especially in the early morning hours or at work, sending of unwanted electronic messages, postcards or facsimiles and keeping the victim under surveillance.

1.5 An obsessed stalker makes declarations of love, gives voice to obscenities or threats. Surveillance takes a number of forms. The stalker may watch or spy on the victim, or he may simply loiter or lie in wait outside the victim’s home, school, or place of work or recreation regularly. Some stalkers convey their knowledge of the details of the victim’s movement so as to let the victim know that he or she is being watched.

1.6 In order to please or harass the victim, the stalker may persistently send, or leave at the doorstep, unwanted gifts or bizarre and fear-instilling objects.

1.7 Some stalkers repeatedly threaten to harm the victims or their new partners, children or pets. Those showing a violent disposition may even sexually or physically assault their victims. Damage to property is also common to these stalkers. They may slash tyres, daub paint, scratch paintwork or vandalise property.

1.8 This behaviour may be accompanied by the disclosing of intimate facts about the victim to his or her friends or colleagues, making false accusations, intercepting the victim’s mail,

ordering goods on behalf of the victim without the latter’s knowledge or consent, and bringing spurious legal actions.^[17]

1.9 The difficulty of predicting what a stalker might do to his or her victim, and when, poses a problem in developing an effective response to the menace of stalking.

“Some stalkers may never escalate past the first stage. Others jump from the first stage to the last stage with little warning. Still others regress to previous stages before advancing to the next. It is not uncommon to see stalkers intersperse episodes of threats and violence with flowers and love letters. . . . A few stalkers will progress to later stages in only a few weeks or even days. In other cases, stalkers who have engaged in some of the most serious stalking behaviours may go months or even years without attempting a subsequent contact.”^[18]

Questions

2. Does the above exposition accurately reflect the modus operandi of a stalker?

3. Are there other methods which need to be highlighted for the purpose of this investigation?

WHO STALKS?

1.10 There is no monolithic concept of stalking and a single prototype of a stalker does not seem to exist. Stalkers range from cold-blooded killers to lovesick teens and may exhibit a variety of psychological syndromes^[19] such as erotomania,^[20] schizophrenia,^[21] paranoia,^[22] manic

depression,^[23] and obsessive-compulsive disorder. A stalker may be trying to re-establish a prior relationship, be trying to establish a new relationship with someone whom he or she thinks is already in love with him or her or would be if the victim would the stalker a chance or may be a serial murderer or rapist who has compiled certain criteria for an Aideal victim@ and is seeking that victim out.

1.11 On the one hand Stearns^[24] describes the underlying psychodynamics of stalking as follows:

1.12 On the other hand the New South Wales Law Reform Commission found that although many stalkers act irrationally, and demonstrate little understanding of the effect of their behaviour, most offenders in New South Wales were not psychotic or delusional.^[25]

1.13 Stalking is gender-neutral behaviour, with both male and female perpetrators and victims. However, women seem to be the primary victims and men the primary perpetrators. In the US, 75 – 80% of all stalking cases involve men stalking women.^[26]

1.14 A review of the literature on stalking reveals that there are at least five different categories of stalkers, namely delusional erotomanics, borderline erotomanics, “former intimate” stalkers, sociopathic stalkers, and stalkers with false victimisation syndromes.^[27]

Delusional erotomanics

1.15 “Erotomania” is described as a delusional disorder in which the individual truly believes that he or she is loved by another who may not even know of his or her existence. The erotomanic typically fantasizes the existence of an idyllic romantic love with someone who is of a higher social status^[28] or in a position of authority relative to him or her. The erotomanic seeks to establish an intimate relationship with his or her object of fantasy. The primary motivator is not to cause harm.

