Legal Aspects of Stalking and Cyberstalking in the Maltese Criminal Code

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Legal Aspects of Stalking and Cyberstalking in the Maltese Criminal Code: Our Experience So Far

ABSTRACT 

As J.Reid Meloy states, “if there is a heart of darkness in the desire to bond with another, it is stalking.”  Stalking is a relatively new crime albeit such conduct may be traced back to centuries.  The first part of this paper looks into the historical context and legal developments which led to the inclusion of specific provisions making stalking an offence.  Although first attributed to celebrities, women’s movements started to envisage scenarios which involved this conduct within a family context.  It is known that stalking may occur to anyone, male or female. It could also happen between members categorised as household members as well as between strangers.

This research starts with a thorough assessment of parliamentary debates in Malta which took place prior to the introduction of the relevant provisions in the Criminal Code criminalising the conduct of harassment and stalking respectively. Parliamentary debates allowed a clear understanding of challenges encountered when trying to criminalise stalking as a separate offence from that of harassment.  Until 2014 stalking was considered to form part of the crime of harassment. With the enactment of article 251AA in the Criminal Code, stalking became a specific crime requiring a specific intent to be accomplished.  

The paper looks into the different definitions of the terms stalking, harassment as well as cyber-stalking. The elements of the offences are analysed.   Section 3 compares the methods involved in stalking and cyberstalking. Section 4 looks into the applicable penalties and orders that may be issued by a court of law when determining that a person is guilty of the offence of stalking and to protect victims of such an offence. The last section of this paper seeks to provide some recommendations which can be considered by relevant stakeholders for better protection from such conduct.

 

Keywords:  Harassment, Stalking, cyber-stalking, course of conduct, Criminal Code. 

Table of Contents

DECLARATION OF AUTHENTICITY FOR UNDERGRADUATE STUDENTS

ABSTRACT

DEDICATION

TABLE OF CASES

TABLE OF STATUTES

Maltese Law.

EU Law.

United Kingdom Law.

Californian Law.

ACKNOWLEDGEMENTS

INTRODUCTION

METHODOLOGY AND LITERATURE REVIEW

SECTION 1:  HISTORICAL DEVELOPMENTS LEADING TO THE INTRODUCTION OF THE OFFENCE OF STALKING

1.1 The First Country to Introduce Anti-Stalking Legislation

1.2 The Path to Legislative Reform in Malta

1.3 The Introduction of Provisions on Harassment and Stalking in the Maltese Criminal Code.

SECTION 2:  AN ANALYSIS OF THE APPLICABLE PROVISIONS OF THE CRIMINAL CODE

2.1 Defining the Terms ‘Harassment’ and ‘Stalking’

2.2 Required Elements under the Maltese Criminal Code

2.3 The Requirement of a Course of Conduct

2.4 The Requirement of a Specific Course of Conduct to Prove Stalking

2.5 The Importance of Context and the Test of the Reasonable Person

2.6 Types of Stalkers (Categories)

2.7 Stalking Involving Fear of Violence, Serious Alarm or Distress

SECTION 3:  STALKING vs CYBERSTALKING

3.1 What is Cyberstalking?

3.2  Types of Cyberstalkers

3.3  Cyberstalking Under Maltese Law

3.4 Statistics Pertaining to Cyberstalking

SECTION 4:  PENALTIES AND ORDERS BY THE COURT

4.1 Penalties

4.2 Court Orders

SECTION 5:  RECOMMENDATIONS

5.1 The Need to Carry Out an Analysis of the Interpretation of the Law as Delivered by the Courts in Judgements

5.2 An Amendment in the Criminal Code to Allow the Issuing of Temporary Orders to Protect Victims

5.3 Carrying Out and Implementing the Full Policy Process

5.4 Cross Border Crime and the Harmonisation of Laws and Systems of Cooperation

5.5 The Local Prosecution Body

5.6 Educating the Public

BIBIOGRAPHY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CASES

 

Pulizija vs Alan Caruana Carabez, Court of Criminal Appeal, 21st June 2007.

Pulizija vs Carmelo Vella, Court of Criminal Appeal, 14th May 2012.

Pulizija vs Paul Spiteri, Court of Criminal Appeal Inferior Jurisdiction, 27th October 2016.

Pulizija vs Generoso Desira, Court of Magistrates, 14th June 2013.

Pulizija vs Emanuele Micallef, Court of Criminal Appeal, 21st June 2016.

Pulizija vs Paul Lughermo, Court of Magistrates, 19th December 2016.

Pulizija vs Massimo Tivisini, Court of Magistrates, 20th November 2008.

Pulizija vs Massimo Tivisini, Court of Criminal Appeal, 27th February 2009.

Pulizija vs Massimo Tivisini, Court of Magistrates, 16th January 2014.

Pulizija vs Matthew Borg, Court of Magistrates, 10th November 2014.

Pulizija vs Pierre Buttigieg, Court of Criminal Appeal, 17th September 2008.

Pulizija vs Joseph Gauci, Court of Criminal Appeal, 5th October 1998.

Pulizija vs John Pace, Court of Criminal Appeal Inferior Jurisdiction, 21st January 2016.

Pulizija vs Paul Grech, Court of Criminal Appeal, 6th April 2001.

 

 

 

 

 

 

 

 

 

TABLE OF STATUTES

 

Maltese Law.

Criminal Code, Chapter 9 of the Laws of Malta.

Domestic Violence Act, Chapter 481 of the Laws of Malta.

Council of Europe Convention on Prevention and Combating of Violence Against Women and Domestic Violence (Ratification) Act, Chapter 532 of the Laws of Malta.

Electronic Communications (Regulation) Act, Chapter 399 of the Laws of Malta

Data Protection Act, Chapter 440 of the Laws of Malta

Probation Act, Chapter 446 of the Laws of Malta

 

EU Law.

Istanbul Convention, The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence. 

 

United Kingdom Law.

Protection from Harassment Act, 1997.

 

Californian Law.

California Penal Code Section 646.9.

Stalking: An old behaviour, a new crime” – John Reid Meloy, 1999[1]

INTRODUCTION

Stalking is a crime of terror which seems to have a beginning but appears to be without an end.  The historical context and legal developments, which led to the inclusion of specific provisions in the Criminal Code making stalking an offence, were lengthy and heavily debated.  The discussion regarding how best to protect victims ensues with different schools of thought presenting their respective positions.

METHODOLOGY AND LITERATURE REVIEW

The research methodology required a qualitative and quantitative method of data collection tools.  Indepth interviews were held with representatives from the Ministry responsible for social dialogue, former members of the Domestic Violence Commission, representatives from Victim Support Malta, the Cyber Crime Unit and the Special Rapporteur for the United Nations on Matters Relating to Privacy. These interviews helped me gather information and understand the prevailing situation on the subject matter.  Available statistical data was obtained from the Malta Police Force. I also attended the conference ‘Cybercrime vs Cybersecurity: Trends, Threats and Truths’ held on the 28th March 2017.

A comparative study with the United Kingdom and Californian legislation is evidenced in this paper. Californian law was chosen in view of the fact that anti-stalking legislation first emerged in this American state in the 1990s.  The United Kingdom was chosen due to the fact that the Maltese provisions in the Criminal code were modelled on their Protection from Harassment Act, 1997.

Desk research enabled me to indulge in doctrine available on the subject. Of particular relevance are prominent authors such as Meloy[2] and Gothard[3] and Pathe[4] and Mullen[5].  International law journals, text books and local parliamentary debates were used to obtain information and a better understanding.

Relevant case law is referred to throughout this paper.  Through local judgments I could observe the interpretation of the elements of harassment, stalking and cyber-stalking.  Considering the word limit, it was not possible to focus on other foreign jurisprudence nor judgments.

 

SECTION 1:  HISTORICAL DEVELOPMENTS LEADING TO THE INTRODUCTION OF THE OFFENCE OF STALKING

 

1.1 The First Country to Introduce Anti-Stalking Legislation

 

Anti-stalking legislation first emerged in Californian Law. Its purpose was to protect celebrities who endured harassment and threatening behaviour from their fans. At the time the entertainment industry demanded criminal penalties against such conduct. After reading yet another newspaper article about the powerlessness of law enforcement to prevent murders involving stalking, Municipal Court Judge John Watson[6] drafted the first ever stalking statute and presented it to a state senator for consideration. Watson’s initiatives, together with the media’s attention following the murder of actress Rebecca Schaeffer, led the California state legislature to enact the Penal Code Section 646.9[7].  Within four years all fifty states in America introduced legislation criminalising stalking. Subsequently similar provisions were introduced around the world, including countries in Europe.

The term ‘stalking’ has today acquired new connotations. The perception has changed from one where such acts were thought to be solely attributed with public and famous figures to one where it is now accepted that stalking can occur even amongst non-public persons.[8]  Stalking is a form of psychological and/or physical terrorism that relies upon the existence of unequal power[9].

