A push to make stalking illegal

A criminal defence barrister says that a dedicated stalking law could bring a much-needed culture change to the issue.
Stalking has been a crime in all 50 US states since 1990. In 1993, Queensland passed an anti-stalking law, and other Australian states have since followed. England and Wales introduced laws in 2012 and the European Union required all member states to have one by 2017.
But in New Zealand, while certain stalking behaviours are illegal, stalking itself is not a crime.
In June, after receiving a petition signed by 20,000 people, Justice Minister Paul Goldsmith promised to introduce a bill to Parliament that would criminalise stalking by the end of the year.
Criminal defence barrister Iswari Jayanandan tells The Detail that in her experience, stalking hasn’t been an issue that often comes before the courts.
But just because there aren’t a lot of cases, doesn’t mean stalking isn’t happening. An Amnesty International survey reported about one in three Kiwi women have been stalked online.
Public attention shifted after the 2022 murder of Farzana Yaqubi, who was stalked leading up to her death.
“Effectively, the way legislation happens is that somebody, somewhere, raises it as a significant public issue and then the successive governments take interest in it,” she says.
Currently, when stalking behaviours are reported to the Police, they are recorded as various incidents or offences, ranging from suspicious behaviour to trespass to burglary or assault, depending on the circumstances of each case.
Other cases that don’t involve stalking may also be recorded under these same classifications.
Jayanandan says that in her experience, people aren’t aware of what laws already exist to protect victims of stalking.
She says the Harassment Act is widely thought to treat incidents as a civil matter, but has a clause which allows police to criminally charge an offender.
“There is a specific provision which allows for criminal harassment and the maximum penalty is a two-year term of imprisonment,” she says.
Jayanandan says the range of behaviours covered under this clause go beyond the obvious loitering outside someone’s house.
“It also allows for entering someone’s property, taking their possessions… electronic communication, telephones, offering material or leaving it in a person’s house, it is reasonably wide,” she says.
But Jayanandan doesn’t believe it’s being used to its full potential.
“The Harassment Act certainly involves a lot of judgment call by the police, ‘do I go down the criminal route or do I tell them to go get a civil order?’ she says.
“I think if you just say to them ‘no longer do you have to make a judgment call because it is now definitely a crime, then the focus for them is easier.”
Jayanandan also wants to see more investment in educating frontline officers.
“They’re the first point of contact often for when this type of scenario happens… it might involve training police officers to look out for these types of indicators, which are indicators of future harm… they need to be told ‘don’t just think it’s some civil issue, it’s now a criminal issue,” she says.
Jayanandan says any new legislation needs to clearly identify what qualifies as stalking, and to keep the victim at the centre.
“It needs to cater for the very obvious types of stalking as well as the invisible types of stalking which is usually electronic and cyber-related,” she says.
“Stalking laws are not just about punishing the offender; they should also find a way to empower victims so that they are feeling like they have a say and they have some control in what’s happening to them.”
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