STALKING AND HARASSMENT IN SCOTLAND
This chapter summarises the main themes emerging from work undertaken elsewhere on stalking and harassment and highlights the relevance of these for the current study.
The literature review was compiled by searching relevant books, journal and newspaper articles, official publications, legislative initiatives and relevant case law, all dating mainly from 1990. The search for cases and journal articles relating to stalking and harassment was made using the Current Legal Information database; relevant newspaper articles were sought using Proquest (a searchable database indexing major newspapers); and the websites of the Scottish Executive, Scottish Parliament and Houses of Parliament were searched for official publications.
In addition, a general search of all relevant websites in the UK was carried out along with online English language searches for information about stalking in other jurisdictions. LEXIS was used primarily for finding Canadian stalking cases. The English-language jurisdictions where there was substantial information about stalking and harassment were the United States, Australia and Canada.
The summary of this work is in four main sections, which broadly focus on the following questions:
What is stalking?
What is known about stalking?
How is stalking dealt with?
What are the current issues?
WHAT IS STALKING?
This section examines the definitional issues associated with the problem of stalking and harassment, and provides an overview of the legal responses to the problem since 1990.
The literature on stalking and harassment is unanimous in flagging the lack of an agreed definition. Much attention is devoted to the problems that stem from this lack in assessing the nature, extent and prevalence of stalking, as well as in framing measures to deal with such behaviour 12.
As we have already seen, there is no statutory definition of stalking in the UK. As Finch 13 notes, '[l] egislation to combat stalking and cases involving conduct that was labelled stalking have not generated a generally applicable definition of the conduct.' In its consultation paper of 1996 prior to the introduction of the Protection from Harassment Bill, which created two specific offences to deal with stalking in England and Wales, the Home Office 14 describes stalking as ' a series of acts, which are intended to, or in fact, cause harassment to another person.' The Scottish Executive consultation on stalking and harassment 15 of 2000 suggests that ' [g]enerally, stalking and harassment means intentional behaviour, involving more than one incident, which causes fear, upset or annoyance to the victim'.
In the US, where the State of California was the first jurisdiction to introduce an anti-stalking statute in 1990 16, the Department of Justice 17 categorises stalking as a crime of intimidation: '[g] enerally, stalking is defined as the wilful or intentional commission of a series of acts that would cause a reasonable person to fear death or serious bodily injury.' In an influential paper 18, Matthew Goode, Attorney-General's Office of South Australia, summarises stalking behaviour as ' intentionally harassing, threatening and/or intimidating a person by following them about, sending them letters of articles, telephoning them, waiting outside their place of abode and the like'.
Researchers involved in survey work to assess the prevalence of stalking also have to engage with the definitional issues surrounding this type of behaviour. Surveys undertaken to date can broadly be categorised into two groups: those which approach a sample of the population to identify whether or not individuals have experienced this type of victimisation; and those which approach individuals who have reported this type of victimisation. Both types of survey gather information on the victims' experiences, but victim report surveys are generally based on participants' own definition of themselves as stalking victims, whereas population surveys work with a pre-determined definition. Such definitions tend to be broad. For example, the 1998 British Crime Survey 19 classified victims as those who had suffered ' persistent and unwanted attention.' A US Department of Justice population survey 20 defined stalking as ' a course of conduct directed at a specific person that involves repeated visual or physical proximity, non-consensual communication, or verbal, written or implied threats, or a combination thereof, that would cause a reasonable person fear'.
It is clear that while the various definitions may be sufficiently close to allow for core meanings, and for generally shared understanding of a range of behaviours and malevolent intentions associated with stalking, when different definitions are used in legal measures and in surveys designed to assess prevalence, this adds to the difficulty of identifying the extent and nature of stalking behaviour and in comparing prevalence and incidence rates across different jurisdictions. Because stalking is dealt with primarily through state law, the US Department of Justice 21 recognises the ' significant variation' of definitions of stalking among state stalking laws. These variations are seen to relate to four aspects of the state laws: 'the type of repeated behaviour that is prohibited; whether a threat is required as part of the stalking; the reaction of the victim to the stalking; and the intent of the stalker'. In considering the issue of stalking and harassment, it is helpful to keep in mind these four key elements:
the reaction of the victim
the intent of the perpetrator
It is widely recognised in the literature on stalking and harassment that stalking ehaviour is not a new phenomenon; however, there is consensus that a move towards criminalisation of stalkers has taken place since the early 1990s. The world's first anti-stalking statute was enacted in the US state of California in 1990. The Act (California Penal Code 646.9) was passed in response to the fatal shooting of actress Rebecca Schaeffer and the murders of four other Californian women at the hands of their stalkers. Since then, anti-stalking legislation has been introduced in all 50 US states, and from 1994 US federal law has also addressed stalking behaviour, particularly in outlawing interstate travel with the intent to injure or harass 22.
Other jurisdictions have been quick to follow the US lead. The Canadian Criminal Code was amended in 1993 23 to create a new offence of criminal harassment. Again, this action was taken in response to an increasing amount of stalking conduct in cases involving violence against women, including domestic violence. All eight Australian territories have now enacted anti-stalking legislation, following Queensland's lead in the 1993 Criminal Law Amendment Act 24.
The move towards legislative provisions to deal with stalking behaviour has been much less pronounced in Europe; however, recent initiatives in this direction have been taken in the Netherlands 25, Belgium 26, Ireland 27 and the UK 28. Although there has been much debate on the introduction of a specific offence of stalking in Switzerland, Austria and, particularly, Germany 29, to date this has not happened in these jurisdictions.
Developments in the UK in the second half of the 1990s followed sustained media interest and coverage, which focused on criticisms of the existing provisions to deal effectively with the problem of stalking behaviour. A stalking bill was introduced in Westminster by Labour backbench MP Janet Anderson using the Ten Minute Rule in early 1996. Although this bill was rejected by the Conservative government of the time, it became the precursor of the Protection from Harassment Bill, which was enacted in March 1997.