 

 

1.2 The Path to Legislative Reform in Malta

The usual trend in Malta is that the legislature first introduces legislative provisions followed by the implementation of a relevant plan with the launching of the necessary support structures and services. This trend was not evidenced in the case of the offence of stalking in Maltese legislation as will be explained hereunder.

Anti-stalking legislation is new in the Maltese Criminal scenario[10] and only saw the light of day because specific legislation on domestic violence was passed through Parliament.  A look back at the painstakingly long process which led to the introduction of this offence seems to indicate that policy makers appeared reluctant to admit that a real problem existed. The process for the enactment of a specific law was slow-moving and there appears to have been an underestimation of the repercussions which victims endured. This may be attributed to the local cultural background. In fact it may be acknowledged that the state and institutions in a society influence the socialization process possibly by providing a picture of an ideal society[11].

The enactment of specific provisions was preceded by years of great insistence and perseverance by stakeholders working in the domestic violence field, who strived in the hope of seeking adequate protection from the law for victims enduring harassment and stalking. The first shelter for victims of domestic violence was introduced by the voluntary sector in 1981 when Dar Merhba Bikwas set up.  Given that the law did not, at the time, offer adequate protection to victims, the voluntary sector took the lead by providing a shelter to help victims regain their sense of dignity and self-worth after this may have been diminished extensively due to the effects of domestic violence.  It was not before the 1990s that the government set up an action team to start debating the matter. Through the efforts of the action team, in 1994, Agenzija Appogg started its Domestic Violence service[12].

The seeds of the first legislative developments leading to the criminalisation of harassment and stalking were seen in 1998 when a white paper on domestic violence was published.  Such a step may have been inspired by the United Nations Fourth World Conference on Women which took place in 1995[13].  It must be highlighted that, at the time, the Criminal Code only provided for protection from the offences of threats and blackmail but not specifically from harassment and stalking.

Subsequently various national structures were set up, including a National Family Commission in 2001[14], the office of the Commissioner for Children in 2003, the Family Court in 2003[15] and the National Commission for the Promotion of Equality in 2004. These structures sustained the need to introduce legislative provisions to afford adequate protection for victims of domestic violence (including protection against harassment and stalking). It is reasonable to say that, without these efforts and the push to introduce protection for victims of domestic violence, Malta would today not have adequate legal coverage of victims suffering from harassment and stalking irrespective of whether this is done in a domestic setting or between non household members.

1.3 The Introduction of Provisions on Harassment and Stalking in the Maltese Criminal Code.

Life, personal safety and reputation are inherent rights which should be enjoyed by each and every individual independent of the status of that person. A violation of such rights constitutes the subject matter of the class of offences under Subtitle IX of the Criminal Code titled ‘Of Threats, Private Violence and Harassment.’[16]

As referred to above, offences against violence and threats were present under local law years back.  However there was never any specific reference to harassment or stalking under local legislation until 2005 (in the case of the offence of harassment) and 2014 (in the case of the offence of stalking). Prior to 2005 the legal provisions were of a general nature and did not offer adequate protection with regards to the crimes of harassment and stalking (irrespective of whether these were committed in a household environment or between persons not falling within the categories now defined as “household members” in the law).

A major breakthrough took place in 2005 with the enactment of the Domestic Violence Act[17].  At the time, stalking was introduced in the Maltese context as part of the generic offence of harassment following the enactment of the Domestic Violence Act and the consequential amendments to the Criminal Code. It must be clarified that, although the offence of harassment was introduced as part of the legislative reform on domestic violence, the consequential amendments to the Criminal Code became applicable to everyone and not only to those categories defined under the term “household members”.

In 2005 legislators considered stalking to form part of the offence of harassment. The relevant parliamentary debates clearly demonstrate that the legislators at the time considered stalking to be included under the general provision of harassment – “barra mill-istalking ghandek id-dwejjaq, fastidji li ma jammontawx ghall-stalking ghaliex hemm fastidji ohra li jsiru li hawnhekk qeghdin inkluzi wkoll. Allura dan huwa reat li jinkludihom it-tnejn f’daqqa u mhux parti separata mill-ohra. Kieku ghamilna d-delitt ta’ stalking wahdu konna nhallu barra diversi tipi ta’ fastidju li jsiru repetutament u ma jkollokx delitt biex tkun tista tigborhom mentri hekk ghandek delitt li jista jigborhom ukoll. Dak li jista jfisser l-istalking huwa inkluz…Ghall-avukati inglizi mhemmx delitt specifiku stalking. Issa jikkostitwixxi fastidju. Ahna qed niehdu linja ta’ demarkazzjoni li hija iktar iebsa fuq il-bniedem li jikkommetti din il-haga…Infatti l-liġi dan tikkonfermah meta aktar tard u b’mod ċar, tagħmel riferenza għal meta xi ħadd jiġi mdejjaq. Jiġifieri jekk you are being stalked, inti qed tiġi mdejjaq.”[18]

As the 2005 legal provisions started to be tried and tested before the courts of law, the prosecution body faced challenges in proving stalking as an aggravated form of harassment. The experience of the prosecution body is that the courts were awarding a lighter punishment because convictions were being made under the offence of harassment instead of stalking as an aggravated form of harassment.

This resulted in the introduction of the new offence of stalking in the Criminal Code in 2014 when the legislators amended the Criminal Code to specifically refer to stalking as a separate offence from that of harassment. Article 251A refers to the offence of harassment and article 251AA now refers to stalking. The law protects victims from the offence of stalking irrespective of whether the offence is carried out within a familial context or by perpetrators against victims who do not fall within the categories of a “household member” as defined by the law.

The abovementioned efforts were consolidated in 2014 with Malta’s ratification of the Istanbul Convention – The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. This Convention was transposed into Maltese law through the enactment of Chapter 532 of the Laws of Malta.[19]  The Convention requires ratifying countries to implement policies which encompass a multitude of measures to be taken by different stakeholders.  Good practice in different countries has shown that such measures become truly effective when law enforcement agencies, the judiciary, non-governmental organisations, child protection agencies and other relevant stakeholders join force on a particular case.[20]

SECTION 2:  AN ANALYSIS OF THE APPLICABLE PROVISIONS OF THE CRIMINAL CODE

2.1 Defining the Terms ‘Harassment’ and ‘Stalking’

A working definition of the term stalking reflects “an intentional and malicious behaviour of obsessive following, spying or harassing towards an individual”[21].  What is required is a form of patterned behaviour and a sort of abnormal harassment, which is directed during a period of time towards a specific person.  Stalking is considered as a form of aggravated harassment.  Any individual, or group of individuals, may perform acts which amount to the harassment of another person without necessarily committing the crime of stalking. A contrario sensu, it is safe to say that for the specific crime of stalking to be committed, an additional element to that of harassment is required.  The original intention of the legislator was to include stalking under the provisions introduced in 2005 in the Criminal Code with respect to the offence of harassment. From the parliamentary debates it emerges that stalking was considered to be a form of harassment whereby a person is being annoyed or alarmed by another individual[22].

Attempts to define stalking have encountered a number of difficulties.  The expression does not describe an action that can be precisely outlined but includes a series of actions repeated over a period of time; actions which demonstrate features of surveillance and control, search for contact and/or communication, and the fact that the victim perceives these actions as being able to stimulate and effectively disturb and cause anxiety and fear.

The Californian Penal Code states that stalking occurs when “Any person who wilfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, of his or her immediate family….”.   From this definition it emerges that stalking under Californian Law requires a specific intent which must be proven.  The three elements required to prove stalking are that a person:

  • Willfully, maliciously, and repeatedly follows or harasses another person;
  • Is following or harassing another and making a credible threat;
  • Makes the credible threat with the specific intent to place another person in reasonable fear for his or her safety or for the safety of the immediate family of such person(s).[23]

Pathe and Mullen hold that stalking is a “constellation of behaviours in which one individual inflicts on another repeated unwanted intrusions and communications[24].  Meloy and Gothard define stalking, or as they prefer to call it ‘obsessional following’, as being “an abnormal or long term pattern of threat or harassment directed towards a specific individual”.  Meloy further stipulates that stalking is “the wilful, malicious and repeated following and harassing of another person that threatens his or her safety.[25]

Reference must also be made to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, transposed into Maltese law by Chapter 532 of the Laws of Malta.[26]  A definition of the term stalking is provided as being “the intentional conduct of repeatedly engaging in threatening conduct directed at another person, causing her or him to fear for her or his safety[27]”.  Such conduct is comprised of any repeated behaviour of a threatening nature against an identified person which consequently instils in another a sense of fear.  It then goes on to define the type of threatening behaviour including the repeatedly following of another person, engaging in unwanted communication with another person or letting another person know that s/he is being observed.  Such conduct may take the form of physically following the victim, appearing at those establishments where the target attends, as well as following the victim in the virtual world such as chat rooms, social networking sites etc.[28].

