Stalking: Interim Report (html)

4. How can police identify the risk of serious harm in stalking situations?

Overview

• A key concern in this inquiry is how police can identify risk of serious harm and/or outcomes in stalking situations at the earliest opportunity.

• This chapter discusses the purpose of risk assessment, in the context of stalking. Broadly, the purpose of risk assessment in the context of stalking is to:

– assist in identifying whether stalking has already occurred

– assess if existing non-criminal behaviour may escalate to actual stalking

– assist in prioritising limited investigative resources

– assess the degree or type of support or protection a victim may need

– be used for bail and sentencing purposes (including appropriate rehabilitation measures)

– assist in understanding the likelihood of stalking recidivism.

• This chapter considers the benefits and limitations of risk assessment tools.

• There was disagreement among stakeholders in consultations we held, and in submissions received, about whether or not a stalking–specific risk assessment tool should be developed for Victoria Police.

• We heard that there are two existing stalking–specific risk assessment and risk screening tools. Both have been subjected to some evaluation, with promising results.

• However, more research is needed about the nature, dynamics, and risk factors of stalking before any risk assessment tool should be used by Victoria Police.

Should a stalking–specific risk assessment tool be developed for Victoria Police?

4.1 This inquiry focusses on early intervention in stalking. However, it is a complex task to decide the most appropriate and effective way of providing early intervention.

4.2 Victoria Police submitted that it ‘is actively exploring a number of opportunities to enhance its risk identification and assessment capabilities’.[1]

4.3 For example, Victoria Police:

is currently considering a range of individual risk assessment tools and models, including tools and models used by other jurisdictions, designed to assist both general duties and specialist police to identify risk factors more easily and consistently.[2]

4.4 Victoria Police stated that:

by assessing the responses to a series of questions about particular behaviours, such tools would help our members to prioritise their immediate response and consider any ongoing risk mitigation strategies.[3]

4.5 In particular, Victoria Police noted:

that investment in tools to better identify patterns of behaviour indicative of escalation (or continuation) of an offender’s behaviour would provide useful support to police, victims and other agencies when considering risk, and any need for immediate interventions.[4]

4.6 However, as Forensicare submitted:

a stalking risk assessment instrument will only be useful if stalking can be routinely identified by responding agencies … Equally, risk assessment is only useful if cases identified as being at higher risk then go on to receive effective risk management.[5]

4.7 This chapter explores the benefits and limitations of various risk assessment tools, based on stakeholder submissions and consultations.

4.8 Research suggests risk to victim survivors of stalking encompasses three areas:

1. Whether the stalking will continue, or, if it has stopped, will recur; 2. Whether the victim will suffer significant psychological and/or social damage, which may include suicidal ideation or behaviour; 3. Whether the stalking will escalate to physical and/or sexual assault.[6]

4.9 As experts explained in our small group meeting on stalking and risk of serious harm and/or outcomes, ‘stalking involves a varied group of people and it is not possible to produce a one-size fits all approach’.[7]

4.10 Police come into contact with a broad range of stalking and stalking-like behaviour. They may be ‘dealing with vexatious litigants, neighbourhood disputes, or the large cohort of people with some form of mental health issue’, who all ‘require different approaches’.[8]

4.11 In terms of determining risk of serious harm and/or outcomes in stalking, there was support for the notion that ‘the [immediate] police response should be two-pronged’.[9] For example, first ‘deciding if a crime has occurred and what should be done, [and second] interventions to keep victims safe and to give them what they need’.[10]

4.12 In order to decide how to respond to a stalking situation, there was some support for the use of either:

• a stalking specific risk assessment tool, or

• a risk screening tool.

Actuarial risk assessment tools

4.13 Risk assessment tools based on statistical or actuarial risk factors were developed in the mid-1980s. In the criminal justice field, the developers of these tools code a range of possible risk factors associated usually with violent or sexual offending and then engage in a process of validating these factors against data obtained from groups of people that have committed such crimes.[11]

4.14 Such tools were originally developed to support professional judgment ‘in predicting and managing risky behaviour in a number of different contexts’, on the basis that the practice was considered more accurate, objective, and neutral than professional judgment alone.[12]

4.15 While the ‘social control of so called “risky populations” has always been a goal of criminal justice policy’, [13] predictive risk assessment tools have garnered unprecedented interest in recent years. Indeed, ‘the assessment of “risk” ‘is of such significance that it has been viewed as a core organising concept of the Western world’.[14]

4.16 Linked to this prism of risk, and risk aversion, through which ‘individuals increasingly live their lives … a risk management industry has emerged, which includes various modes of classification and categorisation [more] recently adopted in criminal justice spheres’.[15]

4.17 The use of risk assessment tools is based on the idea that ‘like other social problems, crime is … a calculable, avoidable, governable risk’.[16] This is despite the fact that generally, ‘risk-assessment tools and criteria pay little attention to violence’.[17]

4.18 Nevertheless, individuals who commit offences ‘are characterised as a risky population to be efficiently managed by the state, as well as by citizens and a host of non-state agencies’.[18]

4.19 Individuals who commit offences are routinely ‘categorised and classified according to levels of risk (such as high, medium, or low). Certain offender groups are perceived to be exceptionally risky, requiring special legislative control (such as sex offenders)’.[19]

4.20 Typically, the practice of risk assessment has ‘very much [been] the domain of psychologists and psychiatrists [who] attempt to assess, manage, control and treat “risk” within the individual’.[20] And risk assessment tools have generally been used in the context of post-sentencing, and more recently, preventive detention.[21]

