Stalking: Final Report (html)

1. Introduction

Our terms of reference

1.1 The Victorian Law Reform Commission was asked to review Victoria’s legal responses to stalking, harassment and similar conduct.

1.2 We were guided by our terms of reference given to us by the Attorney-General, the Hon. Jaclyn Symes MP, on 17 February 2021 (see page x).

1.3 Our terms of reference focus on non-family violence stalking and ask us to look at:

• the personal safety intervention order (PSIO) system

• what prevents the law from effectively responding to stalking, harassment and similar conduct

• how to improve the law and the justice system’s response.

Our interim report and this report

1.4 The Attorney-General asked us for an interim report and a final report. We delivered our interim report on 22 December 2021. It was tabled in the Victorian Parliament on

6 April 2022. The interim report focused on improving the police response to stalking.

1.5 This report deals with other parts of our terms of reference.

Our process

1.6 Our interim report describes this inquiry’s process in more detail.^[1] In summary:

• We received 115 written submissions (see Appendix A).

• We held 36 consultations, including five after delivery of the interim report (see Appendix B).

• We received 254 responses to our online form on Engage Victoria. We used this form to seek views from people who had experienced stalking.

1.7 The Sentencing Advisory Council published three reports to assist this inquiry:

• Sentencing Breaches of Personal Safety Intervention Orders in Victoria ^[2]

• Sentencing Stalking in Victoria ^[3]

• Sentencing Breaches of Family Violence Intervention Orders and Safety Notices: Third Monitoring Report.^[4]

1.8 The Crime Statistics Agency conducted a study about what happens after a stalking incident is reported to police: Attrition of Stalking Offence Incidents through the Victorian Criminal Justice System.^[5]

1.9 We received helpful data from the Dispute Settlement Centre of Victoria and Victoria Legal Aid.

1.10 These reports and data gave us new insights into the response to stalking. We refer to them throughout this report.

1.11 We invited input from the Office of Public Prosecutions, which was unable to provide it because of its resourcing constraints.

1.12 There are some issues we do not cover in this report. We have focussed on responding to stalking after it happens to prevent it from happening again. We do not make many recommendations about preventing stalking before it happens. We also focused on the justice system response, rather than other systems, such as education and health. So we have not made findings about information sharing between agencies.^[6]

An acknowledgement

1.13 At the heart of this reference is the death of Celeste Manno in November 2020. This report does not discuss the details of Ms Manno’s death because a criminal case is currently before the courts. But it was in response to her death that the Attorney-General asked us to conduct this review.

1.14 We thank everyone who contributed to this inquiry, especially victim survivors and concerned members of the public. Many people were motivated to write to us in support of Celeste Manno.^[7] Many respondents shared their experiences and views to improve the response to stalking.

Why does the response to stalking need to change?

1.15 Stalking is a criminal offence. It is also grounds for a PSIO in the civil system.^[8] Some support and financial assistance is available for people who have experienced stalking.^[9]

1.16 Since the Royal Commission into Family Violence was completed in 2016, a range of measures have been implemented to better respond to family violence stalking.^[10] But we found problems with the way the justice system responds to stalking that is not related to family violence, which is the focus of our inquiry.

1.17 People who experience stalking can be trapped in a cycle of abuse that is hard to identify, prove, and remove themselves from. The justice system process—often long, frustrating and traumatic—can make the experience worse.

Stalking is different to other offences

1.18 There are a few reasons for the problems. Stalking is different to most criminal offences that focus on physical violence, because it is made up of repeated incidents, not just one event.^[11] Also, the behaviours that amount to stalking can be legal on their own.^[12]

1.19 It can be challenging for people who work in the justice system, and for members of the community in general, to understand what is happening and know what to do about it.

1.20 When people who experience stalking make a report, their experience can be minimised. They often do not get the response they need.

The response is not tailored enough

1.21 The response to stalking is not tailored enough. For example:

• PSIOs can be taken out for many other matters, often less serious than stalking.

• Children and young people do not receive a tailored, age-appropriate response.

• Stalking behaviour gets charged as other offences—for example, property or assault offences—which police might believe are easier to prove. This is partly why stalking does not receive specialist management in prison or the community corrections system.