There is no specific definition of both terms in the Maltese Criminal Code[29]. The only attempt by the legislator is made with respect to the term ‘harassment’ whereby article 251C of the Criminal Code provides that the harassing of a person includes “alarming the person or causing the person distress”.  In Pulizija vs Alan Caruana Carabez[30] the court delved into the need for more detail and stated that “Illi apparti mid-disposizzjonijiet kontenuti fl-artikolu 251C li tghid li riferenzi ghall-ghoti ta’ fastidju lil persuni jinkludu meta wiehed jaghti qata’ jew idejjaq lill-persuna. (“alarming the person or causing the person distress” fit-test Ingliz) il-ligi taghna ma taghti ebda definizzjoni ohra tat-terminu generiku fastidju jew harassment. Issa filwaqt li n-nuqqas ta’ definizzjoni specifika w dettaljata tar-reat in dizamina taghmilha possibbli ghall-gudikant li jqis bhala fastidju agir li jkun jiehu l-forma ta’ diversi varjazzjonijiet tal-istess delitt, jista’ mill-banda l-ohra johloq ukoll incertezzi fl-applikazzjoni tal-ligi penali fir-rigward ta’ dawn it-tip ta’ reati li ta’ sikwiet jimbtu minn relazzjonijiet inter-personali komplikati w delikati.”.

The local legal provisions were formulated on the United Kingdom legislation and, in this case, more specifically the Protection from Harassment Act, 1997. This latter legislative document also does not provide for a definition of the two terms.

A definition of the legal term of harassment can nonetheless be found in Black’s Law Dictionary (7th Edition) as being “words, conduct or action (usu. repeated or persistent) that being directed at a specific person, annoys, alarms or causes substantial emotional distress in that person and serves no legitimate purpose[31].”

2.2 Required Elements under the Maltese Criminal Code

It is important to stress that the fact that an individual carries out acts which may be alarming or causing distress to another need not necessarily amount to stalking. There are other elements required for the prosecution to prove the offence of stalking. This was confirmed in Pulizija vs Carmelo Vella[32] wherein it is clearly stated that “għalkemm ċertu għemil jista’ jdejjaq lill-persuna b’daqshekk ma jfissirx li huwa fastidju jew li hemm “course of conduct”.  Moreover, in Pulizija vs Paul Spiteri[33] the court further stated that “Ir-reat ta’ harassment ghandu konnotat diversi mis-semplici fatt illi wiehed ikun qieghed jiddejjaq b’dak illi jaghmel haddiehor. Is-sistema ta’ kondotta tal-persuna trid tkun tali li ggib apprensjoni jew biza fuq il-vittma. F’dan il-kaz bl-ebda mod ma jista jinghad illi kien hemm dawn l-elementi. Iktar u iktar wiehed ma jistax jitkellem fuq course of conduct….L-element ta’ prova jrid ikun illi l-persuna tkun instabet f’okkazjonijiet diversi jew hatja jew bil-prezenza taghha jew bl-agir taghha kkawzat din l-apprensjoni fuq il-vittma.”.

When trying to determine whether an individual has actually committed the offence of stalking or harassment, it is important to determine whether the alarming or annoying acts were persistent acts, and whether the perpetrator repeatedly and intentionally carried out such alarming or annoying acts.  The repetition feature encounters the challenge that it is theoretically possible for the crime to involve actions and behaviour which are quite different from each other, without any of them necessarily being repeated or being per se illegal[34]. Nevertheless the characteristics of continuity and persistence of the intent of the perpetrator, ultimately evolves in a course of conduct.  Most remarkable to the victim is the element of threat which nonetheless may be felt in a number of different ways[35].

From the above it is clear that stalking is a form of aggravated and repeated harassment.  This is also corroborated by the fact that, following the 2014 amendments to the Criminal Code, the penalty imposed by the law is much higher than that imposed for harassment.  The law states that in order for a person to be found guilty for the offence of stalking, the conduct must constitute acts of harassing another person, together with a course of conduct which amounts to the stalking of another.

All methods of stalking (including cyberstalking) are considered to be an offence under articles 251A and 251AA of the Criminal Code.  Article 251A provides that:

“…. (1) A person whose course of conduct

  1. which amounts to harassment of another person; and
  2. which he knows or ought to know amounts to harassment of such other person

shall be guilty of an offence under this article.

(2) For the purposes of this article, the person whose course of conduct is in question ought to know that it amounts to harassment of another person if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other person….”

On the other hand article 251AA provides the following:

“…. (1) A person who

  1. pursues a course of conduct in breach of article 251A(1); and
  2. the course of conduct amounts to stalking

shall be guilty of an offence under this article…”.

Both offences of harassment and stalking fall under Sub Title IX of the Criminal Code – Of Threats, Private Violence and Harassment.  The provisions under this section criminalize, inter alia, threats made by means of writing, blackmail, private violence, harassment, stalking and causing others to fear that violence will be used against them.  Professor Anthony Mamo affirms that “any menace of an evil however conveyed to anyone and capable of intimidating him is a threat”.   Such sections are meant to safeguard the wellbeing and freedom of natural persons.  It is interesting to note that under United Kingdom legislation, provisions against harassment are intended to safeguard both natural and legal persons. This is not the case under the Maltese Criminal Code because article 251A does not cater for the possibility of corporate liability[36].

2.3 The Requirement of a Course of Conduct

The offences of harassment and stalking are dependent on the proof of a course of conduct, which is merely an element of each offence and not a crime in itself[37].  As stated above, the fact that an individual carries out a single act which may be annoying or alarming to another person may not necessarily in itself consist the offence of harassment or stalking.  Various court judgments have confirmed that a one-time incident can never amount to a course of conduct. Consequently an isolated incident cannot suffice for a person to be found guilty of the offences of harassment and stalking.

In the judgment by the Court of Criminal Appeal Il-Pulizija vs Alan Caruana Carabez[38] the court clearly held that “…f’kazijiet bhal dawn ir-retroxena ghal kull incident hija importanti biex il-Qorti tkun tista tispigola l-incident izolat u accidentali minn agir attwali ta’ fastidju fuq perijodu ta zmien[39].” This was emphasized further in Pulizija vs Generoso Desira[40] where the court referred to the phrase “on each of those occasions” used in article 251B of the Criminal Code and stated that the law is clearly indicative that the material act cannot occur on a one time occasion but there must be at least two occasions. This is in accordance to what is provided in article 251BA of the Criminal Code which states that the offence of stalking involving fear of violence, serious alarm or distress is committed when the person’s course of conduct “amounts to stalking and causes another to fear on at least two occasions that violence will be used against him”.  In addition, in the Generoso judgement, the court also makes reference to Blackstone’s Criminal Practice, 2008 whereby it is held that “how separate the two occasions must be remains to be seen.  The nature of stalking, the activity which primarily created the need for the new offences, might mean that the occasions are likely to be on separate days, although it may be possible to differentiate activities on one day where they can be viewed as not being continuous. The further apart the incidents, the less likely it is that they will be regarded as a course of conduct…. However it was recognised that circumstances can be conceived where incidents, as far apart as a year, could constitute a course of conduct. The type of incidents would be those intended to occur on an annual event such as a religious festival or a birthday”.

Therefore the quality and the number of the acts carried out (actus reus), together with the period of time during which these acts are performed and the intent (mens rea) of causing the alleged victim/s to experience fear, are very important when seeking to prove the offence of stalking. These elements are reflected in Maltese law as they are in the majority of the applicable legislation in European Union member states[41].

Court judgements have emphasized that the relevant course of conduct must be targeted at a specific individual. In Pulizija vs Carmelo Vella[42] the court cited foreign jurisprudence whereby it is held that the act must be concerned with conduct targeted at an individual which was calculated to produce alarm or distress and which was oppressive and unreasonable. In Pulizija vs Emanuele Micallef the court also confirmed the importance of proving that the acts, even if causing distress to a person, were targeted at a specific individual. In the latter case the prosecution claimed that the alleged offender had carried out a course of conduct “meta kien jaf jew imissu kien jaf li dan l-aġir kien ta’ fastidju għall-imsemmija persuna”[43]. This claim was made because the alleged offender had burnt some branches in his field with the consequence that the smoke annoyed the alleged victim. The court held that the alleged victim could never say, or prove, that the fact that the accused burnt some branches was an act targeted at the alleged victim because this was proven not to be the case.  From the above judgement it clearly emerges that the alleged perpetrator must have pursued a course of conduct which amounted to the harassment of another individual; the alleged perpetrator must have committed one of the acts in the exhaustive list referred to hereunder in Section 2.4 of this paper; and the person must have known or ought to have known that such conduct amounted to the harassing of another person[44].

2.4 The Requirement of a Specific Course of Conduct to Prove Stalking

The law provides for a clear definition of which course of conduct may amount to stalking[45].  In order for a person to be convicted of stalking the following elements must exist:

  1. there must be the act of harassment; and
  2. the act of stalking must be proven; and
  3. the person whose course of conduct it is, knows or ought to know that the course of conduct amounts to harassment of the other person.

