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The Law and 'Social Problems:' The Case of Britain's Protection from Harassment Act 1997

Evonne von Heussen

*M.B.E., B.A. (Warwick), M.Soc.Sci. (Birmingham),

Director, NASH, U.K.

Copyright © 2000 Evonne von Heussen.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.


Summary

The purpose of this article, is to explore the issues raised by an innovatory piece of legislation, the Protection from Harassment Act 1997 (the Act) which came into effect on June16, 1997. Since then, its use has been greatly hailed as 'the best piece of legislation ever created' (personal communications, 1999) for dealing with anti-social crimes involving human relationships. Innovatory legislation involves public interference in matters that previously were left to private resolution. When a statute innovates in matters of legal procedure as well as of behaviour, its problematic quality doubles. The Act does so, creating a new civil tort, two new criminal offences, and unprecedented procedures to address a newly perceived problem which has psychological and social dimensions and implications. British legal culture poses different problems for the legal use of social-science insights than in the United States, where most cross-disciplinary legal and psychological practice has taken place. Despite common belief that stalking involves male on female sexual pursuit, the phenomenon can be female on male, same-sex, or without regard to gender and sexual issues. The Act is blind to these matters. Analogous situations suggest that legal sanctions can make a long-term difference in regard to behaviour that previously was legally neutral. Early evidence suggests that this will be the case with the Act, if it receives vigorous enforcement. Preliminary analysis indicates the necessity of careful attention to the psychological dimensions of stalking and harassment cases.(1)


Contents

A New Problem, a New Law
The Protection from Harassment Act, 1997.
Review of the Literature
I. The Act and `Social Problems,:Enforcement

II. The Act and Social Problems: Female Offenders

Conclusions

Bibliography


A New Problem, a New Law

Pursuit of one person by another is probably as old as human relationships, and it has been the subject of a great deal of high art (for instances see Alleghieri 1960, Proust, 1996 and Alcott, 1995).

Only in the late twentieth century, however, has obsessive pursuit become recognised as a serious problem that the law might address. The change began in the United States, with the cases of celebrities such as John Lennon and Jodie Foster. The Los Angeles killing in 1989 of the actress Rebecca Schaeffer by Robert Bardo led to the first anti-stalking law being passed by the California State legislature in 1990. By 1994 almost all of the remaining American states and the Federal Government had followed California's lead and passed legislation. Similarly, legislation had been adopted in several other countries including Canada and Australia.

In Britain the phenomenon existed but it was neither understood nor publicised. When the National Anti-Stalking and Harassment Campaign (NASH, now the National Association for the Support of Victims of Stalking and Harassment) began seeking an anti-stalking and anti-harassment law early in 1994 it repeatedly encountered the idea that `anti-stalking' meant animal rights activism. The fact that more than ten thousand victims contacted NASH over the succeeding five years provides ample evidence that a large problem existed. But it had no name until NASH imported the American usage.

In Britain as in the United States, the police and the courts regarded being `bothered' or `pestered' or `harassed' as a `domestic' or `private' matter that was beyond their purview (Royce, 1995, Royce, 1996). Most people in authority, such as members of Parliament and the police, treated the matter with complacency. In the words of one MP at the time, `laws cannot be changed because a young man finds [a young woman] attractive.' (Sir Dudley Smith in conversation with the author, June, 1993). He assumed that no more than exaggerated courtship was going on. In fact the `young man' was a complete stranger to the young woman, with a local reputation as a drug user and knife carrier. He had been observing her for two years and was threatening to kidnap her. She was a terrified seventeen year-old schoolgirl.

The emergence of an awareness in Britain of stalking as a problem presents a classic instance of behaviour that previously had been regarded as acceptable becoming a matter for legal intervention. Not all instances of such criminalisation have worked out, as the American experiment with prohibiting alcoholic beverages shows. But there have been many successes. This article will consider the issues raised by the Act in the light of comparable situations, and of evidence now available about the Act's effectiveness.

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The Protection from Harassment Act, 1997.

It is very rare in Britain for an extra-parliamentary initiative to overcome ministerial resistance and become government policy. That was the case with the Act, and how it reached the statute books needs telling. For present purposes, however, this essay will simply outline the Act's provisions.

The Act subsumes stalking under the more general category of `harassment.' Unlike comparable statutes elsewhere, it does not list specific behaviours that are to be prohibited (see Saunders, 1998). One reason is to ensure coverage for victims whose experience of harassment might not fit within a list of specific categories. Another is that, many behaviours that constitute actual instances of harassment can be innocuous in other circumstances. Thirdly, prohibiting a specific behaviour can simply lead to the stalker/harasser employing another. Instead the Act requires that `a person must not pursue a course of conduct (a) which amounts to harassment of another; and (b) which he knows or ought to know amounts to harassment of the other.'

