“The safety of the people shall be the highest law” (Cicero)
My own experience of being the victim of a sadistic sexual predator highlighted the destructive and differing manifestations stalking had on my life. Stalking was not even recognised as a deviant form of behavior, never mind a serious crime.
In March 2009, I launched Campaign Action Scotland Against Stalking, determined that stalking should be recognised as a singular crime within Scotland’s criminal justice system. In June 2010 anti-stalking legislation became enshrined within the new Criminal Justice and Licensing (Scotland) Bill, and in December 2010, s 39 of the Criminal Justice and Licensing (Scotland) Act 2010 came into force.
Problem of definition
One of the greatest difficulties when legislating against stalking was finding the best way to actually define the crime. There is in fact no single clinical, academic, or legal definition for “stalking”. One of the difficulties in producing a definition is that many of the behaviours commonly carried out by stalkers can be considered routine and harmless in another context. Making telephone calls, sending emails, letters and gifts are all socially acceptable activities.
It is only when they are unwanted and form a persistent pattern of behaviour, a course of conduct, which impacts on the victim to cause fear or alarm, do they become more sinister.
The gravamen of the offence therefore, is not in the behaviour per se, but the effect it has on the victim. Stalking is primarily a victim-defined crime.
The individual acts that make up the intrusion may not by themselves cause the mental abuse, but the cumulative effect can have a severe and longlasting psychological effect on the victim. There are implications for their social, financial and physical wellbeing, and as we read in the papers, stalking can be a precursor to violence, rape, and in some cases murder.
The new offence of stalking broadly categorises some of the most common behaviours, leaving the authorities, the defendant and the victim in no doubt what constitutes the crime, how it is expressed, and a clear framework for the authorities to enforce it. It defines it, and classifies it accurately and succinctly to prevent any transgression throughout the investigation.
Challenge to the system
Stalking has only recently been recognised as a serious social problem and criminal concern. It is, therefore, not surprising that there is still a lack of understanding about what stalking is and why stalkers do what they do, never mind deciding whether to rehabilitate or incarcerate the perpetrators. Stalkers can become so obsessed with stalking their victims that non-harassment orders may prove ineffective, and it is not uncommon for perpetrators to continue their activities from behind bars. It is an ongoing problem, an ongoing issue and an ongoing concern.
It is without doubt one of the biggest challenges facing criminal justice officials and legal professionals.
Sadly, stalking is one of Britain’s growing crimes. The advancement in communications technology has provided newer and easier ways for stalkers to locate and track their victims.
The effect of stalking on a victim carries a high price – life, children, jobs, belongings, safety, and trust. Instructed to relocate and change identities, survivors suffer longlasting emotional and social effects. Research highlights that the damage to children affected by stalking also appears to be permanent.
The nature of the crime and the impact on the victim has the potential to produce a large drain on criminal justice resources, the health care system, and employment within the workplace. Stalking could also lead to costly legal proceedings against employers if appropriate measures are not put in place to protect employees. It is therefore in the best interests of the authorities to take swift action when cases are presented to them.
Further studies are essential to help quantify the cost of stalking to work productivity of victims, the impact on victims and their families, and the economic cost to society as a whole – quite apart from the devastating consequences when lives are destroyed.
Organisations have legal and ethical responsibilities to stalkers and their victims and can no longer deny the reality of stalking and the required response.
How to we assign responsibility to this collective loss?
The formation of the Scottish National Stalking Group is a proactive and innovative approach towards helping address some of these complicated issues. It was launched on 2 June 2011 and is the first of its kind in the UK.
Representation on the group comprises key representatives from Government organisations and agencies across Scotland to include ACPOS, the Crown Office & Procurator Fiscal Service, the Law Society Scotland, NHS Scotland, Action Scotland Against Stalking, Scottish Women’s Aid, Victim Support Scotland, National Union of Students, Scottish universities, schools and colleges, the Equality & Human Rights Commission, South Ayrshire Council Multi-Agency Partnership, Perth & Kinross Multi-Agency Partnership, and Rape Crisis Scotland.
The Scottish National Stalking Group is supported by the Scottish Government.
The overall aim of the group will be to raise awareness and understanding of stalking amongst Government-funded bodies, service providers and the public. Its core objectives will offer strategic support and direction for organisations to take into account the implications of existing policies and practice, ensuring effective management of stalking cases and providing guidance and recommendations for future practice on support to stalking victims.
Stalking is not a new phenomenon, but has only recently been recognised as a significant and widespread socio-legal problem. Criminal offences related to stalking range from assault (be it physical or mental), to non-fatal offences against the person, to grievous bodily harm with intent rape, violent assault or even murder. The enactment of the new offence of stalking is just the first step in using the justice system to combat stalking.
Perhaps the greatest challenge to addressing this crime and implementing the new legislation will be through the lack of understanding of the nature and seriousness of stalking amongst criminal justice officials, the legal profession, organisational policy makers, and criminal justice agencies. Specifically, policymakers and law enforcement officials need to understand that stalking cases are more common than they think, are more dangerous than they appreciate, and require specialised knowledge to appreciate fully the nature of this crime.
In this issue
- Maxwell Fyfe and the origins of the ECHR
- Introducing the European Law Institute
- Social media are here to stay
- Property points
- Paving the way for a new approach to elderly care
- Fair trial for the European Court of Human Rights
- Stalking: the hidden dangers, the silent crime
- Paul Wade: An appreciation
- Book reviews
- Reading for pleasure
- Council profile
- President's column
- Finger on the pulse
- Sharper focus
- The ties that bind
- Trawling for revenue
- The generation game
- Through the hoops
- Directors: to be, or not to be?
- Shoe stoppers
- Selection blues
- Conference calling
- ARTL: is there a fix?
- Building a better Buildmark
- Secure knowledge
- Key changes in compliance
- Guarantee Fund costs change
- Law reform update
- Strangers in the House
- Property points (1)
- Ask Ash
- Debt and asset recovery specialism goes live