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Family Violence Initiative

CRIMINAL HARASSMENT:

A HANDBOOK FOR POLICE AND CROWN PROSECUTORS

INTRODUCTION

Criminal harassment, which includes “stalking,” is a crime. While many crimes are defined by conduct that results in a very clear outcome (for example, murder), criminal harassment generally consists of repeated conduct that is carried out over a period of time and that causes victims to reasonably fear for their safety but does not necessarily result in physical injury. It may be a precursor to subsequent violent acts.

1.1 Purpose of This Handbook

The purpose of this handbook is to provide police and Crown prosecutors with guidelines for the investigation and prosecution of criminal harassment cases and to promote an integrated criminal justice response to stalking. It is intended to be a starting point for police and Crowns. Police and Crowns are encouraged to adapt these guidelines to reflect the particular needs and circumstances of each jurisdiction and each case.

The Handbook was developed by a working group of federal/provincial/ territorial criminal justice officials in consultation with criminal justice professionals, and it was first published in 1999. These guidelines support a commitment by Federal/Provincial/Territorial Ministers Responsible for Justice to strengthen the criminal justice system’s response to criminal harassment. The development of these guidelines was prompted by the findings and recommendations of the 1996 Department of Justice Canada review of the criminal harassment provisions in the Criminal Code.

1.2 Legislative History of Criminal Harassment

Criminal harassment is not new, but recognition of it as a distinct criminal behaviour is recent. Before 1993, persons who engaged in stalking conduct might have been charged with one or more of the following offences: intimidation (section 423 of the Criminal Code); uttering threats (section 264.1); mischief (section 430); indecent or harassing phone calls (section 372); trespassing at night (section 177); and breach of recognizance (section 811).

On August 1, 1993, the Criminal Code was amended to create the new offence of criminal harassment. It was introduced as a specific response to violence against women, particularly to domestic violence against women. However, the offence is not restricted to domestic violence and applies equally to all victims of criminal harassment.

The relevant sections of the Criminal Code have since been amended twice: once, effective May 26, 1997, to make murder committed in the course of criminally harassing the victim a first degree murder offence, irrespective of whether it was planned and deliberate, and to make the commission of an offence of criminal harassment in the face of a protective court order an aggravating factor for sentencing purposes; and the second time, effective July 23, 2002, to double the maximum sentence for the offence of criminal harassment to 10 years’ imprisonment for an indictable offence.

1.3 What do we Know About Criminal Harassment in Canada?

The most current Statistics Canada police and court data relating to criminal harassment¹ reveal the following facts for 2002.

• In total, 9,080 criminal harassment incidents were reported to a sample of 123 police forces in Canada in 2002. This number accounts for slightly over 4% of all violent incidents reported to those police forces that year.
• Of those 9,080 incidents, 4 in 10 (45%) were cleared by charge and the complainant declined to lay charges in 1 in 6 (16%).
• Of the victims, 3 in 4 were female (76%).
• Female victims tended to be younger than male victims. Of the female victims, 4 in 10 (42%) were under 30 years of age, compared to 27% of male victims.
• Of the accused, 8 out of 10 were male (84%).
• Of the female victims, 1 in 3 (31%) was criminally harassed by a current or former intimate partner; slightly fewer female victims were harassed by an acquaintance or a friend (23% each).
 
• Of the male victims, 4 in 10 (39%) were criminally harassed by a casual acquaintance, while only 13% were stalked by a current or former intimate partner.
 
• Two thirds (66%) of all criminal harassment incidents occurred at the victim’s home.
• Although victims almost always suffered emotional harm, physical injury was recorded by the police in less than 2% of all cases.

From 1995 to 2001, the number of criminal harassment incidents reported to a sample of 179 police respondents increased by 40%, from 3,030 incidents in 1995 to 4,252 incidents in 2001.² Such an increase is not uncommon following the introduction of a new law. It is difficult to assess, however, whether the rise is due to an increase in the number of criminal harassment incidents, increased reporting by victims or a change in how police record such incidents.

1.4 Impact of Criminal Harassment on the Victim

The cumulative effect of harassing behaviour and actions causes victims to experience intimidation, as well as psychological and emotional distress. The psychological effect of stalking on victims can produce an intense and prolonged fear. This fear usually includes an increasing fear of the escalation of the frequency and nature of the conduct (for example, from non-violent to life-threatening) and is accompanied by a feeling of loss of control over the victim’s life.

Some common responses by victims to the trauma of being stalked include the following:

• self-reproach;
• a tendency to downplay the impact of the stalking;
• interpretation of the stalking as a “private matter”;
• a sense of betrayal and stigma;
• anxiety and fear, due to the unpredictability of the stalker’s conduct;
• feelings of being helpless and unable to control their lives;
• lack of confidence in police, resulting in a failure to report;
• inaction, due to a lack of awareness that the conduct is criminal; and
• denial or embarrassment.

1.5 What do we Know About Stalkers in Canada?

Criminal harassment or “stalking,” as it is commonly called, is not a psychiatric diagnosis. No single psychological profile exists for stalkers. Stalking and harassing behaviour can take many forms. A popular portrayal of criminal harassment is the stalking of a celebrity or public figure. In Canada, however, it appears that the primary motivation for stalking another person relates more to a desire to control a former partner.