We discuss these issues in Chapters 6, 7 and 8.

1.22 The response to stalking does not acknowledge the specific needs of victim survivors of stalking, unlike the victim survivors of family violence and sexual violence. But family violence, sexual violence and stalking have some things in common. They can all involve the exercise of power by one person over another.^[13] Many of the impacts can be similar, including isolation from others and fear.^[14]

1.23 The victim survivors of family violence and sexual violence receive special protections in the justice system. They are supported to give their best evidence. But people who have experienced non-family violence stalking have far less protection and support.^[15] This should change. We discuss this further in Chapters 6 and 7.

It is unclear how effective the response is

1.24 Finally, there has been little evaluation of how effective the criminal or civil responses are to prevent stalking.^[16] There are signs that these responses are not working well. Half of all people sentenced for stalking reoffend within four years.^[17] And PSIOs, which are the main civil response to stalking, are often breached.^[18] Our recommendations aim to make the response to stalking more effective.

How does the response to stalking need to change?

1.25 To help people understand stalking and know what to do about it:

• We recommend community education on stalking, and training about stalking for people who work in the justice system (see Chapter 4).

• We recommend improving how the stalking offence is applied and how the police respond to breaches (see Chapter 7).

• We recommend guidance and training for police to help them identify and investigate stalking, as we stated in our interim report.^[19]

1.26 To provide a more tailored response:

• We make recommendations for the civil response to stalking to be more focused and specialised than it is now (see Chapter 6).

• We recommend new protections in the civil and criminal justice system for people who experience stalking (see Chapters 6 and 7).

• We propose building alternative pathways for children and young people who engage in stalking behaviour (see Chapter 6).

• We highlight issues that have not been reform priorities up to now, such as cyberstalking (see Chapter 3) and responding to people who stalk (see Chapter 8).

1.27 But there is a limit to what can be done to improve the response to stalking because not enough is known about it. In Chapters 2, 6, 7 and 8 we identify opportunities to build the knowledge base on stalking, so future reforms are informed by strong research and data.

What is our approach to reform?

Victim safety is the main concern

1.28 The stalking offence and the PSIO system were introduced to protect victim survivors.^[20] Our terms of reference ask us to make ‘victim safety and wellbeing the paramount consideration’. Accordingly, many of our recommendations are about keeping victim survivors safe.

Victim survivors have a range of justice needs

1.29 Importantly, stalking victim survivors have a specific need: for the stalking to stop and to feel safe.^[21] As one study noted, ‘As long as their safety is increased, some victims care little about the means by which this result was achieved.’^[22]

1.30 Some victim survivors, however, see the need for people who stalk to receive longer sentences, for the protection of the people who were stalked or to ensure those responsible are held to account. Others call for the people who stalked them to receive treatment.^[23]

1.31 In our reports The Role of Victims of Crime in the Criminal Trial Process (2016) and The Response of the Justice System to Sexual Offences (2021) we summarised a range of justice needs that victims of crime have:

• to be treated with respect and supported in justice system processes

• to be given information about the progress of their case

• to participate in justice system processes, including decision making about their case

• to be protected from trauma, intimidation and distress, for example when being cross-examined

• to have their privacy respected as much as possible

• to apply for compensation for the harm they have experienced

• to feel validated and have their story believed

• for the harm to be recognised and for the person responsible to be held to account.^[24]

1.32 In this inquiry, people who have experienced stalking told us they have similar justice needs. And research indicates that people who experience stalking need to feel believed, supported and to have information.^[25]

1.33 Our recommendations are designed to meet these needs. For example, see Chapter 5 on support for victim survivors and Chapter 8 on responding to stalking behaviour.

The response to stalking must recognise the diversity of experiences

1.34 In our interim report we recognised that just as our community is diverse, so are people’s experiences of stalking and seeking justice. Some people are more likely to experience stalking than others. Some people find it harder to access the justice system than others (see Chapter 2).

1.35 Our recommendations aim to make changes that give everyone access to justice and allow the justice system to respond flexibly to diverse needs. For example, we recommend that:

• Community education should be tailored to diverse audiences (Chapter 4).

