Stalking has two elements to it. The first is that the person accused of being a stalker behaves in a certain way (described below), and that the stalker either behaved like that to cause physical or mental harm to the victim or caused fear or apprehension; knew that sort of behaviour was likely to cause such harm, or create fear and apprehension; or should have known.

The stalker must have engaged in a course of conduct, which must have included some specifically described behaviours, and committed those acts intentionally.

     What is a ‘course of conduct’?
A course of conduct means the stalker’s behaviour must have amounted to a pattern of behaviour that showed continuity of purpose. That is, they meant to behave like that over a course of time to that person. It means the behaviour must have occurred on more than one occasion, or to have been over a long period of time, like surveillance.

A pattern must be established, since the same sort of behaviour over more than one occasion, or that went on over a long period of time, does not necessarily constitute stalking. There must be some additional information or circumstance that causes the behaviour to amount to a pattern.

Harassment of short duration does not constitute stalking, and if the acts were not premeditated, again, not stalking.

The types of behaviour (‘conduct’) specified must fit into specific categories, such as following the victim, contacting the victim, or publishing information on the internet. Any behaviour that arouses apprehension or fear in the victim for their own safety or that of another person fits the bill. The matters are not always illegal, and it can be hard to prove stalking, since it can be a very grey area.

     The stalker’s mental state
It must be proved by the prosecution that the stalker behaved in that way intentionally to cause physical or mental harm to the victim, or to arouse apprehension or fear.

     Proving it
This can be proved in one of three ways.

1. Proving actual intent to cause harm, apprehension or fear;
2. Proving knowledge that the behaviour would be likely to cause harm, apprehension or fear; or
3. Proving that the stalker ought to have understood that this behaviour would cause harm, apprehension and fear, and it did have that result.

The first two mean that even if the stalking didn’t cause apprehension and fear, that the behaviour of the stalker was intended to do so. The victim may not have been aware of the stalking for a stalker to be prosecuted. The third means the stalker can’t beg ignorance of their behaviour’s outcomes, whether they intended to or not.

Assault and stalking are not the same, and are charged differently.

     In the defence of stalking
A defence is to prove that the course of conduct was engaged in without malice, while going about their lawful business, work, or life. When it involves an industrial dispute, that it was for the purpose of political activities or communicating public affairs.

     Outcomes of stalking cases
There are many outcomes for stalking cases. Prison was only actually seen in 23 per cent of stalking cases, while a partially or wholly suspended sentence was observed in 5 and 13 per cent respectively. Community corrections orders were the most common outcome at 30 per cent, with a fine or dismissal/discharge both sitting at 14 per cent.

Involved in a stalking case?
Contact Vanessa Ash