REPORT ON STALKING - Justice Home

1 REPORT ON STALKINGS outh African Law Reform Commission: Project 130 StalkingReport: November 2006iiStalkingTO MRS BS MABANDLA, MP, MINISTER FOR Justice AND constitutional DEVELOPMENTI am honoured to submit to you in terms of section 7(1) of the South African Law Reform Commission Act, 1973 (Act 19 of 1973 as amended), for your consideration, the Commission s REPORT on MokgoroChairperson: South African Law Reform Commission2006iiiSouth African Law Reform CommissionSOUTH AFRICAN LAW REFORM COMMISSIONThe South African Law Reform Commission was established by the South African Law Reform Commission Act, 1973 (Act 19 of 1973).The members of the Commission are Madam Justice Y Mokgoro (Chairperson) Madam Justice L Mailula (Vice-Chairperson) Advocate JJ Gauntlett SC Mr Justice CT Howie Professor IP Maithufi (full-time member) Ms ZK Seedat Mr Justice WL SeritiThe project leader responsible for the investigation is Ms ZK Seedat.

2 The researcher allocated to this project is Mrs DM Secretary is Mr MF Palumbo. The Commission s offices are situated on the 12th floor, Middestad Centre, corner of Andries and Schoeman Streets, Pretoria (formerly the Sanlam Centre).Correspondence should be addressed to:The Secretary South African Law Reform Commission Private Bag X668 PRETORIA 0001 Telephone: (012) 392-9540 Fax: (012) 320-0936E-mail: AFRICAN LAW REFORM COMMISSION (iii)CONTENTS (iv)LIST OF SOURCES (viii)LEGISLATION (xi)SUMMARY OF RECOMMENDATIONS (xiii)CHAPTER 1: INTRODUCTION 1 Background 2 The challenge of addressing STALKING within a multi-cultural society 2 Problem statement 3 General comment 4 Financing and costing 4 CHAPTER 2: DETERMINING A LEGAL REMEDY FOR STALKING 5 Introduction 6 Expanding the Domestic Violence Act to include non-domestic STALKING 7 Amending and adapting section 384 of the Criminal Procedure Act 7 Enactment of independent legislation criminalising STALKING 7 Proposals in discussion paper 108 7 Exposition of comment 8 Expanding the Domestic Violence Act to include non-domestic STALKING or enacting separate legislation mirroring the Domestic Violence Act 8 Amending and adapting section 384 of the Criminal Procedure Act 56 of 1955.

3 Binding over to keep the Peace 9 Existing civil and criminal law remedies 10 Enactment of specific legislation to address STALKING 13 Evaluation of comment and recommendation 14 Expanding the Domestic Violence Act to include non-domestic STALKING or enacting separate legislation mirroring the Domestic Violence Act 14 Amending and adapting section 384 of the Criminal Procedure Act 56 of 1955: Binding over to keep the Peace 15vContents Existing civil and criminal law remedies 17 Enactment of specific legislation to address STALKING 19 CHAPTER 3: TOWARDS LEGISLATIVE REFORM: ENACTMENT OF SPECIFIC LEGISLATION TO ADDRESS STALKING 21 Introduction 22 Defining STALKING 22 Overview 22 Proposals in Discussion Paper 108 22 Harassment and intimidation 24 Exposition of comment 24 Evaluation and recommendation 25 Repetition 27 Exposition of comment 27 Evaluation and recommendation 28 Intent 29 Exposition of comment 29 Evaluation and recommendation 31 Unwanted conduct 33 Exposition of comment 33 Evaluation and recommendation 33 Disruption 34 Exposition of comment 34 Evaluation and recommendation 34 Appropriate criminal penalty 34 Exposition of comment 34 Evaluation and recommendation 35 Methods employed by stalkers 35 Overview 35 Proposals in Discussion Paper 108 35 Exposition of comment 37

4 Evaluation and recommendation 39viStalkingCategorising stalkers 42 Overview 42 Proposals in Discussion Paper 108 42 Exposition of comment 43 Evaluation and recommendation 44 Arrest by peace officer without warrant 45 Proposals in Discussion Paper 108 45 Exposition of comment 45 Evaluation and recommendation 46 Application for a protection order on behalf of a victim of STALKING by a third person 47 Proposals in Discussion Paper 108 47 Exposition of comment 48 Evaluation and recommendation 48 Mental evaluation and treatment of stalkers 50 Proposals in Discussion Paper 108 50 Exposition of comment 51 Determination of mental illness or criminal responsibility 51 Court s powers in civil proceedings 52 Evaluation and recommendation 54 Protection order accompanied by a suspended warrant of arrest 55 Proposals in Discussion Paper 108 55 Exposition of comment 56 Evaluation and recommendation 57 Firearms and dangerous weapons 58 Proposals in Discussion Paper 108 58 Exposition of comment 60 Evaluation and recommendation 61No specific exclusion from prosecution 63 Proposals in Discussion Paper 108 63 Exposition of comment 63 Evaluation and recommendation 64viiBail 64 Proposals in Discussion Paper 108 64 Exposition of comment 64 Evaluation and recommendation 66 CHAPTER 4.

