Stalking: Forms of Behavior, Typologies, Responsibility in Foreign and Russian Legislation

This article, based on comparative legal analysis, reveals the essential characteristics of the process of development of foreign, international, and Russian legislation in terms of countering stalking (persecution). The psychological mechanisms of this behavior are generalized and systematized, typologies of stalkers are presented, as well as the possibilities of using these typologies in the work of law enforcement agencies. The author’s position is substantiated that theoretical studies of stalking in Russia are in their infancy, and domestic theories explaining stalking are underdeveloped compared to other areas of clinical psychology. Consequently, there is a dearth of research on concepts that can guide the formulation of legal norms aimed at effectively countering stalking in Russia. It is substantiated that persecution is an independent type of criminal offense. Based on a study of foreign legislative experience and known typologies of stalkers, a definition of stalking as a crime is given.

Introduction

Unfortunately, we have to admit that stalking is a serious social challenge. In a broad sense, stalking is defined as a model of repetitive undesirable behavior consisting in repeated or systematic harassment by one person of another. This behavior may be perceived by the victim as annoying, threatening, causing fear or anxiety [16, p. 9—16]. This behavior is often referred to as “persistent harassment.” The term stalking or stalking is derived from the English “stalker” — stalker.

Despite the fact that stalking is a rather ancient behavior, it was only since the mid-1990s that the first serious studies of this phenomenon began to appear. One of the first such works in which stalking is a term describing the obsessive pursuit of a former lover by a man was written in the USA in 1995 [12].

It was the USA that became one of the first countries where stalking was criminalized. And there is an explanation for that.

So, in 1974, the Supreme Court of California considered a high-profile case on the murder of Tatiana Tarasoff. The killer was a man who committed this act in retaliation for the fact that the girl did not reciprocate him [1, p. 145]. The high-profile lawsuits that took place in California and other states and the subsequent discussions in the media predetermined the outline of the new anti-stalking legislation and the vector of future research on legal, criminological, medical and psychological issues related to harassment.

But the scientific community and legislative bodies do not pay due attention to the study of stalking, preferring to focus more closely on problems related to domestic violence in general [2, pp. 131—155; 5, pp. 165—176; 10, pp. 13—33;].

However, stalking is not limited to domestic violence. It is not directed exclusively at women. In about 50% of cases, the persistent stalkers are former partners, including spouses. Stalkers can be not only men, but also women. There may be cases of harassment by strangers or unfamiliar people [9].

Existing research on stalking shows that women are most often harassed. In the United States, annually for 1 million women who have been criminally persecuted, there are about 400 thousand women who have become victims of this behavior [4, pp. 101—102].

According to other data, up to 16% of women and 7% of men report that they have ever been persecuted in their lives [14, p. 279].

Stalker’s behavior does not always look criminal on the outside. Constant letters, SMS messages, searching for reasons to meet — all these forms of behavior, regardless of their context, will not force the police to make even the slightest effort to respond, since they are unlikely to be considered an offense.

Since the adoption of the first anti-stalking laws, knowledge about people who engage in stalking, their victims and their behavior has expanded significantly, but the literature on the study of this phenomenon is relatively stagnant. The vast majority of research focuses on the description of this phenomenon, whereas there is clearly not enough work devoted to the study of the psychological and social mechanisms that generate this behavior.

Unlike other criminally significant behaviors (such as domestic violence, criminal sexual behavior), there are relatively few studies explaining stalking, but none of them have been the subject of comprehensive and sustained evaluative research.

There is a clear need to answer the question of which legal mechanisms to respond to stalking are the most effective and appropriate.

But only by understanding the psychological, situational and social factors contributing to persecution can we hope to develop effective legal response strategies.

Definition of stalking in foreign legislation

By the mid-1990s, the first laws on the criminalization of stalking appeared. At first, criminal liability for harassment was established by the Criminal Code of the State of California (USA). It was the reaction of state legislators to the violent actions of obsessive stalkers against two famous actresses, as well as the murder of Tatiana Tarassoff. The example of California was not slow to be followed by legislators of other states and for three years laws providing for criminal punishment for stalking have already been in force throughout the United States [4, p. 16].

