2. A Review of the Socio-Legal Literature
This review examines 1) forms of criminal harassment[4] identified in the literature; 2) the most common form of criminal harassment: harassment of former intimates; 3) the effect of criminal harassment on victims; 4) the treatment of criminal harassers; 5) the introduction of criminal harassment legislation in the United States and Canada; and 6) the interpretation of section 264 of the Criminal Code of Canada.
Criminal harassment is often categorized by a combination of the relationship between the perpetrator and the victim, and the diagnostic type of the perpetrator. Common labels include:
- simple obsessional (prior relationship between perpetrator and victim);
- erotomaniac (delusional perpetrator believes there is mutual love);
- love obsessional (perpetrator does not believe victim returns love, but might if the victim would get to know perpetrator);
- borderline obsessional (similar to love obsessional, but includes casual acquaintances); and
- sociopaths (serial murderers, sex offenders)[5] .
There are, however, other forms of criminal harassment. Criminal harassment can take place at work, for reasons unrelated to the above categories. Such harassment may be perpetrated by co-workers (motivated perhaps by jealousy, or racist or sexist attitudes), by clients (unhappy with services or expected benefits), or by those who are protesting the type of work carried out by the worker (anti-abortionists, etc.). Criminal harassment may also occur between bickering neighbours[6] . Where technology goes, stalkers will follow. More recently, the question of criminal harassment by e-mail has been raised.[7]
Criminal harassment is not always limited to the specific target of the stalking. At times, others associated with the target of the harasser (new partners, children, parents and other relatives) may become victims of harassment. In the case of erotomania, totally unrelated people may be affected, as in the case of John Hinckley, who shot President Reagan in order to get Jodie Foster's attention.
By far the most common type of criminal harassment, and that which has until recently received the least amount of attention in the literature and by justice officials, is the stalking of former intimates, typically (although not exclusively) the stalking or harassment of women by their former partners.[8] This is also the type of harassment that is most likely to lead to physical assaults and murders.[9] In such instances, stalking is merely an old problem with a new name.[10] Despite the wide range of behaviour covered by criminal harassment, it is predominately viewed by legislators and policy makers as an issue of domestic violence. In fact, New South Wales specifically limited its stalking legislation to stalking in the context of "domestic relationships"
, although it was criticized for taking this narrow approach[11] .
Perhaps the most useful development in the mainstream literature is the suggestion that stalkers who criminally harass former intimates have personality characteristics similar to wife batterers, and that stalking ought to be seen as the fourth step in Lenore Walker's theory of the cycle of violence[12] . The fact that leaving a batterer may expose a woman to more risk than remaining with the batterer is something that women have known for years, and that "experts"
are only beginning to understand[13] . Bernstein writes,
Many domestic violence victims who do leave their abusive partners, spend the rest of their lives "trying to avoid men fanatically dedicated to pursuing them, harassing them, or even killing them"
. It is estimated that at least half of the women who leave their abusive partners are followed or harassed as a result. In fact, domestic violence is more common among persons who have separated. Government data indicates that three-fourths of all domestic violence victims are separated at the time of the incident. Studies have shown that the most dangerous time period for an abused woman is when she attempts to separate from her spouse[14] .
Bernstein explains why it is important to view stalking as the fourth phase in the cycle of violence:
First, by labelling the stalking problem as a continuation of the domestic violence cycle, lawmakers, policy makers, and the courts will likely be more prepared to confront the issues seriously. Second, the problem is given social definition by identifying the violence that follows marital or intimate separation as phase-four of the domestic violence cycle. Third, by naming the problem within the framework of the cycle theory of violence, sanctions can be developed to specifically address the idiosyncrasies involved in this fourth phase of violence[15] .
Practitioners and academics are finally making this connection[16] .
At the more critical level, stalking is seen as one more illustration of systemic male violence. Way writes,
Stalking is one vicious manifestation of a broader spectrum of violence against women, one part of a multi-faceted whole, integrally linked to the systemic social, economic and political inequalities experienced daily by Canadian women. The statistics detailing the extent of violence against women in Canada provide horrifying evidence of the "brutal face of inequality"
[17] .
Examining violence against women or criminal harassment in this broader context points to the problems of trying to deal with the issue of violence against women, in the limited context of the criminal justice system. Real change will occur only once equity for women is achieved fully in the social, economic, political and legal spheres. However, women who are presently harassed do not have the luxury of waiting for this societal-wide change to occur.
- [4] Criminal harassment is more often referred to as stalking in the United States, and also by the Canadian media. A search of the Canadian Business & Current Affairs Database on September 2, 1995 turned up one item on criminal harassment and 335 items on
"stalking."
Approximately 200 of these items described criminal harassment events. The other uses of stalking were in the context of stalking wild animals, diseases, famine or business relationships. Way at 387 suggests that the media portrayal of the stalking victim plays on our cultural pornographic imagination.
- [5] See, for example, Susan C. Anderson,
"Anti-stalking Laws: Will they curb the erotomanic's obsessive pursuit?"
(1993), 17 Law & Psychology Review 171; Mary Cooper, Criminal Harassment and Potential for Treatment: Literature Review and Annotated Bibliography (Vancouver: B.C. Institute on Family Violence, 1994); Nannette Diacovo, "California's Anti-Stalking Statute: Deterrent Or False"
(1995) 24(2) Southwestern University Law Review 389; and, Kathleen G. McAnaney, Laura A. Curliss, and C. Elizabeth Abeyta-Price, "From Imprudence to Crime: Anti-stalking Laws"
(1993) 68 The Notre Dame Law Review 819.