4.21 However, ‘risk creep’ has now placed a duty on police to identify risk. Risk assessment tools are routinely used in many jurisdictions by police to inform decisions of arrest or other pre-trial measures.[22]

4.22 Despite the fact that ‘much of the 1990s discourse on risk was concerned with rationing resources towards the most risky, what has actually occurred … is an ever-increasing and ever-expanding risk agenda’.[23]

4.23 The practical reality is that this supposed ‘rationing mechanism has become a beast requiring ever more resources, [with] demand never satisfied’.[24]

4.24 In Victoria, risk assessment “tools” are used by many government agencies, but this term is used broadly and can encompass checklists and guidelines that may not have gone through a process of validation. They differ from the tools developed by mental health professionals that are designed to produce information for managing the risk of reoffending. The Police, for example, may use screening tools to help identify complex crimes and enable the assessment of behaviour in a structured, evidence-based way.[25]

4.25 Similarly, risk assessment instruments have been used in international jurisdictions in the context of stalking and have been considered by some to be ‘an effective way of improving police responses to crimes like stalking and [family violence] that require proactive, preventative policing’.[26]

4.26 In this inquiry, we heard from stakeholders that the risk assessment tools used in family violence may also be relevant in [or applicable to] the context of stalking.

4.27 In the family violence context, the multi-agency risk assessment and management (MARAM) framework was designed to support relevant services to identify, assess and manage family violence risk with the victim survivor.

4.28 We heard from the Law Institute of Victoria that:

the Family Violence MARAM Training, and the previous Common Risk Assessment Framework (CRAF) Training, has provided some relevant approaches and techniques that could be applied to stalking complaints. However, stalking can involve behaviour that is more unpredictable than family violence and is not generally tied to a significant event or action. Conduct that constitutes stalking … is not so readily identified by risk factors that are evident in family violence, including for example, pregnancy, recent birth, or relationship breakdown.[27]

4.29 Similarly, Forensicare submitted that ‘stalking of strangers and acquaintances is a substantially different phenomenon to stalking of former intimates, with different risk factors for violence and persistence, different risk management strategies, and quite different needs for multi-agency work’.[28] This is confirmed by a growing body of evidence.[29]

4.30 Experts told us that:

the tools and checklists that are used from terrorism to family violence have no demonstrated validity in stalking. If risk assessment tools are to be used, we need to be using validated risk assessment tools.[30]

4.31 Forensicare emphasised that it is:

essential that stalking is kept separate to family violence responses so that stalking situations that do not involve former intimates, or which involve male victims, receive an equivalent service response.[31]

Stalking–specific risk assessment tools

4.32 Expert stakeholders[32] referred to existing risk assessment tools designed to assist mental health professionals in identifying the risk of future stalking, such as the Stalking Risk Profile[33] (SRP) and the Guidelines for Stalking Assessment and Management[34] (SAM).

4.33 They also referred to tools that may be used to assist police decision-making about stalking behaviours such as the Stalking Assessment Indices[35] (SAI) and the Screening Assessment for Stalking and Harassment (SASH) tool.[36]

4.34 None of these tools is currently used by Victoria Police. However, the SASH tool was tested by the Netherlands National Police in 2016.[37] Following evaluation of SASH, in 2017 ‘a new work process for stalking cases [was] implemented across the Netherlands National Police [including] a new process for intake, changes to data systems, case management, and use of the SASH as part of screening and assessment’.[38]

4.35 Organisations with expertise in stalking highlighted these tools in their submissions. The Centre for Forensic Behavioural Science submitted that:

structured assessments for assessing the ranges of risks present in stalking situations exist and all have been subject to some level of validation. These assessment instruments range from a quick set of 10-16 questions that can be used to conduct an immediate threat assessment based on limited information (ideal for frontline settings such as police), to comprehensive structured professional judgement guidelines that require specialist knowledge and training (ideal for forensic mental health and specialist assessments and advice in the criminal justice system such as courts, corrections and policing).[39]

4.36 Evaluations of the SASH tool suggest it ‘can help officers to recognise, prioritise, and respond to stalking appropriately’.[40]

4.37 This study acknowledges that because tools such as the SRP and SAM ‘require a level of specialist knowledge’ they are unsuitable for ‘first responders to initial reports of stalking who have no specific expertise and limited time to make decisions about their immediate responses’.[41]

4.38 This was confirmed by experts who stated that ‘risk assessments are a very specialist area of practice and cannot be done by just any mental health professional’, let alone frontline police.[42]

4.39 Furthermore, one study suggests that ‘relying on individual risk factors in isolation [leads] to moderate rates of error’.[43] The study identified that combining risk factors resulted ‘in a more sophisticated understanding of stalking violence’.[44]

4.40 The study suggests that there are ‘many and varied pathways to violence’, which means that ‘even the most well-established risk factors have moderate rates of error when considered in isolation’.[45] There is ‘strong evidence for cumulative risk, whereby the more risk factors that accrue, the greater the likelihood of violence’.[46]

4.41 Risk factors that have been associated with the likelihood of violence are:

• the person stalking has a history of violence

• explicit threats have been made

• situational or disinhibiting factors escalate the situation, such as substance abuse.[47]

4.42 Even stalking situations where there are few established risk factors ‘may still escalate to violence in the context of certain situational stressors’.[48]

4.43 Risk assessment tools need careful evaluation in relation to stalking outside of the context of family violence and usually require specialised knowledge. Therefore it would be premature to recommend the use of specific risk assessment tools by the police.

