VIOLENCE AGAINST WOMEN
CRIMINAL
HARASSMENT (Stalking)
Though the term
"stalking" is somewhat new to the modern lexicon, the behavior itself
is not new to human experience. The conduct generally associated with
stalking--following, spying, unwanted calling/writing, accosting, harassing,
and threatening--is as old as the history of human relationships. Yet, it has
only been within the last decade that we have recognized such behavior as
socially deviant--even criminal. Criminal justice and victim service
professionals have always had to face such behavior but they only began to
think about and address it as a separate issue when the conduct was
distinguished as a unique phenomenon, deserving its own name--stalking.
This process of distinguishing
stalking from other deviant social or criminal behavior reached a defining
moment in 1990 when the state of California passed the first statute that made
stalking a crime. This was a watershed event that triggered similar statutes in
other states and at the federal level. The enactment of the California statute
resulted in a growing awareness of stalking among criminal justice officials,
victim service professionals, and the general public--all of whom began to view
the problem in a more serious light.
Following the enactment of the
California law and other anti-stalking statutes, criminologists and forensic
psychologists began to study the nature of stalking behavior and the motivation
of stalkers. Law enforcement, previously lacking the power and authority to
take any action in such cases, began to develop specialized response strategies
for stalking cases. Some jurisdictions even created special units to take on a
more pro-active role in stalking cases. Prosecutors embarked on an effort to
educate themselves and one another about how stalkers could be charged under
stalking statutes (as well as other criminal laws) and how to best prosecute
such cases. Victim service providers began to reexamine the way in which they
responded to stalking, expanding their services and enhancing case management
strategies in an effort to better serve the needs of victims. Even victims of
stalking have come to identify themselves as a distinct and unique constituency
by forming support groups to help one another cope with the aftermath of the
crimes committed against them.
The rapidly growing interest in
stalking is spawning a new area of "specialization" among
professionals whose roles regularly involve them in such cases. Yet, even the
most experienced among such professionals would readily admit that they are
just beginning to understand the complex problems that stalking poses for both
victims and society-at-large. Most of these professionals agree that solutions
to the problem of stalking are not likely to be found without a considerable
amount of additional research.
Definition of Stalking
Traditionally, the general
perceptions of stalking involve some dark and malicious character following and
even spying on an unsuspecting person. However, this stereotypical view is far
too narrow to encompass all the behaviors generally attributed to stalkers
today. Stalkers may indeed follow their targets physically but they are just as
likely to use a variety of other means to monitor the activities of their
targets. Stalkers have been known to use binoculars, telescopes, cameras
equipped with "long lenses," video cameras, hidden microphones, the
Internet, public records, and accomplices (both witting and unwitting) to keep
track of the whereabouts and activities of those they target.
Stalking is less about
surveillance of victims than it is about contact with them. If stalkers only
wished to view the objects of their obsession from afar, they would not pose a
serious safety risk. Stalkers, by their very nature, want more. They want
contact. They want a relationship with their victims. They want to be part of
their victims' lives. And, if they cannot be a positive part of their victims'
lives, they will settle for a negative connection to their victims. It is this
mind set that not only makes them "stalkers," but also makes them
dangerous. Thus, virtually all stalking cases involve behavior that seeks to
make either direct or indirect contact with the victim. A 1998 National
Institute of Justice (NIJ) survey of stalking victims provided the first
glimpse into the kinds of tactics stalkers most often employ in the commission
of their crimes (Tjaden and Theonnes 1998). What follows is a breakdown by
percentage of some of the tactics that victims report:
While most of these behaviors
alone may not in and of themselves explicitly communicate a threat,
the number, nature, and context in which they occur may well communicate an implied
threat. It is this element of threat to the safety of another that makes the
conduct a crime and most legal definitions of stalking specifically address the
presence of an element of threat.
How prevalent is stalking? Until
very recently, no empirical evidence was available to answer this question. The
most commonly quoted estimate had been that approximately 200,000 individuals
are stalked each year in the U.S. However, the 1998 NIJ study first attempted
to quantify the number of stalking cases. Based on a survey of more than 16,000
adults, the study estimated that 1.4 million Americans (approximately 1,000,000
women and 400,000 men) are currently being stalked in the U.S.--a number seven
times greater than the previous estimate of 200,000 (Tjaden and Theonnes 1998).
