Imagine you are sitting behind your desk at work and the bleep of an incoming message on your cellphone draws your attention. The obscene message reads: "Nice top you're wearing, it looks good on you, but it will look better off. And by the way, I like the way your hair looks today." You look around, out of the window and down the corridor, but there is nobody. You get a feeling of sickness in your stomach because you know that it is the same person who SMSed you last night while you were preparing dinner, telling you that you look sexy wearing an apron.
By Kotie Geldenhuys
Stalking is a form of harassment whereby one person continually gives unwanted attention to another person. According to Dr Gérard Labuschagne from L&S Threat Management and the former head of the Investigative Psychology Section (IPS) of the SAPS, stalking is a repeated and persistent attempt to impose unwanted communication and/or contact on another person. This may take the form of phone calls, messages, e-mails or following the victim continuously.
The IPS regard the following behaviour as stalking:
- a series of actions carried out with some regularity during a certain period;
- behaviour that is directed towards a specific person or that person's relatives, acquaintances, colleagues or property;
- characterised by unwanted contact as the victim does not welcome the attention and has made this clear to the perpetrator (verbally, in writing or through body language); and
- disruptive, as the victim suffers physical and/or mental anguish.
Yet, it is important to note that there is no legal definition for stalking in South Africa as we do not have a crime called stalking. Victims therefore find it difficult to report stalking behaviour to the police as some of them are turned away at Community Service Centres, simply because of the fact that there is no such crime per se. And yet, despite this apparent shortcoming in the law, police regularly receive complaints from people who claim that they are being followed or persistently harassed. However, unless the stalking entails individual actions which are criminal in nature, the police are unable to provide redress. In cases where a docket is opened, it is often closed soon thereafter as investigators are unsure of how to handle stalking cases. In South Africa, little can be done to deter or punish a stalker until he or she actually causes direct harm to an individual or an individual's property. Unfortunately, it is a reality that stalking can lead to a physical attack.
Dr Labuschagne explained that one has to look at the stalker's behaviour to take it further: for example, if he scratches the victim's vehicle with a key, he commits the crime of malicious damage to property and if he physically attacks the victim, the stalker can be charged with assault. When looking at a stalker's behaviour, there will almost always be a criminal act involved. During a talk show on Power FM in 2017, Dr Labuschagne said that the problem one has when there is not a crime with a specific definition, investigators will have different ways to look at the stalker's behaviour. "So, if you look at stalking behaviour on their own, one police station might open a malicious damage of property case while another police station might open a case of crimen injuria for the same stalker. Individually taken, these cases are not typically taken very seriously by the police, as they are individually regarded as minor crimes and seemingly not much to worry about. But if we have a crime called stalking all these cases could be consolidated and considered as a pattern of behaviour."
The closest legal definition is found in the Protection from Harassment Act 17 of 2011 which came into effect in 2013 and which defines "harassment" as the "directly or indirectly engaging in conduct that the respondent knows or ought to know -
(a) causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably
(i) following, watching, pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or
(iii) sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to or brought to the attention of, the complainant or a related person; or
(b) amounts to sexual harassment of the complainant or a related person;".
Although we do not have a crime called stalking, it is important for investigators to not ignore stalking as the stalker's actions can escalate into physical harm.