4.44 Despite the illusion of objectivity and the promise of certainty, research highlights the inherent difficulties in attempting to predict risk.[49]

4.45 We also heard from experts that ‘there are ethical issues raised in relation to risk assessment’.[50]

The ethical concerns of risk assessment

4.46 We were told that it is important to balance individual rights with public protection. The former may be undermined by the use of risk assessment tools.

4.47 Liberty Victoria submitted that ‘the assessment of risk of future harm based on past behaviour is notoriously problematic’.[51] This is supported by the literature outlining the limitations of the use of risk assessment tools for predictive purposes rather than treatment in a clinical environment.[52]

4.48 The practice of risk assessment has also been strongly criticised in case law. Liberty Victoria pointed out that ‘the Human Rights Committee of the United Nations in Fardon v Australia and Tillman v Australia criticised the capacity for psychiatric experts to properly predict dangerousness’.[53]

4.49 Predictive risk assessment was similarly criticised in Director of Public Prosecutions [WA] v Samson, in which Justice McKechnie remarked: ‘There has been a growth in risk assessment calculators purporting to be tools with which specialist psychiatrists can make more accurate predictions of risk … The efficacy of some of these tools remains controversial.’[54]

4.50 Ethical concerns arise due to the low base rates (the naturally occurring frequency of a phenomenon in a population) associated with the crime of stalking, which make it impossible to accurately measure risk factors or apply group aggregate data at the individual level.[55]

4.51 This has also been criticised in case law. Justice Barr in the Supreme Court of the Northern Territory remarked:

[Practitioners] have very limited ability to predict the future behaviour of any individual, because the science of behaviour prediction is weak. This weakness is because the base rates of serious adverse events are low, and those events are not so much due to the effect of enduring traits as they are the result of circumstances which arise, and which are difficult or impossible to predict.[56]

4.52 There are specific ethical concerns of risk assessment relating to gender and race. This is because risk assessment involves applying group aggregate data to individuals. This data is based on a predominantly white, cis-gender, heterosexual, often institutionalised, male population.[57]

4.53 According to research, such data ‘inescapably mirrors social inequality, and [is extracted by] processes that reinforce and introduce new biases to the model, thereby recreating disadvantage’.[58]

4.54 Poor accuracy in risk assessment tools is ‘especially common in minority ethnic groups’, who are frequently incorrectly classified as ‘high risk’ of offending.[59] It has been suggested that attempting to predict future offending through the use of risk assessment tools may criminalise profiled populations. [60]

4.55 This disproportionately affects racialised communities, as well as individuals who experience issues such as substance abuse, poverty or mental illness or personality disorders.

4.56 One study suggests that ‘prediction-oriented notions of risk can act as a “self-fulfilling prophecy” that justifies and widens the net of social control over marginalised populations’.[61]

4.57 In this way, Aboriginal youth may be over-scored on risk assessment tools, and such tools ‘fail to adequately address the broader socio-cultural context of Aboriginal peoples and their unique issues’.[62] This compromises the legitimacy of risk assessment practices.

4.58 These ethical issues were reflected in several submissions. Liberty Victoria acknowledged ‘the difficulty associated with calculating risk of future harm and escalation with regard to stalking behaviour’.[63] It noted that:

actuarial risk assessment tools have been developed and tested on predominantly non-Indigenous populations and can be biased against Indigenous and culturally and linguistically diverse communities meaning Aboriginal people are more likely to be classified as high-risk than non-Aboriginal people, which limits the utility of actual risk assessment tools in accurately reflecting risk. As such, use of actuarial risk assessment tools should be approached with caution.[64]

4.59 We were also told by experts that for Aboriginal and Torres Strait Islander communities ‘some risk factors will get over-endorsed, such as substance abuse issues, or socioeconomic issues, because of systemic inequalities’ connected to historical and ongoing colonial violence.[65]

4.60 Judges have raised specific concerns about the use of risk assessment instruments in the context of Indigenous accused persons. Justice Lyons remarked, ‘risk assessment instruments may not be valid for Australian Indigenous communities’.[66]

4.61 Similarly, Justice Hasluck expressed ‘grave reservations as to whether [Indigenous people] can be easily fitted within the categories of appraisal presently allowed for by these assessment tools’.[67]

4.62 This has significant implications. As one expert explained, ‘there are already profound levels of mistrust of the police and fear of child removal and incarceration amongst Aboriginal and Torres Strait Islander women. Without the identifiable improvement of police responses and acknowledgement of victims’ experiences of harm, the issues are unlikely to improve’.[68]

4.63 Djirra, a state-wide Aboriginal community controlled organisation, raised concerns in relation to the potential acceleration of incarceration in the context of race and gender. Specifically, high (and increasing) numbers of Aboriginal women have been incorrectly identified by police as perpetrators of violence, when they are in fact the victim.[69]

4.64 Over-representation of Aboriginal people in the criminal justice system has also been acknowledged in the courts in the context of the use of risk assessment tools.[70]

4.65 Concerns were also raised in terms of due process rights. Liberty Victoria noted ‘that police and Courts responding to allegations [of stalking] should be wary of inverting the presumption of innocence by making assessments of risk based on assertions that have not yet been proven’.[71]

4.66 It was further asserted that ‘any expansion of the use of risk tools to curtail particular rights, such as the right to privacy and the right to a fair hearing, should be approached cautiously’.[72]

4.67 Liberty Victoria recognised the desirability of seeking to ‘ascertain whether the risk of serious harm following stalking behaviour can be accurately identified sufficiently to enable an alternative model for dealing with cases where stalking behaviour escalates severely and irreparably’.[73] However, it expressed concern about ‘any proposal [which may] erode people’s right to privacy, especially where current methods of assessing future harm are notoriously unreliable and can be racially and socially biased’.[74]

4.68 In light of these concerns ‘about potential breaches of human rights and the imperfect nature of risk assessment techniques’,[75] the Commission is of the view that the use of risk assessment tools to inform decisions of arrest or other criminal justice interventions where liberty is stake cannot be justified in the context of stalking.

