The problem with stalkers and the aim of anti stalking laws

Introduction

Stalking is not always intentional however even unintentional acts of stalking can cause a person much annoyance or fear and apprehension[1]. Stalking takes the form of repetitious and unwanted attention[2]. Stalking is usually unwanted attempts of persuasion[3] that the target has continually refused. The acts alone are normal everyday acts however the recipient does not want to take part in what ever it is on offer. Dr. Emma Oglive states that the repeated pursuit element is often rewarded for normal pursuit of true love in western society[4].  The stalkers on the other hand repetitiously[5] engage in behavior that is not being reciprocated[6]. Akin to being a predator a stalker of a more serious nature may intend to cause the victim to fear through issuing threats[7]. In the most serious incidents of stalking the unreciprocated behaviors will cause a violent attack from the stalker where death sometimes results[8].

The fact that a nightmare may become a reality is a way of looking at why stalking provisions were created. Stalking is not really a new phenomena but rather an old unsolved problem. In the more serious instances of stalking were non-fatal acts preceded Fatal of near fatal acts, can be seen a need to find ways for people to protect themselves from the possibility of being a victim of predatory serial killer, such as Jack the Ripper[9]. The Modus operandi[10] of Jack suggested that he would have had to stalk his victims to gather information about the victim, which served the wicked purpose of his intentions[11]. More recently though people are all too aware of the possibility of becoming the victim of an insane predatory criminal. Stalking can therefore cause people to rightfully fear for their lives. This is important in terms of the simple offence[12] of WA’s stalking provisions as it helps to establish the element or recklessness in stalkers acts based on community awareness of the problem[13]. It may be important to mention here that in years gone by the problem with stalking laws was that only subjective tests for intent were available and not objective tests[14].

 In terms of mens rea, this serious chain of events would mean that initially in the stalking stages of a homicide there was intent that would cause a normal person to fear from the source of intimidation and pursuit. However in WA the code [15] has a less serious offence were there is an element of recklessness associated to the necessary mens rea element of the crime. This takes the form of pursuing a person in a manner that has a substantial and real risk[16] of causing intimidation, however the major difference is that a person must actually be intimidated and the suspect needs to have been shown to pursue the person. The conduct element would be repetitive communication, following, or soliciting material items, all of which can be defined as pursuit of a person[17]. The proscribed effect elements include where a person suffered physical or mental harm, apprehension or fear, hindrance or deprivation of liberty or the compulsion to do unlawful acts[18].

 The simple offence as mentioned before does not have the mens rea element of intentional acts rather there is the necessary element that is akin to recklessness. In the simple provision the act of pursuit needs to intimidate the target. Here the stalker disregarded the existence that the pursuit is likely to intimidate the target of the pursuit, or risked harassing the target. To qualify the risk element the risk has to be a substantial one[19]. This will be done by showing that the reckless acts, which caused the intimidation, are not unreasonable in nature to have caused the proscribed effect[20].

Recklessness refers to an unjustifiable taking a known risk however the term is not used in the code; the test is whether there is a chance as to a real Risk[21]. This is a social issue and the following guidelines should be referred to; “The weight of authority overwhelmingly supports the proposition that foresight of a possible risk is sufficient. The interaction of three variables: (a) the degree of risks (b) the magnitude of the harm if the risk materializes (c) the social value of the end for which the risk is taken are used to determine the possibilities[22].

Case examples

A man in California began dating a woman and used email and his telephone to get acquainted with the lady. They met a couple of times and then the woman decided to break of the relationship. However the phone calls and emails continued and the man was charged with stalking after the police warned him to stop and he didn’t.[23]

         This type of stalking behavior is called power reassurance/ compensatory[24]. It is a confidence-boosting trip, which has got only a minimal amount of aggression associated to it[25]. The stalkers behavior is not violent or threatening[26] however there is an element of persistence and an element of recklessness displayed in the stalkers crime. This scenario can attract criminal responsibility to it under the codes[27] stalking provisions.

The conduct element

         To establish the elements in terms of the west Australian provisions for stalking the relevant provisions need to be applied to the conduct of the stalker. The conduct element in the earlier case example is voluntary however something maybe said about the fact that a warning from the police did not stop the harassments continuation. However this could well establish the conduct element of pursuing by repeated communication[28]. In HADDON -v- ROBERT WILLIAM EVERITT (2000) Miller J made reference to a situation where the magistrate was unable to convict due to a lack of repetitiveness in the nature of the offence[29].  It may be noted here that this has been a contentious issue as to proving what is repetitious and when the proscribed effect is present.  Miller J said the trial Judges decision to acquit three charges of unlawful stalking with the intension to cause apprehension and fear, was necessary because they did not have a consistency through time or repetition.  The opposite of this can be seen in Luckmam v Leucus (2001)

         In LUCKMAN -v- LEUCUS [2001][30] repetitiveness was less important to qualify the conduct element as this resulted from a breach in bail conditions.  However, Roberts-Smith J at 31[31] stated that there were 960 repeated communications and the represented intimidating and threatening behavior of a very serious nature.  The conduct that led to an earlier threat charge being led continued from prison and these were found to successfully coerce the victim to withdraw the charges.  Unfortunately for the accused the DPP[32] discovered at that stage that this was not what the victim wanted and the aggravated stalking charges where laid

Causation and the proscribed effect

         The next factor to determine criminal liability would be the relationship between causation and the proscribed effect[33]. The most relevant proscribed effect for the above scenario§ would be the inference that suggests a compelling nature to the repeated communication. The woman has decided to abstain[34] from having a relationship with the man and he has repeatedly attempted to compel the woman to do the act. The effect of this was more than minimal[35] in that the woman felt the need to call the police. The relationship between the offender’s conduct and the proscribed effect has to be a reasonable contribution to the stalking provisions proscribed effect[36]. That would mean that other factors could otherwise be responsible for the fears that a target of stalkers behavior is experiencing ie the social value of the end for which the risk is taken. However all that needs to be shown is that the source behavior has a more than minimal contribution to the proscribed effect.

