Stalking and Criminal Harassment

• Author: Hy Bloom
• Pages: 509-545

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CHAPTER 25

Stalking and Criminal Harassment

Hy Bloom

I. INTRODUCTION

Stalking and criminal harassment are fairly recent inclusions in our legal and social lexicons. e term

“stalking” carries with it a strong negative inference with respect to behaviours that, under other cir-

cumstances, might be viewed in a neutral or positive light. “Criminal harassment” is a term applied

when stalking behaviours rise to the level of a crime. e behaviours related to stalking and criminal

harassment, however, and the psychopathologic processes that underpin them, are historic, ubiquitous,

and likely occur in every culture. While stalking has presumably always existed in some form, in recent

years there have been a number of highly publicized cases of celebrity stalki ng that have increased public

awareness of the phenomenon already well known in the context of intimate partner violence (Harvard

Law Review, 1993). While stalking has happened to high-prole individuals, the preponderance of stalk-

ing occurs in the context of everyday relationships, including pursuit of professionals by their clients/

patients (Tsushima & Wong, 2003), workers by co-workers, and one spouse or lover by a rejected spouse

or lover (Kamphuis & Emmelkamp, 2000).

As a behaviour underpinning a criminal charge, stalking is a very recent phenomenon, with Califor-

nia being the rst US state to regulate this behaviour as an oence in 1990. In the decade that followed,

similar statutes were developed across the United States, in Canada, in Europe, and around the world.

Empirical interest in the subject has evolved considerably over the past twenty years, with 600 publica-

tions on the topic in peer-reviewed journals published between 2000 and 2010 (Lydon et al., 2012). While

the formal recognition of the oence is an important conrmation of the invasive and potentially dan-

gerous nature of the behaviour, the crime of stalking is complex. e stalker’s behaviours are sometimes

open to a range of interpretations. In some cultures the behaviours are seen as normal, and blame is

attributed to the victim. Biases that exaggerate the danger associated with stalk ing behaviours or mini-

mize the harm to the victim continue to be evident, even in contexts where stalking has been subject to

criminal sanct ion for a decade or more (Duntley & Buss, 2012). e expertise of the mental health expert

can be useful in a number of ways in relation to stalking.

Behavioural scientists can assist the police in assessing the risk associated with recognized stalking

behaviour in an individual and can contribute to a successful prosecution. Behavioural scientists can also

help prosecution, defence, and the court understand which category of a typology an accused ts into, and

the implications, that is, the risks and treatment considerations inherent in that category. As well, psychi-

atric intervention for a convicted stalker can facilitate reduction of risk. e victims of stalking can suf-

fer from long-term mental health issues due to the trauma and fear associated with this kind of invasive

behaviour, and behavioural scientists can provide direct assistance to those suering in this way, by way

of treatment and guidance to manage risk. Behavioural scientists can be a resource to a victim before the

perpetrator crosses the legal threshold that allows for police intervention in many jurisdictions.

Hy Bloom

A. Stalking Def‌ined

According to the Oxford English Dictionary, the verb to “stalk” means to wal k stealthily and to pursue

game by method of stealthy approach. By denition, the behaviours subsumed under the term stalking

are unwanted. Stealth reveals that resistance or ight is anticipated. e stalker should be aware that the

advances are unwelcome. e behaviours associated with stalking are also engaged in by people who

want to make friends, initiate a romantic relationship, make up aer an argument, gain an advantage in

divorce proceedings, or deal with the social fallout from the breakup of a relationship. Such behaviours

were central to the phenomenon of “courtly love” in the Middle Ages. Even Shakespeare’s sonnets to the

Dark Lady have come under suspicion.

e behaviours associated with stalking are necessar y, but not sucient, to dene the phenomenon.

e relationship between stalker and victim and the context in which these behaviours occur are neces-

sary to any denition. Denitions for the purpose of empirical research are inuenced by the theoretical

issues in question and the context in which the stalking behaviours occur, and the goal of the research

(Langhinrichsen-Rohling, 2012). In considering stalking related to intimate partner violence, stalking is

dened as the repeated pursuit of an identied victim for the purpose of controlling that individual, be-

ing close to him or her with a view to securing a relationship, or causing fear.