The language is only superficially circular. The Home Office has provided the courts with thorough guidelines to the Act's interpretation and implementation, leaving the courts themselves to decide whether a particular `course of conduct' is enough to trigger the Act's provisions. In doing so, the courts need not take account of subjective `intent.' On the ground that proving intent to harass would be difficult, the Act provides simply that a `reasonable person' would feel harassed in the plaintiff's situation. (See Saunders 1998). The `course of conduct' must `persist over two or more separate occasions. As Samuels notes, this can pose a problem: `He followed her home one evening; he sat in his car outside her house all night; he followed her to work the next morning. One occasion or two?' (Samuels, 1997, 426) Or three? Empirically, the problem may not be so pressing, since by the time victims complain the conduct normally has happened on numerous occasions. The conduct can consist of several different actions (such as a telephone call, following in the street, and an unwanted gift) or of the same action repeated. The conduct can include speech.

The Act provides for legal action on three levels. It creates a civil tort of harassment. Given the level of proof in civil actions, this allows early intervention when there is not enough evidence to meet criminal standards. The Act also creates two offences. The lower-level offence covers much the same ground as the civil tort, with the difference that criminal law standards of proof do operate. An accused person is subject to summary trial in a magistrates court and can be punished with a fine of up to five thousand pounds and/or imprisonment for up to six months. For the higher level offence to take place there must be a threat of violence. This level is subject to trial by indictment in a crown court and carries a maximum penalty of a ten thousand pound fine and five years imprisonment.

The Act also creates an unprecedented bridge between civil and criminal actions. What amounted to anti-harassment injunctions were possible under previous legislation and developing case law (Allen 1996). But they were expensive, difficult to obtain from a court, and even more difficult to enforce. As often as not, a victim would have to settle for a mere undertaking, which a harasser could violate with near impunity. The Act simplifies the procedure for obtaining an injunction and such an injunction will carry the power of arrest upon violation. After an arrest the matter becomes criminal.

Finally, the Act provides for restraining orders against convicted persons at sentencing additional to any fine and/or imprisonment. Such an order can be specific as to actions forbidden and time, or it can be general and without fixed time limit. As with civil injunctions, violations are arrestable. The Act's offer powerful tools for harassment and stalking victims. As a statement of policy the Act indicates that matters formerly regarded as private, or as domestic, or as aspects of ordinary courtship are no longer acceptable, or able to be ignored by the authorities.

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Review of the Literature

As Meloy (1998a) notes, `stalking is an old behavior but a new crime.' Scholarship remains so minimal that when he assembled his recent anthology (1998) he was able to recruit virtually every person in the United States who had worked on the subject. In Britain most discussion of the Act and its effects has taken place in practice-oriented lawyers journals. Commentary is only beginning to emerge in law reviews and from a social-science or interdisciplinary perspective.

Allen (1996) summed up the situation prior to the Act and explored a series of difficulties with existing statute and case law, most of which the Act has remedied (see also Lawson-Cruttenden, 1996; Lawson-Cruttenden and Hussein, 1996). Lawyer-oriented articles have dealt with such subjects. These include: simple exposition of the Act (Conway 1998; Lawson-Cruttenden and Addison 1997a; Lawson-Cruttenden and Addison 1997b; Samuels 1997), specific provisions of the Act (Burles 1997; Tain, 1998), the beginnings of appellate-level interpretation (Thomas 1998), and the relationship of the Act to the larger issue of reforming the antiquated Offences Against Persons' Act (1861) (Virgo 1997; Wells 1997). Wells (1997) is critical of the Act's additions to `the already extensive calendar of criminal offences', its addressing `a narrowly conceived social harm with a widely-drawn provision, often supplementing and overlapping with existing offences', and its elevating `mens rea to something more... [ignoring] the extensive use of public order offences to supplement assault and injury offences'. Posing the central issue considered here, she doubts `that the law solves social problems' (Wells, 1997).

Meloy (1998a) provides a summary of current clinical and social-science understanding of stalking, which might also be read as the agenda for a great deal of further research. Running through the points he makes is the theme of psychological disturbance, both for the stalker/harasser and for the victim. As he notes:

Most victims of stalking suffer major life disruptions and serious psychological effects, including anxiety, depression, and symptoms of trauma. These conditions may not be diagnosable, but are expectable, intense reactions to an abnormal and continuously intrusive behavior by another.

Expanding that point, Zona, Palarea, and Lane (1998) explore the psychiatric dimensions of stalking using the criteria in American Psychiatric Association (1994). Basing their assertions on roughly two hundred instances of celebrity stalking in California, they find evidence of stalkers experiencing both mental disorders (`mood disorders'; `thought disorders'; and `substance abuse disorders') and personality disorders (`odd, eccentric features'; `dramatic, emotional, or erratic features'; and `anxious or fearful features'). Whether their insights are valid in cases of non-celebrity stalking, in which broken relationships often are at stake, rather than delusions of contact with the famous, is open to question.

Sheridan, Gillett and Davies (1999) have considered the Act from a psychological point of view. Their concern is not with what it does but rather with what they perceive it as not doing. Noting `fierce' debates in Parliament regarding the Act's lack of a list of specific prohibited behaviours, they `seek the victim's perspective' by statistical and qualitative analysis of 80 questionnaires on which urban working women and female student volunteers rated events as possible stalking incidents and retrospectively described their own worst incident in detail. The subjects did not note whether that event happened prior to or after the introduction of the concept of stalking in British public discourse.