Following the United States, in the 1990s, all states of Australia and Canada adopted laws on criminal liability for harassment [4, p. 16]. In 1997, criminal liability for harassment was established in the United Kingdom (England and Wales) on the basis of the law on protection from harassment [13, p. 229]. According to this law, a person whose behavior in at least two cases causes another to fear that violence will be used against him is guilty of committing a crime if he knows or should have known that his behavior would cause the other to fear in each of these cases.

In Ireland, in accordance with Article 10 of the Non-Fatal Crimes against the Person Act, which was adopted in 1997, harassment is defined as intentional or premeditated serious violation of the peace and privacy of another person or causing him anxiety, suffering or harm. The basis for criminal prosecution is the commission of two or more actions related to an undesirable intrusion that could cause alarm, anxiety or create a threat of harm to a reasonable person [15, p. 53].

In Belgium, in 1998, Article 442bis was introduced into the Criminal Code, according to which: “Anyone who harassed (harassed) a person, while he knew or should have known that by his behavior he would seriously disturb the peace of this person, will be punished with imprisonment for a period of fifteen days to two years and a fine of fifty [euros] to three hundred [euros] or only one of these punishments” [4, pp. 101—102].

For a criminal legal assessment of an act as harassment, only a general consequence is required - a “serious disturbance of the victim’s peace”. What is considered a serious violation of peace is a matter of fact, which in each specific case must be decided by the court based on the actual circumstances of the case. Belgian criminal law provides for liability for harassment (harassment) only with intentional guilt, since the perpetrator knows or should have known that his behavior leads to a serious disturbance of the peace.

In 2000, an anti-harassment law was introduced in the Netherlands. Just as in the UK, Dutch law establishes liability for prosecution, implying that the composition of the crime is not an isolated case. However, the law does not specify exactly how many times the act of an attacker should be repeated. It depends on the type of behavior in question. If the act is extremely aggressive, such as breaking into the victim’s home, only two or three incidents in a short period of time may be enough for harassment, whereas less serious types of harassment, such as sending letters, require more incidents over a longer period of time.

To qualify what was done as a crime, it is necessary that the behavior of the persecutor be intentional and aimed at forcing another person (the victim) to commit any actions, or vice versa, to refrain from committing them and cause fear in this person [6].

The Dutch law has been the subject of heated debate primarily because of its perceived effectiveness and the difficulty of describing harassment-related behavior.

It is worth emphasizing that in the Netherlands, 60—70 women die annually as a result of the actions of stalkers [4, p. 103].

In Germany, on the basis of the law “On Protection from Violence”, adopted in 2001, a norm was introduced into the Criminal Code providing for punishment for harassment, which refers to the following forms of behavior:

1. the desire for physical intimacy with the victim;
2. establishing contact with the victim via the Internet, using other means of communication or through a third party;
3. ordering goods or services for the victim using her personal data;
4. encouraging others to contact the victim using her personal data.
5. the threat of physical violence against the victim or her loved ones.

The term “persecution” is not specified in the Criminal Code of Germany. According to the criminal law, these behaviors are criminal in the case of ongoing acts of harassment [15, p. 49].

In Malta, the criminalization of stalking was a direct decision of the legislators, who included this behavior in the Criminal Code in 2005. Maltese legislation uses the term “harassment” to combat stalking, which is more general in relation to harassment. To qualify the behavior of an attacker as a crime, it is required to commit a threat of violence against the victim or his relatives if there is reason to perceive the threat as real.

In 2006, criminal liability for persistent harassment was introduced into the Austrian Criminal Code, Article 107a of which defines persistent harassment similar to the Criminal Code of Germany.

The criterion for qualifying behavior as a criminal act is the fact of violation of the victim’s privacy [19, p. 41].

As for other European countries, many member States of the European Union remained for a long time without special laws in the field of combating stalking, although this phenomenon has become a matter of scientific and social concern for most European states since the mid-1990s.

The first serious study, which was mainly of a comparative legal nature, was conducted in Europe in 2007 on the basis of the University of Modena and Reggio Emilia (Italy) in collaboration with the Faculty of Clinical Psychology of the University of Amsterdam, with criminologists from Belgium, Finland, Great Britain, Germany (the Modena Stalking Group) [19, p. 41].

