Since 1990, all 50 US states have had anti-stalking laws; all of Australia’s states do as well, the first such piece of legislation having been introduced in 1993.
Britain followed suit a decade ago and the European Union required all member states to have such laws in place by 2017.
New Zealand, however, has no such equivalent laws and has been dilatory in drafting such. The Crimes Act 1961 covers slavery, piracy, treason and everything in between, but not stalking.
The Harassment Act 1997 did create an offence of criminal harassment but that has proven an inadequate tool against determined offenders. Digital harm, family violence and privacy laws, too, were not initiated to deal with what we would recognise as stalking.
That has, of course, been part of the problem in framing stalking laws. While most have a perception of what such behaviour is, it is not as amenable to a neat and tidy legal description as assault or theft.
Deliberately damaging someone’s reputation, illegal recording, tracking, following or loitering — to give just a few examples of stalking behaviour — constitute offences in their own right, but there is no portmanteau offence which encapsulates all such behaviour, including in the digital sphere.
At present, such harassing behaviour, to reach the point of being criminal activity, requires the perpetrator to intend to cause harm and the victim to reasonably fear for their own or a family member’s safety.
Fall short of that high bar and only civil remedies are available, options which may not prevent the very real harm which stalking can cause. A similar pitfall can await if the harassment is through social media.
That leaves the law inadequately placed to address the very real distress which stalking causes the person at the end of it, and their family. One does not need to fear for one’s safety to suffer from the effects of stalking behaviours and the difficulty of finding a way to make it stop adds to the very real burden such offending creates.
It will be a challenge for the government to draft such legislation but as noted there are many comparable jurisdictions whose experiences New Zealand can draw upon.
The law needs to both recognise patterns of behaviour that constitute "stalking" and then be nimble enough for the authorities to be able to take action to prevent further harm. The government is proposing the threshold be three specified acts occurring within a 12-month period — that may be too few acts or an unworkable period of time.
Careful training will be needed for police to recognise and appropriately respond to stalking behaviour. As with any offending, there exists the possibilities of it either not being properly recognised by police or of malicious accusation.
Provision will also have to be made so that it is the actions of the perpetrator which are considered, not those of the victim, when assessing whether offending behaviour reaches the threshold of stalking.
Partners are the people most commonly stalked and the proposed law needs to recognise that. Provisions in the Family Violence Act allow victims of stalking-type behaviour to obtain devices such as protection orders but the process for obtaining such an order, let alone that for dealing with any alleged breach, can put victims at further risk. Also, obtaining an order can be a trigger to further offending.
The law will also need an element of future proofing: when the Harassment Act was drafted, the extent of damage which can be done in cyberspace was not fully recognised.
A delicate balance will need to be struck, as is the case with all punitive law, between being meaningful and a deterrent, inconsequential and ineffective, or draconian.
However, it should have consequences that reflect the harm done, and it is pleasing to see that the government proposes that a stalking and harassment conviction will disqualify an offender from holding a firearms licence.
A proposed maximum penalty of up to five years in prison is a substantial hike from the maximum of two years which a criminal harassment conviction can attract.
Overall, though, this a long overdue law change which after due consideration should enjoy relatively smooth sailing, Labour having called for a stalking law itself in recent times.