Sheridan and her associates find significant demographic differences in perspectives on what constitutes `stalking' but in aggregate terms they adjudge that `13.75% of respondents... have experienced a severe stalking episode.' They predict that as prosecutions take place there will be difficulty in establishing the `true incidence' of stalking and in reconciling victim definitions of stalking with those in the minds of the authorities. In the broadcast and print media Sheridan has raised her estimate of the incidence of stalking, suggesting that 20% of British women have been victims.

There are a number of problems with their work in both methodological and substantive terms. The first is their sample, which appears to be collected on an entirely ad hoc basis, without statistical validity. Well prior to their research, Fitzgerald, Swan, and Fischer (1995) noted a profound discrepancy between women's responses in actual harassment situations and the evidence generated from `analogue methodologies' and from `available samples of non-victims' such as students recruited specifically for the task. This is precisely the sort of population from which Sheridan, Gillett and Davies generate their quantitative data. Also well prior to their work Arvey and Cavanaugh (1995) made important technical comments about using survey research `to assess the prevalence of sexual harassment.' Among the flaws they consider is the uncritical `use of retrospective self-report measures,' particularly from the distant past, a technique upon which Sheridan and her associates rely heavily. Fitzgerald, Swan, and Fischer (1995) also warn that `if psychological research is not to be misused' in legal proceedings, courts need to be made aware of the options available in a harassment situation and the meanings victims attach to those options, as opposed to drawing arbitrary links between option choices and what they signify. Linked to that cautioning, Kidder, Lafleur, and Wells (1995) show the complexities involved in reinterpreting experience that was unpleasant but that could not have been understood as sexual harassment at the time, because the concept of sexual harassment did not exist.

In substantive terms, Sheridan, Gillett, and Davies explicitly construe stalking as man pursuing woman, which the Act does not assume at all and which is not empirically justified. Implicitly they import what American practice is coming to regard as the `reasonable woman' test. This has been proposed specifically for cases of sexual harassment. It is based on the assumption that gender does make a legally recognisable difference in the perception of offensive and potentially dangerous behaviour. There are sophisticated arguments to be made for and against that perspective and some that have been made will prove useful in regard to the Act (Baird, Bensko, Bell, Viney, and Woody [1995]; Eisenman [1995]; Fitzgerald, Swan, and Fischer [1995]). But the `reasonable person' test that the Act imposes in Britain is gender-blind. Scholarship attempting to bridge the gap between the Act and actual experience must start with the statutory and empirical point that stalking/harassment can be male on female, female on male, same-sex, or not sex/gender related, for example a neighbour related harassment. The assertion by Sheridan et al that stalking has a `true incidence' implies access to a reified, absolute form of stalking which in practical terms does not exist. Finally, their estimate of stalking's incidence among women in Britain as being as high as 20% implies that approximately six million British women have been stalked, a figure for which there is no support at all.

Westrup (1998) proposes a `functional analysis of stalking,' which locates a given episode in a chain of events between an antecedent and a consequence. By intense qualitative study of a very few instances she suggests the possibility of a stalking victim taking control of the situation by forcing the stalker into what she calls an `extinction burst,' after which the behaviour ceases. Westrup does not write in terms of `causation' or `essence,' but rather in terms of `co-variance' and contingency. Her analysis is congruent with the Act's eschewal of listing specific stalking behaviours in favour of a situational and operational understanding.

Brown (1997) addresses the difficult relationship between legal and psychological thinking. Drawing on current philosophy of science, he contrasts the scholarly/scientific attitude toward missing or ambiguous information (which sees a problem to be considered and expanded upon) with that of a jurist (who sees a case to be resolved in a definitive manner). The clash between the two modes of thought is stronger in Britain than in the United States, where `legal realism' approaches judge-made case law from a stance that does accept contingency. Brown does not argue the irrelevance of psychology for British and Commonwealth legal practice. Instead, much like Arvey and Cavanaugh (1995) on the use of statistics in sexual harassment matters, he seeks to appreciate the conceptual and practical difficulties involved in what remains a worthwhile project.

Finally, two studies bear specifically on the issue of the long-term consequences of legal intervention, although neither deals with stalking/harassment specifically. Both studies demonstrate by analogy what could happen if the Protection from Harassment Act is enforced strongly. Lewis and Lewis (1997) suggest that legal compulsion of changes in employer practice can lead to a sense of entitlement to altered workplace practices on workers' part. That, in turn, can generate changes in both attitudes and behaviour on the part of workers and employers. Wirt (1997) takes Panola County, Mississippi as the epitome of the American Deep South and investigates the impact of long-term enforcement of 1960s Civil Rights legislation on race relations there. He finds that attitudes among both white and black Panolans changed to a remarkable degree. For black people this led to firm sense of entitlement to equal treatment. For most white people--except a die-hard few--it led to acquiescence in the new order of race relations. For young whites it led eventually to incredulity about the conditions that their society once had taken for granted. Wells (1997) notwithstanding, it does appear that statutory intervention can make a difference in regard to `social problems,' particularly if the statute in question receives vigorous enforcement.

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I. The Act and `Social Problems,:Enforcement

In a very important way the Act does not deal with `social' problems at all, at least in the sense considered by Lewis and Lewis and by Wirt. In both of those instances the statutes in question had the goal of intervening in relationships between socially-defined groups, employers and workers in the one case and white and black Mississippians in the other. The former government made it plain during the Commons debates that the Act had no such goal. It would be used only in cases between individuals, with no action possible in regard to groups. The relevance of Lewis and Lewis and of Wirt for understanding the Act's probable long-term consequences turns not on group relationships but rather on the question of its eventual impact on the social and official attitudes that hitherto gave stalking/harassment legal neutrality and cultural quasi-legitimacy.