Individuals who harass and stalk can possess one or more of a variety of psychological difficulties, ranging from personality disorders to major mental illnesses. Since the introduction of the first anti-stalking law in the United States, there have been a number of attempts to create stalking typologies from both the psychiatric and the law enforcement perspectives. Regardless of the typology, however, most individuals who stalk are engaging in obsessional behaviour. They are obsessional in the sense that they have persistent thoughts and ideas regarding the victim. They do not necessarily fulfil the diagnostic criteria for any serious psychiatric disorder. However, many have prior criminal, psychiatric and drug abuse histories that fall under Axis 1 diagnosis. The most common include alcohol dependency, mood disorders and schizophrenia.

Although no typology is all-inclusive, the one developed by the Los Angeles Police Department (LAPD) Threat Management Unit is used as a theoretical framework in threat assessments by both the Behavioural Sciences Branch of the Royal Canadian Mounted Police and the Behavioural Sciences Section of the Ontario Provincial Police.³ It proposes three types of stalking behaviour: simple obsessional, love obsessional and erotomanic stalker.

Erotomania is a delusional disorder in which the central theme is that another individual is in love with the stalker. The erotomanic stalker is convinced that the object of their attention, usually someone of the opposite sex, fervently loves them and would return the affection if it were not for some external influence. The person about whom this conviction is held is usually of a higher status than the stalker but is often not a celebrity. The victim could be their supervisor at work, their child’s paediatrician, their church minister or the police officer who stopped them for a traffic violation but did not charge them. Sometimes it can be a complete stranger.

Love obsessional stalkers, on the other hand, can be obsessed in their love without possessing the belief that the victim loves them.⁴ Very often, the love obsessional stalker suffers from a major psychiatric illness, such as schizophrenia or mania, and wants to “win” the love of their victim.

The simple obsessional stalker is similar to what has been described, in other typologies, as the intimate partner stalker. Most of these stalkers have been in some form of relationship with the victim. The contact may have been minimal, such as a blind date, but more commonly it is a prolonged dating relationship, common-law union or marriage. The perpetrator refuses to recognize that the relationship with the other person is over and the prevailing attitude is “If I can’t have her (or him), then no one else will.” The stalker mounts a campaign of harassment, intimidation and psychological terror. The motivation for the harassment and stalking varies from revenge to the false belief that they can convince or coerce the victim back into the relationship.

Most simple obsessional stalkers are not mentally ill. Many have longstanding personality disorders. Department of Justice Canada research found that of 601 cases examined, 91% of the accused were male and 88% of the victims were female.⁵ Analysis of the accused-victim relationship showed that a large proportion of female victims were stalked by an ex-husband or ex-boyfriend.⁶ In many respects, intimate partner stalking is an extension of domestic violence and relates to a desire to control a former partner.

A consultant criminologist with the Federal Bureau of Investigation has developed what he regards as a preliminary typology of stalkers. It resolves some of the deficiencies of the above-noted LAPD typology but has not been subjected to the same empirical examination. It is intended to be developmental and heuristic, recognizing that the danger of typologies lies primarily in the likelihood that they may be viewed as an absolute classification schema.⁷

This preliminary typology proposes seven types of stalkers: the random target stalker; celebrity stalker; single-issue stalker; casual acquaintance stalker; co-worker stalker; intimate partner stalker; and domestic violence stalker. The intimate partner and domestic violence stalkers are the most similar to the simple obsessional stalker.

Another recognized but not well-studied group of stalkers stalk as a component of their paraphilic (sexually deviant) focus. Some rapists and paedophiles have stalked because stalking is incorporated into their sexually deviant fantasies and offending.⁸ Some sexual sadists will go through “behavioural try-outs” that will include stalking.⁹

Investigators and Crown prosecutors are encouraged to contact one of the police experts listed in Appendix D if they need assistance in determining the type of stalker with which they are dealing.

1.6 Cyber-Stalking and Online Harassment

Criminal harassment can be conducted through the use of a computer system, including the Internet.¹⁰ Although this type of conduct is described in various ways, not all such conduct falls within Canada’s definition of criminal harassment. For example, “cyber-stalking” or “on-line harassment” is often used to refer to (1) direct communication through e-mail; (2) Internet harassment, where the offender publishes offensive or threatening information about the victim on the Internet; and (3) unauthorized use, control or sabotage of the victim’s computer.¹¹ In some cyber-stalking situations, criminal harassment charges may be appropriate; however, depending on the activity involved, charges under sections 342.1 (unauthorized use of a computer), 342.2 (possession of device to obtain computer service) and subsection 430(1.1) (mischief in relation to data) should also be considered. Activities that can be considered cyber-stalking can include delivering threatening or harassing messages through one or more of the following:

• e-mail;
• chat rooms;
• message boards;
• newsgroups; and
• forums.

Other variations of cyber-stalking include the following:

• sending inappropriate electronic greeting cards;
• posting personal advertisements in the victim’s name;
• creating Web sites that contain threatening or harassing messages or that contain provocative or pornographic photographs, most of which have been altered;
• sending viruses to the victim’s computer;
• using spy-ware to track Web site visits or record keystrokes the victim makes; and
• sending harassing messages to the victim’s employers, co-workers, students, teachers, customers, friends, families or churches or sending harassing messages forged in the victim’s name to others.¹²

Some 20% of the cases referred to the Threat Management Unit of the LAPD involve stalking through electronic mail. One out of four of the 600 cases referred to the Sex Crimes Unit of the NYPD in a recent study involved cyber-stalking.¹³

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