Although a UK Act, the Protection from Harassment legislation entails different provisions for Scotland and for England and Wales. In England and Wales, the Act widely defines harassment (encompassing stalking) from the actual or implied position of the harasser (as prohibiting pursuance of a course of conduct which the perpetrator knew, or should have known, would amount to harassment). The Act sets up two criminal offences (harassment or putting in fear of violence) to deal with such conduct. The 1997 Act extends to Scotland in only a limited way, introducing into Scots law the civil remedy of a non-harassment order, breach of which is a criminal offence.
The Protection from Harassment Act 1997 was introduced following intense campaigns by victim groups in the UK 30, and the fact that a new offence of harassment was not created for Scotland has led several Scottish organisations to continue to campaign for a specific anti stalking law in Scotland 31. As we have seen, currently Scots law relies mainly on the common law crime of breach of the peace to prosecute stalking behaviour.
WHAT IS ALREADY KNOWN ABOUT THE NATURE AND EXTENT OF STALKING?
In parallel with the political and media debates around stalking and harassment, recent years have seen extensive research on the subject. This section outlines information from this burgeoning literature, focusing on information about the nature and extent of stalking behaviour; the characteristics of victims; the types of stalking behaviour identified; and the motives and characteristics of stalkers.
Incidence and prevalence of stalking and harassment
Not surprisingly, the starting point for research in this area is to ask how common this type of victimisation actually is; consequently, there is a developing body of literature on measuring incidence and prevalence. Incidence is a measure of the number of stalking cases; prevalence is usually a measure of the proportion of victims of stalking in the population.
In principle, there are three main ways in which the scale of the problem might potentially be quantified. The first is by reference to 'official' incidence data about the number of cases coming to the attention of the police or the courts that may involve stalking or related forms of harassment. The available data tend to be very thin, however, and to relate to forms of victimisation which, although perhaps sharing some commonalties with stalking, are by no means synonymous with it. Moreover, the data relate only to those cases that are actually reported to (and recorded by) the authorities.
The second potential source of information about the extent of the problem is the information collected and provided by pressure groups and service providers, such as the National Anti-Stalking Campaign (NASH). Such figures are also highly problematic, however, as it is impossible to generalise to wider population or to know how typical those cases coming to the attention of the service provided actually are.
The third - and potentially most powerful - indicator of the extent of stalking consists comes from social surveys of the general population. While these address the problems of unreported cases, they do raise important questions about sample coverage, question wording and the definition of stalking used.
In practice, then, the available picture of the extent of the problem is fragmentary - drawing on data of different types and using a range of different definitions.
Scotland: Until the current research, no studies had been undertaken to determine incidence or prevalence of stalking and harassment in Scotland. Attempts had been made since 1998 to measure the incidence of breach of the peace cases with an element of harassment. This measure, however, had not been used effectively 32 and, in any case, would by no means identify only cases of stalking. There were approximately 70,000 breach of the peace crimes in Scotland in total in 2000 33 and 820 people were imprisoned for such crimes in the same year 34. Again, however, only a tiny proportion of these are likely to involve behaviours that might be classed as stalking.
Of the recorded crimes in Scotland in 1999 there was a sizeable increase in the non-sexual crimes of violence (11% or 2,400) to 23,400, the highest ever recorded. Of those cases those most likely to relate to stalking is threat or extortion, which increased by 37% in 1999. While these figures tell us little about the problem of stalking in Scotland they do indicate trends which might have a bearing on the problem and highlight the need for detailed analysis of crime statistics to determine the extent of the problem as it presents to the criminal justice system.
The UK: In respect of stalking in the UK, information which suggests that stalking is increasingly problematic has been provided by the National Anti-Stalking and Harassment Support Association (NASH) 35. Since the launch of its campaign, NASH has collected and published a wealth of information about volume and profile of calls to its telephone helpline. In the two years from January 1994 until January 1996, for example, a total of 8,097 victims contacted their crisis line for help and support. NASH also reports that seventeen victims of stalking in the United Kingdom died as a consequence of attacks upon them over the two-year period 1994-1995.
England and Wales: There are several sources of information on stalking and harassment in England and Wales. Figures provided by the Home Office 36 on incidence of stalking and harassment from cases prosecuted under the Protection from Harassment Act 1997, show that in 1998, 661 people were cautioned; 4,298 cases were proceeded against; and 2,221 people prosecuted were convicted. Harassment is categorised under the general head of violence against the person in the Home Office statistics in England and Wales. In 1999 37, the number of recorded offences of violence against the person increased by 16 per cent to 581,000: 11 per cent of all recorded crimes in that jurisdiction. During this period, recorded crimes of harassment increased by 25%. The Home Office acknowledges that although some of the increase may be due to changes in measurement introduced in April 1998, ' it cannot be ruled out that the increase is genuine' 38.
Limited research into the scale of the problem from the perspective of the police service in England and Wales has also been undertaken by the Assistant Chief Constable of Hampshire on behalf of the Association of Chief Police Officers. This research found that, out of forty-four police forces asked about the types of behaviour that would constitute stalking, only four forces could not provide examples 39.
Prevalence too has been investigated in England and Wales. Analysis by the Home Office of a self-report questionnaire completed by a representative sample of the 16-59 year old population as part of the 1998 British Crime Survey 40 found that nearly one in 10 had suffered from stalking at some time in their lives. This figure was higher for women at just under one in six. The definition used in the questionnaire was deliberately broad: respondents were asked about their experience of 'persistent and unwanted attention' and given examples of the type of behaviour that this might involve 41. (The same approach was used in the present exercise in order to allow comparisons between Scotland and England & Wales.)
The survey suggests that roughly 3% of all adults in England & Wales had experienced 'persistent and unwanted attention' in the previous year. If generalised to the population as a whole, this proportion would represent some 900,000 victims per year. 42 Experience of such behaviour at some point in life is significantly higher.