Service providers need to keep
in mind that stalking victims may have the option of turning to the federal system
for prosecution if their case falls within jurisdictional guidelines (i.e., if
the offense occurs on a military base, involves crossing a state line, etc.).
In addition to the anti-stalking provision of the Domestic Violence and
Stalking Act (18 U.S.C. §§ 22612265) the statute also includes provisions
related to the violation of protective orders. Crimes in violation of either
provision may provide victims with the means to pursue prosecution in federal
court--particularly when the stalker is a former spouse or domestic partner.
The Federal Obscene or Harassing Telephone Calls statute (47 U.S.C. § 223) may
also prove useful in stalking cases where the perpetrator uses the phone to
stalk and harass his or her victim. Having the option of pursuing a case in
federal court may prove critical to many victims. In cases where local
authorities refuse to prosecute--or when the local authorities are the
perpetrators--federal prosecution may be a victim's only option.
Characteristics of Stalkers and Their Victims
DEMOGRAPHICS
OF THE STALKER
The demographics related to
stalkers are both broad and diverse. As empirical evidence now shows, virtually
anyone can be a stalker. Stalkers come from all walks of life and
socioeconomic backgrounds. Despite their demographic diversity, data shows that
some characteristics are more common among stalkers than others.
The one trait all stalkers share
is that they suffer from a personality or mental disorder, if not both.
DEMOGRAPHICS
OF STALKING VICTIMS
Just as anyone can be a stalker,
virtually anyone can be a stalking victim. The characteristics of stalking
victims typically cut across all demographic boundaries. But again, some
characteristics are more common than others among stalking victims.
RELATIONSHIP
BETWEEN STALKERS AND THEIR VICTIMS
As mentioned above, stalking is
most often about "relationships"--prior, desired, or imagined.
Therefore, it is critical to know about any prior relationship between the
victim and the offender. The NIJ study indicates that the clear majority of
stalkers and their victims (60%) had a personal relationship before the
stalking began. The majority of these cases (42%) involved spouses or partners
and another 14% had a dating relationship. In more than 4% of these cases, the
stalker and the victim were actually related to one another. Nearly 18% of
stalkers were acquaintances or co-workers of the victim, while only 22% were
complete strangers (Tjaden and Theonnes 1998).
Nevertheless, the relationships
between victims and offenders often follow broad, distinct patterns, allowing
forensic psychologists to use the relationship between stalkers and victims as
a means of categorizing stalking behavior and stalking cases. Still, it is
important to keep in mind that some cases do not follow any pattern and may
shift between categories as they evolve. Thus, these categories are only useful
as broad guidelines to aid in the discussion and analysis of stalking as an
emerging category of crime.
Categories of Stalking
As mentioned, forensic
psychologists have begun to study stalking as a distinct pattern of criminal
behavior by analyzing and categorizing identified patterns and common characteristics
of stalking cases. Chief among these characteristics is the relationship
between the stalker and the victim. Initially, this approach identified three
categories of stalking cases Simple Obsession, Love Obsession, and
Erotomania. However, recent developments seem to indicate the need for a fourth
category which could be termed "vengeance" or "terrorist"
stalkers.
SIMPLE
OBSESSION STALKING
This category represents 60% of
all stalking cases, including all cases arising from previous personal relationships
(i.e., those between husbands/wives, girlfriends/boyfriends, domestic partners,
etc.) Many simple obsession cases are actually extensions of a previous pattern
of domestic violence and psychological abuse. The only difference is that the
abuse occurs in different surroundings and through slightly altered tactics of
intimidation. Thus, the dynamics of power and control that underlie most
domestic violence cases are often mirrored in simple obsession stalking cases.
Stalking behaviors observed in
many domestic violence cases are motivated by the stalker's lack of self-esteem
and feelings of powerlessness. Indeed, abuser/stalkers attempt to raise their
own self-esteem by demeaning and demoralizing those around them. In most cases,
they target their former spouses. The exercise of power and control over their
victims gives stalkers a sense of power and self-esteem that they otherwise
lack. In this way, the victim not only becomes the stalker's source of
self-esteem but also becomes the sole source of the stalker's identity. Thus,
when victims attempt to remove themselves from such controlling situations,
stalkers often feel that their power and self-worth have been taken from them.
