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Published by Enhelion, 2020-09-03 08:54:42

Module 1

Module 1

MODULE 1
IMPLEMENTING AN EFFECTIVE ANTI-SEXUAL HARASSMENT

POLICY

1.1 INTRODUCTION:

The introduction of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 (hereinafter referred to as the Act) has
empowered the state machinery to act against the menace of sexual harassment at
workplace. It has also made it imperative for companies to have an effective policy
to combat any such incidents.

The Act makes it the duty of every employer to1:

● Provide a safe working environment at the workplace which shall include
safety from all the persons with whom a woman comes into contact at the
workplace.

● Display at any conspicuous place in the workplace, the penal consequences of
sexual harassment and the order constituting the Internal Complaints
Committee (hereinafter referred to as the ICC).

● Organize workshops and awareness programmers.
● Provide necessary facilities to the ICC for dealing with complaints and

conducting inquiries.
● Assist in securing the attendance of the respondent and witnesses before the

ICC.
● Make available such information to the ICC or LCC (Local Complaints

Committee) , as it may require.

1 Section 19, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

● Provide assistance to the woman if she so chooses to file a criminal complaint.
● Initiate criminal action against the perpetrator.
● Treat sexual harassment as a misconduct under the service rules and initiate

action for such misconduct.
● Monitor the timely submission of reports by the ICC.

It is the responsibility of the employer to make sure that the environment in the
workplace is harmonious and comfortable for everyone to work pleasantly. There
are a number of steps that the employer can take to reduce the risk of sexual
harassment in the workplace.
Before one goes into the in-depth analysis of what is required to make an effective
sexual harassment policy, it is essential to understand the laws and measures that are
prevalent in India at present. Also, it is absolutely essential to note that sexual
harassment may take many forms and therefore it requires an understanding of
related concepts and definitions in order to make and implement an effective policy.

1.2 A BRAVE NEW WORLD
The latest amendment of 2013 in criminal law incorporated sexual harassment as a
separate punishable offence. Section 354A of the IPC talks about 5 points of the
sexual harassment offence:

(1) Physical contact and advances involving unwelcome and explicit sexual
overtures; or

(2) A demand or request for sexual favours; or

(3) Making sexually coloured remarks; or
(4) Forcibly showing pornography; or
(5) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The punishment in the code is rigorous imprisonment up to five years, or with fine,
or with both in case of offence described in clauses (1) & (2) and imprisonment up
to one year, or with fine, or with both in other cases.

There are two other offences that can be used against harassment. One is voyeurism
and the other is stalking.

1.3 VOYEURISM

Voyeurism, also referred to as scopophilia, is considered to be a perverted deviation
from normal sexual desires. Voyeurism can be a confusing concept, especially from
a legal perspective. It can be defined in two ways: as behavioural and as a sexual
disorder.

1.3.1 BEHAVIOUR

Voyeurism can be defined as “the secret viewing of another person in a place where
that person would have a reasonable expectation of privacy, for the purposes of the
viewer's sexual arousal”2. Whenever an individual witnesses any other individual’s
private act without his/her consent, for the sole reason of obtaining sexual
gratification or sexual arousal, he has committed an act that can be brought under
voyeurism. In this context, the behaviour is concerned with three things:

2 Duhaime’s Law Dictionary, available at <http://www.duhaime.org/LegalDictionary/V/Voyeurism.aspx>

i. The surreptitious nature of the observations
ii. The private and intimate nature of what is observed
iii. Sexual gratification.

Voyeuristic behaviour may extend not only to the making of voyeuristic images but
may include distribution of voyeuristic visual representations to others.3

1.3.2 SEXUAL DISORDER

Medically, voyeurism is a mental or psychosexual disorder where a person receives
sexual pleasure by snooping on people when they are engaged in a sexual act or are
undressing or are changing or any other kind of private activity. According to the
American Psychiatric Association's Diagnostic and Statistical Manual of Mental
Disorders ‘Voyeurism is viewing some form of nudity or sexual activity,
accompanied by sexual arousal. To be classified as a sexual disorder, or a
paraphilia, voyeurism must be characterized by observing unsuspecting individuals,
usually strangers, who are naked or engaging in sexual activity, for the purpose of
seeking sexual excitement.’4

Voyeurs are often called peeping toms because they tend to stay hidden from view
as they spy through secret peep-holes, use hidden cameras, or simply peer in
strangers' windows. Voyeurism is a form of paraphilia- a biomedical term that means
a sexual deviation which usually involves non-human or non-consenting partners.

3 “Voyeurism as a Criminal Offence: A Consultation Paper” available at
<http://www.justice.gc.ca/eng/cons/voy/part1_context.html>
4 ibid.

Voyeurism is not a new phenomenon, and, according to one study, instances of it
can be found in the Bible.5 With the advancement in technology, the concept of
voyeurism has evolved.

Today even the workplace is not free from this heinous crime. While common areas
in the workplace are not expected to have privacy but areas like locker areas and
private offices have a reasonable degree of privacy. It would be an offence if
someone is being photographed in an area where a person is expected to have
reasonable privacy and his/her consent is not sought beforehand. It can take place in
a variety of different settings in the workplace, and it can be recorded, or distributed
on a variety of different levels. It can involve spying on women as they change in
dressing rooms, placing hidden cameras in private places, taking pictures, or
recording people as they change or shower. It can also involve taking pictures, or
recording people at various states of undress or during sexual activity.

1.3.3 VOYEURISM AS AN OFFENCE

Generally, a mental disorder is not a punishable crime in court of law but it will have
serious legal repercussions. Voyeurism is a direct breach of a person’s right to
privacy.

The right to privacy extends to all persons the right to be protected from arbitrary or
abusive interference with their privacy. These rights are a dual relationship- between
the state and a private individual and between two private individuals. Every private
individual demands rational expectation of privacy for himself/herself especially if

5 Aggrawal, Anil (2009). "References to the paraphilias and sexual crimes in the Bible". Journal of Forensic and Legal
Medicine 16 (3): 109–14.

it’s related to a person’s body and private act. A voyeuristic practice is an intrusion
into someone else's private space.