A survey by Leicester University in 1998 43 indicated higher levels of victimisation - it found that one in five women had been the victim of a stalker at some point in their lives - but was based on a very small sample (n=100) and limited to just two locations (Liverpool and Leicester). For these reasons, it provides a less robust and reliable indicator than the BCS of the extent of the problem 44.
Evidence from other countries: By far the greatest body of research in this area has been carried out in the United States. In 1998, for example, the National Institute of Justice undertook a telephone survey of 8,000 women and 8,000 men. The survey concluded that in a 12-month period, one in 100 women had been stalked. This figure increased to one in 12 women and one in 45 men when respondents were asked about experience over the course of their lifetime rather than solely in the last year 45. Studies in the United States have also indicated that as many as one in five female murder victims had been the victim of stalking prior to their murder 46. The US Justice Department has estimated that around 1.5 million Americans, of whom two-thirds are women, have suffered the unwanted attention of stalkers.
According to the Canadian Centre for Justice Studies, the incidence of stalking, referred to as criminal harassment, appears to be increasing. A survey of 106 police forces across Canada 47 found that 5,382 incidents had been reported, representing an increase of 36% since 1996. In those cases, 75% of the victims were women and 50% were stalked by a current or former partner.
While there have been no national studies of stalking and harassment in Australia, a number of localised academic studies have been completed. In particular, a study of 3,700 randomly selected men and women 48 found that 23% had experienced some form of stalking at some point in their lives, with females around twice as likely to report being stalked as men.
Characteristics of victims of stalking and harassment
According to NASH, stalking is not gender specific, although the most common situation is of men stalking women. All of the surveys carried out into stalking and harassment report that women are most likely to be stalked and to be stalked by men. The 1998 BCS, for example, asked victims of stalking for information about their stalker. Overall, men perpetrated just over eight in ten (81%) incidents and of these, 51% involved men aged between 20 and 39 years of age. Whereas the vast majority of incidents committed against women were carried out by a male (91%), offenders in incidents against men were more gender balanced: 57% were committed by men and 43% by women. The US National Violence Against Women Survey 49 produced similar results: 94% of stalking incidents against women were committed by male offenders and 60% against men were committed by male offenders.
Results from the Leicester University study 50 in the United Kingdom were based on questionnaire responses from 95 victims of stalking who contacted the Suzy Lamplugh Trust for assistance in dealing with their stalker. Of the 95 victims surveyed the majority were female (92%). The 1998 BCS found that women were much more at risk of unwanted and persistent attention than men: 4% of women reported victimisation during the past year compared to 2% of men. Young women aged between 16 and 19 years were at the highest risk, with 17% of this group reporting an incident in the survey.
In general, risks were particularly high among those who exhibited higher levels of instability in terms of employment, accommodation or income. The following sub-groups, for example, all had higher risks of victimisation:
- those aged between 16 and 24 years of age
- single people
- those living in privately rented accommodation
- those living in a flat or maisonette
- those living in low income households (less than 15,000 pa)
The survey found gender differences 51 in victimisation across several aspects of the experience. Females were more likely than males to be victimised by strangers: 35% of women reporting stalking experiences had been stalked by strangers, compared to 28% of men who reported being stalked. While women were more likely to report having experienced a wide range of stalking behaviours, men were more likely to specifically report threats of violence or to have suffered force or violence as part of the stalking behaviour experienced.
Two-thirds of reported cases by male victims involved a stalker acting alone, whereas this was the case in 84% of cases reported by female victims. In 20% of cases reported by a male victim, he was targeted by three or more perpetrators. Also, male victims were more likely to be the victim of young offenders, with just over a third (37%) involving someone under the age of 20. Only 17% of incidents perpetrated against women were carried out by someone aged under 20 years.
Relationships between stalkers and victims
Stalking can occur across a range of situations, from those where victim and stalker have been in an intimate, personal relationship to those where the stalker and victim are complete strangers. Almost two-thirds of stalking incidents reported in the British Crime Survey 1998 involved a perpetrator previously known to the victim in some way 52. Of these:
29% of the incidents were committed by a current or former intimate partner
32% were committed by an acquaintance
6% were committed by a friend, relative or other household member
34% of cases involved a perpetrator who was a stranger
NASH has also investigated the relationship of stalkers to their chosen victims. Of the 8,097 victims who contacted their helpline up until January 1996, 85% had experienced 'post relationship stalking' (i.e. by ex-husbands or partners), and 10% were known to their victim, but had never been romantically involved with them. This group may include neighbours, colleagues, doctors, teachers, and postmen. The remaining five per cent of the victims had been stalked by total strangers 53.
The Leicester University Lamplugh Trust study also provides accounts of the experiences of victims and investigates the relationships 54 of stalkers to victims. This research concluded that stalking behaviour is primarily carried out by former partners (48%): 20% of cases involved a relationship of ex-husband and wife; and 28% of cases ex-boyfriend and girlfriend. The stalker was a stranger to the victim in 12% of cases. The remaining relationships consisted mainly of work-related acquaintances (7%), neighbours (16%) and clients (8%), with 2% of cases where the victim did not know who was stalking them.
A Home Office study of use of the Protection from Harassment Act 1997 was undertaken in the first year after enactment. The study focuses on a sample of 167 Crown Prosecution Service cases in England and Wales 55. The study found 56 that in most cases (44%), the stalker was an ex-intimate partner or had been in a brief previous relationship with the victim. In 24% of cases the stalker was an acquaintance; in 16% the stalker was a neighbour; and in 11% of cases the stalker was a work colleague, friend or relative. In only 2% of cases was the stalker a complete stranger to the victim.
Outside the UK, the US National Violence Against Women survey also found that the majority of incidents were committed by someone known to the victim in some way. Unlike in the British Crime Survey, in which the results for the male and female victims were similar, however, the US survey found men were more likely to be victim of a stranger than were women (36% to 23%). Also, women were much more likely to be stalked by current or former intimates (59%) than were men (30%).
