Anti-stalking legislation was first introduced in 1990 in California. Since then, most English speaking jurisdictions have introduced some form of legislation prohibiting stalking behaviour, either using the word stalking or the word harassment to describe the behaviour. Some non-English speaking countries, particularly in Europe, have also introduced anti-stalking legislation more recently, or are considering introducing such legislation in the near future. If you’re unsure of whether or the jurisdiction in which you live or work has stalking legislation in place, see our list of international anti-stalking laws or contact your local legislature or police force to ask about the presence of stalking or harassment laws.
Even where anti-stalking laws have not been enacted, stalking behaviour still occurs and can still cause great harm. If you are being stalked and there is no anti-stalking or anti-harassment law in your jurisdiction, other legislation, such as laws prohibiting threats, violence, and property damage may still be applicable in your situation. If you are concerned about intrusive behaviour, we strongly recommend you consult your local police force or a criminal lawyer for advice about your options. For professionals who work in jurisdictions without anti-stalking laws, individuals engaging in stalking still present for assistance. Being able to recognise stalking, understanding the risks inherent in this type of behaviour, and knowing what you can do to help the stalker or victim manage it effectively, is essential to good practice.
Elements of anti-stalking legislation
Anti-stalking laws share the broad common purpose of prohibiting repeated unwanted forms of contact and communication that are creating fear in the recipient. A primary reason for many of the early anti-stalking laws was to help prevent violence, and often legislation in a particular jurisdiction was introduced following a high profile murder or assault associated with stalking, or with pressure from groups lobbying against domestic violence. As the specific reasons for introducing anti-stalking legislation were different in each jurisdiction, the resulting laws also differ widely depending on the jurisdiction. As such there is no one legal definition of stalking, and no one penalty. In many countries stalking continues to be framed only as a form of domestic violence, as can be seen in the descriptions of international legislation under the link to the right.
There was initially much debate about the value of anti-stalking laws and many believed that they were not necessary, or that they were too broad and infringed on individual rights. In some jurisdictions, this resulted in amendments to the laws to make them more specific. References for some articles containing criticisms of anti-stalking laws are listed at the bottom of this page. While stalking laws were initially contentious, since the mid-2000s the debate has lessened and more jurisdictions have enacted legislation prohibiting stalking behaviour. While each jurisdiction defines stalking slightly differently, 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. These are discussed in turn below.
Conduct requirements (behaviour):
For stalking to occur the stalker must engage in specific prohibited acts. All anti-stalking statutes define these acts in some way, although the methods of doing so vary. In most jurisdictions the primary characteristic of stalking behaviour is that it is a pattern rather than a one-off behaviour. Jurisdictions describe this differently; in some stalking is seen to have occurred when the offender has intruded on the victim ‘repeatedly’ or ‘on more than one occasion’, while others use phrases such as ‘a course of conduct’ or a ‘series of acts’ to capture the idea of a pattern of behaviour.
Some jurisdictions (e.g. California, the UK [excluding Scotland], Italy) leave the conduct requirement at this point without further defining the nature of the acts that constitute stalking. However, others (e.g. Michigan, most Australian jurisdictions, New Zealand) specifically state what kinds of behaviour are considered to be stalking if they are engaged in repeatedly. Typically, prohibited behaviours include following, loitering near the victim, contacting the victim by any means, keeping the victim under surveillance, interfering with the victim’s property, or leaving offensive materials. As technology has developed over time these types of anti-stalking laws have had to be amended to include using the internet or interfering with the victim’s computer as types of stalking behaviour.
Stalking laws are intentionally extremely broad so as not to limit their application. In many jurisdictions, behaviours that that are only minimally intrusive are labelled stalking and prosecuted as such. If you are a professional working with stalkers, you are likely to occasionally see clients who have made only one or two phone calls, or loitered near a house on one or two locations. It is important to remember that these individuals can still meet legal criteria for stalking and receive criminal sanctions, even if their behaviour may not present a high risk to the victim or others. As such, it is essential to be able to effectively communicate about what risks are present in stalking situations, and what characteristics make a stalker high, or low, risk.
The issue of the perpetrator’s intentions in the offence of stalking is one of the most controversial and difficult aspects of these laws. It is a general principle of criminal law that in order to be guilty of a crime, the perpetrator has to have either intended to commit the crime, or, if lacking intent, has been reckless to the possible consequences of their behaviour. In some offences, only general intent is required (e.g. the offender voluntarily or wilfully engaged in illegal actions), while in others specific intent is also required (e.g. in addition to their acts being voluntary, the offender must have had a specific intention to bring about a particular result, such as causing fear or apprehension in the victim). Most anti-stalking laws require either that the offender intended to harass or cause harm to the victim, or that they were reckless to the fact that their behaviour could have caused harm (i.e., they should have realised that what they were doing would cause harm).
Requiring that the offender actually intend to cause harm is clearly problematic in some cases of stalking. Some perpetrators have no intent to create fear or apprehension and are just using inept or misguided methods to try to establish a relationship with the victim. These stalkers may cause considerable fear in their victims and so should be subject to anti-stalking laws. Some jurisdictions have got around this problem by adopting a ‘minimum standard of intent’. In these jurisdictions there is no need to prove that the perpetrator intended to cause fear. Instead, if the behaviour was one that would cause a reasonable person to feel fear, it is only necessary that the perpetrator intended to commit the act that caused fear (e.g. intended to follow or make multiple telephone calls). In these jurisdictions, the victim’s perceptions, vulnerabilities and sensitivities become a defining element in establishing the offence, rather than the perpetrator’s intent. This makes stalking virtually unique in that it can be a victim-defined crime, vastly different to most other criminal offences.
Victim response requirements:
In most jurisdictions, the final requisite element of anti-stalking legislation is the reaction of the victim to the stalking behaviour. Because a stalking episode can be composed of relatively innocuous behaviours, legislators often required that the victim be aware of and perceive the behaviour as threatening or intimidating. This is usually addressed through both a subjective standard requiring that the victim experience fear or apprehension (i.e., the victim actually feels distress as a direct consequence of the stalking behaviour), and an objective standard requiring that the behaviour would be expected to cause fear or apprehension in a reasonable person.
The exceptions to this general requirement for a victim response are the various Australian and New Zealand anti-stalking laws. In these jurisdictions, the legislators made the decision that fear or harm should not be perquisites to establishing the offence. The Victorian Attorney-General noted in 2003 when amending the law to remove the victim response element, that “the intention on the part of the offender to cause fear…is the key factor that should make the behaviour criminal. The fact that a target of stalking is unaware or not easily frightened should not prevent prosecution of the offence” (McEwan et al., 2007).
Mullen, P.E., Pathé, M. & Purcell, R. (2009) Stalkers and Their Victims. Cambridge: Cambridge University Press.
McEwan, T.E., Mullen, P.E. & MacKenzie, R. (2007). Anti-stalking legislation in practice: Are we meeting community needs? Psychiatry, Psychology and Law, 14, 207-217.
Miller, N. (2001). Stalking laws and implementation practices: A national review for policymakers and practitioners. Final report submitted to the National Institute of Justice. Grant No. 97–WT–VX–0007, 2001, NCJ 197066.