The concept of voyeurism as a sexual offence arises from one or two sources (and
in any given case, both may be operative): one, the purpose for which the
observation is made or, alternatively, the nature of the subject observed (e.g.
viewing or recording the victim's sexual organs or the victim engaged in explicit
sexual activity). The policy justification for prohibiting voyeurism in this context is
that it prevents a private citizen from sexually exploiting another private citizen. The
sexual exploitation occurs the moment that the voyeur observes or records the
victim, even if the victim is not aware of it.6

A person doesn’t have to commit this crime in public, or outside their home to be
found guilty. A homeowner or landlord can violate the law by installing cameras in
their own home to tape tenants, or people can spy on and record their own roommates
or colleagues in office. A person can violate somebody else’s privacy whether they
are in a public place like a workplace, or in their private home.

1.3.4 GLOBAL LAWS AND VOYEURISM

In countries governed by common law, voyeuristic spying in itself is not considered
a crime unless specifically made so under a legislation. Canada, for example, did not
classify it as a crime until 2005, at which point it was placed in the category of sexual
offenses. Likewise, England classified non-consensual voyeurism to be a crime in
2004.

6 Supra note 3.

CANADA

Section 162 of Criminal Code of Canada, 2009 defines voyeurism as “(1) Everyone
commits an offence who, surreptitiously, observes - including by mechanical or
electronic means - or makes a visual recording of a person who is in circumstances
that give rise to a reasonable expectation of privacy, if-
(a) the person is in a place in which a person can reasonably be expected to be nude,

to expose his or her genital organs or anal region or her breasts, or to be engaged
in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her
breasts, or is engaged in explicit sexual activity, and the observation or recording
is done for the purpose of observing or recording a person in such a state or
engaged in such an activity;
(c) or the observation or recording is done for a sexual purpose.”7

WASHINGTON D.C.

Washington Penal Code defines voyeurism as follows: “A person commits the crime
of voyeurism in the first degree if, for the purpose of arousing or gratifying the
sexual desire of any person, he or she knowingly views, photographs, or films: (i)
another person without that person's knowledge and consent while the person being
viewed, photographed, or filmed is in a place where he or she would have a
reasonable expectation of privacy; or (ii) the intimate areas of another person
without that person's knowledge and consent and under circumstances where the

7 Criminal Code, RSC, 1985, c.C-46, § 162(1).

person has a reasonable expectation of privacy, whether in a public or private
place.”8

UNITED KINGDOM

In the United Kingdom, non-consensual voyeurism became a criminal offence on
May 1, 2004.9 Section 67 of the Sexual Offences Act, 2003 talks about voyeurism.
Little to no research has been done into the demographics of voyeurs. In a more
recent English case in 2013, Mark Lancaster was found guilty and sentenced for
voyeurism, after having tricked an 18-year-old student into traveling with him.10

UNITED STATES OF AMERICA11

In the USA, while twelve states have specific statutes against voyeurism, other states
have similar statutes that can be covered under the ambit of privacy. For example,
in New York, video voyeurism has been addressed by a law prohibiting unlawful
surveillance. A person is guilty of unlawful surveillance in the second-degree
offense punishable by a term of up to 1 - to 4 years in prison, if he or she:

a. Uses or installs an imaging device, for no legitimate reason, to surreptitiously
view or record another person in a bedroom, bathroom, changing room, or other
specified room; or

8 RCW 9A.44.115, available at <https://apps.leg.wa.gov/RCW/default.aspx?cite=9A.44.115>
9 Section 67 of the Sexual Offences Act 2003; brought into force by the Sexual Offences Act 2003 (Commencement)
Order 2004.
10 Story available at <http://www.independent.co.uk/news/uk/crime/computer-consultant-mark-lancaster-jailed-
for-16-months-for-voyeurism-and-trafficking-after-using-sex-for-fees-website-to-dupe-student-into-having-sex-
with-him-8721078.html>
11 See “Old Research Report” available at <https://www.cga.ct.gov/PS98/rpt%5Colr%5Chtm/98-R-1034.htm>

b. For sexual arousal or gratification, permits, uses or installs an imaging device to
surreptitiously view a person dressing or undressing when the person has a
reasonable expectation of privacy; or

c. Uses or installs an imaging device to surreptitiously view under the clothing of a
person - commonly known as - upskirting,- or

d. for amusement, entertainment, or profit, or to abuse or degrade the victim,
permits, uses, or installs an imaging device to surreptitiously record another
person dressing or undressing when the person has a reasonable expectation of
privacy.

Dissemination of an unlawful surveillance image (in the first-degree) is punishable
up to 1 - to 4 years in state prison. A person is guilty of such dissemination if he or
she:

i. Publishes or sells an image that was unlawfully obtained; or
ii. Disseminates an image he or she unlawfully obtained; or
iii. Commits the first degree offense and has prior conviction of the first or second

degree offenses.

The federal Video Voyeurism Protection Act of 2004 makes it a federal crime to
secretly capture images of people on federal property in situations in which they
have the expectation of privacy.

OTHER JURISDICTIONS

Saudi Arabia banned the sale of camera phones nationwide in April 2004, but
reversed the ban in December 2004. Some countries, such as South Korea and Japan,
require all camera phones sold in their country to make a clearly audible sound

whenever a picture is being taken. Secret photography by law enforcement
authorities is called surveillance and is not considered to be voyeurism, though it
may be unlawful or regulated in some countries.

INDIA

The 2013 criminal law amendment made voyeurism a crime. Section 354C of the
IPC makes voyeurism a crime. It states:

Any man who watches, or captures the image of a woman engaging in a
private act in circumstances where she would usually have the expectation of
not being observed either by the perpetrator or by any other person at the
behest of the perpetrator or disseminates such image shall be punished on
first conviction with imprisonment of either description for a term which shall
not be less than one year, but which may extend to three years, and shall also
be liable to fine, and be punished on a second or subsequent conviction, with
imprisonment of either description for a term which shall not be less than
three years, but which may extend to seven years, and shall also be liable to
fine.