Types of stalking behaviour
The behaviours reported in the Lamplugh Trust questionnaire study 57 vary in seriousness but typically include watching, following, trespassing and unwanted approaches to the victim and their family. One in four of the respondents had been physically assaulted by their harasser. The duration of the stalking also varied 58 but most victims of ongoing cases (61%) reported episodes of less than five years at the time of the survey. In 39% of ongoing cases, the stalking had lasted for at least 6 years. Of those reporting an experience that was now over, 46% reported stalking of up to one year's duration, and 53% reported being stalked for between two and 10 years.
The stalking behaviour reported 59 in the 1998 BCS took a number of forms; however the most common was being forced to talk to the perpetrator: 49% of all cases involved this type of behaviour. Other commonly reported behaviours were silent phone calls (45%); physical intimidation (42%); following (39%); touching or grabbing (34%); and waiting outside the victim's home (33%). The Leicester University survey found that nearly half of the women (43%) had been followed in the street, around a third (29%) reported excessive and unwanted telephone calls and 16% reported continuous spying. Fourteen per cent of the survey's stalking victims had suffered severe and sustained intimidation. In 19% of cases, the stalking lasted for a year or more; in 26% of cases it lasted between one and six months; and in about one third of cases the stalking lasted for less than one month 60.
Typical stalking behaviour includes following, telephoning, sending letters or gifts, watching and staring, or damaging property. New forms of intimidatory behaviour have become possible due to the widespread use of mobile phones, the internet and email and these forms of stalking are often known as cyber-stalking. In a recent Scottish case 61 a man believed his wife was having a lesbian relationship with a fellow student on a computing course and sent the alleged partner abusive e-mail messages. He was charged with breach of the peace and sentenced to nine months in prison.
Impact on victims
It is widely recognised in the literature that stalkers have a profound effect on their victims, and that stalking behaviour can culminate in serious violence, including murder and attempted murder. Recent high profile cases, such as that of Marilyn McKenna 62 have stressed the potential for stalking behaviour to escalate to such levels. McKenna was murdered by her stalker Stuart Drury, an ex-partner - after harassing her for almost 2 years following her ending their violent relationship. Drury was able to continue his campaign against McKenna, despite having five breach of the peace convictions for his stalking, and an interim interdict to protect his victim. Marilyn McKenna was murdered by Drury while he was serving a deferred sentence for one of these convictions.
While violence may be a feature of some stalking, other behaviours associated with stalking include unwanted telephone calls, letters or packages or e-mails, besetting someone in their home or place of work, following them, making unwelcome sexual advances, threats of physical violence, staring, leering, brushing against someone, unpleasant verbal comments or pictorial or other visual images which are derogatory or threatening.
Although not yet fully investigated, the impact of such behaviour on victims is beginning to be documented, with current research suggesting both severe and prolonged effects as a result of being stalked 63. These studies range from information provided by victim organisations, such as the National Antistalking and Harassment Support Association (NASH) 64 and Victim Support Scotland (VSS) 65 to highly focused qualitative research initiatives. In particular, Pathe and Mullen's Australian study 66 of victims of stalking, which focused on the impact on victims of stalking behaviour, provides a great deal of detailed information about the nature of such effects.
Pathe and Mullen's study involved 100 victims, either referred to their psychiatric clinic in Victoria, Australia, or who made contact with the researchers after seeing earlier published work by them. The study emphasises the impact on victims physically, psychologically and socially. It found that nearly all of the victims (94) reported having made major life changes in response to the stalking, including giving up work, moving home, changing careers, changing cars and changing their names. Most victims also reported deterioration in both mental and physical health, including panic attacks, chronic sleep disturbance, nightmares, indigestion, nausea, vomiting, weight loss or gain, and skin disorders. Over one third (37%) of the victims in the study were diagnosed with post traumatic stress disorder (PTSD), with most others reporting symptoms associated with PTSD.
Other studies, such as the Leicester University study 67 of 95 victims who had contacted the Suzy Lamplugh Trust for assistance in dealing with their stalkers, report high levels of fear, illness and social disruption suffered by victims, both during and after the stalking experience. Finch 68 points out that victims are also likely to suffer from self-blame, both because they may believe that they attracted their stalker to them in the first instance, and also because they are unable to put an end to the behaviour.
Characteristics of stalkers
Stalkers come from all walks of life, as do their victims, but - as we have seen - the stalker and their victim are usually of different sexes 69, although under-reporting is likely to be particularly acute in homosexual relationships. Although it seems likely that a significant number of stalkers suffer from a form of mental illness, the vast majority of stalkers are better educated than other mentally ill offenders, with at least average intelligence: a recent survey showed that twenty-five per cent were of above average intelligence 70. Yet study of stalkers and harassers is still in its infancy and there are no general findings, only results form small scale studies of unrepresentative stalkers. One survey showed that 60% of stalkers have had previous psychiatric treatment 71, whereas other experts in the field suggest that, while a small proportion are mentally ill (suffering from psychotic or paranoid illness which can be related to schizophrenia), most stalkers are not 72.
There is no single psychological or behavioural profile for stalkers. Many experts believe that every stalker is different, making it very difficult to categorise their behaviour. A number of general categories of stalker have however been devised. The US-based Anti-stalking Web site 73 proposes a simple three-category, classification:
former intimate partner stalkers
Former intimate partner stalkers: Over half of all stalkers have been estimated to belong to the former intimate partner type, who are most commonly male and who refuse to accept that an intimate relationship has ended. These stalkers have typically been emotionally abusive during the former intimate relationship and also to have a history of abusive and controlling relationships. Many stalkers of this type have criminal records for offences unrelated to stalking.
' Intimate partner stalkers are typically known as the guy who "just can't let go". There are most often men who refuse to believe a relationship has really ended. Often, other people - even the victims - feel sorry for them. But they shouldn't. Studies show that the vast majority of these stalkers are not sympathetic, lonely people who are still hopelessly in love, but were in fact abusive and controlling during the relationship.' 74
According to NASH this category of stalker accounts for four-fifths of all stalking cases.