- [6] Kathleen G. McAnaney, Laura A. Curliss, and C. Elizabeth Abeyta-Price,
"From Imprudence to Crime: Anti-stalking Laws"
(1993) 68 The Notre Dame Law Review 819 at 822-823, add to this list classmates, gang members, former employees, and disgruntled defendants.
- [7] Eileen S. Ross,
"E-Mail Stalking: Is Adequate Legal Protection Available?"
(1995) 13(3) John Marshall Journal of Computer & Information 405. At the time of her article, only four states (Michigan, Alaska, Oklahoma and Wyoming) specifically include electronic communication in their legislation. Ross concludes that the Michigan anti-stalking legislation is unconstitutional for vagueness and recommends a model anti-stalking statute. Also see "Email 'wooing' results in stalking charge"
(May 28, 1994) Vancouver Sun A14.
- [8] For example, Michael A. Zona, Kaushal K. Sharma, and John Lane,
"A Comparative Study of Erotomania and Obsessional Subjects in a Forensic Sample"
(1993) 38(4) Journal of Forensic Sciences 894, examined 74 case files from the Threat Management Unit of the Los Angeles Police Department. Despite the fact that they excluded domestic violence cases from their analysis, they found that 47% of the cases were "simple obsessional"
(i.e., the people involved had had a prior relationship). Some authors estimate that stalking of former intimates represents 80% of all stalking. See J. Fahnestock, "All Stock and No Action: Pending Missouri Stalking Legislation"
(1993) University of Missouri-Kansas City Law Review 783 as cited in Mary Cooper, Criminal Harassment and Potential for Treatment: Literature Review and Annotated Bibliography (Vancouver: BC Institute on Family Violence, 1994) at 42.
- [9] The most common statistic cited in the United States literature is that almost one-third of women who are killed are killed by husbands and boyfriends, and up to 90% of these women are stalked prior to their deaths. See for example, Anderson, Susan C., Anti-stalking Laws: Will They Curb the Erotomaniac's Obsessive Pursuit?
" (1993), 17 Law & Psychology Review 171 at 182. A United States Department of Justice survey found that "
one in five of the women attacked by a family member or boyfriend said that the violence they experienced has been part of a series of at least three similar acts. Quoted in Nannette Diacovo, "California's Anti-Stalking Statute: Deterrent Or False"
(1995) 24(2) Southwestern University Law Review 389 at 396.
- [10] For example, Melissa Perrell Phipps,
"North Carolina's New Anti-Stalking Law: Constitutionally Sound, But Is It Really A Deterrent?"
(1993) North Carolina Law Review 1933 at 1951 writes, "Stalking is an old problem that has just recently captured the attention of law makers."
She quotes Elizabeth Schneider, who commented that "what happened with sexual harassment, with battering [is now happening] with stalking"
(at 1952).
- [11] Matthew Goode,
"Stalking: Crime of the Nineties?"
(1995) 19(1) Criminal Law Journal 21 at 27. West Virginia's earlier anti-stalking law was also limited to behaviour between persons who had had a previous sexual or intimate relationship, however it was subsequently amended. Kathleen G. McAnaney, Laura A. Curliss, and C. Elizabeth Abeyta-Price, "From Imprudence to Crime: Anti-stalking Laws"
(1993) 68 The Notre Dame Law Review 819 at 904.
- [12] Susan E. Bernstein,
"Living Under Seige: Do Stalking Laws Protect Domestic Violence Victims?"
(1993) 15 Cardozo Law Review 525 at 559. Kathleen G. McAnaney, Laura A. Curliss, and C. Elizabeth Abeyta-Price, "From Imprudence to Crime: Anti-stalking Laws"
(1993) 68 The Notre Dame Law Review 819 at 856.
- [13] Lenore E. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (1989) at 256 writes,
"leaving the batterer is in many cases, more dangerous than remaining . . . [as] separation is the time of greatest volatility and peril in battering relationships."
- [14] Bernstein, supra at 557.
- [15] Bernstein, supra at 559.
- [16] P. Randall Kropp, Stephen D. Hart, Christopher D. Webster, and Derek Eaves, Manual for the Spousal Assault Risk Assessment Guide (Vancouver: The British Columbia Institute on Family Violence, (1994) at 2.
- [17] Rosemary Cairns Way,
"The Criminalization of Stalking: An Exercise in Media Manipulation and Political Opportunism"
(1994) 39 McGill Law Journal 379 at 382. This view is shared by the Federal/Provincial/Territorial Working Group of Attorneys General Officials, Gender Equality in the Canadian Justice System, Background Paper Violence Against Women (April 1992) at 39: "[Statistics] suggest that in our culture, gender-based violence is related to power. . . The story of violence against women . . . is really a story about power and inequality between the sexes."
It is also found in the report of the Canadian Panel on Violence Against Women, Changing the Landscape: Ending Violence--Achieving Equality (Ottawa: Minster of Supply and Services Canada, 1993): "Violence against women, both now and in the past, is the outcome of social, economic, political and cultural inequality. This inequality takes many forms, but its most familiar form is economic"
(at 14).