Explanation 1.—For the purpose of this section, “private act” includes an act
of watching carried out in a place which, in the circumstances, would
reasonably be expected to provide privacy and where the victim's genitals,
posterior or breasts are exposed or covered only in underwear; or the victim
is using a lavatory; or the victim is doing a sexual act that is not of a kind
ordinarily done in public.

Explanation 2.—Where the victim consents to the capture of the images or
any act, but not to their dissemination to third persons and where such image

or act is disseminated, such dissemination shall be considered an offence
under this section.

The offence of voyeurism as defined in section 354C is very specific in scope and
has no possibility of misuse or abuse. This section seeks to uphold the dignity of
women and makes the violation of their fundamental right to privacy a crime. The
test of reasonable expectation of privacy can be derived from similar provisions in
voyeurism laws across the world and also section 66E of the Information
Technology Act.12

1.3.5 CASES RELATED TO VOYEURISM

February, 201213: In 2012, a state superior court judge in Danbury sentenced a 47-
year-old man to prison for surreptitiously videotaping the mother of a girl he'd been
convicted of spying on six years ago. The accused pleaded guilty to voyeurism.

January, 201414: A man from St. Augustine (USA) who was accused of using his
cellphone to record a tanning room was found guilty of voyeurism and sentenced to
300 days in jail.

12 Section 66E, The Information Technology Act, 2000: ‘66E. Punishment for violation of privacy.- Whoever,
intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or
her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which
may extend to three years or with fine not exceeding two lakh rupees, or with both.
13 John Pirro, ‘Man sentenced in voyeurism case’ CTPost (6 June 2012) at
<http://www.ctpost.com/policereports/article/Man-sentenced-in-voyeurism-case-3615064.php>
14 Sheldon Gardner, ‘Former Putnam deputy gets 300 days in jail in tanning booth voyeurism case’ (8 January 2014)
at <http://staugustine.com/news/local-news/2014-01-08/former-putnam-deputy-gets-300-days-jail-tanning-
booth-voyeurism-case#.UzDu69Ir1e8>

Other Cases: Oftentimes, news about crimes against women contain voyeuristic
descriptions of women being stripped or paraded naked.15

1.3.6 ESSENTIALS TO PROVE VOYEURISM UNDER THE IPC
● The victim should be a woman.
● She should have been viewed engaging in a private act that is not of kind

ordinarily done in public.
● There must be an absence of consent of the victim
● The place where the offence is committed should be such where privacy is

required or reasonably expected.

1.3.7 DEFENSES
Every person is innocent until proven guilty and every party has the right to put
forward his side of the story. The court of law has a duty to hear the parties and only
then give the judgment. In cases of voyeurism, some defenses that a person can take
are:
Medical grounds
As already mentioned above, voyeurism is a mental or psychosexual disorder where
a person receives sexual pleasure by snooping on people when they are engaged in
a private activity. Therefore, the accused can take this mental condition as a defence.

15 Noopur Tiwari, ‘How not to think about violence against women’ Kafila, (24 December 2012) at
<https://kafila.online/2012/12/24/how-not-to-think-about-violence-against-women-noopur-tiwari/>

The court might or might not completely free him/her from the charge, depending
upon his/her level of sickness. But it may reduce the sentence of punishment.

Security purpose
These days, security cameras and other modes of visual surveillance are used at
various places. To establish any criminal offence, intention is a mandatory criteria.
Therefore, it can be argued that the surveillance was done for legitimate purposes
and there was no intention of committing voyeurism.

Role of consent
Consent can be defined as accepting freely to do or not to do something. It is the
accountability of the other person to take all the reasonable steps to find out the
consent of the first person. Therefore, if the defendant is able to establish that the act
was consensual, then the charge of voyeurism would be negated. Proving consent
depends on case to case basis.

Duress
Also one of the defences can be that the act of voyeurism was done due to pressure.
It has to be established that the person was forced to commit the crime.

1.4 STALKING

Stalking, also known as chasing, pursuing, following is generally characterized by
unwanted and obsessive harassment or persecution of one person by another. It’ can

be a physical act such as constantly following a person, or can be done through
electronic means- usually the internet- known as cyberstalking.16

According to a 2002 report by the National Centre for Victims of Crime, "Virtually
any unwanted contact between two people that intend to directly or indirectly
communicate a threat or place the victim in fear can be considered stalking"17. In
its simplest form, it can be understood as stubborn and frequent observing and/or
harassing of another person.

Having been used since at least the 16th century to refer to a prowler or a poacher,
the term stalker started to be used by the media in the 20th century to describe people
who pester and harass others. The reference was initially specific to the harassment
of celebrities by strangers who were described as being "obsessed".18

A study of stalkers (2000)19 identified five types of stalkers:

i. Rejected stalkers pursue their victims in order to reverse, correct, or avenge a
rejection (e.g. divorce, separation, termination).

ii. Resentful stalkers pursue a vendetta because of a sense of grievance against the
victims – motivated mainly by the desire to frighten and distress the victim.

iii. Intimacy seekers seek to establish an intimate, loving relationship with their
victim. Such stalkers often believe that the victim is a long-sought-after soul
mate, and they were 'meant' to be together.