Both studies emphasize that mere enactment is not enough for a statute to have an impact on socially held and socially defined values. Vigorous enforcement is required. The contrast between the failure of the United States to enforce its racial equality laws after the destruction of slavery and the relative success of the civil rights era legislation provides a powerful illustration. Is the Act being enforced?

The Home Office (1999a and 1999b) has provided English and Welsh figures for the first six months after the Act took effect, in 1997 and separate figures for 1998 (Home Office 1999c and 1999d). The 1997 figures represent the Act's start-up; the 1998 figures show it being fully enforced. Let us consider them separately.

Section 2 (creating the summary offence) and Section 4 (creating the indictable offence) came into effect in June 1997. Between then and 31 December, 456 males and 51 females were prosecuted under Section 2. Two hundred twenty-five males and 23 females were convicted, and all but one of those received a sentence. The more serious offence created by Section 4 saw 231 males and 12 females prosecuted, leading to convictions of 65 men and 9 women. Of those convicted 64 men and 4 women were sentenced. Section 3, creating the civil tort of harassment and providing for criminal prosecution upon violation of injunctions issued under it did not come into effect until September. At the end of the calendar year there had been 7 prosecutions under it, leading to 3 convictions, all resulting in a sentence. All the persons prosecuted were male. There also were 23 prosecutions, sixteen convictions and fourteen sentences for breach of a restraining order. These aggregate figures are a long way from any notion that one-fifth of all British women have been stalked, but they do indicate that the Act met a real need.

The 1998 figures present fuller detail and include separate data for Magistrates Courts and Crown Courts. However this data does not distinguish alleged or convicted offenders by gender. During that year 4,298 persons were prosecuted under Section 2 in Magistrates Courts. Fifty-seven more were prosecuted in Crown Courts, for a total of 4.355. Charges were withdrawn in 1,336 magistrates court cases and dismissed in 312. There were 2,165 convictions in Magistrates Courts and fifty-six convictions plus one acquittal in Crown Courts. The more serious offence of putting a person in fear of violence saw 1,505 prosecutions in Magistrates Courts, leading to 420 convictions, and 167 in Crown Courts, leading to 102 convictions. No figures are available regarding the total number of cases brought under Section 3, creating the civil tort of harassment. However in Magistrates Courts there were twenty-three cases brought for breach of an anti-harassment injunction, leading to eleven persons being found guilty. Three such cases were brought in Crown Courts, all of them resulting in convictions. Magistrates Courts saw 357 proceedings for breach of a restraining order, of which 252 led to a finding of guilty. There were 29 such cases in Crown Courts, with 22 persons found guilty. These aggregate figures are a long way from any notion that one-fifth of all British women have been stalked, as Sheridan and her associates would have it, but they do indicate that the Act met a real need.

Clearly lawyers, the police, and the courts are aware of and willing to use the Act. But the Home Office figures also show that there exists a real problem of uneven enforcement on the part of different police authorities. Whether one looks at figures from non-London urban metropolitan authorities, London suburbs, partly urban shire counties, or rural counties, notable differentials appear, as Tables 1 through 8 show. The categories in Tables 1-4 differ from those in Tables 5-8 because of differences in the source data. Tables 5-8 include aggregate figures from Magistrates Courts and Crown Courts.

 

Table 1: Enforcement by non-London urban Police Authorities, 1997

(source for tables1-4: Home Office, 1999b)

AuthorityBreach of Injunction Fear of Violence Breach of Restraining Order Offence of Harassment
Greater Manchester0 prosecutions
0 convictions
22 prosecutions
8 convictions
0 prosecutions
0 convictions
35 prosecutions
18 convictions
Merseyside 1 prosecution
0 convictions
1 prosecution
1 conviction
0 prosecutions
0 convictions
9 prosecutions
8 convictions
South Yorkshire 0 prosecutions
0 convictions
5 prosecutions
0 conviction
0 prosecutions
0 convictions
8 prosecutions
4 conviction
West Midlands0 prosecutions
0 convictions
12 prosecutions
2 convictions
2 prosecutions
1 conviction
34 prosecutions
12 convictions

Table 2: Enforcement in London Suburbs, 1997

Authority Breach of Injunction Fear of Violence Breach of Restraining Order Offence of Harassment
Essex 0 prosecutions
0 convictions
11 prosecutions
0 convictions
0 prosecutions
0 convictions
17 prosecutions
6 convictions
Kent 1 prosecution
1 conviction
2 prosecutions
1 conviction
1 prosecution
0 convictions
0 prosecutions
0 convictions
Surrey 0 prosecutions
0 convictions
2 prosecutions
2 convictions
1 prosecution
1 conviction
6 prosecutions
6 convictions