• Victim advocates should be introduced, giving priority to the people who need them the most, including children and people with disabilities (Chapter 5).

• The PSIO system is improved for children. An alternative pathway should be built for children within the PSIO system (Chapter 6).

• Responses should give priority to rural and regional Victoria, which has a large share of PSIO applications and breaches (see Chapters 5, 6 and 8).^[26]

People who stalk should be accountable

1.36 The response to stalking has usually focused on what the victim survivor is expected to do to avoid being stalked. Such a focus can perpetuate victim-blaming, which can be a feature of the justice system response.^[28]

1.37 This focus means that people who stalk often do not get the help they need to address their behaviour. Too many continue their stalking behaviour without any consequence.

1.38 This imbalance needs to be corrected. It is not the victim survivor’s responsibility to change their behaviour to stop the stalking.^[29] An effective response to stalking must focus on the people who commit the crime.

1.39 However, what ‘accountability’ means for stalking has not been explored in any detail.^[30] As we heard in this inquiry, and as research suggests, some victim survivors view accountability as a matter of prosecuting people who stalk and imprisoning them.^[31]

1.40 We see accountability as a way of making sure that people who stalk take responsibility for their behaviour and take steps to address it. We also see it as a way for the community to acknowledge stalking as a harm and denounce it. It may mean civil or criminal sanctions. It may mean therapeutic intervention.^[32]

1.41 Family violence and sexual violence have different dynamics to non-family violence stalking. However, some of the ways we respond to family violence and sexual violence could also hold accountable people who stalk, including:

• improving victim safety

• keeping the person responsible in view

• using the justice system to help ensure the person responsible complies with the law

• measuring the right things, for example collecting data on how effective the system is

• keeping every part of the system responsible.^[33]

1.42 We consider these responses along with other factors such as the rates of mental disorders amongst people who stalk (see Chapter 8) and the serious impacts of justice system contact at a young age (see Chapter 6). A fair process is also important for the accused. This includes the right to be presumed innocent until proved guilty and the right to test evidence.^[34]

1.43 Other chapters of this report include recommendations about:

• improving how criminal offences are applied (see Chapter 7)

• enforcing breaches effectively (see Chapter 7)

• improving legal representation for people who stalk (see Chapter 6)

• developing alternative pathways for children and young people (see Chapter 6)

• examining why cases do not progress through the criminal justice system (see Chapter 7)

• encouraging research into interventions that work for people who stalk (see Chapter 8).

Other reforms should be built upon

1.44 We take into account other reforms and the findings of other inquiries. These include:

• The Royal Commission into Family Violence—Our terms of reference ask us to take this work into account. We discuss the family violence reforms in more detail in Chapters 3, 6 and 8.

• The Royal Commission into Victoria’s Mental Health System—Our terms of reference ask us to take this work into account. In Chapter 8, we discuss its recommendations about supporting the mental health and wellbeing of people in contact with the criminal justice system.^[35]

• National principles addressing coercive control—We considered the Australian Government and Victorian work on coercive control, including potential system reforms and overlaps with this inquiry.^[36]

• Review of Victoria’s victim services—The Victorian Government has committed to reforming the support system for victims.^[37] We build on this work in Chapter 5.

• Australian Government reforms—We considered reforms in the federal jurisdiction, including new powers of the eSafety Commissioner, in Chapter 3.

1.45 We were influenced by developments and what has been learned from family violence and sexual violence reforms. For example, we relied on the recommendations of our sexual offences report which acknowledged the benefits of specialisation, access to

a lawyer and the clear drafting of offences.^[38] We apply what we learnt in Chapters 6 and 7.

1.46 We have aimed to develop a tailored response to stalking. But we have also tried to use arrangements that are already in place. While non-family violence stalking is a serious crime with serious impacts, it is less common than family violence stalking. We have built on what is already in place in the ‘generalist’ system, with extra features for people who have experienced stalking. For example, in Chapter 5, we suggest an enhanced generalist model of victim support.

1.47 We have learned from and built on the family violence reforms (see box).

The process from here

1.48 We will deliver this report to the Attorney-General by 30 June 2022.

1.49 The death of Celeste Manno in November 2020 was a sign that the response to stalking needed reform. There is an opportunity now to propel forward the response to stalking so it is more effective, supportive and fair.