4.69 An accumulating body of evidence suggests risk assessment tools are ‘at odds with the interests of the assessed individual’,[76] and only ethical where there is a therapeutic benefit,[77] or where ‘it may provide the evidence necessary to secure an end to detention’.[78] Scholars have suggested practitioners should be discouraged ‘from using them in a manner that is not legally and ethically defensible’.[79]

4.70 However, there is promising research into what factors may give rise to stalking recidivism, based on the clinical files of 70 people who had engaged in stalking behaviour in the Netherlands.[80] Work is underway to develop and evaluate items to measure stalking behaviour.[81]

4.71 Nevertheless, risk assessment tools or instruments take time to develop, and must be carefully developed, to avoid the criticisms set out in this chapter.

4.72 We now turn to the stalking–specific screening tool which was developed ‘to meet the needs’ of frontline police, given the acknowledged unsuitability of risk assessment tools for this group.[82]

The benefits of a risk screening tool

4.73 Risk assessment tools are different to risk screening tools. A risk assessment tool is designed for assessing risks and guiding risk management in a clinical setting. A risk screening tool is designed for the use of frontline police. It is intended to ‘help police assess a stalking case based on the information provided in the first report … [and to] help [police] who are not specialised in making risk assessments to screen and prioritise stalking cases’.[83]

4.74 Victoria Police submitted that ‘ultimately, an accurate point-in-time assessment is needed to inform specific decisions made by a court or another agency’.[84]

4.75 Studies surveying police evaluations of screening tools have suggested that such tools are viewed by police as ‘offering a layer of protection and “professional risk management” that insulates practitioners and provides them with more defensible decision making’.[85]

4.76 A specific screening tool for stalking already exists and was originally developed by Australian researchers Troy McEwan, Susanne Strand, Rachel MacKenzie and David James in 2010.[86] The team further revised the tool in 2015,[87] and it was evaluated and implemented for use by Netherlands National Police from 2017. The Screening Assessment for Stalking and Harassment (SASH) is a brief, evidence-based triage assessment tool that can be used to inform immediate decision making by frontline police in cases of stalking.[88]

4.77 The SASH tool, for use in the non-family violence stalking context, incorporates at least 13 questions ‘based on information usually available at first presentation of a stalking complaint to frontline agencies’.[89] The questions cover:

• threats/intimidation/aggression

• unauthorised entry

• property damage/theft

• breaching legal boundaries

• escalation

• last-resort thinking

• unavoidable contact

• previous stalking/harassment

• previous violence

• mental health problems

• problematic substance use

• significant loss.

4.78 The objective of the SASH tool is to enable initial exploration of the stalking report ‘with a view to informing subsequent decision-making’.[90]

4.79 Forensicare submitted that the SASH tool assists frontline police to screen and prioritise cases. Police can decide, based on the information provided in the initial report, whether immediate action is required to ensure victim safety. It also helps them decide whether the case requires further, more detailed, clinical risk assessment to be conducted by external agencies. This guides the management of situations where there is a high level of concern.[91]

4.80 The tool requires training for effective use ‘to ensure that item scores [relating to the stalking behaviour, characteristics of the perpetrator’s history and the victim’s situation] are correctly translated into the appropriate level of concern’. It is crucial that police:

are able to recognise stalking when it is reported, have a basic understanding of the associated risks, and can identify when they should implement immediate protective actions and ask for further comprehensive assessment.[92]

4.81 Experts told us that:

risk assessment is possible [but it] will never be perfectly accurate. Screening, on the other hand, can be done with a modicum of accuracy, but it does require people to understand the behaviour they are dealing with … This is why SASH works, because it begins by trying to understand what is going on, and the risk factors flow on from that. Because this is a very specialised field of expertise, the best approach is having well-trained police using a screening process. This could then be supplemented with a more clinical approach for those that are deemed to pose a higher risk.[93]

4.82 Research evaluating the SASH has concluded that the tool provides holistic yet individualistic assessments to aid interventions and service delivery.[94]

4.83 The research claims that SASH provides a way of effectively identifying risk of harm, allocating scarce police resources and more accurately targeting interventions.[95]

4.84 There has been minimal evaluation of the SASH tool. But the evaluation has produced encouraging results, and SASH is used by police in the Netherlands.[96]

4.85 In contrast to risk assessment tools which focus on the risk of future offending, the core benefit of the SASH tool is that it allows police to focus on patterns of behaviour rather than discrete incidents, and to respond at the earliest opportunity for intervention. This is important in stalking where a course of conduct needs to be proven.