Borderline erotomanics (or “love obsessionals”)

1.16 These are individuals who have developed intense emotional feelings towards other individuals whom they know do not reciprocate their feelings. They tend to vacillate between feelings of love and hate towards their victims. They may express significant narcissistic or abandonment rage when their victims do not return their affection.^[29]

Former intimate stalkers

1.17 These individuals have had some personal or romantic relationship with the victim. They engage in stalking behaviour when the relationship breaks down or when they feel mistreated by the victim. They stalk their victim in an attempt to resurrect the broken relationship or to seek revenge.^[30] Anecdotal evidence suggests that 70 – 80% of stalking cases involve “former

intimate” stalkers and furthermore that they are prone to follow through with threats of harm and therefore pose the greatest potential threat of violence to the victim. According to research by Prof Lourens Schlebusch, head of medical psychology at the University of Natal’s Nelson R Mandela School of Medicine, this is one of the most common forms of stalking. He is quoted as saying that stalking is on the increase in South Africa and the most likely stalker is an ex-lover or friend.^[31] He attributes this increase to relationship stress and easier accessibility to the victim through internet, e-mail and cellphones.^[32]

Sociopathic stalkers

Sociopathic stalkers are distinguished by the fact that they do not seek to initiate or maintain an interpersonal relationship with their victim. They first formulate the characteristics of the “ideal victim” and then seek out individuals who fit the criteria. They stalk one victim after another in a serial fashion.^[33] In May 2002 the police arrested a rape suspect who was accused of stalking, abducting and raping at least several schoolgirls in Johannesburg. Police analysed four case dockets over a seven-month period where the circumstances were similar.^[34]

Persons with false victimisation syndromes

Other categories of stalkers

Disgruntled clients of private organisations or public bodies

1.20 Some private organisations and public bodies have extensive contact with members of the public. On occasion, their clients take exception to their policies or decisions, or are dissatisfied with the type or level of service delivered by them. These clients may choose to express their anger or dissatisfaction by stalking or harassment. The usual tactics employed by these disgruntled clients include the following:

(a) repeated telephone or personal calls to the office, complaining and insisting that their demands be met, or questioning the organisation’s policy or decision with abusive, insulting and humiliating remarks;

(b) lodging repeated oral and written complaints on frivolous or vexatious matters which are without substance or even malicious;

(d) visiting the home of the officer after finding out his or her address by following the officer home; and

(e) intercepting or threatening to intercept the officer or his or her staff near their place of work or on the street.^[36]

Clients of counselling staff

1.21 Not only is the counsellor often stalked or harassed but the risk extends to the family members of counselling professionals.^[37] Prof Schlebusch is quoted^[38] as saying:

“I have been stalked by both male and female patients. It can be very invasive if you are constantly bombarded with letters and calls. It can be disruptive to your private life. It can be a problem when you don’t know who could be lurking in the shadows.”

In the same article in the Sunday Times, Prof Saths Cooper, vice-chairman of the Health Professions Council of South Africa, said the personal details of some professionals had to be removed from the roll to prevent them from being harassed.

Cyberstalkers

1.22 Internet users may be subjected to a campaign of electronic harassment. The cyberstalker can forge an e-mail header so as to create an online digital persona. Online harassment includes:

(b) blocking the recipient’s e-mail with a large number of junk e-mails (“spamming”);

(d) impersonating the victim online and sending abusive e-mails in the victim’s name; and

(e) putting the victim’s name on sex newsgroups inviting persons to call the victim or to

1.23 In 2001 a Los Angeles woman was ordered to stand trial on extortion, witness intimidation, violating a restraining order, making harassing telephone calls and cyber-stalking charges. She had inter alia set up a website featuring herself and her former lover in bondage and included pictures of his house, car and directions to his home.^[40] Locally an ex-husband who stalked his wife and bombarded her with SMS messages has made the headlines.^[41] In terms of a final domestic violence order the ex-husband may not harass, threaten or communicate with his ex-wife.

Debt collectors

1.24 Debt collectors may exert pressure on debtors or their referees, friends, relatives and neighbours by frequently calling the home of the debtor and leaving threatening messages or publicising the indebtedness of the debtor by putting up notices near his home or place of work.^[42]

Questions

4. Does any other category of stalker exist?

5. In your opinion are any of the above categories adequately dealt with in terms of existing law?

6. Should this investigation include all of the above categories? Please elaborate.

WHO IS STALKED?