5 NON-LEGISLATIVE INTERVENTION 69 Proposals in Discussion Paper 108 70 Proactive intervention 70 Exposition of comment 70 Evaluation and recommendation 70 Specialized units 71 Exposition of comment 71 Evaluation and recommendation 72 Training 73 Exposition of comment 73 Evaluation and recommendation 73 ANNEXURES 75 Annexure A: Protection from Harassment Bill 76 Annexure B: List of Respondents: Issue Paper 84 Annexure C: List of Respondents: Discussion Paper 85 ContentsviiiStalkingList of SourcesBrewster National Inst. Of Justice , An Exploration of the Experiences and Needs of Former Intimate STALKING Victims (1997).British and Irish Legal Information Institute UK harassment law. Available at of Justice Assistance Regional Seminar Series on Implementing Antistalking Codes (1996) Blanche.

6 Stalkers 30 January 2005. Available at (accessed on 14 February 2006)Combrinck H & Skepu Z Bail in Sexual Assault Cases: Victims Experiences (2003). : Cases that started Online and were Pursued Offline. Available at (accessed on 10 December 2003). : legislation Canada. Available at (accessed on 10 December 2003). : Overview on Statutes or Laws Pertaining to Cyberstalking. Available at (accessed on 10 December 2003). : State Colorado Civil Code Available at (accessed on 29 April 2004). Cyberstalking and Harassment . Available at (accessed on 10 December 2003).Du Toit, et al, Commentary on the Criminal Procedure Act Juta & Co M STALKING : Crime of the 90s? (1995) 19 Criminal Law Journal Cyberstalking.

7 Volume 17, Issue 4 (2000). Available at (accessed on 10 December 2003).Home Office Research Study 210 The extent and nature or STALKING : findings from the 1998 British Crime Survey Home Office Research, development and Statistics Directorate October S STALKING in Queensland: From the Nineties to Y2K (1999) 11 Bond LR JMT Teleterrorisme, psigiatriese besering en die organiese aard van die misdaad aanranding (1998) Obiter Call R Online Harassment and Cyberstalking: Victim Access to Crisis, Referral and Support Services in Canada Concepts and Recommendations (2003) Victim Assistance Online Action Committee on Violence Against Women and Children Statistics Sheet: STALKING and Criminal Harassment . Available at (accessed on 10 December 2003).

8 IxList of SourcesMichael A. Zona , A Comparative Study of Erotomanic and Obsessional Subjects in a Forensic Sample (1993) 38 Sci. JRL South African Criminal Law and Procedure (Volume II) Common law crimes (third edition) Kenwyn: Juta et al Assessment of the Impact of STALKING Legislation Paper presented at the Restoration for Victims of Crime Conference convened by the Australian Institute of Criminology in conjunction with Victims Referral and Assistance Service and held in Melbourne, September Institute of Justice Research REPORT Domestic Violence, STALKING , and Antistalking Legislation An Annual REPORT to Congress under the Violence Against Women Act April South Wales Law Reform Commission Discussion Paper 45 Apprehended Violence Orders: Part 15A of the Crimes Act November Council for Abused Women STALKING Laws and Definitions.

9 Available at (accessed on 22 January 2004).Ogilvie E STALKING : Legislative, Policing and Prosecution Patterns in Australia Australian Institute of Criminology Research and Public Policy Series (2000).Shorter Oxford English Dictionary (2nd edition) Oxford University Press ,P., Artz,L. and Moult,K. 2001 Monitoring the Implementation of Domestic Violence Act: First REPORT . Institute of Criminology, University of Cape Town: South D N STALKING the Stalker: The judicial pursuit of a remedy in a multi-cultural society paper delivered during the Association of Law Reform Agencies of Eastern and Southern Africa (ALRAESA) Conference of 14 17 March W Cyberstalking: Obsessional pursuit and the digital criminal . Available at (accessed on 10 December 2003).

10 Reece and Holmes (1993) in Vito, and Holmes, (1994). Criminology: Theory Research and policy. Watsworth: Belmont Meloy J, The psychology of STALKING Behaviour in The Psychology of STALKING : Clinical and Forensic Perspectives 267, 276 ( Meloy ed., 1998) as cited in (Oct 200) par 9. Available at: & Boesse R Redefining Privacy in California? The Anti-Paparazzi Legislation. Available at (accessed on 12 February 2003).South African Law Commission Domestic Violence (Project 100) Discussion Paper 70 (1997).South African Law Commission Domestic Violence (Project 100) Research Paper April African Law Commission Domestic Violence (Project 100) Response by Project Committee on Domestic Violence to Minority REPORT Paper 505 (1998).