4.86 SASH provides guidance to ensure police attend to the wider surrounding circumstances ‘that have been associated with negative outcomes for victim/survivors’ and use this information to inform their decision-making.[97]

4.87 However, on balance, the screening of ‘risk’ remains controversial and fraught with a number of problems.

The limitations of risk screening: reducing police discretion

4.88 One study indicates that screening tools can diminish police discretion, leaving little room for police input or judgment.[98]

4.89 A study surveying police on the use of risk assessment and screening tools revealed that ‘respondents raised concern about relying too much on [risk tools] and other classification schemes rather than their own judgement about who should be managed and how’.[99]

4.90 A key complaint among respondents was that such tools restrain ‘police action yet still holds them accountable for it’.[100]

4.91 Predicting or screening either the risk of future offending or the risk of serious harm and/or outcomes, ‘is precarious, nuanced, and difficult to measure’.[101] There are ‘no short cuts to assessing risk of any kind’.[102]

4.92 The information derived from risk screening tools ‘constitutes only “a piece of the pie”’. It is often considered by police to be a starting point, which is then supplemented by their own professional assessment.[103]

4.93 This was reflected by experts in our small group meeting on the risk of serious harm and/or outcomes in stalking. One stakeholder explained that ‘the important first step of recognising whether something is stalking behaviour or not … can be done by police without going through a formal risk assessment’.[104]

4.94 Indeed, it was emphasised that the starting point for police ‘is to first identify whether stalking is occurring, let alone whether it is escalating’.[105]

4.95 There was a level of disagreement among the experts we consulted as to how the police should identify the risk of serious harm and/or outcomes. Some advocated for the use of a risk screening tool, while others were opposed.[106]

4.96 However, even proponents of a risk screening tool conceded that while ‘assessing risk in stalking is possible … it can [only] be done by police in particular circumstances’ and that ‘most importantly, the risk assessment [would need] to be preceded by proper identification of stalking, which is the bigger challenge’.[107]

4.97 The use of risk assessment or risk screening tools, in this way, would need ‘to be managed by a proper system … that can identify cases of concern, and then it should be a relatively small group of people conducting the actual risk assessment. There needs to be a proper system for managing cases at different levels of risk with appropriately trained people’.[108]

4.98 We were told that identifying the level of risk in a stalking situation may more appropriately be a matter for ‘the magistrate [to] make a decision about’ if a PSIO or criminal charges are pursued.[109]

4.99 As one expert explained, ‘I think magistrates are recognising the need for specialists to conduct risk assessments. I have been receiving more and more reports from magistrates who are specifically requesting that the risk assessment is done by a specialist’.[110]

4.100 The criticisms outlined in this interim report are not to suggest that evidence-based risk assessment or screening should be abandoned. However, there needs to be further research conducted on developing and evaluating risk assessment and screening tools for stalking outside of the context of family violence.

4.101 The task is therefore to develop guidance that uses, rather than reduces, police discretion, and which does not require police to perform a role that is more properly the domain of appropriately trained clinicians.[111]

4.102 We outlined the need for such guidance in Chapter 3. The VLRC recommends that such an approach should focus on police accountability and provide a clear, logical framework for police to use. It should enable police to identify stalking, identify the risk of serious harm and/or outcomes to the community, and the need for services.

4.103 Serious consequences could flow from risk assessments and risk screening, which as Liberty Victoria submitted can infringe civil liberties.[112] However, serious consequences can and have been the result of police not responding appropriately to stalking. Therefore Victoria Police must ensure a timely and effective response to victim survivors of stalking, whilst balancing the need to ensure the rights of those alleged to be engaging in stalking behaviour are observed.

4.104 The VLRC is of the view that further research to understand the risk factors of stalking is required before such risk tools can be used by Victoria Police in the context of stalking.

4.105 The VLRC acknowledges there was some support in submissions for a risk assessment framework. However the support was generally directed towards providing police guidance to ‘better identify the course of conduct’,[113] and the ‘pattern of behaviour’,[114] to ‘manage the risk of serious harm in the stalking context’.[115]

4.106 Further evaluation of risk assessment and risk screening tools is necessary to validate their use by frontline police in Victoria in the context of stalking.[116] This was acknowledged by the Centre for Forensic Behavioural Science, which co-authored the SASH risk screening tool.[117]

4.107 The VLRC recognises that ‘understanding of risk comes at a cost, namely time and resources’.[118]

4.108 However, ‘adequately understanding risk and formulating strategies for intervention cannot at this stage be conducted using a simple checklist, rather it must take place with careful consideration of characteristics and relationship dynamics at the individual level’.[119]

4.109 There are various forms of legitimate knowledge about risk, other than those based merely upon risk assessment. A starting point is for police to ask questions that may elicit a wider context than afforded by risk assessment.


  1. Submission 115 (Victoria Police).

  2. Ibid.

  3. Ibid.

  4. Ibid.

  5. Submission 100 (Forensicare).

  6. Paul E Mullen et al, ‘Assessing and Managing the Risks in the Stalking Situation’ (2006) 34(4) Journal of the American Academy of Psychiatry and the Law Online 439, 440.

  7. Consultation 7 (Small Group Meeting on stalking and risk of serious harm and or outcomes).

  8. Ibid.

  9. Ibid.

  10. Ibid.

  11. Bernadette McSherry, ‘Risk Assessment, Predictive Algorithms and Preventive Justice’ in John Pratt and Jordan Anderson (eds), Criminal Justice, Risk and the Revolt Against Uncertainty (Palgrave Macmillan, 2020).

  12. Nicola S Gray, Judith M Laing and Lesley Noaks, Criminal Justice, Mental Health and the Politics of Risk (Taylor & Francis Group, 2001) 5.