1.25 Stalking knows no boundaries and affects people from all walks of life. Stalking of celebrities^[43] attracts much media attention; however, the majority of victims of stalking are ordinary people who are harassed at their place of work or in a domestic context.

IMPACT OF STALKING BEHAVIOUR ON VICTIMS

1.26 The impact stalking has on its victims is manifold. Some report significant disruption to their daily functioning irrespective of exposure to associated violence; others report a restriction on their social activity and that it leads to increased work absenteeism. Other consequences are a reduced enjoyment of life, the economic impact related to upgrading security systems, changing telephone numbers, screening calls or even moving house or changing jobs.

1.27 As observed by the Manitoba Law Reform Commission, stalking interferes with the

(a) Interest in privacy: Privacy includes the notion of being left alone, free of unwanted scrutiny, in our private lives.

(b) Interest in emotional or psychological security: This includes being protected against unjustifiable conduct which threatens self-esteem, emotional security and mental health.

(c) Interest of freedom of action and autonomous decision-making: This includes the freedom from being subjected to the control, coercion or intimidation of the stalker so as to be compelled to act in a manner inconsistent with the victim’s interests and desires.

Invasion of privacy

1.28 One of the primary concerns in relation to the invasion of privacy of a person being stalked is the acquisition or use of personal information about that individual. The unlawful collection of personal data falls within the realm of data protection.

1.29 By following or observing a victim in the street or other places which are accessible to the public, the stalker is unlikely to obtain any personal information about his or her victim. Seeking to maintain contact by making telephone calls or sending letters or gifts also does not give the pursuer access to personal information.

1.30 However, a person’s privacy may be intruded upon by subjecting the person to unlawful

surveillance. If the concept of “private life” is used then stalking could arguably amount to an interference with privacy.

1.31 Article 8 of the European Convention on Human Rights describes privacy as the right to respect for an individual’s private life. The European Court of Human Rights has not given an exhaustive definition of the notion of “private life” under Article 8. However, in Niemietz v Germany the Court held that:^[45]

1.32 One of the many aspects of privacy is freedom from interference with an individual’s private space. In the light of the European Court decision in Niemietz v Germany, which extended the concept of private life to include the establishment and development of personal relationships, it is arguable that the idea of private space is no longer confined to those areas in which the person has some exclusive rights of occupancy where secrecy or confidentiality can be maintained.^[46]

Question

7. Does stalking have an impact on the victim’s psychological, interpersonal and/or occupational functioning?

8. Does stalking affect the victim’s activities or social interaction, or should the victims of stalking be more resilient in dealing with nuisance behaviour?

9. Do the actions that constitute stalking necessarily invade a person’s privacy?

THE EXTENT OF THE PROBLEM

1.33 The South African Police maintain statistics on the types and numbers of offences committed. However they do not keep any statistics pertaining to stalking, as stalking is not an offence under existing law. Police regularly receive complaints from people who claim that they are being followed or persistently harassed. However, unless the stalking entails individual actions which are criminal in nature, the police are unable to provide redress.

1.34 According to Prof Schlebush, stalking is on the increase. In recent months he has treated five victims of stalkers. The cases include: A butcher who secretly videotaped himself raping his unconscious lover; the wife of a prominent businessman, who started stalking one of his colleagues after the couple had experienced marital problems; and a husband who suspected his wife was being unfaithful to him and constantly checked her underwear and car mileage and monitored her cellphone calls and messages.^[47] He is of the opinion that the fact that stalking was not classified as a crime in South Africa has deterred victims from exposing the perpetrators. In his view the only time we learn of cases of stalking is when they are reported in the media or victims approach therapists for help. Stalking is an old behaviour but a new crime, not only in South Africa but worldwide.^[48]

1.35 The Commission is unaware of any study which focuses solely on the extent to which stalking is a problem in South Africa. However statistics collected by the Department of Justice and the Consortium on Violence against Women^[49] reflect a high percentage of requests for domestic violence interdicts based on identified stalking, harassment or other elements of domestic violence which could form part of a pattern of stalking, such as, for example, intimidation, damage to property, physical, sexual, emotional, verbal or psychological abuse. The Department of Justice and Constitutional Development’s statistic totals per year and per regional office reflect that there were 15 931 applications for domestic violence protection orders for the year 2001, of which 4 464 were not granted, 1157 set aside and 998 amended.