Table 3: Enforcement in partly-urban Midlands Urban Counties, 1997

Authority Breach of Injunction Fear of Violence Breach of Restraining Order Offence of Harassment
Derby 0 prosecutions
0 convictions
9 prosecutions
2 convictions
1 prosecution
1 conviction
26 prosecutions
8 convictions
Leicester 0 prosecutions
0 convictions
3 prosecutions
2 convictions
0 prosecutions
0 convictions
13 prosecutions
5 convictions
Northampton 0 prosecutions
0 convictions
3 prosecutions
0 convictions
1 prosecution
1 conviction
5 prosecutions
2 convictions
Warwick 0 prosecutions
0 convictions
2 prosecutions
1 conviction
0 prosecutions
0 convictions
5 prosecutions
3 convictions

Table 4: Enforcement in Rural Counties, 1997

Authority Breach of Injunction Fear of Violence Breach of Restraining Order Offence of Harassment
Cumbria 0 prosecutions
0 convictions
3 prosecutions
1 conviction
0 prosecutions
0 convictions
8 prosecutions
3 convictions
Devon and Cornwall 0 prosecutions
0 convictions
10 prosecutions
0 convictions
1 prosecution
1 conviction
24 prosecutions
9 convictions
Norfolk 2 prosecutions
0 convictions
1 prosecution
1 conviction
0 prosecutions
0 convictions
3 prosecutions
2 convictions

Table 5: Enforcement by non-London urban Police Authorities, 1998 (source for tables 5-8, Home Office 1999c and 1999d)

AuthorityBreach of Injunction Fear of Violence Breach of Restraining Order Offence of Harassment
Greater Manchester 0 prosecutions
0 convictions
137 prosecutions
57 convictions
40 prosecutions
29 convictions
252 prosecutions
144 convictions
Merseyside 1 prosecution
0 convictions
43 prosecutions
13 convictions
15 prosecutions
10 convictions
92 prosecutions
41 convictions
South Yorkshire 0 prosecutions
0 convictions
30 prosecutions
14 convictions
9 prosecutions
7 convictions
125 prosecutions
54 convictions
West Midlands 3 prosecutions
3 convictions
151 prosecutions
32 convictions
22 prosecutions
14 convictions
337 prosecutions
121 convictions

Table 6: Enforcement in London Suburbs, 1998

Authority Breach of Injunction Fear of Violence Breach of Restraining Order Offence of Harassment
Essex 0 prosecutions
0 convictions
26 prosecutions
8 convictions
1 prosecution
0 convictions
127 prosecutions
55 convictions
Kent 1 prosecution
0 convictions
34 prosecutions
9 convictions
5 prosecutions
5 convictions
78 prosecutions
43 convictions
Surrey 0 prosecutions
0 convictions
7 prosecutions
4 convictions
4 prosecutions
1 conviction
48 prosecutions
26 convictions

Table 7: Enforcement in partly-urban Midlands Urban Counties, 1998

Authority Breach of Injunction Fear of Violence Breach of Restraining Order Offence of Harassment
Derby 1 prosecutions
1 convictions
14 prosecutions
4 convictions
7 prosecutions
3 conviction
107 prosecutions
57 convictions
Leicester 1 prosecution
0 convictions
19 prosecutions
6 convictions
3 prosecutions
3 convictions
62 prosecutions
38 convictions
Northampton 0 prosecutions
0 convictions
36 prosecutions
14 convictions
8 prosecutions
4 convictions
51 prosecutions
27 convictions
Warwick 0 prosecutions
0 convictions
5 prosecutions
4 convictions
8 prosecutions
6 convictions
25 prosecutions
18 convictions

Table 8: Enforcement in Rural Counties, 1998

Authority Breach of Injunction Fear of Violence Breach of Restraining Order Offence of Harassment
Cumbria 0 prosecutions
0 convictions
15 prosecutions
7 convictions
2 prosecutions
2 convictions
62 prosecutions
26 convictions
Devon and Cornwall 0 prosecutions
0 convictions
84 prosecutions
14 convictions
15 prosecutions
9 convictions
122 prosecutions
64 convictions
Norfolk 0 prosecutions
0 convictions
11 prosecutions
5 convictions
1 prosecution
1 conviction
78 prosecutions
49 convictions

There is a striking difference between the partial-year figures for 1997 and the whole-year figures for 1998. It would appear from Tables 1 to 4 that there are significant differentials between counties and regions. At first glance these appear puzzling, since the overall national incidence of stalking/harassment appears large enough that it would be statistically `smooth.' But there is no reason not to expect clustering among smaller administrative units that are comparable in other respects, especially over short time intervals, as appears in the statistics for 1997. Moreover there is strong impressionistic evidence in the form of contacts with NASH regarding police non-interest that some forces, including several noted in Tables 1 to 4, are not taking the Act seriously, possibly as a matter of policy decision. A representative of one constabulary which does not appear from the 1997 figures to be enforcing the Act did comment openly at a pre-enforcement training session that the Act would be `at the bottom of their agenda.' A number of forces did not send representatives to pre-enforcement training sessions and others had only a token presence, despite their being held in venues at police headquarters throughout England and Wales and, in London, at the Home Office. Those forces included Merseyside, South Yorkshire, Kent, Warwick, Northampton, and Norfolk, all of which figure among the apparently low-enforcement authorities noted in Tables 1-4.