1.50 There is, however, a lot we still do not know about stalking. As the knowledge base changes, the responses should also evolve and improve. The recommendations in this report are the start of the work that needs to be done, but not the end.

1. We have Commissioners who guide and make decisions about the inquiry. The Commissioners come from varied professional backgrounds. Commissioners are required to declare any potential conflicts of interest where they may intersect with the Commission’s work, including the development of recommendations. It may be appropriate for a Commissioner to recuse themselves from engaging with the decision-making around a particular issue when a potential conflict of interest arises. In this reference, Dan Nicholson, Executive Director, Criminal Law at Victoria Legal Aid, declared potential conflicts of interest and did not engage in decision-making in relation to Recommendations 22, 23, 32 and 42. These recommendations relate to Victoria Legal Aid.

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2. Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022).

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3. Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022).

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4. Sentencing Advisory Council (Vic), Sentencing Breaches of Family Violence Intervention Orders and Safety Notices (Report, May 2022).

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5. Sarah Bright, Lauren Barnaba and Melanie Millsteed, Attrition of Stalking Offence Incidents through the Victorian Criminal Justice System (Data Snapshot, Crime Statistics Agency, forthcoming).

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6. However, this issue was addressed in our consultation paper.

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7. See, eg, Submissions 10 (Rochelle Carli), 14 (George Hart), 19 (Lyn Crocker), 22 (Name withheld), 25 (Deborah), 27 (Name withheld), 28 (Name withheld), 30 (Name withheld), 33 (Name withheld), 40 (Name withheld), 42 (Name withheld), 43 (Name withheld), 53 (Barbara Jackson), 69 (Daniel Petrovski), 88 (Name withheld), 92 (Name withheld), 101 (Michael Buckman), 113 (Name withheld).

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8. See Chapters 6 and 7 of this report.

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9. See Chapter 5 of this report.

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10. Stalking by partners or former partners falls within a specialist system, which has processes to assess the risk posed to victim survivors and plan for victim safety and recovery.

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11. Marilyn McMahon, Paul McGorrery and Kelley Burton, ‘Prosecuting Non-Physical Abuse between Current Intimate Partners: Are Stalking Laws an Under-Utilised Resource?’ (2019) 42(2) Melbourne University Law Review 551, 551. In Chapter 7, we discuss the challenges associated with investigating the stalking offence.

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12. See Chapter 7.

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13. Bonnie Brandl, Candace J Heisler and Lori A Stiegel, ‘The Parallels between Undue Influence, Domestic Violence, Stalking, and Sexual Assault’ (2005) 17(3) Journal of Elder Abuse and Neglect 37, 44.

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14. Ibid 46.

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15. This imbalance is starting to change. Reforms to the Victims of Crime Assistance Act 1996 (Vic) were passed on 9 March 2022. The amendments ensure that alleged stalking offenders will no longer be notified of, or able to attend hearings at the Victims of Crime Assistance Tribunal (VOCAT). We discuss reforms to VOCAT in Chapter 5.

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16. Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 4, 70. The Centre for Forensic Behavioural Science told us that research indicates that intervention orders can be effective in stopping stalking, but in some cases fail to protect the applicant and make the situation worse: Submission 32 (Centre for Forensic Behavioural Science).

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17. Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022) xii.

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18. The police record breaches at a rate of around 20% of overall orders each year (see Chapter 7).

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19. Victorian Law Reform Commission, Stalking (Interim Report No 44, December 2021) Recommendations 1–3.

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20. Victoria, Parliamentary Debates, Legislative Assembly, 20 October 1994, 1884, 1887 (Geoffrey Coleman); Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2010, 2226 (Rob Hulls, Attorney-General).

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21. Carolina Villacampa and Marc Salat, ‘Stalking: Victims’ and Professionals’ Views of Legal and Institutional Treatment’ (2019) 59 International Journal of Law, Crime and Justice 100345:1–14, 10; Holly Taylor-Dunn, Erica Bowen and Liz Gilchrist, The Victim Journey : A Participatory Research Project Seeking the Views and Experiences of Victims of Stalking and Harassment (Report, Centre for Violence Prevention, University of Worcester, July 2017) 4; Mary P Brewster, An Exploration of the Experiences and Needs of Former Intimate Stalking Victims (Final Report Submitted to the National Institute of Justice, US Department of Justice, May 1999) 9, 53.
    