Article 251AA (3) exhaustively spells out the acts which are considered as acts of stalking. These are:

  1. following a person;
  2. contacting or attempting to contact a person by any means;
  3. publishing by any means any statement or other material (i) relating or purporting to relate to a person; or (ii) purporting to originate from a person;
  4. monitoring the use by a person of the internet; email or any other form of electronic communication;
  5. loitering in any place whether public or private;
  6. interfering with any property in the possession of a person;
  7. watching or spying on a person.

This article of the law is exhaustive because it clearly states that “the following acts shall be deemed to be acts of stalking” as opposed to stating that acts which are to be considered as acts of stalking include the listed behaviour/course of conduct.

Significant developments occurred by virtue of the judgement Pulizija vs Paul Lughermo[46] which delved into the consequence of having separate provisions in the law regulating the two offences of harassment and stalking. This is a recent judgement which is important because it will determine the manner in which our local prosecuting body will present its charges against an accused person. In this case the accused and the alleged victim were unknown to each other. The accused followed the victim whenever she went for her usual walk in Sliema and spent time fixating at her whilst carrying out indecent acts.  Such conduct was repeated on a number of occasions.  The court stated that it was morally convinced that this was a typical case of stalking. Nevertheless it could not find the accused guilty because the prosecution charged the alleged perpetrator under the more general provision of harassment, which is article 251A.  This instead of charging the person under the specific provision of stalking, which is article 251AA.  The court stated that “kienet tilqa din it-tezi tal-prosekuzzjoni li kieku din il-kawza kienet maghmula qabel id-dahla fis-sehh tal-artikolu 251AA tal-Att XXIV tal-2014. Bis-sahha ta’ dak l-Att ir-reat ta’ fastidju tal-artikolu 251A tal-Kodici Kriminali assuma aktar minn qatt qabel il-karattru ta’ genus b’tipologija ta’ azzjonijiet li sa’ dakinhar setghu jkunu klassifikati li jaqghu tahtu. Issa jigu misluta u koncentrati f’reati ad hoc li jassumu l-karattru ta’ specis…. Ir-reat ta’ segwiment issa inghata ezistenza separata u distinta minn dik ta’ reat ta’ fastidju generiku. Huwa muri wkoll mill-kliem uzat mill-legislatur innifsu meta holoq dan ir-reat….Persuna li ggib ruha b’mod li jkun bi ksur tal-artikolu 251A(1) u l-imgieba taghha tammonta ghal segwiment ta’ persuna bil-mohbi tkun hatja ta’ reat taht dan l-artikolu 251AA u mhux 251A tal-Kodici Kriminali. Hawnhekk jirrizulta ghalhekk li l-legislatur silet din il-fatt speci u ddeskriviha f’reat specifiku u li kellu jigi imputat f’dan il-kaz.”[47]. As a result the accused was not found guilty.

2.5 The Importance of Context and the Test of the Reasonable Person

In determining whether an accused is to be found guilty of the offence of stalking, the courts consider the context in which the acts were committed including the past and present relationship between the person or persons allegedly committing the acts and the individual allegedly targeted. The test of the reasonable person applies where the person’s course of conduct is in question.  Such a conduct involves the application of an objective test which equates to the conduct of the accused with that of the reasonable person under comparable circumstances[48].  In articles 251A (2); 251B (2) and 251BA (2) of the Criminal Code the test of the reasonable person is clearly referred to.

The context in which the offence of stalking occurs has been mentioned in the majority of related court judgements and is evidently an aspect which is considered when determining the motive for carrying out the offence. The context surrounding the individuals concerned often explains the motive for the carrying out of the offence and the court does appear to consider the relationship (past and present) between the accused and the alleged victim.  Together with the context, the court also looked into the patterns of behavior. Pulizija vs Tivisini is one example[49].

From statistics made available, and reproduced hereunder, from the Malta Police Force it results that at least 20% of the cases prosecuted between 2010 to 2016 where cases of stalking which resulted from the existence of a past amorous relationship.

Threats and Private violence – Harassment and Stalking for Years 2010-2016
DOMESTIC VIOLENCE THREATS AND PRIVATE VIOLENCE Total
Year STALKING HARASSMENT
2010 30 49 79
2011 32 87 119
2012 27 81 108
2013 34 132 166
2014 30 146 176
2015 20 166 186
2016 37 172 209
Total 210 833 1,043

Source: National Police System (NPS)

Stalking behaviour is generally categorized as explained below.

2.6 Types of Stalkers (Categories)

One of the most common forms of stalking is that which emerges in the event of a breakdown of a courting relationship.  This would typically fall under one of the many categories of stalkers[50], namely the ‘rejected stalker’, whereby the alleged perpetrator starts to follow the victim with the aim of either reconciliation or to exact revenge for the rejection endured.  The context which gives rise to this type of stalking is an intimate sexual partnership which existed between the persons involved and in which the rejected partner may have invested emotional energy and/or control.  The essential elements of this type of stalking are the stalker’s emotions at having his/her rights and prerogatives violated by the unilateral attempt to end the said relationship. This coupled with the loss of an important relationship or of control and power over that other person.  This type of stalking can be one of the most persistent and intrusive types of stalking. It is evident that this conduct of stalking may occur against women and men alike, however the typical stalking victim appears to be a women trying to end an unsatisfactory and often abusive relationship.[51]

Another category of stalkers would be the ‘resentful stalkers’ who may try to acquire revenge with the desire of achieving ‘vendetta’ upon their prey.  Such behaviour is committed following a sense of grievance that has become concentrated on the target because of the stalker’s unwanted attention.  It is interesting to note that, in such a scenario, the stalker usually pictures himself as the victim who is striking back at a more powerful force which is opposing him/her.

The third type of stalker is the ‘predatory stalker’ who observes the victim with the central aim of committing a sexual attack.  This type of stalking is not necessarily dependent on the existence of a relationship between the parties involved but more on the mental state of the alleged perpetrator. The predatory stalker’s behaviour is a means to an end, and that end is resultant to an attack which is usually a sexual attack on the victim. In a high profile 1997 case involving Steven Spielberg a United States court explained how a former bodybuilder garnered a sexual obsession which led him to exercise a course of conduct which amounted to the act of stalking of the film director.  The judgement[52], which sentenced the perpetrator to imprisonment, confirmed that it is commonly known that the victims of such behaviour usually live in ignorance of the destiny which the perpetrator is preparing for them.

Two more categories of stalkers are the ‘intimacy seekers’ and the ‘erotomanic stalkers’ which, combined together, are aimed at forming a relationship with unwanted attentions.  The intimacy seekers type of stalkers aim to establish an intimate relationship with the victim.  They believe that their attention is uniquely placed to satisfy their desire.  They endow their victim with qualities that make them the ideal partner.  On the other hand, the erotomanic stalkers believe that the victim reciprocates affection feelings towards them and thus interpret the victim’s words and behaviour in order to strengthen such delusion[53].  They pursue a misguided quest for love.

The last category of stalkers is the ‘incompetent suitor’ who feels impaired by his/her social skills and most particularly in his/her dating skills to face the victim.  This type of perpetrator usually harasses the victim for a short period of time.  Such behaviour attains the lowest average duration for stalking of any type[54].

2.7 Stalking Involving Fear of Violence, Serious Alarm or Distress

It must be highlighted that when referring to the offence of stalking with fear of violence, serious alarm or distress[55], the act of violence need not have effectively occurred. What is relevant is the fact that fear had been induced in the victim’s mind that violence will be used against him/her. The main difference between article 251BA (stalking involving fear of violence, serious alarm or distress) and the provisions dealing with harassment (article 251A) and stalking (article 251AA) is that the victim must be caused to fear, on at least two occasions, that violence will be used against him/her[56], or that such fear causes in the victim serious alarm or distress which has a substantial adverse effect on the daily routine activities of the victim.

The phrase ‘substantial adverse effect’ is not defined in the Maltese criminal code and thus its construction is a matter for the court to decide. Reference can be made to the legal guidelines issued by the United Kingdom Crown Prosecution Service[57].  These guidelines suggest evidence which may be considered as causing an adverse effect on a person’s usual daily activities.  The guidelines hold that evidence of adverse effect include the following consequences:

  1. The victim changes the routes to work, work patterns or employment;
  2. The victim arranges for friends or relatives to pick up their children from school in order to avoid contact with the stalker;
  3. Additional security measures are placed in the victim’s home;
  4. The victim moves home;
  5. Physical or mental ill-health caused to the victim;
  6. The victim’s weakening performance at work due to stress caused by the stalking;
  7. The victim stops or changes the way s/he socializes.

The guidelines state that the above list is not exhaustive as some victims may try to continue with their daily routine in order not to let such behaviour effect their life.  What is significant is the cumulative effect of the stalking behaviour and it does not necessitate any precise incident in the stalking to be especially alarming or serious.

The fact that a person is not found guilty under article 251BA of the Criminal Code does not exclude the possibility for the perpetrator to be found guilty under the provisions of harassment (article 251A) or stalking (article 251AA). This depends on the charge as presented by the prosecution.  The defense which the perpetrator may invoke if charged with an offence under article 251BA is if “his course of conduct was pursued for the purpose of preventing or detecting crime or his course of conduct was pursued under any enactment, regulation or rule, or to comply with any condition or requirement imposed by any person under any enactment or the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another’s property[58]”.