Conversely, Greater Manchester, Essex, Surrey, Leicester, Devon and Cornwall, and Cumbria were all strongly represented at the sessions. The correlation between training-session representation and enforcement in 1997 is not perfect. The West Midlands and Derbyshire police were unrepresented at the sessions, but both appeared at the end of 1997 to be enforcing the Act vigorously (Lord Chancellor's Office, 1997), in terms of bringing prosecutions if not in terms of winning convictions. What seems certain from the work of Wirt and of Lewis and Lewis is that unless the Act is actively enforced for an extended period it will not have its desired long-term effect of rendering harassment illegitimate in cultural terms.

The statistics for 1998 seem to offer better news. The Breach of Injunction column in Tables 5-8 is as uninformative as its counterpart was in Tables 1-4. Differences from force to force in the ratio of prosecutions to convictions do remain. But the evidence suggests both that police forces have been taking the Act seriously and that that prosecutors have been learning how to apply it. Even without a county by county statistical breakdown, it seems obvious that the between one quarter and one half of criminal cases brought under the Act in 1998 resulted in conviction. The small number of prosecutions for breach of injunctions and restraining orders is probably meaningless. There is no reason as yet to think that it bears out the prediction of Lawson-Cruttenden and Addison (1997a) that the possibility of criminal prosecution may make judges `less ready to order injunctive relief' short of proof that reaches `the criminal standard.' What does seem clear is that the police are learning how to enforce the Act and that courts are taking cases seriously.

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II. The Act and Social Problems: Female Offenders

The most striking point that emerges from the Home Office figures, however, is the number of women prosecuted under Sections 2 (offence of stalking) and 4 (threat of violence). Although the vast majority of persons prosecuted are male, particularly at the more serious level under Section 4, it cannot be said that stalking/harassment is a purely male on female crime. At the time of writing, no case information is yet available regarding these persons. But the record from the courts corroborates with information gathered by NASH. A total of 92 self-described stalkers have contacted the organisation seeking help. Seventy of those have been female. Some of these have given extremely detailed information, rich enough to permit some exploration of the psychological dimensions of their compulsion. A thorough search of a standard scholarly database (First Search) has revealed no studies at all of this subject; nor is there anything on it in the most thorough current collection (Meloy, 1998). What follows should be read as a prospectus for an extended treatment by this author.

The most obvious point is the profound imbalance between the overall incidence of female stalking in relation to male and the ratio of women to men seeking help from an assistance organisation. The group is self-selected and therefore cannot meet the test of random selection. But the numbers involved are large enough to posit that a genuine gender difference exists between male and female stalkers regarding what they do. Not all of the women stalkers went into graphic detail about their lives and actions, so no attempt at a statistical breakdown will be made here. Instead, the article will conclude with a very brief qualitative outline but not analysis based on three rich narratives that were voluntarily provided to NASH. What these women have to say bears at least tangentially on the insistence by Fitzgerald, Swan, and Fischer (1995) that a difficult situation is better understood by studying persons who have experienced it than by relying on analogues generated by hypothetical questions put to voluntary subjects. Because of NASH's policy of strict confidentiality all identifying details regarding particular cases have been altered.

Subject One grew up outside Britain and studied literature at a university in her own country. She contacted NASH from overseas in 1995 after learning about it from the British press. She had remained a virgin until a lecturer whose advances she had rejected raped her. The trauma was so great that she withdrew from her degree course and tried to settle in a continental capital. On the street one day she noticed a well-dressed, self-assured stranger, who bore a strong resemblance to her rapist. The sight of him brought back all her feelings against him. She stalked the man for several years without violence. As her `hatred' of him grew she began to escalate her activities. She waited outside his home at nights until the lights went out. She made it her business to know everything about him, and simply followed him everywhere until she `ground him down.' She has repeated that pattern several times since returning to her own country. She finds men completely repellent and keeps herself isolated as a way of preventing her obsession from returning. The only male person she lets into her life is her brother. Stalking depresses her, and has cost her a lot in both emotional and financial terms. She has sought professional help, but insists on dealing only with female professionals.

Subject Two lives in the suburbs of a major city. She contacted NASH for help in 1996. Her father, with whom she lived after her parents separated, sexually abused her until she was sixteen years old. Her father stalked his former spouse, forcing Subject Two to take part. Among other things, her conduct would include damaging her mother's property, putting water and sand into the petrol tank of her car, and making malicious telephone calls. Her father would sexually abuse Subject Two after each stalking episode. She began stalking on her own following her father's death and the break-up of a relationship. She claims to hate men because her father abused her, and has no feelings at all for them. Her pattern is to form a relationship, break it, and then stalk the former partner. She has physically assaulted several partners including damaging one partner's testicle so severely that it had to be removed. She admits to considerable property damage as well as making malicious phone calls and sending offensive packages, including soiled sanitary towels. She is aware that her actions are criminal, but cannot stop herself. She has countered victims' attempts to invoke the law by threatening to claim that the victim had assaulted her, in the belief that the police and courts would be more likely to believe a woman's account than a man's. In her own words, `I only realised how evil I've been when I smashed a cup over an ex-boyfriend's head, and as he lay bleeding, I stepped over him, walked away and lit a cigarette. I had no feelings at all for him and gave him no assistance'.