Public awareness of stalking behavior

          Stalking legislation around the globe has come about through a number of factors[37]. This began eleven years ago in California as a direct result of the social effects of the distressful act of stalking and the more serious natured stalkers whose conduct escalated to homicides[38]. There were a number of homicides where the victims reported being stalked beforehand, three of whom had filed restraining orders against the stalkers[39]. One study of the phenomena of stalking has claimed that victims often feel psychologically terrorized and became overtly aware of the presence of the stalker long after the conduct had ceased[40]. The behavior of the offender need not be the sole cause thereof[41] and subsequently there is also the need to distinguish between the serious and simple provisions in the code in terms of mens rea.

The simple offence provision and Recklessness

         The code has two relevant provisions, being the serious offence that involves the mens rea element of intent and the simple offence that is more akin to reckless ness. In the simple offence a person need not intend the effects of his action however it needs to be shown by in the Crowns case that the accused is aware of the possibility that the proscribed effect may be inflicted on a person who is the target of a certain conduct. As mentioned before some fellow may not intend the consequences of their own actions on another however they may be aware that they are taking an unjustifiably known risk and this would have a subjective standard as the conduct is described to be committed recklessly[42].

         In the earlier example§ the male stalker would need to be aware that there is a possibility that repeatedly asking a woman to go on a date where there is no reciprocal behaviour present will possibly risk intimidating the target thereof. In Hemsley (1988) 36 A Crim R 334[43] it says that to determine if a risk would be possible it would need to be a risk that is riskier than necessary in everyday life. It would be that if the stalker were warned about the effects of his behavior such as in the example used earlier§ then it would be for him to be aware of the possible intimidation any subsequent risky behavior may have.

         There were also attempts to persuade the women to go on a date, where the conduct did not intend the proscribed effect, it could easily be inferred that there was a possibility of the target feeling intimidated and the accused disregarded it. This would be reckless conduct and not a directly intended result.

The serious offence provisions and intended consequences

         To cover the serious provision with the Mens Rea element of intent LUCKMAN -v- LEUCUS [2001] WASCA 57 presents some authority in this area. LUCKMAN -v- LEUCUS [2001] WASCA 57, the relevant intentional element required to prove a serious stalking charge is clearly outlined. The elements of intent are that the given conduct and the proscribed effect must cause the result in fact and then in Law[44]. Luckman repeatedly communicated with Leucas. This was intimidating in that it caused apprehension and fear, prevented the victim from lawfully pursuing an equitable remedy to the intimidation and no doubt there is a reasonable and arguable case that psychological torment caused a good deal of psychological harm. He Kaw Teh (1995) would provide that the accused know the circumstance[45]: i.e. when he was attempting to coerce the victim into changing her mind, was it not some kind of coercive persuasion[46]. Ajzen’s Theory of Corecive persuasion states that “people can be induced to behave in a prescribed way by offering a sizable reward for compliance or by threatening sever punishment for noncompliance” [47]. He therefore intentionally brought about that circumstance. This was an “intention in purpose”[48] as it directly caused the result that the communication had intended[49]. To further this the accused had an understanding that he was able to intimidate the victim and had a long history of doing just that. The action was “taken not only with awareness of what will result but in order to bring that action about.” The Luckman case also serves as an example of the provisions for aggravated stalking.

Stalking and circumstances of Aggravation

         Aggravated Stalking is the only area of the WA stalking provisions, which allows a single act of intimidation to attract criminal responsibility instead of a repeated element of pursuit[50]. Two provisions account for this. The first one relates to threatening or intimidating by being armed with an offensive weapon. The other is the conditions of a restraining order is breached or conditions of bail are breached. Any of those acts coupled with any element of intimidation intended or not will amount to a serious offence of stalking in circumstances of aggravation. This was the case in Luckman vLeucus.

         Luckman breached bail by contacting a person who he was told not to contact[51]. This was an offence contrary to schedule 2 of the Bail act 1982 any offence committed while on bail is deemed a “serious” offence, if done in circumstances which breach bail conditions. Perhaps the psychological assessment of this occurrence will give some insight into why Mr. Leucus is a contribution to a serious problem. ON the 29^th of August 2000 a psychological report on Leucus revealed he had two previous breaches of a violent restraining order, and two previous charges of threatening to kill. The subsequent appraisal of that and his present behavior was classified as unremorseful and lacking insight. Luckman was also perceived to have been suffering from a narcissistic personality style[52], attacking those he perceived as attacking him with vigorous aggression. This is the serious issue that stalking provisions intend to capture (The fact that Luckman was found out to be a serious threat to the community at large) in an attempt to protect people before its to late as in the case in California were the first wave of stalking provisions commenced.

Conclusion

         The biggest difficulty of stalking provisions is the difficulty of proving the pattern of behavior, unless you are gifted with some insight into criminal behavior and criminal law you may well end up suffering some form of psychological harm or in some extreme cases things get extremely violent. Distinguishing between that last point is difficult and is only exacerbated in areas where people are exposed to serial murders and domestic violence and maybe the surrounding suburbs of mental institutions. Some times this will cause prejudice to the laypersons judgment of stalking behavior. The WA Code provisions incorporate a serious of peace keeping anti stalking regulations that can cater to trivial yet harmful conduct and criminal insanity extremities also. Then there is the most prominent application it has to victims of domestic violence. Hence it makes sense to know the applications of the appropriate criminal law specific provisions and concepts and how they can be applied to the specific developments of stalking behavior.