‘Old Law, New Law’ episode 8: Stalking

In this episode of our podcast ‘Old Law, New Law’, we discuss the Commission’ inquiry into stalking laws. What is stalking, and what can be done about it?

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Nick: Welcome to ‘Old Law, New Law’, a podcast by the Victorian Law Reform Commission. I’m Nick Gadd.

Gemma: And I’m Gemma Walsh. Did you know that in Victoria last year near 14,000 people, the vast majority of them women, reported that they had experience being stalked, and that is only the tip of the iceberg. Most cases of this frightening crime are not reported at all. Today we are talking about the VLRC’s review of stalking laws.

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Nick: We are joined by Tony North QC, the chairperson of the VLRC, and Marie Barnard and Michelle McDonnell of the stalking enquiry.

Marie, you’re the team leader on this enquiry, most of us probably have an idea of what stalking is, the stereotype of the creepy guy hanging around outside someone’s house, but can you define it for us? What different forms of stalking take?

Marie: Often stalking is committed by an ex-partner as a form of family violence, so it could be a continuation of family violence that was already occurring during the relationship, or it could be a new form of family violence which starts after the relationship ends. It’s not always committed within a family relationship, it could be a work colleague, a neighbour, former friend, or a stranger who forms an inappropriate attachment to someone. 

Nick: So it could really happen to anybody.

Marie: It can happen to anybody and that’s something that concerns people, I think the thing to remember is that if somebody is continually contacting you, sending you messages or calling you, coming to your house or giving you presents, if you’ve asked them to stop and you’re finding it distressing, then that can be stalking. You don’t need to put up with it and you can seek help.

Nick: So it could involve things that in another situation would be legal or even welcome, but in this situation it’s not welcome.

Marie: That’s right, it’s not always something that is illegal like assault or sexual assault or property damage or something like that, it can actually be just repeated contact, where you’ve made it clear that you don’t want that contact, that’s stalking as well.

Nick: And it’s something that makes you feel worried or alarmed, or that your safety is threatened, is that right?

Marie: I think it’s important to listen to your inner voice. If you feel uncomfortable about something, if it feels creepy or not right to you, listen to yourself and think, maybe this is something I need help with to stop.

Gemma: Turning to you Michelle you’re a senior researcher on this project. How is stalking perceived in the community? Is it widely understood?

Michelle: This is where it gets really interesting Gemma, because what we’ve found out is that stalking is actually misunderstood. As part of our research, we have looked at studies that have taken place and what they’ve documented is what is known as stalking myths. I can give you an example, so that it’s easier to understand. Sometimes someone is being stalked, and they might just believe they are imagining that’s it’s happening, and that if they ignore what is happening it’ll go away, but the evidence shows that stalking won’t go away if you ignore it.

Gemma: Yes, it’s interesting you say that, cause I was reading in the consultation paper about that myth, particularly if a person being stalked ignores it, it will just go away, whereas actually if it goes beyond two weeks it’s a bigger risk factor for continued stalking isn’t it?

Michelle: Yeah, that’s the real problem, because we do want to minimise things that seem innocuous, and the longer you leave something like that to happen, the evidence suggests it becomes a bigger risk. So, it is about trying to identify at it at that early stage and having that level of community awareness about stalking being a problem, and it’s something that we need to address and also address earlier.

Gemma: Do we know how common it is?

Michelle: It’s difficult to measure just how common it is because one of the things we do know is that stalking is actually underreported. So, at the moment we do know we’re not getting the full picture on the extent of stalking, and as I said before people are coming in very late to reporting, if they are reporting at all. In the research we found that over 70% of people didn’t report stalking until the 100th episode of stalking. So, we also have the issue of late reporting. To give you some idea of what we know about what has been reported, about 17% of women have been stalked once in their lifetime, and about 6.5% of men have been stalked once in their lifetime. There’s all these reasons why people might not report to police and that’s something that we’re also looking at in this enquiry.

Nick: Michelle, technology has unfortunately made it easier for people to commit stalking in lots of different ways, hasn’t it, over the past few years. So, it’s not a matter of just someone physically following a person, there’s this phenomenon of cyber stalking.

Michelle: What it really is, it’s a type of stalking where someone’s basically using available technology, and the thing to remember is that it is actually a crime. As you said, the more technology we get, the more apps the more time we spend online, especially during lockdowns where we’re increasing our screen time and connection through the net, it does give someone that opportunity to stalk you using technology.

Marie: One of the things that I’ve been grappling with about cyberstalking is that a lot of the devices and apps and things that are used to perpetrate cyberstalking are legal or they are free. Like, if someone repeatedly contacts you through Facebook, that’s a form of cyberstalking potentially, and some of the tracking devices that are sold as well, they’re legal to sell, it’s just that if you use them to perpetrate stalking then that’s illegal. So, it’s a difficult regulatory area.  