Subject Three lives in a provincial city. An unwanted child because of her sex, she suffered maternal rejection and physical beating during infancy and early childhood. She developed anorexia nervosa at the age of eight, when her father started molesting her sexually. His abuse escalated to penetrative sex a year later. She attempted suicide several times during adolescence. She left home at seventeen and married a man who proved to be a wife beater. When her eldest daughter from that marriage died aged 5 she entered psychotherapy, establishing what she regarded as a father-daughter relationship with her male therapist. Their relationship turned sexual at his insistence and she became pregnant. He persuaded her to have an abortion, and she disposed of the foetus herself, a memory that continues to haunt her. He also terminated her therapy. Her response--`Hell, no, I'm not going to be used and dumped'--may be taken as the beginning of her stalking `career'. She began telephoning his office, trying to renew the professional relationship, and when the calls proved fruitless she increased their number, to as many as two hundred per day. She waited near his house, which led only to threats of the police being called. She made telephone calls to the therapist's house, and informed his wife that she was his girlfriend and had lost a child for him. Her behaviour eventually cost the therapist his job and nearly cost him his marriage. She was still stalking him several months after her first contact with NASH. She continued to be anorexic, developed bulimia and claustrophobia. She made numerous suicide attempts because of her self-perceived worthlessness. She remains in her abusive marriage, but wants to get out of it as she did from the situation in her parental home. She claims that one reason for seeking NASH's help in regard to her stalking behaviour is that she regarded it as a `first step to freedom'.

Conclusions

Whether in the very long run the Act has a de-legitimising effect comparable to the American civil rights laws, remains to be seen. The practical and theoretical effects of enforcement versus non-enforcement of the Act have already been considered. What remains is to probe the issues involved in female stalking. Already there is impressionistic evidence that the Act's deterrent effect is causing stalkers and harassers to back away from their victims, a point reported informally by persons in contact with NASH.

The detailed narratives of female stalkers collected by NASH cover the whole range of stalking experience, including the relatively rare (but highly publicised) phenomenon of celebrity pursuit. The three instances just described have one obvious factor in common: involuntary sexual experience from a male authority figure. Under the Protection from Harassment Act all three women would be liable to prosecution, Subjects One and Three under Section Two, and Subject Two under Section Four. Prior to the Act, Subject One would not have been liable to any prosecution. Yet as Subject Two noted, she could make it quite difficult for her male victim to invoke the Act against her. In its wording the Act is gender-neutral. In its application it might well prove otherwise, with actual harassers/stalkers adding it to their repertory. Other cases in NASH's files do provide evidence of that happening. Perhaps such abuse of the Act cannot be entirely avoided, but it speaks to the necessity for psychologically sophisticated analysis of cases, rather than simply mechanical application.

The experience of sexual abuse on the part of these women (and of many others in NASH's records) may point to a differential pattern among male and female heterosexual stalkers. The best known account of female stalking (Orion, 1997) turns on the pursuer's belief in the pursued's love for her. But that pursuit was same-sex and the pursuer had been the pursued's psychiatric patient. Hodgkinson (1991) bases her book on her own experience of obsessive love for a man. From those two accounts female stalking would seem to fit into the general category of erotomania, one of the three groups in the perpetrator typology posited by von Heussen (1995) and by Meloy (1998a). Gillett, Eminson, and Hassanyeh (1990) investigate erotomania with an all-female population drawn from psychiatric patients. But none of the female stalkers observed by NASH fit that pattern. Instead, they deny any element of love in their motivation. The majority of those stalkers talked about their need for revenge, while others mused on their intense hatred for their victims. Clearly, this correlates with their experience of abuse. It may also be linked to them seeking help voluntarily. In any case, they raise questions about the cross-gender validity of Meloy's typology of clinically demonstrable disturbance and delusions of being loved among stalkers.

Only a small proportion of the seventy female stalkers who have come to NASH are professionals. These include teachers, social workers, a physician, nursery nurses, and a musician. The majority of the women are between the ages of 23 and 48. Eight of them are gay. It is interesting, however, that the kinds of conduct reported by women seem to persist with great intensity for more extended time periods than anything that the reporting men have told NASH. This correlates with reports from male victims, one of whom called his experience `slow torture'.

For strictly legal purposes in Britain these questions regarding gender differences may be irrelevant. As noted, the Act is deliberately gender blind, and British courts cannot be expected to take on anything resembling the American `reasonable woman' test in applying it. But, the apparent evidence of gender differences in stalker motivation, behaviour, and willingness to seek help, reveals a point where legal issues (harasser vs victim), social issues (a tolerant attitude toward a behaviour giving way to a condemnatory one), and psychological issues (the specific drives and experiences of female stalkers) can all shed light on one another. To appreciate what the Act and the issues surrounding it have revealed will require very careful study. Such study is both possible and necessary.

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Bibliography

Alcott, L M (1995) A Long Fatal Love Chase (Random House)

Alleghieri, D (1960) Vita Nuova (University of North Carolina)

Allen, M J (1996) `Look Who's Stalking: Seeking A solution to the Problem of Stalking,' [1996] 4 Web Journal of Current Legal Issues

American Psychiatric Association (1994), Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.