Unfortunately the departmental statistics do not reflect the remedies that were sought.

Question

10. Are there any empirical or other studies available to demonstrate the existence or the extent of stalking in South Africa?

^[14]The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 4.

^[15]KL Walsh “Safe and Sound at last? Federalized Anti-Stalking Legislation in the United States and Canada” (1996) 14:2 Dickinson Journal of International Law, 373 at 381 as quoted in The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 5.

^[17]The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 7.

^[18]KL Walsh “Safe and Sound at last? Federalized Anti-Stalking Legislation in the United States and Canada” (1996) 14:2 Dickinson Journal of International Law, 373 at 381 as quoted in The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 8.

^[19]R A Lingg Stopping Stalkers: A Critical Examination of Anti-Stalking Statutes (1993) 67 St.John=s L.Rev.347 at 351,n.25 as quoted in Report on stalking.

^[20]Loosely defined as a delusional disorder in which the individual truly believes that he or she is loved by another person who may not even know of his or her existence.

^[21]Defined in the Pocket Oxford Dictionary: Oxford University Press 1983 as ‘mental disease marked by disconnection between thought, feelings, and actions’.

^[22]Defined in the Pocket Oxford Dictionary: Oxford University Press 1983 as ‘mental derangement with delusions of grandeur, persecution’.

^[23]Defined in the Pocket Oxford Dictionary: Oxford University Press 1983 as ‘relating to mental disorder with alternating periods of elation and depression’.

^[24]“Stalking stuffers: A revolutionary law to keep predators behind bars” 1995 Santa Clara LR 1027 1029 as quoted by JMT Labuschagne in his submission to the Commission.

^[25]New South Wales Law Reform Commission Discussion Paper 45 Apprehended Violence Orders: Part 15A of the Crimes Act November 2002, at pp 141.

^[26]The National Victim Center, “Stalking – Questions and Answers” (No 43, 1995) at http://www.nvc.org/ddir/info43.htm as quoted in The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 9.

^[27]The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 10.

^[29]The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 11.

^[30]N Diacovo “California’s Anti-stalking Statute: Deterrent or False Sense of Security?” (1995) 24 Southwestern University Law Review 389 at 396 as quoted in The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 11.

^[33]The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 11.

^[35]The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 10.

^[36]The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 12.

^[37]The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 13.

^[42]The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 14.

^[44]Manitoba Law Reform Commission Stalking (Report No 98 1997) p5 – 6 as quoted in The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 20.

^[45]Series A No 251-B, para 29 (1992) as quoted in The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 25.

^[46]The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 27.

^[49]Parenzee, Artz & Moult: Monitoring the implementation of the Domestic Violence Act First Research Report 2000 – 2001: Institute of Criminology University of Cape Town.

South African Law Commission

CHAPTER 1: THE AMBIT AND THE EXTENT OF THE PHENOMENON OF STALKING

WHAT IS UNDERSTOOD BY THE TERM ‘STALKING’?

METHODS EMPLOYED BY STALKERS

WHO STALKS?

Delusional erotomanics

Borderline erotomanics (or “love obsessionals”)

Former intimate stalkers

Sociopathic stalkers

Persons with false victimisation syndromes

Other categories of stalkers

Disgruntled clients of private organisations or public bodies

Clients of counselling staff

Cyberstalkers

Debt collectors

WHO IS STALKED?

IMPACT OF STALKING BEHAVIOUR ON VICTIMS

Invasion of privacy

THE EXTENT OF THE PROBLEM