Delusional stalkers: Stalkers in this category have a misplaced belief that the people they stalk are in love with them, even in cases where they have never met their victim. Stalkers of this type tend to have been brought up in abusive or emotionally deprived households. They tend to be socially immature men who find it difficult to form relationships with others. Delusional stalkers may suffer from mental illnesses, including erotomania (see below) and schizophrenia. It is suggested that delusional stalkers are among the most persistent perpetrators, with erotomanic obsessions lasting for ten years or longer.
Vengeful stalkers: Offenders of this type are characterised by a specific grudge against their victim. This may be real or imagined and is often focused on a person in authority, for example a teacher or doctor. Stalkers in this category include disgruntled ex-employees or political constituents. They may suffer from paranoid delusions or may have psychopathic tendencies.
The above categories may overlap, for example a former intimate partner may become vengeful if their victims take particular actions, either directed towards them or not. This could include taking out an interdict or establishing a new relationship. Other classifications may recognise these categories, but give them different names, for example the term 'simple obsessional stalkers' largely refers to former intimate partners.
Other categories developed in alternative typologies 75 suggest that stalking can take the form of 'organised harassment' which is usually motivated by some form of gain and which may be carried out by a group of people and may target a particular organisation as well as particular individuals. This is similar to the resentful stalker who does not seek to establish or maintain a relationship with the victim, but is instead motivated by the desire to frighten and distress the victim, because the stalker believes they have been harmed by them in some way.
Although different researchers may identify different categories of stalker they all tend to provide similar explanations for stalking. McAnaney, Curliss and Abeyta-Price 76 have identified four categories of stalker: erotomanics; borderline erotomanics; former intimate stalkers; and sociopathic stalkers.
Erotomania: The erotomanic is generally delusional and believes that the object of his desire loves him even though they may not be aware of his existence. The most common victims here are celebrities 77. Male erotomanics are more likely to resort to violence when their feelings are not reciprocated. Erotomania has also been recognised in psychiatric literature as De Clerambault's syndrome and has been classified as 'delusions of passion' 78. Erotomania is often linked to emotionally stunted upbringing 79:
' These delusional stalkers always come from a background which is either emotionally barren or severely abusive. They grow up with a very poor sense of their own identity. This coupled with a predisposition towards psychosis, leads them to strive for satisfaction through another and yearning to merge with someone who is almost always perceived to be of a higher status (doctors, lawyers, teachers or celebrities)'.
Former intimate stalkers: As in the US-based Anti-stalking Web Site classification, these stalkers are normally lovers who have been rejected by their partners but who cannot accept it and who respond by entering into a campaign of persuasion or revenge.
Sociopathic stalkers: These may include serial rapists or murderers. They do not stalk to initiate a relationship with a person, but as a means of selecting someone who fits their victim profile so they can initiate an attack. John Lennon's killer fits this category, as does the killer of Gianni Versace and possibly the killer of Jill Dando 80:
These stalkers tend to be angry with their victim, often for a totally irrational reason, and want to exact some form of revenge on them. Some of these angry stalkers are psychopaths, defined as people without conscience or remorse. Some are delusional (most often paranoid), and believe that they are in fact the victims. They all stalk to ' get even' 81.
Motives for stalking behaviour and characteristics of offenders
Research suggests that the motives for stalking, real or imagined, are complex and can vary greatly across cases, making it difficult to arrive at a profile of the typical behaviour of a stalker. It is clear from this that the motive is not always sexual 82. Factors, which may be motivators, are 83:
' intense infatuation or love fixation, jealousy, inability to accept a relationship ending, child custody dispute, revenge, racial/hate crime, disgruntled employee, or simply an extreme dislike of the victim.'
The obsessional nature of much stalking behaviour makes offenders steadfast in their attempts to control their victim and impact on their lives. ' One of the things which is often hard to understand about stalking is its persistence in defiance of apparent benefit, common sense or legal threat84'. This can be illustrated by the fact that some stalkers, even when challenged by the law and imprisoned, will re-offend. In the light of this, it is possible that many stalkers may simply be deemed to have personality disorders of some description (rather than a mental illness) which psychiatric authorities largely view to be unremitting and thus untreatable 85. Many psychiatric experts, however, are increasingly of the opinion that anti stalking legislation should emphasise treatment rather than punishment 86.
A major priority identified by researchers studying stalking is the collection of accurate information on the psychological profile of stalkers, although because of the diversity of stalkers and their motivations, it is difficult to arrive at a definitive typology. Those who stalk include:
"obsessed fans, divorced or separated spouses, ex-lovers, rejected suitors, neighbours, co-workers, classmates, gang members, former employees, disgruntled defendants, as well as complete strangers87".
The most common reasons given by victims for the stalking behaviour reported in the British Crime Survey 1998 were:
- the perpetrator wished to start a relationship (23%)
- the offender wished to annoy or upset the victim (16%)
- the offender wished to continue a relationship (12%)
There were clear gender differences in reasons reported. Amongst women victims, the most common reason given (37%) was that the offender wished to start or continue a relationship, whereas with male victims it was to upset or annoy (27%).
HOW IS STALKING DEALT WITH?
Generally, the literature on how stalking behaviour is addressed focuses on legal remedies, and differentiates between jurisdictions where there is a specific offence of stalking and jurisdictions where stalking behaviour is dealt with using existing provisions in criminal, civil and common law. It is clear that even in jurisdictions where there is a specific offence of stalking, the response to complaints of stalking depends on the nature of the behaviour involved. Statutory provisions to deal with offences against the person and offences against property may be used in appropriate cases, as can statutes concerning the use of public communications systems, such as the UK's Telecommunications Act 1984. Injunctions and interdicts under relevant statutes are also commonly available in most jurisdictions.