Arvey, R and Cavanaugh, M (1995) 'Using Surveys to Assess the Prevalence of Sexual Harassment: Some Methodological Problems' 51Journal of Social Issues 39-52.

Baird, C, Bensko, N, Bell, P, Viney, W and Woody, W (1995) 'Gender Influence on Perceptions of Hostile Environment Sexual Harassment' 77 Psychological Reports 79-82.

Brown, M (1997) 'Varieties of Truth: Psychology-law discourse as a dispute over the forms and content of knowledge' 2 Legal and Criminological Psychology 219-245.

Burles, D (1997) 'A Problem of Privacy' Solicitors Journal 860.

Conway, H, (1998) 'Protection from Harassment Act 1997' Family Law, 714-715.

Eisenman, R (1995) 'Dubious Value of the "Reasonable Woman" Standard' in Understanding Sexual Harassment, Psychological Reports, 1145-1146.

Fitzgerald, L, Swan, S and Fischer, K (1995) 'Why Didn't She Just Report Him? The Psychological and Legal Implications of Women's Responses to Sexual Harassment' 51 Journal of Social Issues 117-138.

Frazier, P, Cochran, C and Olson, A (1995) 'Social Science Research on Lay Definitions of Sexual Harassment' 51 Journal of Social Issues 21-37.

Gardner, S (1998) 'Stalking' Law Quarterly Review 33-39.

Gillett, T, Eminson, S and Hassanyeh, F (1990) 'Primary and Secondary Erotomania: Clinical Characteristics and Follow-Up' 82 Acta Psychiatrica Scandinavia 65-69.

Hodgkinson, L (1991) Obsessive Love: How to Free Your Emotions & Live Again (Piatkus).

Home Office (1997) Law enforcement personnel training session attendance records: London, Ipswich, Carmarthen, Bristol, Wakefield, Durham, Liverpool, Birmingham

Home Office (1999a) personal communication, 4 January.

Home Office, (1999b), unpublished enforcement statistics regarding the Protection from Harassment Act in 1997.

Home Office (1999c) Number of persons prosecuted and sentenced in Magistrates Courts under the Protection from Harassment Act in 1998.

Home Office (1999d) Number of persons prosecuted and sentenced in Crown Courts under the Protection from Harassment Act in 1998.

Kidder, L, Lafleur, R and Wells, C (1995) 'Recalling Harassment, Reconstructing Experiences' 51 Journal of Social Issues 55-67.

Lawson-Cruttenden, T (1996a) 'Is There a Law Against Stalking?' New Law Journal 418-419.

Lawson-Cruttenden, T and Hussain, B (1996b) 'Psychological Assault and Harassment' New Law Journal 1326-1327.

Lawson-Cruttenden, T and Addison, N (1997a) 'Protection from Harassment Act' New Law Journal 483.

Lawson-Cruttenden, T and Addison, N (1997b) 'Harassment and Domestic Violence' Family Law 429-431.

Lewis, S and Lewis, J (1997) 'Work, Family and Well-Being. Can the Law Help?' 2 Legal and Criminological Psychology 155-167.

Meloy, J (1998) ed. The Psychology of Stalking: Clinical and Forensic Perspectives (Academic Press)

Meloy, J (1998a) 'The Psychology of Stalking' in Meloy (1998), 2-23.

Orion, D (1997) I Know You Really Love Me: A Psychiatrist's Journal of Erotomania, Stalking, and Obsessive Love (Macmillan U.S.A.)

Proust, M (1998) In Search of Lost Time, trans. Moncrieff, C K S, Kilmartin, T and Enright, D J (3 vols., Vintage).

Royce, E (1995) Introductory Remarks, Threat Management Conference, Los Angeles, August.

Royce, E (1996) Introductory Remarks, Threat Management Conference, Los Angeles, August.

Samuels, A (1997) 'Protection from Harassment Act 1997' Solicitors Journal 426-427.

Saunders, R (1998) 'The Legal Perspective on Stalking', in Meloy (1998) 28-51.

Sheridan, L, Gillett, R, and Davies, G (1999) 'Stalking - Seeking the Victim's Perspective' 30 Issues in Legal and Criminological Psychology.

Tain, P (1998) 'Restraining Orders: The Focus of Summary Stalking Cases' Solicitors Journal 465.

Thomas, D (1998) 'Harassment and the Right to Protest' Solicitors Journal, 304.

Virgo, G (1997) 'Offenses Against the Person: Do-It-Yourself Law Reform' Cambridge Law Journal 251-253.

Von Heussen-Countryman, E L (1995) 'The Stalking Problem, and the Need for Legislation in Britain: Report to Parliament and the Home Office', NASH.

Wells, C (1997) 'Stalking: The Criminal Law Response' Criminal Law Review 463-471.

Westrup, D (1998) 'Applying Functional Analysis to Stalking Behavior', in Meloy (1998), 275-294.

Wirt, F (1997) We Ain't What We Was: Civil Rights in the New South (Duke University Press).

Zona, M A, Palarea, R E and Lane, J C Jr. (1998) 'Psychiatric Diagnosis and the Offender-Victim Typology of Stalking,' in Meloy (1998), 69-84.

 


Footnote

(1) Where `he' is used in this article to refer to either stalkers or to victims, the usage also implies `she,' as is the case in the Act.