Anaya Nolan
Stalking is a criminal offence that can cause considerable fear in victims and has been recognised as fundamentally different from other harassment crimes. The first anti-stalking laws were enacted in 1990 in California, in response to several high-profile stalking cases. Since then, all 50 states in the US have implemented anti-stalking laws, with the first Federal stalking law being passed in 1996. Other countries, including Australia, Canada, China, and some European nations, have also introduced anti-stalking legislation or are considering doing so. While the specific definitions of stalking and penalties for stalking behaviour vary across jurisdictions, most anti-stalking laws share critical elements, including conduct or behaviour requirements, intention, and the response of the victim.
| Characteristics | Values |
|---|---|
| First anti-stalking law passed | 1990 in California, US |
| Federal stalking law passed | 1996 in the US |
| Stalking law in Australia | Most states provide the option of a restraining order |
| Stalking law in China | Punishable by a small fine or less than 10 days of detention |
| Stalking law in India | A stalking case is reported every 55 minutes |
| Stalking law in Canada | Punishable by up to 10 years in prison |
| Stalking law in Illinois | Controversial and particularly restrictive |
| Stalking law in Queensland | Broadest scope |
| Stalking law in South Australia | Most restrictive |
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What You'll Learn
The first anti-stalking laws
California Penal Code Section 646.9 was developed and proposed by Municipal Court Judge John Watson of Orange County, alongside U.S. Representative Ed Royce, who introduced the law in 1990. That same year, the Los Angeles Police Department (LAPD) established the United States' first Threat Management Unit, founded by LAPD Captain Robert Martin.
Within three years, all 50 US states had followed California's lead and enacted anti-stalking laws, albeit under different names such as criminal harassment or criminal menace. The specific laws vary slightly from state to state, with punishments ranging from a maximum of 10 years' imprisonment in some states to a fine for low-severity stalking in others.
The US Congress enacted the first Federal stalking law in 1996. Since then, most English-speaking jurisdictions globally have introduced some form of legislation to prohibit stalking behaviour, describing it as either "stalking" or "harassment". Some non-English-speaking countries, particularly in Europe, have also introduced or are considering introducing anti-stalking legislation.
While stalking laws were initially contentious, the debate has lessened since the mid-2000s, and more jurisdictions have enacted legislation to prohibit stalking behaviour. Most anti-stalking laws require one or more of three critical elements to establish the offence: conduct (or behaviour) requirements, intention, and the response of the victim.
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Country-specific anti-stalking laws
Anti-stalking laws have been enacted in various countries, with differences in the scope and enforcement of these laws. Here is a review of country-specific anti-stalking laws:
United States
The first anti-stalking law in the United States was enacted in California in 1990, following several high-profile stalking cases. This law, California Penal Code Section 646.9, was proposed by Municipal Court Judge John Watson and U.S. Representative Ed Royce. Within three years, all 50 states criminalized stalking, albeit under different names such as criminal harassment or criminal menace. The US Congress passed the first Federal stalking law in 1996. In 2018, the PAWS Act expanded the definition of stalking to include causing fear or harm to one's pet. While there are variations in the laws across states, the understanding is that stalking is distinct from other forms of harassment.
Australia
All Australian states enacted anti-stalking laws in the 1990s, with Queensland being the first to do so in 1994. The laws vary in scope and punishment across the states. Queensland has the broadest scope, while South Australia has the most restrictive laws. Most states provide for restraining orders, and punishments range from fines to 10 years' imprisonment. Australian laws do not require the victim to have felt fear or distress, only that a reasonable person would have felt this way.
Other Countries
In Canada, Section 264 of the Criminal Code addresses stalking under the title "criminal harassment." This provision came into force in 1993 and carries potential prison terms of up to ten years. In China, simple stalking is treated as a minor offence, punishable by a small fine or less than 10 days of detention.
In 2013, India amended its Penal Code to specifically outlaw stalking, but only in cases of men stalking women. The Afghan government passed the 'Elimination of Violence Against Women' (EVAW) law in 2009, which includes a prohibition on stalking women, but implementation has been slow. Several European countries have introduced stalking laws, particularly in response to the 2015 Istanbul Convention. However, there are some countries without specific anti-stalking laws, including Hong Kong, Namibia, Trinidad and Tobago, and Hungary.
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Criticisms of anti-stalking laws
The first anti-stalking law was passed in California in 1990, with all 50 states following suit and enacting anti-stalking laws by 1993. The US Congress enacted the first Federal stalking law in 1996. Since then, many other countries have also introduced anti-stalking laws.
Despite the widespread enactment of anti-stalking laws, they have faced several criticisms and are considered areas for improvement. Here are some key criticisms:
- Infringement on Individual Rights: Some critics argue that anti-stalking laws are too broad and infringe on the individual rights of those accused of stalking. This criticism led to amendments in certain jurisdictions to make the laws more specific and better protect the rights of the accused.
- Definition of Stalking: Stalking is defined slightly differently in each jurisdiction, making the application of anti-stalking laws inconsistent. The varying definitions impact the interpretation of critical elements such as conduct or behaviour requirements, intention, and the response of the victim.
- Mental Health Considerations: Critics advocate for the inclusion of mandatory mental health examinations for persons charged with stalking. This would address the underlying psychological issues that may contribute to stalking behaviour and provide opportunities for treatment or counseling.