As noted earlier, since 1990 many Anglo-American jurisdictions have resorted to enacting legislation that is specifically focused on the problem of stalking and harassment. Legislation can be broadly divided into two groups: laws which use a 'list' approach, outlining the types of prohibited behaviour included; and those which put forward a general term, such as harassment to delineate the issue being addressed by the Act 88. The list approach is taken by most US states, by Canada, by seven of the eight Australian territories and was proposed in Janet Anderson's 1996 Stalking Bill for the UK. For example, in Chapter 33A of Queensland's amended Criminal Code, 'unlawful stalking' is conduct:
'(a) intentionally directed at a person (the "stalked person"); and
(b) engaged in on any 1 occasion if the conduct is protracted or on more than one occasion; and
(c) consisting of 1 or more acts of the following, or a similar, type-
(i) following, loitering near, watching or approaching a person;
(ii) contacting a person in any way, including, for example, by telephone, mail, fax, e-mail or through the use of any technology;
(iii) loitering near, watching, approaching or entering a place where a person lives, works or visits;
(iv) leaving offensive material where it will be found by, given to or brought to the attention of, a person;
(v) giving offensive material to a person, directly or indirectly;
(vi) an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
(vii) an act of violence, or threat of violence, against or against property of, anyone, including the defendant; and
(i) would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or
(ii)causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.'
Such a list approach has been criticised on the ground that it is simultaneously too narrow and too wide 89. It is arguably too narrow because stalkers use a wide range of behaviour to prey on their victims and any list would be unable to encompass such ranges. It can be argued to be too wide on the grounds that many of the behaviours used by stalkers are, in fact, innocuous outwith the stalking setting and that such innocent behaviour should not be brought within the ambit of criminal offending.
The alternative approach of introducing an offence of stalking or harassment, and prohibiting this behaviour in wide terms has been adopted in the UK, Ireland and in a small number of US states. For example, section 10 of Ireland's Non-Fatal Offences Against the Person Act 1997 takes this approach, providing that:
' Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.'
Such approaches, however, also entail difficulties in effectively addressing stalking behaviour; in particular arriving at a definition of the prohibited behaviour which is both comprehensive and concise, and is relatively simple yet encompasses breadth and specificity 90.
In order to address these definitional issues, states which have taken such approaches often focus on either the intent of the perpetrator or the reaction of the victim to ensure precision of definition 91. For example, the three elements of the Californian anti-stalking statute 92 focus on the intent of the harasser:
- 'a person wilfully, maliciously and repeatedly followed or harassed another person; and
- the harasser made a credible threat; and
- the harasser had an intention to place that other person in reasonable fear of death or great bodily injury.'
Other jurisdictions include the impact on the victim as part of the definition. This is true of the UK Protection from Harassment Act 1997, which provides that the conduct must cause the victim to feel harassed, defined as including alarm and distress 93. Similarly, only six US states do not include the requirement in their anti-stalking laws that the victim feels actual fear of death, bodily injury or other threat in their definition of stalking or harassment 94.
It is clear that anti-stalking legislation varies across different jurisdictions, even within nation states: although seven of the eight Australian states have framed legislation on the basis of the list approach, no two states have identical lists of prohibited behaviour 95. This variation across jurisdictions is also true of penalties set out in law for those convicted of stalking behaviour. For example, in a review of Federal prosecutions 96, the penalties for stalking ranged from 13 months' imprisonment and supervised release to life imprisonment. In Australia, the maximum penalty for a first basic offence ranges from two to five years' imprisonment 97. The UK Protection from Harassment Act 1997 provides a maximum penalty of five years' imprisonment and/or an unlimited fine for the offence of putting another in fear of violence. However, due to a combination of factors, including definitional differences across jurisdictions, variation in the stalking behaviour prosecuted and lack of comparative information, it is extremely difficult to provide meaningful information on stalking penalties.
The literature is quite clear that debate on how to deal with stalking and harassment using the law is far from over. Whether or not to frame specific anti-stalking legislation is still a matter for debate in many European jurisdictions - notably in Scotland, Germany, Austria, Switzerland and Spain 98. Where specific legislation has been in place for some time, debate still centres around the effectiveness of anti-stalking statutes, relating to the way they are framed 99.
In the US, the National Criminal Justice Association, in collaboration with the National Institute of Justice (Department of Justice) and the National Victim Center, has developed a model anti-stalking Code to assist states in drafting effective legislation 100. The Code is based on how existing anti-stalking statutes in US states have been used. It attempts to address difficulties in prosecuting such offences. For example, the Code does not specify types of potential stalking behaviour since some American courts have interpreted such lists as exhaustive. Also, the Code does not specify that the perpetrator must have intent to cause fear in the victim, since many cases have involved stalkers who wish to establish or rekindle a relationship with the victim. The Code suggests that the test is whether the behaviour would cause fear in a reasonable person. The Code also recommends using either penalty enhancements or creating an offence of aggravated stalking for perpetrators who have committed previous stalking offences or other felonies, or who have stalked in particular circumstances. The Code includes where the stalker is in violation of a protective order; where the victim is a minor; and where a weapon is used as such circumstances.
Enforcing the law
Providing remedies for victims suffering from stalking behaviour can only be part of the solution: these remedies have to be available and enforceable. Much of the literature is devoted to assessing how well the various legal provisions are operated in practice and generally, such studies find that stalking victims are not satisfied with police treatment of their cases 101. The police are commonly identified as the first point of contact in studies of how stalking is dealt with. However, much of the literature points out that it was not until the late twentieth century that stalking and harassment became a legitimate concern for the law. For example, von Heussen 102 reports:
' In Britain as in the United States, the police and the courts regarded being 'bothered' or 'pestered' or 'harassed' as a 'domestic' or 'private' matter that was beyond their purview...Most people in authority, such as members of Parliament and the police, treated the matter with complacency... The emergence of an awareness in Britain of stalking as a problem presents a classic instance of behaviour that previously had been regarded as acceptable becoming a matter for legal intervention.'
In recent years, more attention has been paid by the police to training officers in this area, often in relation to domestic abuse work, and a police guide 103 to stalking and harassment has been produced for officers in England and Wales. Nevertheless, a number of studies cite problems victims encountered in enlisting effective police assistance to end the stalking behaviour.
