Thu Jul 15

Victoria considers electronic surveillance for alleged stalkers

Written by Bernadette McSherry, Emeritus Professor, The University of Melbourne

In 1993, Andrea Patrick was murdered by her ex-partner after a period of severe harassment and despite a restraining order being made against him. The public outcry that followed Patrick’s death impelled the New South Wales government to follow Queensland’s lead and enact an offence of stalking ^[1].

During the 1990s, all Australian states and territories made stalking a distinct crime. Evidence of stalking can also form the basis of civil law orders known as restraining, apprehended violence or intervention orders.

However, there are concerns that little has changed since Andrea Patrick’s death. There is a view ^[2] that stalking is not being treated seriously enough and intervention orders may be breached without serious ramifications for alleged offenders.

The Victorian attorney-general has asked the Victorian Law Reform Commission ^[3] to consider new measures for responding to stalking, including whether electronic monitoring could be a condition of intervention orders.

Before considering the advantages and disadvantages of such a measure, it is worth considering how stalking is defined.

What is stalking?

While definitions differ, in general, stalking refers to a pattern of behaviour intended to cause harm or arouse fear. Stalking can include:

surveillance ^[4]: obsessive monitoring through physically following or tracking the other person via technology or by loitering at the person’s home or workplace
repetition ^[5]: there may be unwanted contact that occurs multiple times – it can happen over the course of one day, a few weeks, or many years
degradation: this may involve verbal abuse, posting denigrating comments or images online, or humiliating the other person in public
intrusion ^[6]: this may include repeatedly approaching the other person, interfering with the person’s property, or entering the person’s home or workplace.

Stalking can involve actions that would, in another context, be legal or even welcome. For example, gift-giving is usually legal. But if someone repeatedly gives another person unwanted gifts and will not stop when asked, this may amount to stalking.

Intervention orders

Individuals can apply to a court for an intervention order that prohibits another person (the defendant) from behaving in a particular manner towards them. In addition to acting as a restraint on the defendant’s behaviour, an intervention order can direct the defendant to comply with certain conditions.

In Victoria, for example, there are two types of intervention orders: family violence intervention orders ^[8] and personal safety intervention orders ^[9]. The first type covers situations between family members, including current or former intimate partners and some carers. The second type covers all other relationships.

Lower courts may grant intervention orders if there is sufficient evidence of stalking.

Electronic monitoring

Electronic monitoring generally refers to “forms of surveillance with which to monitor the location, movement and specific behaviour of persons ^[10]”. It includes the use of devices such as ankle bracelets, which use radio frequency or Global Positioning System (GPS) technology to monitor the location of the person.

While the use of such devices is usually associated with monitoring offenders after conviction, pretrial electronic monitoring is used in some places as a condition of bail ^[11]. Electronic monitoring is also permitted in South Australia and Queensland for some individuals using forensic mental health services ^[12].

Victoria considers electronic surveillance for alleged stalkers

Electronic monitoring devices such as ankle bracelets have been used pre-trial in some cases. Shutterstock

It appears electronic monitoring has not been used in Australia as a condition of intervention orders. However, Matt Black and Russell G. Smith pointed out ^[13] in 2003 that “modern restriction and surveillance capabilities may raise the possibility for consideration”.

Pros and cons of electronic monitoring

Electronic monitoring may help to ensure intervention orders work to prevent alleged stalkers physically approaching particular people. It can ensure they don’t enter proscribed areas and be used to track their movements.

However, it can be expensive. The panel that reviewed post-sentence supervision of sex offenders in Victoria observed ^[14]:

[…] the costs associated with electronic monitoring were considerable, particularly in proportion to other important functions undertaken by Corrections Victoria.

Due to resource allocation, it is not feasible for every alleged stalker to be monitored 24 hours a day. Analysis of the electronic monitoring data is also not necessarily immediate. If electronic monitoring were an option in relation to intervention orders, it may also lead to more contested cases, thereby taking up more court time.

There are human rights issues in relation to curtailing the liberty of those who have not been convicted of a crime. Wearing an electronic device may also be sitgmatising. The balance here is whether public safety considerations outweigh individual rights.

A shift in focus

Being forced to modify behaviour to avoid being stalked appears to be common for victim survivors of stalking. They may experience significant lifestyle changes such as:

avoiding places where their stalker might be
changing routines
quitting school or their job
moving house.

A key question for the Victorian Law Reform Commission inquiry into stalking will be whether electronic monitoring can help shift the focus away from victims having to alter their own behaviour to forcing alleged offenders to alter theirs.

Electronic monitoring may have a role to play, but it may be that the disadvantages outweigh the benefits.

Submissions to the inquiry close on August 5 2021. A consultation paper ^[16] to guide submissions can be found on the VLRC website, and an anonymous online form for people who have experienced stalking can be completed via the following link ^[17]. The Commission is due to provide an interim report to the Victorian government by December 31 2021 and a final report by June 30 2022.