16 ‘The Criminal Law Amendment Bill 2013 — Penalising 'Peeping Toms' and Other Privacy Issues’ The Centre for
Internet and Society available at <http://cis-india.org/internet-governance/blog/the-criminal-law-amendment-bill-
2013>
17 National Center for Victims of Crime (Feb 2002) "Stalking Victimization".
18 Mullen, Paul E, Pathé Michele, Purcell, Rosemary (2000) Stalkers and Their Victims, (Cambridge, United
Kingdom: Cambridge University Press. ISBN 0521669502).
19 Paul E. Mullen, Michele Pathé, Rosemary Purcell, and Geoffrey W. Stuart A Study of Stalkers Am J Psychiatry
156:1244-1249, Aug 1999.

iv. Incompetent suitors, despite poor social or courting skills, have a fixation, or in
some cases, a sense of entitlement to an intimate relationship with those who
have attracted their amorous interest. Their victims are most often already in a
dating relationship with someone else.

v. Predatory stalkers spy on the victim in order to prepare and plan an attack –
often sexual – on the victim.

vi. The 2002 National Victim Association Academy defines an additional form of
stalking: The vengeance/terrorist stalker. Both the vengeance stalker and
terrorist stalker (the latter sometimes called the political stalker) do not, in
contrast with some of the aforementioned types of stalkers, seek a personal
relationship with their victims but rather force them to emit a certain response.
While the vengeance stalker's motive is "to get even" with the other person
whom he/she perceives has done some wrong to them (e.g., an employee who
believes is fired without justification from their job by their superior), the
political stalker intends to accomplish a political agenda, also using threats and
intimidation to force his/her target to refrain and/or become involved in some
particular activity, regardless of the victim’s consent. For example, most
prosecutions in this stalking category have been against anti-abortionists who
stalk doctors in an attempt to discourage the performance of abortions.20

vii. Stalking by group: Gang stalking could be defined, loosely, as any action
taken by an organized group of individuals to cause intentional emotional
duress in another individual’s life, with emphasis on the visibility of the
organized group as opposed to the invisibility of other types of groups such
as covert surveillance groups, etc.21 According to a U.S. Department of

20 "National Victim Assistance Academy Textbook - Chapter 22 Special Topics - Section 4, Campus Crime and
Victimization". Office for Victims of Crime. Jun 2002.
21 http://www.jbhfile.com/harm_gang.html

Justice special report,22 a significant number of people reporting stalking
incidents claim that they had been stalked by more than one person, with
18.2% reporting that they were stalked by two people, 13.1% reporting that
they had been stalked by three or more persons. The report did not break
down these cases into the number of victims who claimed to have been
stalked by several people individually, and by people acting in concert. A
question asked of respondents reporting three or more stalkers by polling
personnel about whether the stalking was related to co-workers, members
of a gang, fraternities, sororities, etc., did not have its responses indicated
in the survey results as released by the DOJ. The data for this report was
obtained via the 2006 Supplemental Victimization Survey (SVS),
conducted by the U.S. Census Bureau for the Department of Justice.23

According to a United Kingdom study by Sheridan and Boon,24 in 5% of the cases
they studied, there was more than one stalker, and 40% of the victims said that
friends or family of their stalker had also been involved. In 15% of the cases, the
victim was unaware of any reason for the harassment.

Over a quarter of all stalking and harassment victims do not know their stalkers in
any capacity. About a tenth responding to the SVS did not know the identities of
their stalkers. 11% of victims said they had been stalked for 5 years or more.25

22 Baum, Katrina; Catalano, Shannon; Rand, Michael (Jan 2009) (PDF). Stalking Victimization in the United
States (Report). United States Department of Justice, Bureau of Justice Statistics.
23 "SUPPLEMENTAL VICTIMIZATION SURVEY (SVS)"(PDF). United States Department of Justice.
24 Article: "The Course and Nature of Stalking: A Victim Perspective", Authors: Sheridan, Davies, Boon.
Source: Howard Journal of Criminal Justice, Volume 40, Number 3, Aug 2001 , pp. 215-234.
25 Baum, Katrina; Catalano, Shannon; Rand, Michael (Jan 2009) (PDF). Stalking Victimization in the United
States (Report) <http://www.ovw.usdoj.gov/docs/stalking-victimization.pdf>. United States Department of
Justice, Bureau of Justice Statistics.

Stalking and harassment are typically caused by the same person and are very
similar- in that both create on-going problems for victims. Stalking can happen any
day and anywhere and any way, whether it’s a public place or a silent workplace. It
can be in the form of rude remarks in the street or persistent phone calls, but they
can also involve deeply traumatic events – threats of violence, aggression, criminal
damage and worse.

1.4.1 STALKING AS AN OFFENCE

Stalking is a much serious offence. The act may or may not threaten the security of
the individual physically but it tortures the person mentally and causes fear and
trauma in the mind of the victim. It is a pattern of threats and actions that can frighten
someone and take away their feeling of self-worth and shatter their sense of security
and personal safety. Sometimes the problem can build up slowly and it can take a
while for the victim to realise that they are caught up in an on-going campaign of
abuse.26 Stalking is a blatant intrusion into an individual’s privacy, where the stalker
attempts to establish relationships with their victim which the victim does not
consent to and is not comfortable with. The stalker also intrudes into the victim’s
private life by collecting or attempting to collect personal information which the
victim may not want to disclose- such as phone numbers or addresses- and misusing
it. If the stalker is left undeterred to continue such actions, it can even lead to a threat
to the safety of the victim.

Stalking can take place between27:

i. Current or former partners, or family members as part of domestic abuse;

26 Stalking and Harassment, http://www.victimsupport.org.uk/help-victims/ive-been-affected/stalking-and-
harassment
27 Stalking and Harassment <http://www.westyorkshire.police.uk/stalking>

ii. Someone who is known personally to the victim, such as a neighbour, work
colleague or friend- sometimes where that acquaintance is very slight.

iii. Strangers- for example, the stalking or harassment of someone in the public
eye or where someone is targeted because of their race, disability, sexual
orientation or religion.