- Victim-Friendly Provisions: Anti-stalking laws have been criticised for not adequately supporting victims. Suggested improvements include victim notification, emergency assistance, protection orders, and awards.
- Cyberstalking: With the rise of technology and online communication, critics highlight the need for laws that specifically address cyberstalking. This involves unique challenges and behaviours that may not be adequately covered by existing laws, such as harassing messages, online surveillance, and identity theft.
- Consistency and Enforcement: The effectiveness of anti-stalking laws depends on consistent enforcement and the availability of legal recourse for victims. In some jurisdictions, stalking behaviours may fall under different legal categories, such as harassment or intimidation, complicating the application of anti-stalking measures.
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Improvements to anti-stalking laws
Anti-stalking laws have come a long way since California first criminalized stalking in 1990. All 50 states in the US have since enacted anti-stalking laws, and the US Congress passed the first Federal stalking law in 1996. However, there is still room for improvement to ensure better protection for victims and more effective prevention and punishment of stalking.
One area that requires attention is the development of laws that address "cyberstalking". With the increasing use of technology and the internet, stalking can now occur via computers and other electronic means. The unique features of cyberstalking, such as the ability to anonymously harass individuals online, need to be specifically addressed in legislation. This would ensure that cyberstalking is recognized as a distinct form of stalking and that law enforcement has the necessary tools to investigate and prosecute these cases effectively.
Another improvement could be the inclusion of mandatory mental health evaluations and treatment for individuals charged with stalking. Research has shown that a significant percentage of people who engage in stalking behavior have underlying mental health issues. By identifying and addressing these issues, it may be possible to reduce the incidence of stalking and provide better support to both victims and perpetrators. This could also help prevent future incidents and provide an opportunity for treatment and rehabilitation.
Additionally, anti-stalking laws could be strengthened by adding "victim-friendly" provisions. This includes measures such as victim notification, emergency assistance, protection orders, and awards. These provisions would empower victims and provide them with a sense of security and support. For example, protection orders, also known as restraining orders, can help victims feel safer by legally prohibiting the stalker from contacting or approaching them.
Furthermore, there is a need for consistency in the application of anti-stalking laws across different states and jurisdictions. While some states have broad anti-stalking laws, others have more restrictive legislation. Standardizing the definitions of stalking and the associated penalties can help ensure that victims are protected equally regardless of their location. This standardization could also extend to the inclusion of stalking that occurs across state lines, ensuring that perpetrators cannot evade consequences by simply crossing state borders.
Finally, public education and awareness campaigns can play a crucial role in preventing stalking and supporting victims. By raising awareness about the signs of stalking, the impact on victims, and the available resources, we can empower individuals to recognize and report stalking behavior. Additionally, addressing the media's portrayal of stalking, particularly the normalization of male stalking behavior, can help shift societal norms and reduce the incidence of stalking.
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Anti-stalking laws and cyberstalking
Anti-stalking laws aim to protect victims from behaviour that was previously unregulated. Stalking is a pattern of behaviour, not a single incident of harassment, and anti-stalking laws reflect the understanding that stalking is fundamentally different from other harassment crimes.
The first anti-stalking law was passed in California in 1990, in response to numerous high-profile stalking cases in the state, including the attempted murder of actress Theresa Saldana in 1982 and the 1989 murder of actress Rebecca Schaeffer. Within three years, all 50 states had enacted anti-stalking laws, giving rise to different names for the crime, such as criminal harassment or criminal menace. In 1996, the US Congress enacted the first Federal stalking law, which was included in the Violence Against Women Act (VAWA). This law, called the Interstate Stalking Punishment and Prevention Act, made it a federal crime to cross state lines with the intent to harm or harass another person. The definition of "stalking" was expanded to include electronic communications, and the law imposed stricter penalties. Under Title 18 U.S.C. 2261A, a person is guilty of stalking if they travel across state lines or into federal jurisdiction with the intent to kill, injure, harass, intimidate, or place another person in fear of death or physical injury. The law also covers placing the victim under surveillance and engaging in a "course of conduct" that causes the victim reasonable fear or emotional distress.
While anti-stalking laws have provided much-needed protection for victims, there is still room for improvement. For instance, laws should address the unique features of "cyberstalking," which differs from traditional stalking in the mode of execution but has the same underlying impact on the victim. Additionally, anti-stalking laws can be strengthened by requiring mental health examinations for accused stalkers and implementing "victim-friendly" provisions, such as victim notification, emergency assistance, protection orders, and awarding attorney fees and exemplary damages.
In Australia, anti-stalking laws vary from state to state. Queensland has the broadest scope, while South Australian laws are the most restrictive. Punishments range from maximum imprisonment terms in some states to fines for less severe cases in others. Most Australian states allow for restraining orders, and breaching these orders is considered a criminal offence.
Stalking is a global issue, with cases reported in countries like India, China, and Germany. However, the perception and legal treatment of stalking vary across jurisdictions. For instance, in China, simple stalking is often treated as a minor offence, resulting in small fines or short detention periods.
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Frequently asked questions
Anti-stalking laws were first introduced in California in 1990.
The first anti-stalking law was California Penal Code Section 646.9, developed and proposed by Municipal Court Judge John Watson of Orange County.
Within three years of California's first anti-stalking law, all 50 states had enacted anti-stalking laws.
The US Congress enacted the first federal anti-stalking law in 1996.