Most information about stalking victims' views of the police action taken in their cases comes from small qualitative case studies 104 or from reports to victim organisations such as NASH 105, the Suzy Lamplugh Trust 106 and Victim Support 107. Finch undertook 40 interviews with victims of stalking and in analysing the information provided by these informants identified ' some consistent themes regarding dissatisfaction with police attitudes to complaints of stalking' 108. These are:
- a dismissive attitude to the conduct involved
- police perceptions that the conduct is a private matter between the parties
- a disinclination to intervene, particularly in cases where the stalker is unknown or there is no proof or corroborating evidence of the behaviour
- failure to keep the victim informed of progress of the investigation into the complaint
The Leicester University study of 95 stalking victims in the UK 109 found that overall, 33% of respondents felt that the police had been very helpful, with 19% reporting satisfaction with the way their cases had been treated. The study reported that 41% expressed dissatisfaction with the way police had dealt with their cases.
The British Crime Survey 1998 found that 35% of stalking victims who had reported their problem to the police were dissatisfied with the police response 110. This compares positively to the overall figure of 63% victim satisfaction with police response found in the same survey 111. Although the BCS does not provide information on reasons for stalking victims' dissatisfaction with the police, a Home Office study on the use of the Protection from Harassment Act 1997 112 reported that victims encountered problems when the police officer they had been dealing with was not on duty to respond to a further incident. Victims whose cases came to court also reported a lack of information once a charge had been brought against their harasser, and this contributed to feelings of a lack of support through the court process 113.
Outside the UK, a nationally-representative survey of 16,000 men and women 114 in the United States found a 50% satisfaction rate amongst victims who had reported their stalking to the police. Closer analysis of the data showed that victims were significantly more likely to be satisfied if their stalker was arrested: 76% of victims whose stalkers were arrested expressed satisfaction compared to the 42% of victims whose stalkers were not arrested. Of those not satisfied with police handling of their case, 42% thought the police should have jailed the perpetrator; 20% felt the police should have taken their situation more seriously; and 16% said they should have received more police protection.
A further element of dealing with stalkers explored in the literature is the question of how to sentence those convicted of stalking. Literature on the motives and characteristics of stalkers frequently points to the obsessive or mentally disordered nature of those who undertake this type of behaviour 115. This has led to some writers to question whether conventional criminal justice measures can be effective in many cases of stalking 116:
' Recent studies indicate that formal sanctions, such as imprisonment, may be "largely irrelevant" in controlling crime when standing alone. For many criminals, the most important sanction is the threat or loss of interpersonal respect and relationships. By defining a type of unacceptable behavior, antistalking statutes may discourage such behavior through public scorn and condemnation. Certain stalkers may not, however, be concerned with the acceptability of their behavior. With or without antistalking legislation, the behavioral impulses of these persons may not change.'
Despite this view, it remains difficult to assess the impact of intervention on stalkers of criminal justice sanctions. Studies of stalkers are still relatively recent and tend to focus on those who have been referred for psychiatric treatment and therefore do not represent even convicted stalkers in general, let alone stalkers who have never been convicted 117.
Newspaper reports and case study information suggest that a large number of stalkers continue with their behaviour (although sometimes with modifications) after warnings, prosecution, conviction and in the face of restraining orders. Anthony Burstow 118, who was imprisoned for prolonged stalking of a former work colleague and who pursued his victim in the face of losing his job, through prosecution, conviction and imprisonment, has recently stated that he does not think he will ever be able to stop stalking his victim 119.
WHAT ARE THE CURRENT ISSUES?
Given that the criminal justice response to stalking is relatively new, it is not surprising that the literature refers to debates that are still ongoing. As noted earlier, there is still debate about whether to resort to statutory offences in order to deal with this behaviour in jurisdictions that have not already enacted anti stalking legislation (see the section on legal provisions above). For example, in Germany the Federal Justice Minister recently opened debate on the creation of a new offence, ' das stalking', in the German Criminal Code 120. The debate was fuelled by media coverage of high profile cases, including those from England and the US, but to date no reform to the Criminal Code has been made, partly due to resistance from the judiciary.
In jurisdictions where such legislation is in force, ongoing debate about how best to frame the provisions, how to prosecute such cases and how to deal with convicted offenders is common 121. In England and Wales, monitoring and evaluation of the Protection from Harassment Act 1997 has been the focus of current debate.
Operation of the Protection from Harassment Act 1997 in England and Wales
For England and Wales, von Heussen's analysis 122 of initial Home Office figures on prosecutions under the Protection from Harassment Act 1997 shows that the Act is being widely used: in 1998 there were a total of 6,084 prosecutions under sections 2 and 4 of the Act in Magistrates Courts and Crown Courts. Of these, 2,743 (45%) led to convictions.
Research 123 undertaken by the Home Office into the application in England and Wales of the Protection from Harassment Act 1997 found that in the vast majority of cases the harasser and victim knew each other. The research was based on 167 cases brought to the attention of the Crown Prosecution Service (CPS). Eighty percent of suspected perpetrators were male and 79% of alleged victims were female. Of all the harassment cases in the study, 39% were terminated by the CPS because of insufficient evidence or because the harasser agreed to be bound over. Of the cases proceeding to hearings there was a conviction rate of 84%. Over two fifths of cases (43%) resulted in a conditional discharge, although these and other disposals were accompanied by a restraining order.
Few breaches of restraining orders were recorded but breaches had occurred and doubts were raised about the effectiveness of the policing of these orders. There was some confusion amongst practitioners about when to use the criminal provisions or the civil remedy. The police rarely sought the advice of the CPS about whether prosecution was appropriate and there was some confusion on their part concerning when section 2 and section 4 offences were appropriate.