SECTION 3:  STALKING vs CYBERSTALKING

3.1 What is Cyberstalking?

Technological developments provide stalkers with new ways on how to terrorize and attack their victims from afar.  This means that stalkers no longer need to be physically near the victim in order to carry out stalking acts.  Additionally cyberstalkers do not even need to communicate directly with the person in order to intimidate and psychologically terrorize him/her.

Definitions of the term ‘cyberstalking’ and ‘cyber harassment’ differ extensively.  Cyber harassment is usually understood as involving the intentional infliction of substantial emotional distress accomplished by online speech that is persistent enough to amount to a course of conduct.  On the other hand, cyberstalking usually has a narrower meaning.  Similarly to ‘offline stalking’, it entails a course of conduct that either causes a person to fear for his or her safety, or would cause a reasonable person to fear for his or her safety[59].

General perception seems to be that cyberstalking is nothing more than stalking behaviour using technological methods[60]. There are however schools of thought which argue that new technology inevitably leads to new forms of different behaviour which result from the exploitation of new opportunities and that cyberstalking encompasses a wide range of new behaviours that are not necessarily associated with offline stalking. Undoubtedly technology has permeated and is influencing every aspect of life. Cyber harassment and cyberstalking differ in scope from traditional offline harassment and stalking in that the internet provides an anonymous and relatively unregulated environment where communications can be transmitted instantaneously to a global audience[61].

In today’s technologically savvy world it may appear easier to commit cyberstalking, which method appears to be more efficient and instantly gratifying for the alleged perpetrator but more difficult for the prosecution body to prove because it is done anonymously and may be more difficult to trace and prove beyond reasonable doubt. Cyberstalking occurs where an individual or a group of individuals use information technology and other communication media to harass a targeted specific individual or group of individuals.  Cyberstalking tends to occur over a shorter and very intense period of time as opposed to what happens in the case of physical stalking where more planning may be required. Moreover, in the case of cyberstalking, victims are less likely to have knowledge of who their harassers are in view of the anonymity involved, and more particularly if stalking occurs by proxy.

3.2  Types of Cyberstalkers

There are various behaviours which may be used to carry out cyberstalking. Some examples are:

  • Monitoring online behaviour;
  • The unauthorized online publication of private information;
  • Making online malicious, defamatory and false accusations against a person with a view to humiliate that person;
  • Encouraging others to harass an individual.

A recurring trend of these examples of cyberstalking is the use of fake accounts and stolen identities to undertake such behaviour.

Cyberstalkers are generally categorized into the following[62]:

  1. A vindictive cyberstalker is deemed particularly malicious whereby the offenders seem to harass and threaten victims far more often that cyberstalkers in the categories hereunder. Vindictive cyberstalkers appear more likely to use a number of spiteful tactics intended to continuously harass victims through excessive spamming, email bombing and identity theft.
  1. The composed cyberstalker appears to be the calmest and composed attacker of the four categories causing constant distress in the victim through a variety of threatening behaviour.
  1. The intimate cyberstalker seeks to establish a relationship with the intended target because of his/her infatuation and obsession.
  1. A collective cyberstalker is that category which consists of more than one individual in pursuit of the targeted victim. This group usually demonstrates exceptionally higher computer skills when compared to the other categories above.

3.3  Cyberstalking Under Maltese Law

Maltese law does not differentiate between stalking and cyberstalking.  Any method used (technological or otherwise) can amount to the offence of stalking if the elements stated in the Criminal Code are proven before a court of law. This means that all the elements and concepts explained above (including the course of conduct and the repeated behaviour) which constitute stalking need to be proven even where cyberstalking is concerned and therefore this irrespective of the means used by the alleged perpetrator[63].

In cases involving cyberstalking, the prosecuting body is faced with more challenges in substantiating the charges made because many a time there will not be proof beyond reasonable doubt but circumstantial evidence and various indicators pointing towards the same direction[64].  In Pulizija vs Matthew Borg[65] the accused was charged with accessing his wife’s e-mail account and sending her emails to himself, which emails contained important information relating to the separation proceedings they were going through[66].  The accused denied such claims holding that his wife retained the keys to their matrimonial home. The accused also held that his wife could have used his wireless rooter to send the identified emails by going near his home and using his IP address. This because his wireless rooter was not protected with a password and its signal was so strong that a person next to his home could access the wireless system easily.  In its judgment the court cited various other cases, including Il-Pulizija vs Joseph Gauci,[67] where it was held that in such situations “circumstantial evidence is often the best. It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics.”  Additionally, the court cited Pulizija vs Paul Grech[68] and held that “il-provi fil-kamp kriminali jistghu jkunu kemm diretti u kif ukoll indizjali, basta dawn ikunu sufficjenti biex inisslu konvinciment morali f’mohh il-gudikant lil hinn minn kull dubju ragjonevoli mir-rejat ta’ l-imputat”.[69]    Additionally the court held that in such a situation the best evidence which the prosecution could present, and which would have shed clearer light on the allegations was the examination of the hard disk of the computer of defendant, which however the prosecution failed to examine. In the circumstances the court could not ascertain itself that such evidence was unequivocal evidence which left no reasonable doubt in the judge’s mind that it was the defendant who was responsible of such hacking.

 3.4 Statistics Pertaining to Cyberstalking

During the past fourteen years statistics regarding the top three categories of cybercrime cases remained constant and were classified in this order: (a) computer misuse more commonly known to hacking, (b) cases relating to insult, threats and private violence; and (c) cases related to fraud, forgery and misappropriation[70].  It is therefore very pertinent to highlight that the top two of the three most common cases of cybercrime could possibly include the offences of harassment and stalking. However, it is noted that current data available is too generic to provide a detailed picture upon which specific policy actions can be undertaken (including making the required amendments to the law).

Year Computer Misuse Insults, Threats and Private Violence Fraud, Forgery and Misappropriation
2003 7 5 16
2004 16 6 9
2005 18 9 25
2006 29 38 40
2007 45 38 46
2008 75 61 54
2009 80 85 68
2010 128 88 60
2011 134 91 67
2012 219 97 133
2013 180 137 120
2014 160 183 110
2015 247 283 200
2016 224 232 276
Total 1,562 1,353 1,224

Source – Cyber Crime Conference – Cybercrime vs Cybersecurity, 2017.

The Cyber Crime Unit within the Malta Police Force provides the required technical assistance in ongoing criminal investigations, including through the provision of technical assistance to the officer who is carrying out the specific investigations; collecting evidence, such as information found on the internet reserving such information for eventual use during court cases and/or collecting information stored on devices themselves and the carrying out inquiries with local and/or foreign service providers.  During an annual conference held in March 2017, a representative of the Cyber Crime Unit stated that one of the major challenges encountered is the tackling of such a modern phenomenon through traditional structures.  There are also legal issues with regard to jurisdiction when cases concern cross border aspects.  The question remains as to when a person is allowed to gather information and which foreign country is responsible with regards to the related information needed.  It is emphasized that international cooperation improvements are necessary.  It is common that countries and foreign police colleagues are usually overwhelmed with national cases, let alone with requests coming from abroad.  The representative of the Cyber Crime Unit also stressed that (a) there exists an issue with data retention, rapidly evolving new types of technologies and advancements and improvements and (b) there is a question of resources, both in terms of human resources and also in terms of the equipment required in order to ensure a safe and secure internet[71].

This paper only look at the offence of stalking in the light of the provisions of the Criminal Code. However, whilst not delving into the content, one cannot refrain from mentioning the existence of other specific legislation which impacts the use of information technology such as the Electronic Communications (Regulation) Act[72] and the Data Protection Act[73].

SECTION 4:  PENALTIES AND ORDERS BY THE COURT

 

4.1 Penalties

In the Maltese Criminal Code, the conduct of harassment carries a punishment of imprisonment for a term from one to six months, or a fine which does not exceed the sum of two thousand and five hundred euro.  Where the conduct of a person involves fear that violence will be used against the victim, or against his property or any relatives which pertain in the threshold provided by the law[74], the perpetrator may be awarded the punishment of imprisonment for a term from three to six months, or a fine of not less than four thousand and six hundred and fifty-eight euro and seventy five cents, and not more than eleven thousand and six hundred and forty six euro and eighty seven cents[75].  The court also has discretion to impose both fine and imprisonment.

Stalking, on the other hand, carries a much higher penalty which includes the punishment of imprisonment for a term between six to twelve months or a fine which does not exceed ten thousand euro, or to both such fine and imprisonment[76].  Again, the law provides for a higher degree of punishment in situations where the harm is committed against persons specifically mentioned in the law[77]. The law mentions, inter alia, persons related to each other by affinity or consanguinity such as the mother, father, natural brother or sister, persons acting as witnesses or referees and who shall have given evidence or an opinion in any court case, children under nine years of age, public officers or persons lawfully in charge with a public duty, as well as those persons exercising lawful duties as private guards or local wardens[78]. In such a scenario the punishment shall be increased by one degree.

