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Should Stalking Be Seen As Criminal Assault?

2209 words - 9 pages

In 1993, following the murder of a woman by her ex-lover, who violently harassed her in breach of a protection order before killing her , the New South Wales Parliament responded by enacting a separate offence of "Stalking" which is now part of the Crimes Act (1900). Stalking is conduct that is harassing or threatening, directed at a person with the intention to cause intimidation or fear. It is a form of non-physical violence, causing psychological and emotional abuse. The awakening of concern about this type of behaviour was caused by its prevalence in domestic violence cases. This essay will argue that stalking should not be seen as criminal assault but more significantly, as a specific category of offences under the heading of "stalking". Firstly, the nature of the offence of stalking makes it inappropriate to prosecute under the current law of criminal assault. Related to this is the severe impact that stalking behaviour inflicts on its victims. Lastly this essay will highlight the inadequacy of dealing with an offence such as this through civil remedies alone.The current law of assault is simply not broad enough to deal with the complexities that arise from an offence such as stalking. Assault is an act, which intentionally or recklessly causes another to apprehend immediate and unlawful personal violence , charged under s61 of the Crimes Act (1900). At the essence of the offence of assault is a requirement that the threat created by the offender must cause a fear of imminent violence in the victim. Stalking involves instances where a person does not explicitly threaten their victim but silently follows them around or sits outside their dwelling. When placed in this context, such behaviour is dangerous beyond its immediate significance. Although, it is difficult to charge this as assault since it is not sufficient that the threat raises apprehension that violence will be inflicted at some time in the future.The inability to prosecute an offence that is of a similar nature to stalking under the law of assault was apparent in the case of Knight . Knight had made a series of phone calls threatening to kill or injure those involved his prior conviction, including a policeman, a magistrate and to a judge who later dismissed his appeal. On appeal to the Court of Criminal Appeal, his conviction for these offences was quashed on the basis that the requirement of a threat of "immediate" violence was not satisfied. Even though his behaviour caused fear and was dangerous, it fell short of the necessary actus reus and hence could not be sanctioned under the law of criminal assault.Alternatively, the case of Ireland demonstrates an instance where an offence with characteristics that can be likened to stalking was successfully prosecuted under assault. The accused had proceeded to harass a woman whom he had a prior social relationship with, by making both silent and abusive phone calls, frequenting her place of work and home and taking photographs of the...

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