The bill proposes allowing courts to make restraining orders and orders in relation to harmful digital communications when sentencing for the new offence. Photo / 123rf
The bill proposes allowing courts to make restraining orders and orders in relation to harmful digital communications when sentencing for the new offence. Photo / 123rf
Opinion by Carrie Leonetti
Carrie Leonetti is an Associate Professor at the University of Auckland's Faculty of Law.
Justice Minister Paul Goldsmith said stalking would be defined through patterns of behaviour occurring over a 12-month period. An offender must commit three specified acts in that timeframe to be charged.
I have been one of many sexual and domestic violence experts lobbying the Government for years to pass a stand-alone criminal offence making stalking a crime in Aotearoa New Zealand.
Last year, I helped draft a model statute and provided it to the Government in the hopethat model language drafted by experts would speed up the process of reform.
It occurs in a variety of relationships but is most common during the pursuit or breakdown of intimate relationships. The stalker uses their harassing behaviour to develop or maintain the relationship against the victim’s will or to punish the victim for rejecting or leaving them. This, in turn, causes victims to curtail their ordinary activities and to suffer severe health consequences. In the worst cases, stalking escalates to homicide.
For almost 30 years, the closest thing that Aotearoa New Zealand has had to a criminal offence for stalking is the crime of harassment in the Harassment Act 1997.
The crime of harassment, as defined in the Harassment Act, is too narrow to encompass all forms and harms of stalking. It was drafted more with neighbourhood or employment disputes in mind than obsessional or post-separation stalking by former or prospective romantic partners.
It’s so old that it couldn’t have anticipated the digital forms of stalking commonly used today. And, as news reports make clear, it is often misunderstood or goes unused by police when victims of stalking seek their help.
To be fair, the Government got a few things right in its new stalking proposal. It moved the crime of stalking from the Harassment Act to the Crimes Act, clarifying stalking’s status as a crime rather than a form of nuisance.
It updated the list of acts that can constitute stalking to include more modern forms of digital and online harassment. And, it enhanced the criminal penalties for stalking, which is a more serious and dangerous crime than the penalties in the Harassment Act reflect.
In other ways, however, the Government’s new stalking bill actually weakens protections for victims of stalking.
The Harassment Act currently defines harassment as occurring when the stalker engages in two or more acts of stalking against the victim. The Government’s new legislation inexplicably changes this requirement to three or more acts of stalking.
It is baffling why legislation that the Government claims is meant to help victims would make it harder for them to get protection (and easier for stalkers to stalk) than current law by allowing stalkers an additional, bonus act of stalking before their behaviour becomes a crime.
Justice Minister Paul Goldsmith says stalking will be defined through patterns of behaviour occurring over a 12-month period. An offender must commit three specified acts in that timeframe to be charged. Photo / Dean Purcell
The Government’s new stalking bill also creates a sweeping new defence to stalking that does not exist as a defence to criminal harassment currently: the “reasonable excuse” defence.
This broad new defence is unnecessary and risks weakening stalking protections for victims. Even if a stalker has engaged in three or more acts of stalking as defined in the new legislation and does so as part of a pattern of threatening, harassing behaviour, they can still argue to the jury that they had a reasonable excuse for doing so.
If they succeed in creating a reasonable doubt in the jury’s mind about whether their excuse for stalking was reasonable, the jury would have to acquit them.
Leaving the lawfulness of a stalker’s purpose or the reasonableness of a stalker’s excuse to juries makes it too hard for prosecutors to prosecute them and too easy for stalkers to get away with their crimes.
The Government’s bill gives no indication of what might constitute a reasonable excuse for following or tracking someone, sending them threatening communications, damaging their property, undermining their reputation or relationships, or threatening them as part of a pattern of harassing conduct.
It is possible that the Government intended to exempt police or journalists or protesters from criminal liability. If so, a sweeping “reasonable excuse” defence is a poor way to accomplish that goal.
I have surveyed stalking bills internationally, in more than 100 jurisdictions, and most specify particular people or activities that fall outside of their stalking crimes.
For example, Queensland extends its defence to stalking only to labour actions or political protests. Victoria extends its defence only to official law-enforcement actions.
Stalking is poorly understood by the general public (and frankly, even by some police and prosecutors).
Our cultural tropes often normalise some forms of stalking as legitimate courtship behaviour or understandable attempts at reconciliation by a heartbroken or infatuated suitor. Men must be aggressive in pursuing women because women play “hard to get”.
Jurors who do not understand the psychology of stalking might be wary to impose criminal sanctions for conduct that they view as trivial, benign, normal, or even sympathetic.
Stalkers tend to be entitled and self-justifying. Most possess beliefs and attitudes that minimise their behaviour and personal responsibility.
They blame others and justify their behaviour, sometimes convincingly. Many engage in stalking behaviour precisely because they feel legally entitled to do so. They are often motivated by resentment at perceived wrongdoing and frame their stalking as an attempt to right the wrong and “protect” themselves against further hostile predation by others.
These beliefs and attitudes lead to post-hoc rationalisations for stalking, which could be reframed as “reasonable” excuses for their conduct.
Criminal statutes are not updated very often. And it’s unlikely that this issue will be visited again soon. So, we have this one chance to get stalking right for the next generation of victims.
The Government should not squander this opportunity by weakening protections for victims. And waiting for the next woman to die.