Stalking behaviours can include28:

i. Knowing your schedule
ii. Showing up at places you go
iii. Sending mail, e-mail, and pictures
iv. Calling or texting repeatedly
v. Contacting you or posting about you on social media
vi. Writing letters
vii. Damaging your property
viii. Creating a website about you
ix. Sending gifts
x. Stealing things that belong to you
xi. Any other actions to contact, harass, track, or frighten you

Cyber-stalking is a phenomenon which can prove to be even more invasive and
detrimental to privacy, as most cyber-stalkers attempt to gain access to private
information of the victims so that they can misuse it. Stalking, in any form, degrades
the privacy of the victim by taking away their choice to use their personal
information in ways they deem fit.29 Recognizing stalking as an offence would not

28 The National Centre for Victims of Crime <http://www.victimsofcrime.org/help-for-crime-victims/get-help-
bulletins-for-crime-victims/bulletins-for-teens/stalking>
29 Anita Gurumurthy and Nivedita Menon, Violence against Women via Cyberspace, Economic and Political Weekly,
44 (40), 19, (October, 2009).

only protect the physical privacy rights of the victims, but also nip potentially violent
crimes in the bud.30

1.4.2 GLOBAL LAWS AND STALKING

Although stalking is illegal in most of the world, some of the actions that can
contribute to stalking can be legal, such as gathering information, calling someone
on the phone, sending gifts, emailing or instant messaging. They become illegal
when they subscribe to the legal definition of harassment. Example, an action such
as sending a text is not usually illegal, but is illegal when frequently repeated to an
unwilling recipient. Many nations have penal provisions which criminalise stalking.

CALIFORNIA31

California was the first state to pass an anti-stalking law in 1990 in response to the
stalking and murder of actress Rebecca Schaeffer. In California, both criminal and
civil laws address stalking. According to the criminal laws, a stalker is someone who
willfully, maliciously and repeatedly follows or harasses another (victim) and who
makes a credible threat with the intent to place the victim or victim's immediate
family in fear for their safety. The victim does not have to prove that the stalker had
the intent to carry out the threat (California Penal Code 646.9).

The criminal penalty for stalking is imprisonment up to a year and/or a fine of up to
$1,000. There are more severe penalties when the stalker pursues the same person
in violation of a court restraining order, with a sentencing range of two to four years
imprisonment. Persons convicted of felony stalking also face stricter penalties if they

30 The Criminal Law Amendment Bill 2013 — Penalising 'Peeping Toms' and Other Privacy Issues
<http://cis-india.org/internet-governance/blog/the-criminal-law-amendment-bill-2013>
31 https://www.privacyrights.org/are-you-being-stalked

continue to stalk their victim(s). Courts may issue restraining orders to prohibit
stalking (California Family Code 6320).

A victim, family member or witness may request that the California Department of
Corrections, county sheriff or the director of the local department of corrections
notify them by phone or mail 15 days before a convicted stalker is released from jail
or prison. The victim, family member or witness must keep these departments
notified of their most current mailing address and telephone number. The
information relating to persons who receive notice must be kept confidential and not
released to the convicted stalker. (California Penal Code 646.92) The court may
order a person convicted of felony stalking to register with local law enforcement
officials within 14 days of moving to a city and/or county (California Penal Code
646.9). A victim of stalking may bring a civil lawsuit against the stalker and recover
monetary damages.32

Victims may also request that the California Department of Motor Vehicles (DMV)
suppress their automobile registration and driver's license records from being
released to persons other than court and law enforcement officials, other
governmental agencies or specified financial institutions, insurers and attorneys
(California Vehicle Code 1808.21, 1808.22).When stalking occurs in the workplace,
an employer can request a temporary restraining order or an injunction on behalf of
the employee who is a victim of stalking (California Code of Civil Procedure 527.8).

AUSTRALIA

Every Australian state enacted laws prohibiting stalking during the 1990s, with
Queensland being the first state to do so in 1994. The laws vary slightly from state

32 See Civil Code 1708.7 for the elements and remedies of the tort of stalking.

to state, with Queensland's laws having the broadest scope, and South Australian
laws the most restrictive. Punishments vary from a maximum of 10 years
imprisonment in some states, to a fine for the lowest severity of stalking in others.
Australian anti-stalking laws have some notable features. Unlike many US
jurisdictions, they do not require the victim to have felt fear or distress as a result of
the behaviour, only that a reasonable person would have felt this way. In some states,
the anti-stalking laws operate extra-territorially, meaning that an individual can be
charged with stalking if either they or the victim are in the relevant state. Most
Australian states provide the option of a restraining order in cases of stalking, breach
of which is punishable as a criminal offence. There has been relatively little research
into Australian court outcomes in stalking cases, although Freckelton (2001) found
that in the state of Victoria, most stalkers received fines or community based
dispositions.

CANADA33

Section 264 of the Criminal Code of Canada, titled "criminal harassment"34,
addresses acts which are termed "stalking" in many other jurisdictions. The
provisions of the section came into force in August 1993 with the intent of further
strengthening laws protecting women.35 It is a hybrid offence, which may be
punishable on summary conviction or as an indictable offence, the latter of which
may carry a prison term of up to ten years. Section 264 has withstood Charter
challenges.36

The Chief, Policing Services Program, for Statistics Canada has stated:

33 http://en.wikipedia.org/wiki/Stalking
34 "Section 264 of the Criminal Code of Canada" Laws-lois.justice.gc.ca.
35 Department of Justice of Canada - Review and Backgrounder on section 264
36 Department of Justice - Criminal Harassment

"... of the 10,756 incidents of criminal harassment reported to police in 2006, 1,429
of these involved more than one accused."

GERMANY

The German Criminal Code (§ 238 StGB) penalizes so-called Nachstellung, defined
as threatening or seeking proximity or remote contact with another person and thus
heavily influencing their lives, with up to 3 years of imprisonment. The definition is
not strict and allows "similar behaviour" to also be classified as stalking.

NEW MEXICO37

The New Mexico "Harassment and Stalking Act" (the Act) appears in §§30-3A-1 to
30-3A-4. The New Mexico legislature adopted separate statutes and penalties for
"harassment" and "stalking." In addition, harassing a person is also included as a
particular form of stalking.

An important component of New Mexico stalking and harassment law is that the
statutes deal with the actions of the perpetrator as well as their impact on the victim.
This dual focus differs from a significant number of other criminal offense statutes
which focus primarily, and sometimes exclusively, on the actions and intent of the
perpetrator.