    We note that family violence and sexual violence victim survivors can also have a need for the abuse to stop and to feel safe.

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22. Suzan van der Aa and Anne Groenen, ‘Identifying the Needs of Stalking Victims and the Responsiveness of the Criminal Justice System: A Qualitative Study in Belgium and the Netherlands’ (2010) 6(1) Victims & Offenders 19, 28.

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23. Jenny Korkodeilou, ‘Dealing with the Unknown: Learning from Stalking Victims’ Experiences’ (2014) 16(4) Crime Prevention and Community Safety 253, 260.

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24. Some of these needs now align with Victorian legislation such as the Victims’ Charter Act 2006 (Vic); Criminal Procedure Act 2009 (Vic). See Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 32; Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report No 42, September 2021). The victim survivors we heard from in the sexual offences inquiry highlighted the need for the information to be timely.

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25. Mary P Brewster, An Exploration of the Experiences and Needs of Former Intimate Stalking Victims (Final Report, National Institute of Justice, US Department of Justice, May 1999) 9, 53; Jenny Korkodeilou, ‘Dealing with the Unknown: Learning from Stalking Victims’ Experiences’ (2014) 16(4) Crime Prevention and Community Safety 253, 258–65; Tim Boehnlein et al, ‘Responding to Stalking Victims: Perceptions, Barriers, and Directions for Future Research’ (2020) 35(7) Journal of Family Violence 755, 760; Suzan van der Aa and Anne Groenen, ‘Identifying the Needs of Stalking Victims and the Responsiveness of the Criminal Justice System: A Qualitative Study in Belgium and the Netherlands’ (2010) 6(1) Victims & Offenders 19, 19.

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26. Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) xii.

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27. Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).

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28. See, eg, Holly Taylor-Dunn, Erica Bowen and Elizabeth A Gilchrist, ‘Reporting Harassment and Stalking to the Police: A Qualitative Study of Victims’ Experiences’ (2021) 36(11–12) Journal of Interpersonal Violence 10.1177/0886260518811423:1–29.

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29. Submission 49 (Victims of Crime Commissioner).

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30. There has been some indication that the response needs to emphasise more the behaviour of the person who stalks. In 2003, for example, the original stalking offence was amended to remove the requirement that the victim experience a negative impact from the stalking—all that mattered was that the person stalking had engaged in the behaviour and had the required intent. The government said at the time, ‘The offence of stalking should focus on the behaviour of the offender rather than the response of the victim’: Victoria, Parliamentary Debates, Legislative Assembly, 27 March 2003, 693 (Rob Hulls, Attorney-General).

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31. See, eg, Tim Boehnlein et al, ‘Responding to Stalking Victims: Perceptions, Barriers, and Directions for Future Research’ (2020) 35(7) Journal of Family Violence 755, 762.

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32. Legal sanctions may not be enough to stop the stalking. See Chapter 8.

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33. Centre for Innovative Justice, RMIT University, Opportunities for Early Intervention: Bringing Perpetrators of Family Violence into View (Report, March 2015) 88.

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34. Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24, 25.

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35. Royal Commission into Victoria’s Mental Health System (Final Report, February 2021) vol 3, 347, Recommendation 37.

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36. ‘Development of National Principles on Addressing Coercive Control: Terms of Reference’, Attorney-General’s Department (Web Page, 9 July 2021) <https://www.ag.gov.au/families-and-marriage/publications/development-national-principles-addressing-coercive-control>; Jewel Topsfield, ‘Debate Rages among Family Violence Campaigners over Criminalising Coercive Control’, The Sydney Morning Herald (online, 26 November 2020) <https://www.smh.com.au/national/debate-rages-among-family-violence-campaigners-over-criminalising-coercive-control-20201126-p56i9l.html>.

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37. Department of Justice and Community Safety (Vic), Victim Support Update (Report, December 2021) 7.

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38. Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report No 42, September 2021).

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