The punishment for stalking is further increased in cases where such acts are accompanied with fear that violence will be used against the victim.  Such fear must have occurred on at least two occasions or otherwise it must have caused in the victim serious alarm or distress which resulted in substantial adverse effect on the victim’s daily activities.[79]  Where a person is found guilty under different provisions which nonetheless constitute the same elements of the conduct of the crime in question, the person shall be liable for the most serious offence.  It is an established principle under our jurisdiction that when the same facts give rise to a violation of more than one provision, there is no plurality of the offences, but such offences are absorbed by the most serious one.  Professor Anthony Mamo elaborated that “…it must be noted that the ‘fact’ may consist of several acts or a series of acts which, being inspired by one single criminal purpose, constitute together one single deed or transaction[80]”.  This is also based on Italian jurisprudence where this theory is reflected in article 78 of the 1889 Italian Penal Code which states that “Colui che con un medesimo fatto viola diverse disposizioni di legge, e’ punito secondo la disposizione che stabilisce la pena piu’ grave.”

4.2 Court Orders

An article was inserted in the Criminal Code to provide further protection against the conduct of harassment, or any other conduct which creates a sense of fear in the victim that violence will be used against him.  Where the court deems convenient for the purpose of protecting the victim it may, apart from passing the relevant judgment and awarding the applicable punishment, also grant a restraining order against the convicted party[81].   Such an order shall remain in force for a period which does not exceed three years and shall begin to apply from the date of termination or remission of the punishment.  In cases where the order is contravened, the guilty person would be liable to a fine or imprisonment for a term not exceeding six months, or to both such fine and imprisonment.[82]

The Court of Magistrates, whether acting as a court of inquiry or as a court of criminal judicature, may also issue a protection order against the accused[83].  Such an order may impose restrictions or prohibitions on the accused which the Court deems necessary and desirable in such scenarios.  The order may prohibit or restrict the perpetrator from approaching or following the movements of the injured party.  It may also forbid or limit the access to premises in which the victim lives, works or frequents, for a period which does not exceed six months or until final judgment is pronounced.  Another imposition which the order may have is the prohibition of the accused to contact or molest the injured person[84].

Together with a protection order, the court may also issue a treatment order requiring the perpetrator to submit himself to such treatment according to the conditions which the court deems appropriate.  Where the accused is found guilty, a treatment order may be made with or without his/her consent. However when the person is still an accused individual, the order may only be made with his consent.  The Probation Act[85] establishes the kind of treatments which may be availed of in such situations. These include undergoing treatment in a hospital and treatment in an appropriate agency or institution, whether as a resident or non-resident patient.  Alternatively one may also be ordered to undergo treatment under the direction of a qualified person as specified in the Treatment Order[86].  If the individual under the Treatment Order fails to comply with any of the conditions or requirements in the said order, s/he may also incur a fine which does not exceed one hundred and sixty-four euro and sixty-nine cents[87].

 

SECTION 5:  RECOMMENDATIONS

5.1 The Need to Carry Out an Analysis of the Interpretation of the Law as Delivered by the Courts in Judgements

The research undertaken for this paper, together with the interviews carried out, determined that it would be very beneficial if the local authorities were to undertake an analysis of the judgements delivered by the courts involving harassment, stalking and cyberstalking. This analysis would benefit both the prosecution, legislators and policy makers. The significant differences in interpretation have been made evident earlier in this paper and there is no doubt that these differences in interpretation by the courts impact the way in which policy makers and the local prosecuting body function. Such an analysis of the interpretation of the law by the courts will guide legislators and policy makers to look at trends and make the required policy changes (including any required amendments to applicable law). Similarly the prosecution body will be in a better position when handling these cases.

5.2 An Amendment in the Criminal Code to Allow the Issuing of Temporary Orders to Protect Victims

Apart from the penalty imposed, the court may also issue protection, restriction or treatment orders which may either be awarded at the end of a judgment, or pendente lite, which is during the hearing of the case.  Nevertheless such orders may seem less effective in protecting a victim considering the fact that one must necessarily start proceedings in court in order for them to be imposed.  It is recommended by many involved in the field that the issuing of a temporary protection order should be possible, whereby the police would be in a position to assess the case and if there is prima facie evidence that the victim is at risk, they can issue a temporary order before the commencement of the case in court[88].  This recommendation may be seen as controversial and would surely need to be discussed in further detail by interested parties and stakeholders involved.

5.3 Carrying Out and Implementing the Full Policy Process

Comprehensive and coordinated policies need to be put in place, monitored in terms of their implementation and evaluated at regular established intervals.  A chain of collaboration between all stakeholders involved is of utmost importance as this will enable agencies to carry out proper risk-assessments and analysis relating to cases where such conduct is involved.  “As a country, we need to seriously invest in the protection and support of victims and in having effective judicial and law enforcement systems which truly serve justice.[89]  The failure of properly assessing the risks involved in particular scenarios has a direct effect on the safety of the victim.  Moreover, it is a must that the relevant authorities initiate and maintain a policy process which consistently reviews the implementation of applicable policy, the results of that implementation (including relevant statistics) and undertakes the required evaluation at determined intervals such that policies, laws and structures can continue to be adjourned to meet development trends, technologies and needs.

 

5.4 Cross Border Crime and the Harmonisation of Laws and Systems of Cooperation

It is relatively very easy for cyberstalking to occur in a cross border context. Hence continuous improvements need to be made in international cooperation in this field.  The harmonisation of laws across different countries would ensure consistency in applicable legislation concerning these offences, as well as the procedural legislation concerning data retention, collection of evidence, exchange of information and enforcement.  Given that perpetrators continuously seek new ways to perform illicit acts of stalking, the local enforcement body and the relevant legal instruments need to undergo improvements on a continuous basis.

5.5 The Local Prosecution Body

 

  1. From information available, it appears that the Malta Police Force does not collate detailed statistics in a way which permits categorisation of crimes.  Statistical information kept is of a high level nature and too generic to provide a detailed picture upon which specific policy actions can be undertaking, possibly resulting in amendments to existing legal provisions. For example, stalking is recorded as a subcategory of domestic violence notwithstanding that stalking is a specific crime which does not relate solely to cases of domestic violence. Other cases of harassment are then recorded under the category of threats and private violence. Another example would be that statistics are not split to reflect the difference between traditional stalking and cyberstalking.  This situation cannot permit the Malta Police Force to understand trends in the field. There is no doubt that a more detailed drill-down of statistical information is required to give the prosecution body and policy makers a better view of the present situation in Malta.
  1. With regard to cyberstalking, it is very difficult to tackle such a modern phenomenon through existing traditional structures.  This seems to be one of the major challenges faced by the local law enforcement body.  It is thus strongly recommended that the Cyber Crime Unit is better equipped with the required resources and modern technologies as these emerge. As technology continues to evolve at a very fast rate, the equipment used by the Cyber Crime Unit must be continuously upgraded in order to ensure the team’s effectiveness.  Investment in modern and more effective tools is undoubtedly required if the prosecuting body is to be in a position to protect victims and strongly prove, beyond reasonable doubt, that cyberstalking has been carried out so as to be able to effectively prosecute perpetrators when presenting a case before a court of law.

(c)  Human Resources are needed both in terms of quantity and quality.  This means that whilst ensuring that there are enough officers to address the increasing workload which the Malta Police Force faces, its officers must be competent and trained with up-to-date systems and with the latest technological advancements. Research and training are direly required so that the forensics and cybercrime teams within the Malta Police Force can keep abreast with the very rapid changes brought about by technology and the new methods adopted by perpetrators who resort to cyberstalking. Many a time such perpetrators would be very well informed of how to effect cyberstalking while covering their tracks. Alternatively perpetrators feel that a technology medium breaks down any barriers that they may have with the victim. Lack of investment, research and training in our local prosecuting body will not permit the police to keep up with the new methods used by perpetrators, not to say that they should be a step ahead. Investment in the police force, which includes a proper infrastructure and the provision of appropriate training, would surely be of benefit in the investigations of such complex cases particularly considering the fact that there seems to be a continuous rise in the number of cases involving harassment and stalking. Mandatory training should be provided.  Far too often police officers fail to adequately handle cases relating to cyberstalking and cyber harassment simply because they lack familiarity with the relevant laws, technology and methodologies used.

5.6 Educating the Public

The general public needs to be informed and educated about the risks encountered particularly those involving cybercrime. As Samuel Warren and Louis Brandeis declared in their revolutionary article entitled ‘The Right to Privacy’, “It would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law, but for this, legislation would be required.  Perhaps it would be deemed proper to bring the criminal liability for such publication within narrower limits[90]” It is important for people to understand that, when they display matters online, they are leaving a digital footprint which is not that easy to erase.  More knowledge is thus needed in this area in order for everyone to be aware of the implications which may arise when using the internet and modern devices such as iPhones.  As Professor J. Cannataci held in the annual conference referred to earlier in this paper, “If we are living in an internet without borders, people expects remedies without borders and safeguards without borders[91].”