FRANCE38

Article 222-33-2 of the French Penal Code (added in 2002) penalizes "Moral
harassment," which is: "Harassing another person by repeated conduct which is
designed to or leads to a deterioration of his conditions of work liable to harm his

37 Stalking and Harassment Law <http://jec.unm.edu/education/online-training/stalking-tutorial/stalking-harassment-
law>
38 http://en.wikipedia.org/wiki/Stalking

rights and his dignity, to damage his physical or mental health or compromise his
career prospects," with a year's imprisonment and a fine of EUR15,000.

JAPAN39

In 2000, Japan enacted a national law to combat this behaviour, after the murder of
Shiori Ino. Acts of stalking can be viewed as "interfering [with] the tranquility of
others' lives" and are prohibited under petty offence laws.

ITALY40

Following a series of high-profile incidents that came to public attention in the past
years, a law was proposed in June 2008, and became effective in February 2009,
making a criminal offence, punishable with imprisonment ranging from six months
up to four years, any "continuative harassing, threatening or persecuting behaviour
which: (1) causes a state of anxiety and fear in the victim(s), or; (2) ingenerates
within the victim(s) a motivated fear for his/her own safety or for the safety of
relatives, kins, or others tied to the victim him/herself by an affective relationship,
or; (3), forces the victim(s) to change his/her living habits". If the perpetrator of the
offense is a subject tied to the victim by kinship or that is or has been in the past
involved in a relationship with the victim (i.e. current or former/divorced/split
husband/wife or fiancé), and/or if the victim is a pregnant woman or a minor, the
sanction can be elevated up to six years of incarceration.

NETHERLANDS41

39 http://en.wikipedia.org/wiki/Stalking
40 http://en.wikipedia.org/wiki/Stalking
41 http://en.wikipedia.org/wiki/Stalking

In the Wetboek van Strafrecht there is an Article 285b42 which considers stalking as
a crime, actually an Antragsdelikt:

Article 285b:

1. He, who unlawfully systematically and deliberately intrudes someone’s
personal environment with the intention to enforce the other to do something,
not to do something or to tolerate something or to frighten, will be punished
because of stalking. Maximum imprisonment is three years or a fine of the
forth category.

2. Prosecution will only happen when there is a complaint from him, against
whom this crime has been committed (Antragsdelikt).

UNITED KINGDOM43

Already before the enactment of the Protection from Harassment Act 1997, the
Malicious Communications Act 1988 and the Telecommunications Act 1984 (now
the Communications Act 2003) criminalised indecent, offensive or threatening
phone calls and the sending of an indecent, offensive or threatening letter, electronic
communication or other article to another person. Before 1997, no specific offence
existed in England and Wales but in Scotland, incidents could be dealt with under
pre-existing law with life imprisonment available for the worst events.

England and Wales

In England and Wales, "harassment" was criminalised by the enactment of the
Protection from Harassment Act 1997, which came into force on June 16, 1997. It
makes it a criminal offence, punishable by up to six months imprisonment, to pursue

42 "Wetboek van Strafrecht | Artikel 285b". Wetboek-online.nl.
43 http://en.wikipedia.org/wiki/Stalking

a course of conduct which amounts to harassment of another on two or more
occasions. The court can also issue a restraining order, which carries a maximum
punishment of five years' imprisonment if breached. In England and Wales, liability
may arise in the event that the victim suffers either mental or physical harm as a
result of being harassed (or slang term stalked) (see R. v. Constanza).

In 2012, the then Prime Minister, David Cameron stated that the government
intended to make another attempt to create a law aimed specifically at stalking
behaviour.44

Scotland

In Scotland, behaviour commonly described as stalking was already prosecuted as
the Common Law offence of breach of the peace (not to be confused with the minor
English offence of the same description) before the introduction of the statutory
offence against section 39 of the Criminal Justice and Licensing (Scotland) Act
2010- either course can still be taken45 depending on the circumstances of each
case.46 The statutory offence incurs a penalty of 12 months imprisonment or a fine
on summary conviction or a maximum of 5 years imprisonment and/or a fine upon
conviction on indictment. The penalties for conviction for breach of peace are
limited only by the sentencing powers of the court. Thus, a case remitted to the High
Court can carry a sentence of imprisonment for life.

Provision is made under the Protection from Harassment Act against stalking to deal
with the civil offence (i.e. the interference with the victim's personal rights), falling

44 "Stalking to be made specific criminal offence - Cameron" BBC News. 8 Mar 2012
<https://www.bbc.com/news/uk-17294314> Law"
45 "Stalking & Harassment - Criminal
<http://www.scotland.gov.uk/Topics/Justice/crimes/harassment/stalkinglaw>
46 "Offence of Stalking" <http://www.scotland.gov.uk/Topics/Justice/crimes/harassment/stalkingoffence>

under the law of delict. Victims of stalking may sue for interdict against an alleged
stalker, or a non-harassment order, breach of which is an offence.

UNITED STATES47

The first state to criminalize stalking in the United States was California in
199048 after numerous high-profile stalking cases in California, including the 1982
attempted murder of actress Theresa Saldana,49 the 1988 massacre by Richard
Farley,50 the 1989 murder of actress Rebecca Schaeffer,51 52 and five Orange
County stalking murders, also in 1989.53 54 The first anti-stalking law in the United
States, California Penal Code Section 646.9, was developed and proposed by
Municipal Court Judge John Watson of Orange County. Watson, with U.S.
Congressman Ed Royce, introduced the law in 1990.55 Also in 1990, the Los
Angeles Police Department (LAPD) began the United States' first Threat
Management Unit, founded by LAPD Captain Robert Martin.