Section 2 criminal harassment is a summary offence and can be tried only in the magistrates court. It carries the possibility of up to 6 months' imprisonment and/or a fine of up to 5,000. The Act gives a power to arrest without warrant anyone reasonably suspected of committing a section 2 offence. Section 4 is a higher level indictable offence, which requires a threat of violence, and which can also be tried in the Crown Court. Penalties available to the magistrates court are the same as for section 2, but in the Crown Court penalties are up to 5 years' imprisonment and unlimited fine amounts. The majority of prosecutions were brought under section 2 because this offence is easier to prove 124.
Challenges to stalking legislation
In the US, where stalking laws have been in force for longer periods, there have been challenges to the constitutionality of such Acts 125. Most of these cases ' focus on one of two issues: whether the statute is overbroad or whether it is unconstitutionally vague'. Such issues have been argued in most US states. Where overbreadth of the statute is at question, the common defence is that the law criminalises legitimate behaviour, often related to freedom of speech 126. Arguments of constitutional vagueness centre around the essential test set out by the US Supreme Court in 1926 127 which defines statutory vagueness as either forbidding or requiring ' the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application'. Interpretation of individual terms challenged as constitutionally vague is the responsibility of each state's courts.
In most cases where overbreadth has been argued, the courts have been unwilling to accord constitutional rights to harassing behaviour. Similarly, in cases where constitutional vagueness has been argued, the courts have upheld the terms of the statute. However, in several states where constitutional vagueness has been successfully argued the legislation has been amended to address the particular issue identified.
Dealing with offenders
These issues highlight another strand of debate in the literature, that of how to deal with offenders. While the issue of dealing with stalking that is related to domestic abuse is emerging as the main priority in the US, attention is also currently being paid to cyberstalking (mainly to amend legislation to ensure they encompass this form of harassment) 128; issues concerning the pre-trial release of people charged with a stalking offence, including giving courts discretion to refuse bail in the face of threat to the physical safety of the alleged victim; and the granting of lifetime protection orders for obsessive stalkers 129. Already in New Jersey a conviction for stalking automatically sets up a permanent restraining order, which may be dissolved on application by the victim 130.
The issue of serial offenders has been raised in the literature. The Leicester University Lamplugh study 131 found that only 5% of victims were sure their stalker had never stalked anyone else. Forty one per cent of victims in this study indicated knowledge of at least one other victim and the remainder were unsure about whether their stalker had victimised anyone else in this way.
The literature also points to the often obsessional and delusional nature of stalkers, making them a difficult group to deal with in criminal justice terms. Meloy, who has conducted a review 132 of studies related to ' obsessional following', cautions against making premature judgements about stalkers and how they should be dealt with. He points out that ' there are virtually no published studies [of stalkers] which have utilized any psychological tests'; that there are too few studies of stalkers to provide more than preliminary findings on such people; and that existing studies cannot be used to determine incidence of obsessional following in either clinical or general populations. Meloy's conclusion is that:
'[w] hat obsessional followers do is less varied than who they are. Future research concerning obsessional followers is clearly necessary...'
In considering the issue of how to deal with offenders, it is seen to be important to take into account the needs of the victim 133. While effective protection for victims from their stalkers is a prime concern, if difficult to achieve, research also suggests that victims generally need to be kept informed about progress of their case, both during investigation and when the perpetrator is charged. The provision of counselling for victims 134 is seen as an increasingly important issue, as research is beginning to document severe and long-term effects on victims. Training for professionals involved in dealing with stalking, particularly the police, has also been flagged as a current concern in several jurisdictions.
Thoennes and Tjadin, who conducted the US National Violence Against Women survey 135, recommend that more research be carried out on the effectiveness of police interventions in stalking cases. In particular, they point to the finding that 70% of all US restraining orders obtained against stalkers are violated and that stalking victims were more likely to report ending of the stalking when police used informal rather than formal methods of intervention.
Links with domestic abuse
The link between domestic violence and stalking is also a strong feature of the literature and has implications for how stalking behaviour is addressed. The Leicester University Lamplugh study 136 found that of the 59% of women who had been stalked by an ex-intimate partner, one fifth reported that the stalking behaviour began before the relationship ended and 36% reported that stalking behaviour occurred both before and after the end of the relationship. Harris' study 137 also found evidence of domestic abuse in the intimate relationship prior to the stalking behaviour beginning.
The US National Violence Against Women survey 138 found that ' fully half of all stalking cases [arise] in the context of current of former intimate relationships'. This finding led the researchers to recommend a research focus on this area of stalking and that comprehensive training should be given to the criminal justice community on the acute safety risks faced by women in such situations.
In the US, the Department of Justice has several projects dedicated to stalking and harassment, particularly in relation to domestic violence 139. A recent national survey funded by the Department of how stalking is dealt with by criminal justice agencies across the US 140, found that it is generally domestic violence unit staff who handle stalking cases, with only a small number of agencies treating stalking as distinct from domestic abuse. In addition, among the 50% of the 165 agencies surveyed which had written policy documents for dealing with stalking cases, these were part of the written policies and procedures on domestic violence.
The issue of stalking and harassment is a relatively recent one - at least in terms of political, media and legislative responses - dating back no more than 15-20 years.
Despite the explosion of interest in the issue, knowledge and understanding is therefore still partial. This is compounded, of course, by a lack of clarity about how the behaviour should be defined. That said, a number of emerging themes are clear.
There is on-going debate about whether the behaviour is best dealt with through the creation of a specific statutory offence of stalking or through existing provisions within a jurisdiction's criminal law.
Depending on the definitions and methods used, research studies suggest a wide range of prevalence estimates. It is clear, however, that women and younger women in particular are the most likely victims and that, even if only a relatively small minority are likely to become victims in any given year, those who do tend to experience severe and lasting effects.
Across all jurisdictions studied, the majority of cases appear to involve 'former intimates' and there seem to be clear links between stalking and domestic abuse.
Although a variety of typologies of offenders have been proposed, these tend to be based on limited research evidence. Moreover, studies suggest that one should perhaps expect heterogeneity more than homogeneity in offenders' characteristics, motivations and modus operandi.