In a study by the Modena Group of the legislation of European states, it was noted that stalking is a very difficult phenomenon to define, since it is characterized by various repetitive and persistent forms of behavior when an attacker repeatedly or systematically imposes communications on the victim, including through the threat of violence.

It was also noted that the adoption of new anti-stalking laws or amendments to existing laws should be preceded by a more in-depth study of this phenomenon. In particular, serious empirical studies of the prevalence and nature of stalking are required.

The concept of stalking has entered scientific circulation and has become the subject of discussion in many countries, and not only in those that have adopted special laws against harassment. We believe that the study conducted by the Modena Group has created a methodological basis for the adoption by the Council of Europe on 11.05.2011 in Istanbul of the Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), article 34 of which defines that “the parties take the necessary legislative or other measures to ensure that intentional behavior in in the form of repeated threatening behavior directed at another person, which causes her or him to fear for their safety, was prosecuted” [3].

After the adoption of this convention, the number of European States criminalizing stalking has increased significantly. These include Italy, Slovenia, Sweden, Portugal, Romania and many others.

Thus, according to the legislation of European states and the United States, stalking is an intentional way of repetitive obsessive and intimidating behavior towards a particular person, making that person feel oppressed, threatened and afraid.

Typologies of stalkers

Over the past three decades, behavioral scientists have made efforts to develop typologies of stalkers.

In 1999, the scientist-psychologist D.R. Meloy described a typical stalker in this way. This is, as a rule, a man who works part-time or is unemployed, aged from 30 to 40 years, is not married, has previously committed criminal acts, abusing psychoactive substances or drugs. He has a professional education. His victim is usually a woman with whom he was previously in an intimate relationship. His behavior is partly due to the pathology of attachment. In some cases, the victim may be a man. At the same time, Meloy emphasizes that homosexuals are at significantly higher risk of persecution than heterosexual men [16, p. 86].

The typology described in 1993 by M. Zona and his colleagues is the most detailed. They identify four types of stalkers:

1. A simple obsessive stalker. More than half of stalkers belong to this type. They usually have drug addiction or abuse psychoactive substances. In most cases, these are men with a personality disorder. Harassment is committed on the basis of rejection by his partner or on the basis of unfair (in his opinion) reproaches at work. The duration of persecution among representatives of this type is up to one year, but the risk of transition to violent actions is the highest [16, p. 86; 21, pp. 894—903].

It is worth noting that the case of Tatiana Tarasoff, who was killed in California in 1969 by a stalker with erotic tendencies, became the basis for the formation of the contour of anti-stalking legislation in the United States [12, p. 270].

2. Obsessed with love. This is the second largest group (about 30% of the total), whose representatives are men. They are delusionally convinced that they are in love with a woman who reciprocates, but cannot show their feelings. A stalker of this type sees his mission in showing an imaginary lover that she loves him [17, p. 497; 21, pp. 894—903].
3. Erotomaniac stalkers make up no more than 10% of the total number of pursuers. Mostly women pursuing unfamiliar or unfamiliar men. This type of stalker is characterized by the primary diagnosis of delusional disorder of the erotomanic subtype. The duration of persecution by representatives of this type is more than 1 year [17, p. 497; 21, pp. 894—903].
4. Stalkers with false victimization syndrome are the smallest group whose representatives are characterized by claiming to be harassed by a known or unknown person, while in fact no one is harassing them. Personality disorder is often diagnosed. Motivation can be conscious (alibi), subconscious (attracting attention) or delusional (harassment) [16, p. 86; 17, p. 497].

Another typology is presented in a study by Sheridan, L. P., and Boon, J. In 2002. This typology was developed by these scientists for law enforcement agencies. Four types of stalkers have been described:

1. Stalking by an ex-spouse. Such behavior may involve verbal abuse, or even physical violence.
2. Harassment based on love. In this case, the risk of violence is significantly lower, unlike the first group, since the victim is an unfamiliar or unfamiliar person who is perceived by the persecutor as an object of love that needs to be conquered [6, p. 115].
3. Persecution based on delusional ideas. Representatives of this group are obsessed with the idea that the stalker and the object of his influence have a special relationship that will end in intimacy due to persistent efforts.
4. Sadistic stalkers. This is the most dangerous type of persecutors who enjoy intimidating their victims in order to gain power over them [20, pp. 63—82]. Obviously, in this case, the pursuer’s first choice is to win the love, attention, or admiration of the target.