Within three years56 thereafter, every state in the United States followed suit to
create the crime of stalking, under different names such as criminal

47 http://en.wikipedia.org/wiki/Stalking
48 "Are You Being Stalked?" (6 Jun 2011) <http://www.privacyrights.org/fs/fs14-stk.htm>
49 Saunders, Rhonda. "Stalking Stalking From A Legal Perspective"
<http://www.stalkingalert.com/articlesofinterest.htm>
50 Bill Analysis by Bill Lockyer" <http://info.sen.ca.gov/pub/93-94/bill/asm/ab_1151-
1200/ab_1178_cfa_930426_112027_sen_comm>
51 "Culture of Patriarchy in Law: Violence From Antiquity to Modernity"
<http://www.redorbit.com/news/health/110415/culture_of_patriarchy_in_law_violence_from_antiquity_to_modernit
y/index.html> 11 Dec 2004.
52 Nancy K.D. Lemon Battered Women's Justice Project. "Domestic Violence Stalking by Nancy Lemon". Minnesota
Center Against Violence and Abuse.
53 "Bill Analysis by Bill Lockyer" <http://info.sen.ca.gov/pub/93-94/bill/asm/ab_1151-
1200/ab_1178_cfa_930426_112027_sen_comm>
54 "Judge John Watson profile" <http://www.smartvoter.org/1998jun/ca/or/vote/watson_j/paper1.html>
Smartvoter.org. 2 Jun 1998.
55 ibid.
56 U.S. Senate Committee: Robert Douglas
Testimony<http://judiciary.senate.gov/testimony.cfm?id=1437&wit_id=4146>

harassment or criminal menace. The Driver's Privacy Protection Act (DPPA) was
enacted in 1994 in response to numerous cases of a driver's information being abused
for criminal activity, with prominent examples including
the Saldana and Schaeffer stalking cases.57 The DPPA prohibits states from
disclosing a driver's personal information without permission by the
State Department of Motor Vehicles (DMV). As of 2011, stalking is an offense
under section 120a of the Uniform Code of Military Justice (UCMJ).58 The law took
effect on 1 October 2007.

"Stalking is a controversial crime" because a conviction requires no physical harm.59
The anti-stalking statute of Illinois is particularly controversial. It is particularly
restrictive, by the standards of this type of legislation.60

Baskerville and Weyrich said that, as a result of the Office of Victims of Crime
having been hijacked by feminists, stalking has been redefined as a political crime
in feminist terms, so that it includes fathers trying to see their children.61

INDIA

In 2013, Indian Parliament made amendments to the Indian Penal Code, introducing
stalking as a criminal offence. Section 345D of the Indian Penal Code defines
stalking as “Whoever follows a person and contacts, or attempts to contact such

57 "DPPA and the Privacy of Your State Motor Vehicle Record" Electronic Privacy Information Center.
58 "United States Code: Title 10,920a. Art. 120a. Stalking -- LII / Legal Information Institute"
<http://www.law.cornell.edu/uscode/10/usc_sec_10_00000920---a000-.html>
59 Levenson, Laurie L. The Glannon Guide to Criminal Law. Second Edition. Wolters Kluwer Law & Business.
2009. ISBN 9780735579552. Page 244.
60 Harmon, Brenda K. "Illinois' Newly Amended Stalking Law: Are All The Problems Solved? (Fall, 1994) 19 S. Ill.
U. L. J. 165.LexisNexis
61 Stephen Baskerville "A problematic question for the next conservatism is the politics of "gender" (formerly known
as sex). It is also urgent." Free Congress Foundation (11 May 2006) Fathers Unite; Paul Weyrich, The Next
Conservatism St Augustine's Press (2009) Page 46 (attributing this, on pages 45 and 143, to Baskerville)
<http://books.google.co.uk/books?id=peobAQAAMAAJ>; Frederick Stecker. The Podium, the Pulpit and the
Republicans.ABC-CLIO (2011) Page 21 (attributing this to Weyrich).

person to foster personal interaction repeatedly, despite a clear indication of
disinterest by such person, or whoever monitors the use by a person of the internet,
email or any other form of electronic communication, or watches or spies on a
person in a manner that results in a fear of violence or serious alarm or distress in
the mind of such person, or interferes with the mental peace of such person”. The
punishment prescribed is imprisonment for not less than one year but which may
extend to three years, and shall also be liable to fine.

The crime of stalking can also be committed via the internet, where a man monitors
a woman's use of the internet, or any other form of electronic communication.

Advocate VK Singh says, "Sending lewd messages via mobiles will also come under
stalking as per section 354D. In case of online stalking, the woman has to show that
the act results in a reasonable fear of violence or a serious alarm or mental distress,
and the monitoring must be of private contents only. If a woman posts content on
Facebook, Twitter or other social media platforms, which by their very nature are
public platforms, she allows her contact and communication or such public platform
to be revived or read. Such use of the internet by women, which becomes public due
to the nature of the platform, may be excused."62

1.4.3 CASES RELATED TO STALKING

July, 1989: On July 18th, 1989, a young and upcoming actress, Rebecca Schaeffer,
was murdered by Robert John Bardo, an obsessed fan. Bardo was attracted to
Schaeffer’s youthful image and soon began writing fan letters. His letter-writing

62 ‘Much talking on stalking, but what does it all mean?’ <http://timesofindia.indiatimes.com/life-style/people/Much-
talking-on-stalking-but-what-does-it-all-mean/articleshow/19755907.cms>

eventually progressed to efforts to gain access to Schaeffer on the set of her show.
Later on, Schaeffer got a small film in which she was lying in bed with a male
character. Bardo saw the film and felt the scene was a betrayal of Schaeffer’s
wholesome image and began to become increasingly hostile in his letters.
Eventually, as Bardo became infuriated by his failure to contact Schaeffer, he hired
a private detective agency, which was able to obtain Schaeffer’s address through
motor vehicle records. One day he showed up at Schaeffer’s apartment, spoke with
her briefly, and showed her an autographed photo he had received from her in a fan
mail package. Schaeffer asked Bardo to leave and not return. Shortly thereafter,
Bardo returned, rang the doorbell, and shot Schaeffer at point blank range. In the
aftermath of Schaeffer’s death, the state of California enacted the first official
stalking law in the United States.