BIBIOGRAPHY

Journal Articles

John Reid Meloy, Stalking, An old behavior, a new crime, April 1999, Article in Psychatric Clinics of North America, University of California San Diego.

Rosemary Cairns Way, 1994, The Criminalization of Stalking:  An Exercise in Media Manipulation and Political Opportunism, Faculty of Law, Common Law, University of Ottawa. (1994) 39 McGill L.J. 379.

Cyrus Vakili Zad , Domestic Violence and the Feminization of Homelessness in Malta:  A Critical Perspective, Journal of contemporary European Studies, Volume 21 Issue 4, 2013.

Dr. Jacqueline Azzopardi (PH.D), Dr. Frances Camilleri-Cassar (PH.D) & Dr. Sandra Scicluna (PH.D), Dealing with Victims of Domestic Violence:  An evaluation of services in Malta and the Province of Trapani (Sicilia).

Lauwers Sophie (2007): Issue Histories Malta: Series of Timelines of Policy Debates, QUING Project, Vienna: Institute for Human Sciences (IWM).

Criminologia France Angeli (2003), Female Victims of Stalking, Recognition and intervention models:  A Eu-ropean Study, edited by the Modena Group on Stalking.

Ehsan Salimi and Abbas Mansourabadi, December 2014, The Criminology of Cyber Stalking: Investigating the Crime, Offenders and Victims of Cyber Stalking, International Journal of Criminology and Sociological Theory, Vol 7, No 2.

Warren and Brandeis, “The Right to Privacy”, Harvard Law Review, Volume IV, December 15, 1890.

European Institute for Gender Equality, Analysis of National Definitions of Stalking October, 2016.

Books

Paul E. Mullen, Michele Pathe, and Rosemary Purcell, Stalkers and their victims, Cambridge University Press 2000.

David Ormerod, Smith and Hogan’s Criminal Law, 13th Edition.

Danielle Keats Citron, Hate Crimes in Cyberspace, Harvard University Press, 2014.

Douglas Thomas and Brian D Loader, 2005, Cyber Crime, law enforcement, security and surveillance in the information age.

Maria Manuela Cruz-Cunha & Irene Maria Portela, IGI Global Book series, 2015, Handbook of research on digital crime, cyberspace security and Information Assurance.

 

Theses

Carl Brincat, Thesis submitted in partial fulfilment of the degree of Doctor of Laws, “A critical and comparative analysis of non-fatal offences against the person”, 2014.

Stephanie Borg, Legal Aspects of Cyber bulling and Cyber harassment – LLD, 2012.

 

News Paper Articles

Los Angeles Times Article, Declared a Danger, Spielberg Stalker Gets Sentence of 25 Years to Life, 18th June 1998.

Times of Malta Article, We must protect the victims of violence, Dr Roberta Lepre, 14th March 2015.

 

 

 

Conference

Cybercrime vs Cybersecurity:  Trends, Threats and Truths organized by ISACA Malta Chapter and the Malta Information Technology Law Association, held on the 28th March 2017.

 

Parliamentary Debates and Committee Meetings

Dibattiti tal-Kamra tad-Deputati, ‘Rapport Ufficjali u Rivedut’, Seduta Nru.281, 20 ta Gunju, 2005

Il-Minuti tal-laqgħa Nru. 58 tal-Kumitat Permanenti Għall-Kunsiderazzjoni Ta’ Abbozz ta’ Liġi li saret fit-24 ta’ Ottubru 2005.

 

Online Material

Joel Best, Stalking Crime, (2016) available on https://www.britannica.com/topic/stalking-crime

Bonnie S.Fisher, Steven P.Lab, Encyclopedia of Victimology and Crime Prevention, Volume 1, (2010).

Farlex, The Free Legal Dictionary http://legal-dictionary.thefreedictionary.com

Justice Website Malta http://www.justiceservices.gov.mt/

Parliamentary Website Malta http://www.parlament.mt/home

Explanatory Report to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic violence, Council of Europe Treaty Series No 210.

Prosecution legal guidelines on stalking and harassment http://www.cps.gov.uk/legal/s_to_u/stalking_and_harassment/

 

Others

Sir Anthony Mamo Notes, Notes on Criminal Law, Published by Ghaqda Studenti tal-Ligi, – Volume 2.


[1]  John Reid Meloy, Psychiatric Clinics of North America, April 1999.

[2]  J. Reid Meloy, Ph.D. Dr. Meloy is a board-certified forensic psychologist (ABPP) and consults on criminal and civil cases throughout the U.S. and Europe.

[3]  Member of the Department of Psychiatry, University of California, San Diego.

[4]  Dr. Michele Pathé is a Senior Forensic Psychiatrist with the Community Forensic Mental Health Service in Brisbane, Australia, Senior Lecturer at Queensland University and Adjunct Professor at the Key Centre for Ethics, Law, Justice and Governance, Griffith University, Queensland, Australia.

[5]  Professor Paul Mullen is Professor Emeritus at Monash University, Melbourne and Visiting Professor to the Institute of Psychiatry, London.  He has published over 190 articles in refereed journals, co-authored four books and contributed over 40 chapters, including chapters in both of the standard British textbooks on forensic psychiatry.

[6]  John Watson Lungstrum (born November 2, 1945) is a Senior Judge of the United States District Court for the District of Kansas.

[7]  Encyclopedia of Victimology and Crime Prevention, Editors Bonnie S.Fisher, Steven P.Lab, Volume 1, (2010).

[8]  In the beginning of the 1980’s, stalking was more synonymous with celebrities who were being stalked by their fans. Evident to this is the story of Rebecca Shaeffer who was brutally murdered by an obsessed fan of hers named Robert John Bardo, in California.  Her death subsequently resulted in new anti-stalking legislation.

[9]  Rosemary Cairns Way , The Criminalization of Stalking:  An Exercise in Media Manipulation and Political Opportunism, (1994) 39 McGill L.J. 379

[10]  Stalking was criminalised and introduced as a specific offence under Maltese legislation by Act XXIV of 2014. The generic offence of harassment (including stalking behaviour) was introduced in 2005.

[11]  Cyrus Vakili Zad , Domestic Violence and the Feminization of Homelessness in Malta:  A Critical Perspective, Journal of contemporary European Studies, Volume 21 Issue 4, 2013.

[12]  Dr Jacqueline Azzopardi, Dr Frances Camilleri Cassar, Dr Sandra Scicluna, Dealing with Victims of Domestic Violence:  An evaluation of services in Malta and the Province of Trapani Sicilia.  The agency started its operations in 1994 with only 41 cases.

[13]  Sophie Lauwers, Quality in Gender and Equality Policies European Commission Sixth Framework Programme Integrated Project, Institute for Human Sciences Vienna, (2007).

[14]  The aim of the National Family Commission is that of promoting the wellbeing of Maltese families, taking into account the circumstances of the prompt social changes which families encountered during the years.  The Commission has the important role of advising and making recommendations to the government on any appropriate measures it deems fit in promoting the healthiness of Maltese families.  Among its tasks, the Commission studies the impact of all legislation on family matters and where it deems necessary, it proposes and upholds legislative reform. Times of Malta, 8th February 2012, National Commissioner for the Family Appointed.

 Back then the Civil Court was divided into three sections; the First Hall of the Civil court – Family Section, the court of General Jurisdiction and the court of voluntary jurisdiction.  Preceding the setting up of the Family Court, matters relating to family issues were heard before the First Hall Civil Court, with the exception of certain preliminary procedures which had to be conducted before the Second Hall Civil Court.  The Second Hall Civil Court stopped dealing with matters linked with separation proceedings, and instead a team of trained mediators was introduced as part of the structure of the Family Section of the Civil Court. The Judiciary Malta – <http://judiciarymalta.gov.mt/family-section >

[16]  Sir Anthony Mamo Notes, Notes on Criminal Law, Published by Ghaqda Studenti tal-Ligi, – Volume 2

[17]  Which came into being by Act No XX of 2005 – Bill No 45.

[18]  Parliamentary Committee Debate 24th October 2005 – Sitting Number 58 – “Harassment includes various types of behaviour apart from stalking. If we had to only refer to stalking and not to harassment then we would be leaving out these various types of conduct. In the UK there is no specific crime of stalking. This falls under harassment. What we are doing here is making a demarcation line which is tougher on the person who commits such an act. If you are being stalked you are being harassed.”

[19]   Transposition occurred by Act No XIX of 2014.

[20]  Article 7 of the Explanatory Report to the Council of Europe on preventing and combating violence against women and domestic violence.

[21]  Maria Manuela Cruz-Cunha & Irene Maria Portela, Handbook of research on digital crime, cyberspace security and Information Assurance, IGI Global Book series, 2015.