Michelle: What we’re finding is that places around the world that are in a lockdown situation, people who engage in stalking have fewer alternatives they don’t have much opportunity for the physical stalking and more people are actually now moving to cyberstalking. The thing is, if you’re not digitally sort of savvy you might not be even aware that it’s happening, or what you could potentially do to stop it, or that it’s actually a form of abuse.

Gemma: Tony, it was late last year that the Attorney General of Victoria asked the VLRC to review Victorian stalking laws. So, if we already have stalking laws, what are the problems with the current situation, and does the law need to change?

Tony: I think the major problem that the enquiry is looking at is that women are not properly protected by the current law. The enquiry arose by the killing of Celeste Manno, allegedly by a man who stalked her. That case is currently before the courts so we can’t say much about the details of the case. What it means is that in the enquiry we’re looking at the terms of the laws, and the laws in this case are really in two areas. One is a criminal offence of stalking, and the other where stalking comes up is in the personal safety intervention order area, because stalking is one of the grounds on which an intervention order can be obtained. So, we’re looking at what the laws say, whether the wording of the laws is correct, whether it’s a bit too hard to understand. We’re looking at how well the law is understood, and that’s relevant because how the law is understood, and if can be easily understood, will influence the way police charge people. If it’s hard to understand then police will have difficulty in charging people. The stalking law relies on a concept of ‘course of conduct’ which means, as was referred to earlier, it means the conduct must be repeated to be stalking. And whether conduct is repeated might not be all that easy to understand in the practical circumstances of policing.

Gemma: So, at the moment in the law, is that very clearly stated that repeated conduct is stalking?

Tony: Conduct has to be a course of conduct to be stalking. So, it’s a question of what does that mean, what is a course of conduct. So, say there are two incidents that are only 10 minutes apart, two text messages, it that a course of conduct, or does it have to be 10 messages over three days or five days? There is a little bit of ambiguity which is something we need to explore. As I say,whether it’s clear or not will depend on how the police interpret it and how they will charge offences. It also influences how people understand what is stalking. So, very commonly people don’t, in the general public, consider that a criminal offence has been committed if there are innocent appearing actions like ‘Oh well, he sent me flowers and then he sent me a text’ well, that was very nice, but in fact those sorts of innocent activities might be the beginnings of a course of conduct with flowers into a criminal offence.

Gemma: Is one of the challenges also decide who poses the most serious risk?

Tony: Yes, well this is one of those questions that arise in considering how well the law is applied. Because as soon as conduct is reported to police and then as it goes through the legal system whether it results in a personal safety intervention order or a criminal charge, the authorities are then in possession of facts which they need to use to assess whether the conduct will proceed, escalate, and become for instance a serious risk of physical harm, or even in some cases, of homicide. At the moment in the family violence area, the police have tools to allow them to assess the chance that the complaint of conduct might end up in further physical violence or serious injury. And dependent on how they rank the risk will depend on the sort of steps they take to address that risk. No such system exists in relation to stalking that’s not in the family violence area, and one of the serious questions we are looking at is whether there should be some method by which the police can assess the risk, and indeed judges and magistrates who are addressing the question of bail prior to a trial might have to similarly look at how to deal with the chance that this conduct might continue, and might end up with very serious outcomes.

Marie: I think one of the other challenges for police especially but for a lot of organisations, is knowing whether or not it is stalking. It can be very difficult to identify it, especially if someone came to police complaining about an assault. Unless police ask some really detailed questions, they might not be aware that that assault forms part of a pattern that is stalking. The person who is complaining may not bring it up. Part of the problem is that victims themselves aren’t always aware of what stalking is, and that goes back to these stalking myths we were talking about before.

Gemma: There is so much there in terms of responding to family violence, is that because we know of a lot about family violence, there has been a lot of research into family violence and with stalking we’re at the beginning of that trajectory.

Marie: Yeah, I think that’s fair. We’re had a Royal Commission into family violence in Victoria, which has gone into that incredibly difficult problem into a lot of detail. With non-family violence stalking we really are as you say Gemma at the beginning of understanding it and responding to it. That’s why our inquiry is so important.

Nick: Tony, In Victoria we have personal safety intervention orders, which are meant to keep people safe from people who harass them, but are they actually an effectual protection people against stalkers? What are the problems with PSIO’s?

[Tony] One of the major tools to deal with stalking conduct is the personal safety intervention orders system, and those invention orders are available for a vast array of conduct, well beyond just stalking. What that means is that, at the moment the law about intervention orders covers stalking conduct, but also disputes between neighbours, which on view are just minor, even trivial, and the police need to make a judgement about separating stalking firstly, so that’s the problem Marie just referred to, about identifying what is stalking conduct. But it also means they need to separate out from stalking conduct other sorts of conduct that would attract an intervention order but which is not of such a serious nature.

Gemma: The VLRC are also looking at whether electronic monitoring tools such as ankle bracelets should be used for people who commit stalking and are considered at risk of reoffending. From what I understand at the moment is that electronic monitoring is only used in Victoria for people who have been convicted of a serious sexual or violent offence. Marie, what does your research tell you so far about the use of electronic monitoring tools to reduce reoffending?