  13. Ibid 71.

  14. Nicola S Gray, Judith M Laing and Lesley Noaks, Criminal Justice, Mental Health and the Politics of Risk (Taylor & Francis Group, 2001); Bernadette McSherry, Risk Assessment by Mental Health Professionals and the Prevention of Future Violent Behaviour (Report, 20 July 2004) 8 <https://www.aic.gov.au/publications/tandi/tandi281>; Nikolas Rose, ‘Governing Risky Individuals: The Role of Psychiatry in New Regimes of Control’ (1998) 5(2) Psychiatry, Psychology and Law 177.

  15. Nicola S Gray, Judith M Laing and Lesley Noaks, Criminal Justice, Mental Health and the Politics of Risk (Taylor & Francis Group, 2001) 5.

  16. Kelly Hannah-Moffat, ‘Criminogenic Needs and the Transformative Risk Subject: Hybridizations of Risk/Need in Penality’ (2005) 7(1) Punishment & Society 29, 30.

  17. Kelly Hannah-Moffat, Paula Maurutto and Sarah Turnbull, ‘Negotiated Risk—Actuarial Illusions and Discretion in Probation’ (2009) 24(3) Canadian Journal of Law and Society 391, 402–403.

  18. Kelly Hannah-Moffat, ‘Criminogenic Needs and the Transformative Risk Subject: Hybridizations of Risk/Need in Penality’ (2005) 7(1) Punishment & Society 29, 30.

  19. Ibid.

  20. Nicola S Gray, Judith M Laing and Lesley Noaks, Criminal Justice, Mental Health and the Politics of Risk (Taylor & Francis Group, 2001) 6.

  21. Bernadette McSherry, ‘Risk Assessment, Predictive Algorithms and Preventive Justice’ in John Pratt and Jordan Anderson (eds), Criminal Justice, Risk and the Revolt Against Uncertainty (Palgrave Macmillan, 2020).

  22. Nicola S Gray, Judith M Laing and Lesley Noaks, Criminal Justice, Mental Health and the Politics of Risk (Taylor & Francis Group, 2001); Melissa Hamilton, ‘The Sexist Algorithm’ (2019) 37(2) Behavioral Sciences & the Law 145.

  23. Hazel Kemshall, ‘A Critical Review of Risk Assessment Policy and Practice since the 1990s, and the Contribution of Risk Practice to Contemporary Rehabilitation of Offenders’ in The Routledge Companion to Rehabilitative Work in Criminal Justice (Taylor & Francis Group, 2019) 227.

  24. Ibid.

  25. Benjamin Spivak et al, ‘Implementing Evidence-Based Practice in Policing Family Violence:The Reliability, Validity and Feasibility of a Risk Assessment Instrument for Prioritising Police Response’ (2021) 31(4) Policing and Society 483.

  26. Kirsten Hehemann et al, ‘The Reliability and Predictive Validity of the Screening Assessment for Stalking and Harassment (SASH)’ (2017) 4(3) Journal of Threat Assessment 164, 166.

  27. Submission 98 (Law Institute of Victoria).

  28. Submission 100 (Forensicare).

  29. David V James and Lorraine P Sheridan, ‘What Works in Risk Assessment in Stalking Cases’ in The Wiley Handbook of What Works in Violence Risk Management (John Wiley & Sons, 2020) 527; Troy E McEwan et al, ‘Risk Factors for Stalking Violence, Persistence, and Recurrence’ (2017) 28(1) Journal of Forensic Psychiatry & Psychology 38.

  30. Consultation 7 (Small Group Meeting on stalking and risk of serious harm and or outcomes).

  31. Submission 100 (Forensicare).

  32. Consultation 7 (Small Group Meeting on stalking and risk of serious harm and or outcomes).

  33. Rachel D MacKenzie et al, Stalking Risk Profile: Guidelines for Assessing and Managing Stalkers (StalkInc and Centre for Forensic Behavioural Science, 2019).

  34. P Randall Kropp, Stephen D Hart and David Robert Lyon, Guidelines for Stalking Assessment and Management (SAM) (ProActive Resolutions Inc, 2008).

  35. Troy E McEwan et al, ‘Measuring Stalking—the Development and Evaluation of the Stalking Assessment Indices (SAI)’ (2020) July Psychiatry, Psychology and Law 1.

  36. Kirsten Hehemann et al, ‘The Reliability and Predictive Validity of the Screening Assessment for Stalking and Harassment (SASH)’ (2017) 4(3) Journal of Threat Assessment 164.

  37. Ibid 166.

  38. Ibid 175.

  39. Submission 32 (Centre for Forensic Behavioural Science).

  40. Kirsten Hehemann et al, ‘The Reliability and Predictive Validity of the Screening Assessment for Stalking and Harassment (SASH)’ (2017) 4(3) Journal of Threat Assessment 164, 164.

  41. Ibid 166.

  42. Consultation 7 (Small Group Meeting on stalking and risk of serious harm and or outcomes).

  43. Carleen M Thompson, Anna L Stewart and Susan M Dennison, ‘Using Dynamic Contextual Factors to Better Understand the Etiology and Escalation of Stalking Violence’ (2020) 47(1) Criminal Justice and Behavior 99, 114–115.