In such cases, stalkers will often take drastic steps to restore personal self-esteem.
It is when stalkers reach this desperate level that they may feel they have
"nothing to lose" and become most volatile. This dynamic makes simple
obsession stalkers dangerous, as individuals and as a group.
Simple obsession is the most
likely category of stalking to result in murder. Thirty percent of all female
homicides were committed by intimate partners. Domestic violence victims run a
75% higher risk of being murdered by their partners. "If I can't have you,
nobody will," has become all too common a refrain in cases that escalate
to violence. Many of these cases end with the murder of the victim followed by
the suicide of the stalker.
LOVE
OBSESSION STALKING
In this category, stalkers and
victims are casual acquaintances (neighbors, co-workers) or even complete
strangers (fan/celebrity). Primarily, stalkers in this category seek to
establish a personal relationship with the object of their obsession--contrary
to the wishes of their victims. Love obsession stalkers tend to have low self-esteem
and often target victims who they perceive to have exceptional qualities and
high social standing. These stalkers seek to raise their own self-esteem by
associating with those whom they hold in high regard.
Love obsession stalkers become
so focused on establishing a personal relationship with their victims that they
often invent detailed fantasies of a nonexistent relationship. They literally
script the relationship as if it were a stage play. However, when victims
choose not to participate in the stalker's imagined passion-play, the stalker
may try to force victims into assigned roles. Often, love obsession stalkers
are so desperate to establish a relationship--any relationship--that
they "settle" for negative relationships, explaining why some stalkers
are willing to engage in destructive or violent behavior in an irrational
attempt to "win the love" (more likely the attention) of their
victims. Such obsessive reasoning might explain why John Hinkley believed he
would win the heart of Jodi Foster by shooting President Ronald Reagan. It
might also explain why a man who proclaimed himself to be John Lennon's
"biggest fan" shot him dead on the sidewalk outside of his home.
While cases of "star
stalking" often receive the most media attention, a greater number of love
obsession stalkers develop fixations on "regular"
people--noncelebrities. In one particularly tragic case, a young computer
engineer developed a fixation on a new female co-worker, Laura Black. What
began as seemingly friendly, even charming gestures on his part soon became
excessive and threatening. Shortly after he had been fired for the relentless
harassment of Ms. Black, he returned to the workplace and literally shot his
way through the building. He killed several employees and wounded many more,
including Ms. Black. A search of the stalker's home uncovered a scrapbook full
of doctored pictures of himself and his victim on a ski trip that never took
place. This fantasy ski trip was part of a scripted relationship he wanted to
make a reality.
EROTOMANIA
STALKING
By definition, erotomaniacs are
delusional and consequently, virtually all suffer from mental disorders--most
often schizophrenia.
Unlike "simple" and
"love" obsession stalkers who seek to establish or reestablish
personal relationships with their victim, erotomaniacs delude themselves into
believing that such a relationship already exists between themselves
and the objects of their obsession.
Though relatively rare
(comprising fewer than 10% of all cases), erotomania stalking cases often draw
public attention because the target is usually a public figure or celebrity.
Like love obsession stalkers, erotomaniacs attempt to garner self-esteem and
status by associating themselves with well-known individuals who hold high
social status. Erotomaniacs seek fame and self-worth by basking in the
celebrity of others. While the behavior of many erotomaniacs never escalates to
violence, or even to threats of violence, the irrationality that accompanies
their mental illness presents particularly unpredictable threats to victims.
Perhaps the best-known case of
erotomania stalking involved a series of incidents perpetrated against the
popular late night talk show host, David Letterman. This woman, first found
hiding in Mr. Letterman's closet, believed she was his wife. On numerous other
occasions she was caught trespassing on his property. With her young son in
tow, she once scaled the six foot wall surrounding Letterman's property. On
another occasion, she was arrested while driving Letterman's stolen car. When
questioned by police, she confidently stated that her husband was out of town
and that she was going grocery shopping so she would have dinner ready for him
upon his return. Despite the treatment she received during her many involuntary
stays at a mental institution, she eventually took her own life.