Marie: Electronic monitoring is not a very common tool that’s used in the justice system. It’s sometimes used for serious sex offenders and some others, but it’s not a common device that we use to manage people. Some states are trialling it for high-risk family violence offenders, but the data on those trials not yet available. So, I guess for our enquiry, we are trying to do the best research we can on very limited information. What we have heard is that electronic monitoring can have its pros and cons, it can be really useful for a small number of high-risk offenders, it can be useful for knowing where someone has been, but it’s not infallible in stopping someone from doing something that they shouldn’t. So, in that sense it can potentially give a false sense of safety.  The other thing to bear in mind with electronic monitoring it can make offenders’ mental health worse, having an ankle bracelet, because they can’t engage in society and they find it quite stigmatising, this can be a problem because if offenders feel they can’t reintegrate into society it can make it more likely that they engage in stalking.

Gemma: Yes, I was going to say you don’t want the ankle bracelet to exacerbate the potential reoffending.

Marie: That’s right Gemma, it’s hard for us with very limited amounts of research in this area to know what to recommend, which is why we are seeking feedback through our consultation paper.

Gemma: Just back on electronic monitoring, is also one of the issues in terms of resources, who would monitor the people being monitored, if you had lots of people being monitored would that affect the ability for people to be monitored effectively?

Marie: That’s right Gemma, in order for people to be monitored effectively, someone needs to watch a screen with lots of dots on it to make sure that people are doing the right thing. If you have too many dots, that can become problematic if I can put it that way. It is one of those tools that can be very useful in a small number of circumstances, if it’s made more widely available it can potentially become more unreliable.

Nick: So, Tony what are you hoping that this inquiry into stalking will achieve?

Tony: I’m hoping what the inquiry will achieve is that it will made society safer for women. That will need some recommendations from the Commission about ensuring that the laws capture the conduct which is intended. so that means looking at how the law is worded. I hope that it will encourage that large group of people who experience stalking and don’t presently report it, to do so. I hope also that it will make suggestions to equip the police and courts with ways to identify stalking conduct and assess the risk of escalation in that conduct, and if such tools then become available, I expect the enquiry will be able to suggest innovative ways to address that escalation, by for insistence electronic monitoring or other new ways of looking at preventing a problem.

Gemma: We know that this is a much wider problem that is generally known, and many people may not know what to do if they are being stalked. If someone is being stalked or is experiencing behaviour that they think might be stalking, Marie, what can they do about it?

Marie: I’d like to say to people, if you feel like you’re a victim of stalking or you might be a victim, it is important that you reach out for help. Sometimes it can be hard to know if something is stalking so, if someone is just being overly friendly or you notice they seem to be wherever you are. What I would say is that if your hackles go up or you don’t feel right or get that yukky feeling, trust your instincts and reach out for help. The police are a great source of support, they can investigate the crime of stalking or apply for an intervention order on your behave. The other place that’s really helpful to reach out for support is the Victims of Crime helpline in Victoria, this is a free service that provides advice to support victims of crime, including victims of stalking. So, their number is 1800 819 817 and help is available from 11am until 11pm every day. So that’s 1800 819 817. If you happen to be listening from interstate, go to our website and we have helplines available for other states and territories.  

Gemma: And what stage are we up to in this enquiry?

Marie: So we’ve released a consultation paper and also a survey for victim survivors of stalking, we’re hoping that we’ll receive a lot of submissions and survey responses to inform us. We’ve also been consulting with key stakeholders, including people who have experienced stalking so we can receive their input as experts in their own experience. We’ve had a lot of responses to our survey as I said already and we’re hoping that will increase.

Gemma: Michelle, as a researcher on the project, what are some of those things emerging from those stories that people have written in about? Have they mentioned the impact of stalking on their lives?

Michelle: I will just read some of their responses just so we can get an understanding of the impact that stalking has on people. One person has said in our survey: “Stalking is a harmful invasion of personal spaces that leaves you constantly fearful of whether there will be an escalation.” Another submitter said “I can’t enjoy being in my own home without being constantly monitored, I’m hyper-vigilant and I have a diagnosis of PTSD and I have a fear of authority”. Also, on a really positive note, people are giving us messages of what might be the answers and what has worked for them. So, a number of people have been reaching out to tell us what people can do. Someone has said to us “Take stalking seriously, reach out even if first attempts are unsuccessful”. Another person has said “I really wish that stalking was talked about more on social media and in schools, so everyone could be educated on what you need to do and where you can go for help”.

Nick: So this is actually the first enquiry into stalking laws in Australia. Marie, how can people get involved and have their say?

Marie: Making a submission is a great way to get involved or contributing to our survey of victim Survivors. Details for both of those are available on our website which I’ll repeat www.lawreform.vic.gov.au

Gemma: That’s all we’ve got time for. You can have your say on stalking by going on to our website, the Victorian Law Reform Commission, and check out the stalking page. Submission close on the 17th August. Join us again next time for more ‘Old Law, New Law’.

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