  44. Ibid.

  45. Ibid 117.

  46. Troy E McEwan et al, ‘Risk Factors for Stalking Violence, Persistence, and Recurrence’ (2017) 28(1) Journal of Forensic Psychiatry & Psychology 38; Carleen M Thompson, Anna L Stewart and Susan M Dennison, ‘Using Dynamic Contextual Factors to Better Understand the Etiology and Escalation of Stalking Violence’ (2020) 47(1) Criminal Justice and Behavior 99, 114–115.

  47. S Strand and TE McEwan, ‘Violence among Female Stalkers’ (2012) 42(3) Psychological Medicine 545; Carleen M Thompson, Anna L Stewart and Susan M Dennison, ‘Using Dynamic Contextual Factors to Better Understand the Etiology and Escalation of Stalking Violence’ (2020) 47(1) Criminal Justice and Behavior 99, 117.

  48. Carleen M Thompson, Anna L Stewart and Susan M Dennison, ‘Using Dynamic Contextual Factors to Better Understand the Etiology and Escalation of Stalking Violence’ (2020) 47(1) Criminal Justice and Behavior 99, 117–118.

  49. Kelly Hannah-Moffat, Paula Maurutto and Sarah Turnbull, ‘Negotiated Risk—Actuarial Illusions and Discretion in Probation’ (2009) 24(3) Canadian Journal of Law and Society 391.

  50. Consultation 7 (Small Group Meeting on stalking and risk of serious harm and or outcomes); Bernadette McSherry, Risk Assessment by Mental Health Professionals and the Prevention of Future Violent Behaviour (Report, 20 July 2004) 9 <https://www.aic.gov.au/publications/tandi/tandi281>.

  51. Submission 47 (Liberty Victoria).

  52. Bernadette McSherry, ‘Throwing Away the Key—the Ethics of Risk Assessment for Preventive Detention Schemes’ (2014) 21(5) Psychiatry, Psychology and Law 779; Paul E Mullen et al, ‘Assessing and Managing the Risks in the Stalking Situation’ (2006) 34(4) Journal of the American Academy of Psychiatry and the Law Online 439.

  53. Submission 47 (Liberty Victoria).

  54. DPP (WA) v Samson [2014] WASC 199, 51.

  55. Bernadette McSherry, ‘Risk Assessment, Predictive Algorithms and Preventive Justice’ in John Pratt and Jordan Anderson (eds), Criminal Justice, Risk and the Revolt Against Uncertainty (Palgrave Macmillan, 2020).

  56. A-G (NT) v JD (No 3) [2017] NTSC 48, 26.

  57. Kelly Hannah-Moffat, ‘The Uncertainties of Risk Assessment—Partiality, Transparency, and Just Decisions’ (2015) 27(4) Federal Sentencing Reporter 244.

  58. Fernando Ávila, Kelly Hannah-Moffat and Paula Maurutto, ‘The Seductiveness of Fairness: Is Machine Learning the Answer?—Algorithmic Fairness in Criminal Justice Systems’ in The Algorithmic Society (Routledge, 2020) 88.

  59. Thomas Douglas et al, ‘Risk Assessment Tools in Criminal Justice and Forensic Psychiatry: The Need for Better Data’ (2017) 42 European Psychiatry 134, 135.

  60. Chelsea Barabas et al, ‘Interventions over Predictions: Reframing the Ethical Debate for Actuarial Risk Assessment’ in Proceedings of Machine Learning Research (Conference Paper, Conference on Fairness, Accountability, and Transparency, 2018) 4.

  61. Submission 47 (Liberty Victoria).

  62. Kelly Hannah-Moffat, Paula Maurutto and Sarah Turnbull, ‘Negotiated Risk—Actuarial Illusions and Discretion in Probation’ (2009) 24(3) Canadian Journal of Law and Society 391, 404; Stephane M Shepherd and Cynthia Willis-Esqueda, ‘Indigenous Perspectives on Violence Risk Assessment: A Thematic Analysis’ (2018) 20(5) Punishment & Society 599.

  63. Submission 47 (Liberty Victoria).

  64. Ibid 5–6.

  65. Consultation 7 (Small Group Meeting on stalking and risk of serious harm and or outcomes).

  66. A-G (Qld) v Jacob [2015] QSC 273, 22.

  67. DPP (WA) v Mangolamara [2007] WASC 71, (2007) 169 A Crim R 379, 166.

  68. Consultation 7 (Small Group Meeting on stalking and risk of serious harm and or outcomes).

  69. Submission 41 (Djirra).

  70. DPP (WA) v GTR [2007] WASC 318.

  71. Submission 30 (Liberty Victoria).

  72. Ibid.

  73. Ibid.

  74. Ibid.

  75. Bernadette McSherry, Managing Fear: The Law and Ethics of Preventive Detention and Risk Assessment (Taylor & Francis Group, 2013) 209.

  76. Thomas Douglas et al, ‘Risk Assessment Tools in Criminal Justice and Forensic Psychiatry: The Need for Better Data’ (2017) 42 European Psychiatry 134, 134.

  77. Bernadette McSherry, Managing Fear: The Law and Ethics of Preventive Detention and Risk Assessment (Taylor & Francis Group, 2013).

  78. Thomas Douglas et al, ‘Risk Assessment Tools in Criminal Justice and Forensic Psychiatry: The Need for Better Data’ (2017) 42 European Psychiatry 134, 135.

  79. Alfred Allan et al, ‘Assessing the Risk of Australian Indigenous Sexual Offenders Reoffending: A Review of the Research Literature and Court Decisions’ (2019) 26(2) Psychiatry, Psychology and Law 274, 294.