[22]  Parliamentary Debate of 20th June 2005 – Sitting Number 281

[23]  California Penal Code §646.9 – <http://www.workplaceviolence911.com/docs/20040309.htm>

[24]  Paul E. Mullen, Michele Pathe, and Rosemary Purcell, Stalkers and their victims, Cambridge University Press 2000.

[26]  Transposition occurred by Act No XIX of 2014.

[27]  Vide article 34 of Chapter 532 of the Laws of Malta.

[28]  Explanatory Report to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic violence, Council of Europe Treaty Series No 210.

[29]  Chapter 9 of the Laws of Malta, The Criminal Code.

[30]  Court of Criminal Appeal 21st June 2007 – “apart from article 251C which refers to harassment as including alarming the person or causing the person distress, our law does not define the generic term ‘harassment’. The lack of a specific definition makes it possible for the judiciary to consider harassment as having different variations of the same offence. However there may be uncertainty in the application of the criminal code in the case of these offences which very often arise from personal relationships which are delicate and complicated”.

[31]  Pulizija vs John Pace, Court of Criminal Appeal Inferior Jurisdiction 16th October 2015.

[32]  Pulizija vs Carmelo Vella, Court of Criminal Appeal, 14th May 2012 – “although certain behaviour may annoy a person however this does not mean that these acts amount to harassment or that there is a course of conduct which amounts to such”

[33]  Pulizija vs Paul Spiteri, Court of Criminal Appeal Inferior Jurisdiction, 27th October 2016 – “The offence of harassment is composed of various elements and not simply the fact that a person annoys another person with his/her actions. The conduct of the person must be one to cause apprehension or fear in the victim. In this case it cannot be said that these elements existed. Moreover one cannot refer to a course of conduct”.

[34]  An example would be the gesture of sending flowers to a person which is absolutely not illegal, however this may change if such act is seen in the context of a course of conduct.

[35]  Criminologia France Angeli, Female Victims of Stalking, Recognition and intervention models:  A European Study, edited by the Modena Group on Stalking, 2003.

[36]  Dr Carl Brincat, Thesis submitted in partial fulfilment of the degree of Doctor of Laws, “A critical and comparative analysis of non-fatal offences against the person”, 2014.

[37]  David Ormerod, Smith and Hogan’s Criminal Law, 13th Edition.

[38]  Pulizija vs Alan Caruana Carabez, Court of Criminal Appeal, 21st June 2007

[39]  Il-Pulizija vs Omissis (1) Court of Criminal Appeal, 21st June 200, “in such cases the context of each incident is important so that the court can distinguish between an isolated incident from a behaviour amounting to harassment over a period of time.”

[40]  Il-Pulizija vs Generoso Desira, Court of Magistrates, 14th June 2013.

[41]  EIGE, European Institute for Gender Equality, Analysis of National Definitions of Stalking, October 2016.

[42]  Pulizija vs Carmelo Vella, Court of Criminal Appeal, 14th May 2012.

[43]  Translation: “when he knew or ought to have known that the behaviour amounted to harassment of a specific person”.

[44]  Ibid article 251A (1)(a) & (b) of Chapter 9 of the Laws of Malta, The Criminal code.

[45]  Ibid article 251AA (3).

[46]  Pulizija vs Paul Lughermo, Court of Magistrates, 19th December 2016.

[47]  The offence under article 251A of the Criminal Code is the generic offence. The legislator clearly wanted to create a specific offence in the case of stalking. Stalking has been given a separate existence which is distinct from that of the offence of harassment. A person who behaves in a manner which is in breach of article 251A(1) with his/her behaviour amounting to stalking shall be guilty of an offence under article 251AA and not article 251A of the Criminal Code.

[49]  Court of Magistrates, 20th November 2008; Court of Criminal Appeal, 27th February 2009; Court of Magistrates, 16th January 2014.

[50]  Pulizija vs Alan Caruana Carabez, Court of Criminal Appeal, – 21st June 2007.

[51]  Joel Best,  Stalking Crime, 6th June 2016 <https://www.britannica.com/topic/stalking-crime>

[52]  Los Angeles Times, Declared a Danger, Spielberg Stalker Gets Sentence of 25 Years to Life,  18th June 1998.

[53]  Pulizija vs Massimo Tivisini, Court of Magistrates, 16th January 2014.

[54]  Paul E.Mullen, Michele Pathe, Rosemary Purcell, Stalkers and their victims, Cambridge University Press (2000).

[55]  Article 251BA of Chapter 9 of the Laws of Malta, the Criminal Code.

[56]  David Ormerod, Smith and Hogan’s Criminal Law – 13th Edition.

[57]  Prosecution Policy and Legal Guidelines on Stalking and Harassment, <http://www.cps.gov.uk/legal/s_to_u/stalking_and_harassment/>

[58]  Vide article 251BA (4) of Chapter 9 of the Laws of Malta, the Criminal Code.

[59]  Danielle Keats Citron, Hate Crimes in Cyberspace, Harvard University Press, 2014

[60]  Douglas Thomas and Brian D Loader, 2005 – “One might easily be forgiven for thinking that cybercrime is a rather pretentious expression to refer simply to the use of computers by criminals.”

[61]  Stephanie Borg, Legal Aspects of Cyber bulling and Cyber harassment – LLD, 2012.

[62]  Ehsan Salimi and Abbas Mansourabadi, The Criminology of Cyber Stalking: Investigating the Crime, Offenders and Victims of Cyber Stalking, International Journal of Criminology and Sociological Theory, Vol 7, No 2, December 2014.

[63]  Douglas Thomas and Brian D Loader, Cybercrime: Law Enforcement, Security and Surveillance in the Information Age, “Much of what is labelled computer crime would constitute a crime regardless of the particular means of accomplishment,” 2005.

[64]  Pulizija vs Pierre Buttigieg, Court of Criminal Appeal, 17th September 2008 – One indicative evidence, if unequivocal and does not give rise to any other explanation other than the guilt of the accused can be enough and upon which guilt can be conferred.

[65]  Pulizija vs Matthew Borg, Court of Magistrates, 10th November 2014.

[66]  Defendant was accused under the provision of article 337C which relates to computer misuse, ‘unlawful access to, or use of information’ not under cyberstalking provision.  Nevertheless, it seems that most of cyberstalking related cases are being prosecuted under the provisions of computer misuse.  The events of this case could have given rise to the provision of article 251AA 3(d) as a course of conduct was evidently present.  The alleged perpetrator had already previously entered into his wife’s computer system and managed to change her password.  Consequently he admitted with her of doing so and gave her the new password, after which she changed it.  In furtherance to this, he also installed cameras in the matrimonial house which cameras enabled him to follow the movements of his wife whenever she visited the matrimonial home.  This clearly results in one of the conduct which stalking forbids, i.e. the following of a person.

[67]  Pulizija vs Joseph Gauci, Court of Criminal Appeal, 5th October 1998.

[68]  Pulizija vs Paul Grech, Court of Criminal Appeal, 6th April 2001

[69]  Evidence in the criminal sphere may be both direct evidence, as well as circumstantial evidence, provided that such evidence is sufficient to deduce moral conviction in the mind of the judge beyond reasonable doubt.

63  Conference on Cybercrime vs Cybersecurity:  Trends, Threats and Truths organized by ISACA Malta Chapter and the Malta Information Technology Law Association, held on the 28th March 2017.

[71]  Inspector Timothy Zammit – Conference on Cybercrime vs Cybersecurity:  Trends, Threats and Truths, 28th March 2017.

[72]  Chapter 399 of the Laws of Malta.

[73]  Chapter 440 of the Laws of Malta.

[74]  The law includes any ascendants, descendants, brothers or sisters or any person mentioned in sub-article (1) of article 222.

[75]  Ibid article 251B of Chapter 9 of the Laws of Malta, the Criminal code.

[76]  Ibid article 251AA (4).

[77]  Article 222(1) of the criminal code provides a category of persons who aggravate the circumstances of the case.

[78]  Vide article 222(1)(a-d), of Chapter 9 of the Laws of Malta in connection with article 202(h).

[79]  Article 251BA of the Criminal Code.

[80]  Il-Pulizija vs John Pace, Court of Criminal Appeal, 21st January 2016.

[81]  Vide article 382A, in conjunction with article 412C(1) of Chapter 9, the Criminal Code.

[82]  Ibid article 382A(3).

[83]  Ibid article 412C(1).

[84]  Ibid article 412C(3).

[85]   Chapter 446 of the Laws of Malta

[86]  Article 7(5) of Chapter 446, Probation Act.

[87]  Article 412D(4) of Chapter 9, the Criminal Code.

[88]  Interview with Ms Katya Unah – Ministry for Social Dialogue, Consumer Affairs and Civil Liberties.

[89]  Times of Malta Article, We must protect the victims of violence, Dr Roberta Lepre, 14th March 2015.

[90]  Warren and Brandeis, “The Right to Privacy”, Harvard Law Review, Volume IV, December 15, 1890.

[91]  Professor Joe Cannataci, UN Special Rapporteur on the Right to Privacy, Malta Cyber-crime conference   2017 – Trends, threats and thrust.

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