Stalking and its impunity must end
Professor M. Rafiqul Islam
The High Court on 2 November 2010 has expressed grave concern for recent alarming increase in stalking, tragic suicides of victims, and associated revenge killings. The Court has also issued directives upon the government to formulate policies and guidelines for combating the plague of stalking. Stalking is a recognised indictable crime in many national criminal justice systems. Australia, the US, the UK, Canada, New Zealand, Japan, Italy, Germany and Iceland in particular have their own specific legislation criminalising stalking. Specific legislation is necessary because criminal law in general does not adequately cover various existing and emerging manifestations of stalking. Despite the current surge in reporting, much stalking goes unreported in Bangladesh due to the socio-economic circumstances of many victims. Stalking offences seemingly goes unabated in spite of sporadic resort to the criminal law as a means of arresting the mounting offences. This is partly because the criminal law of Bangladesh generally provides very limited protection against stalking, remedies for victims, punishment for perpetrators, and deterrent to those inclined to stalk. It is therefore high time for the criminal justice system to take the crime of stalking seriously and embark on a specific legislative response and reform to combat this crime. Stalking, being complex and deceptive in nature, is inherently difficult to legislate. This short note is intended to offer some suggestions in articulating the legal elements and sources of criminality of stalking and the culpability of its perpetrator.
Stalking offence and its effects
Stalking in law refers to wilfully committed (a) unwanted conducts such as following, watching, teasing, and sexual innuendo; (b) obsessive attention such as physical presence, sending gifts, and loitering nearby; (c) unwelcomed advances such as stopping, confronting, approaching relationships, and sexual harassment; (d) intrusive behaviours such as surveillance, spying, phoning, emailing, text messaging, and giving offensive materials; and (e) cyber/internet bulling by individuals or groups of individuals (gang stalking) to another person/s. In order for any said act to be an illegal stalking, it usually needs to occur persistently or repeatedly, though discrete and un-protracted acts may well constitute a talking offence depending upon its circumstances and harmful effect. The recent spate of stalking of girls and women in Bangladesh appears to be a gendered crime, which is associated with sexual obsession.
Stalking often results in detriment to the stalked person who suffers from irritation, annoyance, harassment, humiliation, and intimidation reasonably arising from the circumstances of stalking. Stalkers may resort to threats, violence, vandalism, and property damages as a means to frighten their targeted victims. Stalking is more often than not a terrifying and distressing experience, which induces a constant fear of risk, physical harm, and emotional trauma in the mind of victims, who suffer from psychological depression, anxiety, shame, hopelessness, self-blaming, erosion of self-esteem, and a sense of vulnerability. Stalking usually takes place in the vicinity of victims' residence, business, workplace, education institutions, or any place where victims frequent for the purpose of any activity. A sense of loss of control over their lives and to escape their stalkers force many victims to disrupt their daily life and convenient routine by changing their routes, contact numbers and addresses, employment, residence, and restricting movements. These self-isolating measures have marginalising effect on victims' well-being and freedom of movement. Given these consequences, stalking is a form of predatory mental assault in which the stalker, being an unwanted person/s, disruptively intrudes into the life of the victim.
Legal requirements for prosecution
The anti-stalking laws and their judicial interpretations in the jurisdictions referred to display certain unique yet common requirements of prosecutable stalking. These are briefly explained below.
1. Causing harm: Harming the victim is the central element of illegal stalking. The requirement of “serious harm” appears to be an unnecessary bar, which became impediment to successful prosecution. This situation has necessitated amendments to stalking legislation in many jurisdictions. Causing actual harm or potential harm is considered enough for prosecution. The scope of harm caused by stalking is broad enough to embrace all physical, mental, and property harm temporary or permanent.
2. Mens rea of the stalker: The intention to cause harm is largely presumed in that the stalker should or ought to have known or understood that engaging in stalking would likely to cause physical or mental harm or arouse fear in the victim. The intention of the stalker to cause harm or to cause the victim to be fearful is immaterial. The commonsense knowledge of the stalker that his/her act is likely to cause fear in the victim is enough. Nor is it necessary to prove that the victim actually feared that the stalking threat would be carried out to inflict harm. The pleading that the stalker did not intend to harm or hurt serves no defence to prosecution.
3. Awareness of the victim: It is not a legal requirement that the victim must be aware of the stalking directed to her/him or the stalker intended the victim to be aware of the stalking. It is enough that the stalker has directed the alleged stalking at a person, who develops fear or apprehension arising from all circumstances of stalking in a manner that could reasonably be expected of an ordinary person. In other words, the stalked person has reasonable grounds to fear.
4. Procedural matters: Obtaining evidence of stalking may be a simple procedure using the existing crime investigation powers of the magistracy and law enforcing authorities. The onus of defence to stalking works in a reverse way in that it is the stalker, not the victim, who is required to prove beyond reasonable doubt that the alleged stalking was for a genuine public interest purpose not legally prohibited and that it falls within the permissible defences. Defences mainly include: mental and psychiatric disorder; actions taken in course of official duties and with lawful authority; acts done for industrial, political or other public interest purposes; and conducts reasonable for trade, business, occupation, and obtaining crucial information entailing legitimate interest.
5. Remedies and penalties: The usual remedy is imprisonment or fine or both. The frequency and intensity of stalking and its consequential detriment to the victim are relevant factors for the determination of penalty. The maximum penalty ranges from 5 to 10 years of imprisonments or fines or both in most jurisdictions for aggravated stalking involving threat of use of violence. There is room for civil responses as well. Instances of ongoing or potential stalking may be a basis of an application for a protection order under civil proceedings and the issuance of a civil restraining order where there is a reasonable apprehension that the stalker is, unless restrained, likely to continue provocative conducts. The strategy of prevention under civil proceedings may be better than curative intervention under criminal proceedings in instances of stalking short of threat of violence.
The anti-stalking legislation in Bangladesh must aim to nip in the bud unruly and offensive behaviour of some men towards women. It needs to provide a precise definition or a list of illegal stalking, legal contents for prosecution, defences, and mechanisms for the judiciary to restraint the stalker from unlawful stalking. Expanded range of admissible evidence can be an effective weapon for successful prosecutions and convictions. Legislative response may not be a panacea to combat the epidemic of stalking. For a lasting solution may warrant a multidisciplinary and coordinated approach involving law enforcement, the judiciary, the magistracy, correctional and social services, advocacy groups, community organisations, and educational institutions. Collaborative and integrative strategies and measures are indispensable in providing effective protection and trauma counselling for victims and apprehending and prosecuting stalkers. Anti-stalking education, community vigilance, and sensitisation of the authority are likely to go a long way in mitigating the problem of stalking.
Stalking is quintessentially a crime of context, which derives its criminality from the circumstances in which it occurs. It is a crime because of its unacceptability in the community and susceptibility to cause devastating harm to victims. The overriding goal of criminal law is to protect the community from unjustifiable harassment and harm. As such, unlawful stalking comes well within the purview of the criminal justice system to protect the community from harm. Stalking must be criminalised and propelled by appropriate penalty to send a message across loud and clear that stalking is unacceptable in order to deter potential stalkers. Viewed from this perspective, the High Court directives are a timely and welcoming intervention and wake-up call for the government to be proactive in ending the impunity and infestation of stalking offences in the community.
The writer is Professor of Law, Macquarie Law School, Macquarie University, Sydney, Australia.