  80. Troy E McEwan et al, ‘Risk Factors for Stalking Recidivism in a Dutch Community Forensic Mental Health Sample’ (2020) 19(2) International Journal of Forensic Mental Health 127.

  81. Troy E McEwan et al, ‘Measuring Stalking—the Development and Evaluation of the Stalking Assessment Indices (SAI)’ (2020) July Psychiatry, Psychology and Law 1.

  82. Kirsten Hehemann et al, ‘The Reliability and Predictive Validity of the Screening Assessment for Stalking and Harassment (SASH)’ (2017) 4(3) Journal of Threat Assessment 164, 166.

  83. Ibid.

  84. Submission 115 (Victoria Police).

  85. Kelly Hannah-Moffat, Paula Maurutto and Sarah Turnbull, ‘Negotiated Risk—Actuarial Illusions and Discretion in Probation’ (2009) 24(3) Canadian Journal of Law and Society 391, 394.

  86. Troy McEwan et al, Screening Assessment for Stalking and Harassment (SASH)—Guidelines for Application and Interpretation (StalkInc Pty Ltd, 2017).

  87. Ibid.

  88. Kirsten Hehemann et al, ‘The Reliability and Predictive Validity of the Screening Assessment for Stalking and Harassment (SASH)’ (2017) 4(3) Journal of Threat Assessment 164; Troy E McEwan et al, ‘Risk Factors for Stalking Violence, Persistence, and Recurrence’ (2017) 28(1) Journal of Forensic Psychiatry & Psychology 38; Lorraine Sheridan and Karl Roberts, ‘Key Questions to Consider in Stalking Cases’ (2011) 29(2) Behavioral Sciences & the Law 255.

  89. Kirsten Hehemann et al, ‘The Reliability and Predictive Validity of the Screening Assessment for Stalking and Harassment (SASH)’ (2017) 4(3) Journal of Threat Assessment 164.

  90. Ibid 166.

  91. Submission 100 (Forensicare).

  92. Kirsten Hehemann et al, ‘The Reliability and Predictive Validity of the Screening Assessment for Stalking and Harassment (SASH)’ (2017) 4(3) Journal of Threat Assessment 164, 175.

  93. Consultation 7 (Small Group Meeting on stalking and risk of serious harm and or outcomes).

  94. Kirsten Hehemann et al, ‘The Reliability and Predictive Validity of the Screening Assessment for Stalking and Harassment (SASH)’ (2017) 4(3) Journal of Threat Assessment 164.

  95. Ibid.

  96. Cleo Brandt and Bianca Voerman, ‘The Dutch Model: A New Approach to Policing Stalking’ in Psycho-Criminological Approaches to Stalking Behaviour—An International Perspective (Wiley, 2020) 22; Kirsten Hehemann et al, ‘The Reliability and Predictive Validity of the Screening Assessment for Stalking and Harassment (SASH)’ (2017) 4(3) Journal of Threat Assessment 164.

  97. Benjamin Spivak et al, ‘Implementing Evidence-Based Practice in Policing Family Violence:The Reliability, Validity and Feasibility of a Risk Assessment Instrument for Prioritising Police Response’ (2021) 31(4) Policing and Society 483, 4.

  98. James Hoggett, Kieran McCartan and Jack O’Sullivan, ‘Risk, Discretion, Accountability and Control—Police Perceptions of Sex Offender Risk Management Policy in England and Wales’ (2020) 20(4) Criminology & Criminal Justice 433.

  99. Ibid 446.

  100. Ibid.

  101. Kelly Hannah-Moffat, ‘A Conceptual Kaleidoscope: Contemplating “Dynamic Structural Risk” and an Uncoupling of Risk from Need’ (2016) 22(1–2) Psychology, Crime & Law 33, 35.

  102. Sally Kelty and Roberta Julian, Interfaces 2: Flowcharting the Interface between Forensic Science, Medicine and Law in Adult and Child Sexual Assault Investigations (Final Report, Australia New Zealand Policing Advisory Agency, 2016) 76, 10.

  103. James Hoggett, Kieran McCartan and Jack O’Sullivan, ‘Risk, Discretion, Accountability and Control—Police Perceptions of Sex Offender Risk Management Policy in England and Wales’ (2020) 20(4) Criminology & Criminal Justice 433, 405.

  104. Consultation 7 (Small Group Meeting on stalking and risk of serious harm and or outcomes).

  105. Ibid.

  106. Ibid.

  107. Ibid 3.

  108. Ibid.

  109. Ibid 15.

  110. Ibid 8.

  111. James Hoggett, Kieran McCartan and Jack O’Sullivan, ‘Risk, Discretion, Accountability and Control—Police Perceptions of Sex Offender Risk Management Policy in England and Wales’ (2020) 20(4) Criminology & Criminal Justice 433, 448.

  112. Submission 47 (Liberty Victoria).

  113. Submission 56 (Derryn Hinch’s Justice Party).

  114. Submission 97 (Federation of Community Legal Centres).

  115. Submission 56 (Derryn Hinch’s Justice Party).

  116. Daniel Shea, ‘Stalking Recidivism and Risk Assessment’ (PhD Thesis, Monash University, 2015).

  117. Consultation 1 (Centre for Forensic Behavioural Science).

  118. Benjamin Spivak et al, ‘Implementing Evidence-Based Practice in Policing Family Violence: The Reliability, Validity and Feasibility of a Risk Assessment Instrument for Prioritising Police Response’ (2021) 31(4) Policing and Society 483, 499.

  119. Ibid.