e most frequent behaviour manifest by a stalker is oen referred to in the literature as “obsessional

following” (Meloy, 1996). It is dened as the “willful, malicious and repeated following or harassing of

another person that threatens his or her safety” (Meloy & Gothard, 1995). Terms such as “obsessive re-

lational intrusion” (Cupach & Spitzberg, 2004) represent attempts at dening stalking in overtly behav-

ioural or clinical terms. Behaviour that can constitute stalk ing includes such things as following a victim,

repeatedly phoning, sending unwanted gis, texting, and e-mailing when such contact is unwanted. Sur-

veillance of the victim, be it covert or overt, is common, especially online. Stalkers use hidden cameras to

observe their victims and GPS devices to track their whereabouts. A stalker can use any means to track

or harass his or her victim, including pursuing spurious lawsuits or spreading rumours. e behaviour

can manifest in increasingly threatening ways through the vandalization of the victim’s possessions,

directly threatening him or her, or communicating with or threatening third parties. It can culminate

in actual physical harm. With the development of social media, “cyberstalking” has become the focus of

empirical research and debate across disciplines (Glancy et al., 2007). When the victim is a public gure

or politician, the perpetrator will typically use requests for help to gain access.

Within the Canadian context, the term “stalk ing” is more generally reserved for the behaviour rather

than the crimina l activity. e latter is termed “criminal harassment.” Criminal harassment is at the ex-

treme end of a spectrum of behaviour, and the line distinguishing the criminal act from behaviour that

may be disturbing — but does not warrant legal intervention — can be very dicult to identify.

II. CRIMINAL HARASSMENT

Although stalking behaviour was not new, it only became criminalized as a behaviour in 1993 when

Canada joined a number of other countries in creating legislation specically aimed at sanctioning that

behaviour. Prior to the creation of the oence of criminal harassment in 1993 (section 264), stalkers

generally needed to be convicted of other oences such as mischief, threatening, indecent and harassing

calls, and trespassing in order to curtail and prosecute their ostensibly stalking behaviour. In Canadian

law, stalking is considered a criminal oence when it fulls the criteria set out in section 264(1) of the

Criminal Code:

Stalking and Criminal Harassment 

No person shall, without lawful authority a nd knowing that another person is harassed or recklessly as to

whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other

person reasonably, in all the circumstances, to fear for their s afety or the safety of anyone known to them.

e specic conduct that is prohibited is outlined in section 264(2) as follows:

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either direct ly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them,

resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

e inclusion of secondary targets (“anyone known” to the victim) rstly acknowledges the insidious

nature of stalking behaviour and the means (involving individuals within t he victim’s network) a perpe-

trator will use to get to a victim, and secondly, broadens the scenarios in which the perpetrator can be

prosecuted in accordance with the provisions. It is possible to control and/or harm the ultimate victim by

either engaging in the conduct envisioned in section 264(2), and/or by threatening conduct toward the

victim’s family (note that the threatening criterion (section 264(2)(d)) is limited to threatening conduct

against the ultimate victim or a family member, as opposed to anyone known to the ultimate victim)

(Cornish et al., 1999).

As regards establishing criminal harassment on the basis of “threatening conduct” (under section

246(2)(d)), R. v. George (2002) dened threatening conduct as “a tool of intimidation which is designed

to instill a sense of fear in the recipient.”

Communication with the victim can be direct or indirect so long as it is unwanted (section 264(1)).

Examples of indirect communication include repeatedly communicating with persons known to the

victi m (R. v. M.R.W., 1999). It is not necessary that the accused knows that the indirect communication

will be received by the victim, nor is it necessary that the accused k nows the eect the communication

will have on the victim; it is sucient that he is reckless about his conduct and its potential impact on

the victim.

Anyone who contravenes this section of the Criminal Code is guilty of an indictable oence and is

liable to imprisonment for a term not exceeding ten years, or an oence punishable on summary convic-

tion (s. 264(3)).

ere have been two relevant amendments since 1993. In a 1997 amendment, murder occurring in

the course of criminally harassi ng a victim automatically becomes rst-degree murder, even absent plan-

ning and deliberation. In 2002, the maximum penalty for criminal harassment was increased from ve

to ten years.

A. The Complexity of the Criminal Code Provisions

e criminal harassment provisions introduced in the Criminal Code in 1993 were hardly a panacea for

getting stalkers to desist from their oensive behaviours, nor did they prove to be a user-friendly solution

for harassment cases.

e criminal harassment provisions of the Criminal Code are distinguishable from most other sec-

tions in the Code dealing with substantive crimes in t heir attempt to proactively provide the police with

tools to avert further harassment and possible violent acts. However, the preventative nature of the penal

sanction against criminal ha rassment makes it dicult to dene whether the constituent elements of the

oence have been met. Compared to other oence categories where pursuit of violence and harm are

obvious, many stalkers — criminal harassment oenders — mean their victims no harm (and are oblivi-

ous to the psychological harm and fear they are causing) because subjectively all they feel is admiration,

love, and infatuation. e psychopathology behind many forms of criminal harassment probably makes