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Stalking

by Dr Rene Darmanin – Junior Associate

Anti-stalking legislation was first introduced in California. Its primary scope was to shield celebrities who suffered harassment and threatening conduct from their followers. Within a few years all American states promulgated legislation criminalizing stalking.

The raison d’etre then changed from one where such legislation was thought to be solely attributed with figures in the entertainment industry to legislation protecting society at large.

Later on similar provisions criminalizing stalking were introduced around the world, including in Europe.

If we had to delve into domestic legislation, we immediately notice that offences criminalizing violence and threats were already in force even in the beginning of the 20th century, however there was never any specific reference to harassment or stalking under local legislation until 2005. Prior to 2005 the legal provisions were of a comprehensive nature.

In 2005, the Maltese legislator introduced into the domestic Criminal Code the crime of harassment which in a way included also stalking, however due to various prosecuting difficulties later on in 2014 incorporated Article 251AA of the Criminal Code, a specific provision, in order to charge and prosecute persons accused of stalking more effectively.

As proclaimed by Maria Manuela Cruz-Cunha & Irene Maria Portela in their ‘Handbook of research on digital crime, cyber- space security and Information Assurance’, the act of stalking may be defined as:

“an intentional and malicious behavior of obsessive following, spying or harassing towards an individual”.

The Council of Europe Convention on prevention and combating violence against women and domestic violence gives a more or less similar definition of stalking. In fact it defines stalking as:

“the intentional conduct of repeatedly engaging in threatening conduct directed at another person, causing her or him to fear for her or his safety”.

From these definitions it may be inferred that for an individual to be found guilty of stalking, what is required is a form of patterned behavior and a sort of abnormal harassment, which is directed during a period of time towards a specific person.

Under the Maltese Criminal Code stalking is considered as a form of aggravated harassment. In fact there may be several scenarios where an individual may be found guilty of harassment without necessarily committing the crime of stalking.

It is noteworthy to point out that the fact that an individual carries out acts that may cause despair to another does not necessarily amount to stalking. This was stressed by our Courts in several judgments.

As inferred from the definitions of stalking mentioned above, for an act to amount to stalking, it must be proven that:

1. Intentional;
2. Malicious;
3. There is a Course a Conduct.

To begin with, when determining whether an act amounts to stalking or otherwise, the Executive Police must ascertain whether the act was an isolated incident as well as whether such act/s was intentional, malicious or coincidental. This requires the investigating officers to examine the perpetrator’s actions and behavior over a span of time and find out whether there is a course of conduct and the context in which the acts were committed.

Our Courts when determining whether an accused charged with stalking should be found guilty or otherwise, adopt the so-called ‘reasonable-man test.’ When applying this objective test, our Court compares the accused’s behavior with that of the reasonable, ordinary man and examines what the ordinary man would have done in the same context within which the accused’s actions were performed.

As pointed out earlier, there may be several actions, which although cause distress to the alleged victim, however do not amount to stalking. In fact the legislator through sub-article (3) of article 251AA of Chapter 9 of the Laws of Malta provides an exhaustive list of actions which may amount to stalking:

(3) The following acts shall be deemed to be acts of stalking:

(a) following a person,
(b) contacting, or attempting to contact, a person by any means,
(c) publishing, by any means, any statement or other
material –
(i) relating or purporting to relate to a person, or
ii) purporting to originate from a person,
(d) monitoring the use by a person of the internet, email or any other form of electronic communication
(e) loitering in any place, whether public or private,
(f) Interfering with any property in the possession of a person,
(g) watching or spying on a person.

Thus if the perpetrator’s actions do not amount to any of the act listed in this sub-article, the person charged cannot be found guilty of stalking. However his actions may amount to crimes such as that of harassment.

In terms of Article 251A(4) any person found guilty of harassment shall be liable to the punishment of imprisonment for a term from six months to two years or to a fine (multa) of not less than five thousand euro (€5,000) and not more than ten thousand euro (€10,000), or to both such fine and imprisonment. On the other hand a person found guilty of stalking shall be liable to the punishment of imprisonment for a term from one to two years or to a fine (multa) not exceeding ten thousand euro (10,000), or to both such fine and imprisonment. Moreover if it is proven that such offence is committed against any one of the accused’s ascendants, siblings, spouse, former spouse, cohabitant, a person having a child in common, any public officer, a private guard or on any witness or referee who shall have given evidence in any suit, the offender shall be liable to imprisonment up to 3 years.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Rene Darmanin on rene@abalegal.eu.