VENGEANCE/TERRORISM
STALKING
The final stalking category is
fundamentally different from the other three. Vengeance stalkers do not
seek a personal relationship with their targets. Rather, vengeance/terrorist
stalkers attempt to elicit a particular response or a change of behavior from
their victims. When vengeance is their prime motive, stalkers seek only to
punish their victims for some wrong they perceive the victim has visited upon
them. In other words, they use stalking as a means to "get even" with
their enemies.
The most common scenario in this
category involves employees who stalk employers after being fired from their
job. Invariably, the employee believes that their dismissal was unjustified and
that their employer or supervisor was responsible for unjust treatment. One
bizarre variation on this pattern is the case of a scout master who was
dismissed for inappropriate conduct and subsequently decided to stalk his
entire former scout troop scouts and scout leaders alike.
A second type of vengeance or
terrorist stalker, the political stalker, has motivations that parallel those
of more traditional terrorists. That is, stalking is a weapon of terror used to
accomplish a political agenda. Utilizing the threat of violence to force the
stalking target to engage in or refrain from engaging in particular activity.
For example, most prosecutions in this stalking category have been against
anti-abortionists who stalk doctors in an attempt to discourage the performance
of abortions.
Impact of Stalking on Victims
There is little doubt that
stalking has a tremendous impact on the lives of those who are targeted.
Indeed, many victim service professionals contend that the threat of violence
inherent in stalking cases can take a higher toll on its victims than those who
have been victims of completed acts of violence. The following are signs of
stalking-related stress:
The 1998 NIJ study indicated
that 30% of women and 20% of men in stalking cases sought psychological
counseling as a result of the victimization (Tjaden and Theonnes 1998).
Moreover, many victims experience a loss of personal support systems at the
very moment they need them most. Stalking victims often turn to family,
friends, and co-workers for help, guidance, and emotional support. However,
given the intractability of many stalking cases, victims often find that their
friends, co-workers, neighbors, and even their family members are unable to
sustain levels of long-term support.
Additionally, the economic
security of stalking victims may be shattered as a result of their
victimization. The NIJ study provides an empirical perspective indicating that
25% of stalking victims lost time from work as a result of being targeted and
another 7% said that they were unable to return to work altogether. In some
more egregious cases, victims have been fired by unsympathetic employers
unwilling to accommodate special needs of victim employees.
Response Strategies for Stalking Victims
Each stalker is different just
as every stalking case is different, and it is virtually impossible to
construct a single strategy that is an appropriate response in all stalking
cases. Response strategies must be tailored to fit the unique circumstances
surrounding each case.
Given the complexities involved,
any victim is unlikely to have the experience and knowledge to craft an
effective response strategy without assistance. Victims' strategic planning is
better accomplished with the advice and active support of victim service
professionals who have extensive experience in the management of stalking
cases. For this reason, the best advice anyone could offer a stalking victim is
to seek the assistance of victim service professionals at the earliest point
possible.
A qualified service professional
will first consult with the victim on risk-assessment. Based on the assessment,
victims and service professionals will next jointly develop a safety plan or
overall response strategy which will best serve victims' interests. Often,
victims are the best judges of the threat and the likely reaction that stalkers
may have to any conceived strategy. No matter how carefully an initial plan is
thought out, victims and advocates must be willing to alter the plan as
circumstances warrant. The approach that may make the most sense upon first
inspection may prove ineffective or even counterproductive when tested against
real-life circumstances. Thus, both victims and their service providers--in
conjunction with other allied professionals--must be willing to revisit and
adjust their strategies and plans as events evolve. This dynamic partnership
has proven to be most effective.
While each case is unique and
must be addressed with a unique set of strategies, the vast array of options
may appear daunting to the victim. Skilled service providers, however, can help
victims find their way through the buffet of options so that victims can piece
together response strategies.
What follows is a list of these
strategies for stalking victims as developed by the National Center for Victims
of Crime (NCVC 1999; LAPD 1993). Although this list is not intended to be
comprehensive, the strategies are representative of alternatives that victims
and service providers may want to consider when developing response plans.
As outlined in Part
1.2, the criminal harassment provisions have only been in force since 1993. A
significant factor in the swift enactment of section 264 was the increasing
concern among criminal justice personnel that existing Criminal Code
provisions did not adequately capture “stalking” conduct, which was emerging as
a new form of violence against women.