The integration of the described typologies helps to create a basic classification according to the goals of persecution:

1. to establish a relationship. This includes those obsessed with love and stalkers suffering from erotomania [17, p. 497]. Obviously, in this case, the pursuer’s first choice is to win love and attention;
2. to punish rejection or to intimidate. These are simple obsessive stalkers [16, p. 86; 21, pp. 894—903], rejected and offended stalkers, once former partners [20, pp. 63—82];
3. to gain power over the victim. These are sadistic persecutors [20, pp. 63—82].

Prospects of legislation on liability for stalking in Russia

Russia does not contain a special law on combating stalking. The draft law “On the prevention of domestic violence in the Russian Federation” proposed by the State Duma Committee on Family, Women and Children does not address the problem of stalking in any way. In the explanatory note to this bill, it was noted that according to official data of the Ministry of Internal Affairs of Russia, 40% of all violent crimes are committed in the family (it is worth noting that the bill did not even reach the first reading - author’s note) [8].

An attacker may be criminally liable under articles on crimes against life and health (threat of murder, incitement to suicide, for causing harm to health); against sexual integrity (coercion to have sexual intercourse); against constitutional rights (violation of privacy, violation of the secrecy of correspondence, violation of the inviolability of the home). This is not a complete list of legal norms providing for liability for acts committed on the basis of persecution.

However, it should be borne in mind that responsibility for the listed actions does not come for persecution, but for specific illegal actions that caused harm to the victim or created a threat of causing such harm.

The current legislation is powerless if the persecution itself does not have signs of any crime or offense, especially since the behavior of the persecutor may be outwardly quite legitimate.

Due to the lack of responsibility for persecution in the legislation, criminal and moral statistics do not reflect information about the facts of persecution and persecutors.

In fairness, it should be noted that the problem of persecution has already been actualized in Russian literature. The available research is mainly based on a comparative legal analysis of the legislation of foreign countries. The vast majority of Russian authors admit that the criminalization of this behavior will contribute to the prevention of stalking [4, pp. 100—106; 10, pp. 53—56].

We believe that harassment represents criminal behavior that has all the hallmarks of a crime.

The existing typologies of stalkers for the purposes of persecution, as well as taking into account the description in foreign legislation of the nature of their actions against the victim, we can assume that the object of their encroachment at the initial stage is always the private life of the victim.

Modern concepts of stalking described in foreign literature and taken into account in foreign legislation show that harassment must be repeated or systematic in order to qualify it as a criminal act.

The objective side of stalking is expressed by the following actions:

repeated or systematic manifestation of a person’s attention to another person against his will, as well as repeated or systematic pursuit of physical intimacy through persistent actions aimed at establishing personal contacts, including using telecommunications technologies, other means of communication or through other persons, committed without the use of violence or without the threat of its use, if such actions caused justified fear in the victim for his safety or the safety of his loved ones.

Conclusions

Based on the conducted research on the study of foreign legislative experience and well-known typologies of stalkers, the definition of stalking as a crime is formulated. However, it should be borne in mind that this definition is incomplete and needs to be clarified for the following reasons.

Theoretical research on stalking in Russia has begun recently and is in its infancy, while domestic theories explaining the nature of stalking are insufficiently developed compared to other areas of clinical psychology.

Thus, there is a shortage of research concepts that could be used to guide the formulation of legal norms aimed at effectively countering stalking in Russia. As research on this issue develops, the proposed definitions of stalking will be adjusted.

We offer:

Chapter 19 of the Criminal Code of the Russian Federation should be supplemented with a criminal law norm on liability for harassment as follows:

“Harassment (stalking), that is, repeated or systematic manifestation of a person’s attention to another person against his will, as well as repeated or systematic pursuit of physical intimacy through persistent actions aimed at establishing personal contacts, including using telecommunication technologies, other means of communication or through other persons, committed without the use of violence or without the threat of its use, if such actions caused justified fear in the victim for his safety or the safety of his loved ones, is punished…”.

It would also be advisable to establish criminal liability for the same actions committed with the use of violence or with the threat of its use.

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