The need for the
criminal law to evolve and address new forms of criminal conduct such as
criminal harassment was expressly recognized by Madame Justice L’Heureux-Dubé
in R. v. Hinchey (1996), 142 D.L.R. (4th) 50 at 66
(S.C.C.):
The notion of criminality, thus, is not a static one,
but one which very much changes over time. As society changes, the conception
of what types of conduct can properly be considered criminal evolves. There are
a myriad of different activities which at one point in time were considered
legal, but which we now consider criminal. The offence of criminal harassment
is one obvious example. For many years, it was not recognized as criminal to
persistently follow someone and cause them to fear for their safety, so long as
no contact was made. Now, that has distinctly changed with the addition of s.
264 of the Code, which makes this conduct a crime.
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CRIMINAL HARASSMENT |
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264 |
(1) |
No person
shall, without lawful authority and knowing that another person is harassed
or recklessly as to whether the other person is harassed, engage in conduct
referred to in subsection (2) that causes that other person reasonably, in
all the circumstances, to fear for their safety or the safety of anyone known
to them. |
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Prohibited Conduct |
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(2) |
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The conduct mentioned in subsection (1) consists of |
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(a) |
repeatedly following from place to place the other person or
anyone known to them; |
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(b) |
repeatedly communicating with, either directly or indirectly,
the other person or anyone known to them; |
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(c) |
besetting or watching the dwelling-house, or place where the
other person, or anyone known to them, resides, works, carries on business or
happens to be; or |
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(d) |
engaging in threatening conduct directed at the other person or
any member of their family. |
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Punishment |
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(3) |
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Every person who contravenes this section is guilty of |
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(a) |
an indictable offence and is liable to imprisonment for a term
not exceeding ten years; or |
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(b) |
an offence punishable on summary conviction. |
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Factors to be Considered |
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(4) |
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Where a person is convicted of an offence under this section,
the court imposing the sentence on the person shall consider as an
aggravating factor that, at the time the offence was committed, the person
contravened |
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(a) |
the terms or conditions of an order made pursuant to section 161
or a recognizance entered into pursuant to section 810, 810.1 or 810.2; or |
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(b) |
the terms or conditions of any other order or recognizance made
or entered into under the common law or a provision of this or any other Act
of Parliament or of a province that is similar in effect to an order or
recognizance referred to in paragraph (a). |
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Reasons |
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(5) |
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Where the court is satisfied of the
existence of an aggravating factor referred to in subsection (4), but decides
not to give effect to it for sentencing purposes, the court shall give
reasons for its decision. |
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MURDER IN COMMISSION OF OFFENCE |
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Criminal Harassment |
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231 |
(6) |
Irrespective of whether a murder is planned and deliberate on
the part of any person, murder is first degree murder when the death is
caused by that person while committing or attempting to commit an offence
under section 264 and the person committing that offence intended to cause
the person murdered to fear for the safety of the person murdered or the
safety of anyone known to the person murdered. |
BATTERED WOMAN SYNDROME
The
requirements for self-defense include the repression of only present or
imminent use of unlawful force and the reasonability of the means to repress that
force. The person resorting to self-defense may not have been the aggressor.
However, if he was a non-deadly aggressor he may defend himself in case of
deadly force, or if he completely withdrew after his initial aggression. This
reflects a very male centered conception of defense and violence.
So, in some common law jurisdictions, courts tend to extend the benefits of the self-defense to cases which fall within the battered spouse syndrome. In these cases, when a –married or unmarried- woman kills her partner after being physically abused or to prevent another attack the battered spouse may avail herself of the benefits of self-defense even if the killing in self defense is not the consequence of an imminent peril. In these circumstances, the courts have tended to relax some of the requirements of self-defense. In order to avail herself of this defense, a woman who kills or attacks her abusive spouse or partner must prove that she has been through the battered woman cycle at least one. This cycle includes the tension-building phase, followed by the explosion or acute battering incident, culminating in a contrition phase - often referred to –rather disgustedly- as the honeymoon phase. Additionally, she must prove –usually through expert opinion- that consequently she has experienced learned helplessness and that she suffers from a series of symptoms through which the syndrome can be diagnosed. These requirements make the defense quite narrow as they exclude those women that opt to defend themselves without experiencing the whole syndrome cycle or -even worse- they impose the burden of being assaulted and reconciled in order to be able to use this defense.