People v. Herron, 2010 Colo. App. LEXIS 150963: Defendant’s first charge for
stalking occurred when he approached the victim in the exercise room at her
apartment complex, asked her personal questions, and said that he had been watching
her. He later showed up in close proximity to her apartment and lingered when she
asked him to leave. The defendant was charged with credible threat stalking under §
18-3-602(1)(a), C.R.S. 2010 and emotional distress stalking under § 18-3-602(1)(c)
and was sentenced to two concurrent 12-year prison terms. On appeal, the defendant
argued that the two stalking convictions constituted multiple punishments for the
same offense and should be barred by the Double Jeopardy Clause. The legislatively
defined unit of prosecution for stalking is a continuous course of conduct by which
one “repeatedly follows, approaches, contacts, or places another under surveillance.”
Because the defendant’s course of conduct directed at the victim amounted to a

63<http://www.victimsofcrime.org/our-programs/stalking-resource-center/stalking-laws/stalking-case-
summaries/double-jeopardy>

single crime, the court concluded that it could not charge him with two stalking
convictions. According to the court, stalking can occur only when there is conduct
comprising two or more occurrences of the specified acts. In turn, to be charged with
two stalking convictions, the defendant would have had to stalk the victim, in a
separate transaction that is factually distinct from the first, on at least two more
occasions. The defendant’s judgment and sentence were vacated, and the case was
remanded to the trial court with directions to correct the defendant's conviction and
sentence for a single count of stalking.

Coombs v. Dietrich, 2011 Utah App. LEXIS 13464: An ex-husband was granted a
civil stalking injunction against his ex-wife’s new husband after several altercations
between the two. On three separate occasions, usually involving custody discussions
or retrieval of personal property, the husband caused the ex-husband to fear for his
personal safety and suffer emotional distress by making verbal threats that
eventually escalated to physical violence. In order to find that the husband had
committed the crime of stalking, the court had to find that he had engaged in a course
of conduct, composed of two or more instances, which would cause a reasonable
person in the ex-husband’s position to fear for his safety. The district court inferred
a pattern of behavior from the three incidents to issue the civil stalking injunction.
The husband appealed, arguing that two out of the three altercations would not cause
a reasonable person to fear for his safety. The court denied this argument, reasoning
that the statute, Utah Code Ann. § 76-5-106.5, does not require that each act or
incident independently cause a reasonable person to fear for his safety. Rather, where
the husband engaged in a course of conduct that was growing worse, the cumulative
effect of the husband’s conduct made the issuance of an injunction proper.

64<http://www.victimsofcrime.org/our-programs/stalking-resource-center/stalking-laws/stalking-case-
summaries/double-jeopardy>

Hervey v. State, 2011 Ga. App. LEXIS 165 (2011)65 : The defendant was convicted
of criminal attempt to commit aggravated stalking by going to his children’s school
in violation of a family protective order. In the past, the defendant had threatened to
kidnap the children and take them to his native country of Panama. The defendant
was sentenced to five years in prison. The defendant appealed his conviction arguing
that the evidence did not show a pattern of harassing and intimidating behavior as
required by the aggravated stalking statute. OCGA § 16-5-91(a) defines aggravated
stalking as when a “person, in violation of a . . . permanent protective order. . .
follows, places under surveillance, or contacts another person . . . without the consent
of the other person for the purpose of harassing and intimidating the other person.”
The phrase “harassing and intimidating” is defined in the stalking statute OCGA §
16-5-90(a)(1) as “a knowing and willful course of conduct directed at a specific
person which causes emotional distress by placing such person in reasonable fear
for such person’s safety or the safety of a member of his or her immediate family.”
The defendant argued that the evidence at trial only showed a single violation of the
protective order which was legally insufficient to establish the required pattern of
harassing and intimidating behavior. The defendant’s argument was based on the
holding in State v. Burke, 287 Ga. 377(2010), where the court rejected the state’s
argument that it need only prove a single violation of a protective order to establish
aggravated stalking. However, the evidence in the current case showed that the
defendant made many threats, on multiple occasions, to take the children away to
Panama. These numerous threats coupled with the violation of the protective order
were sufficient evidence of harassing and intimidating behavior. The defendant’s
conviction and sentence were affirmed.

65<http://www.victimsofcrime.org/our-programs/stalking-resource-center/stalking-laws/stalking-case-
summaries/evidentiary-issues>

People v. Cecil, 2012 Cal. App. Unpub. LEXIS 290666: The Court upheld the
defendant’s conviction for stalking. The defendant was charged and convicted of
sexual assault of the victim. After serving his six year sentence, the defendant
contacted the victim by telephone and yelled obscenities and threatened to kill her
for sending him to prison. He then followed up by sending her a threatening letter in
the mail. Under the California stalking law, § 646.9(a), "any person who . . . willfully
and maliciously harasses another person and who makes a credible threat with the
intent to place that person in reasonable fear for his or her safety . . . is guilty of the
crime of stalking . . . ." The statutory definition of “harasses” under § 646.9(e), is "a
knowing and willful course of conduct directed at a specific person that seriously
alarms, annoys, torments, or terrorizes the person, and that serves no legitimate
purpose." Under §646.9(f), “Course of conduct” is defined as "two or more acts
occurring over a period of time, however short, evidencing a continuity of purpose.”
Under §646.9(g), “Credible threat” includes a verbal threat or "a threat implied by a
pattern of conduct" that is "made with the intent to place the person that is the target
of the threat in reasonable fear for his or her safety . . . and made with the apparent
ability to carry out the threat so as to cause the person who is the target of the threat
to reasonably fear for his or her safety." "It is not necessary to prove that the
defendant had the intent to actually carry out the threat."* Here, the defendant's
words were intended to frighten the victim and convince her that he intended to kill
her because she had sent him to prison for rape. The victim was no less frightened
simply because the death threat was delivered over the phone as opposed to in
person. The defendant knew where the victim lived and how to find her. At the time
of the threat, the victim did not know that the defendant was out of

66<http://www.victimsofcrime.org/our-programs/stalking-resource-center/stalking-laws/stalking-case-
summaries/evidentiary-issues>

state. Accordingly, the defendant's threat conveyed an immediate prospect of
execution. The conviction for stalking was thus upheld.

August, 2011: A woman named Tracy Lundeen was followed around her middle
school by Shawn Moul. The stalking evolved into demands for a date, and incessant
letters. By the time Lundeen was in high school, she had obtained a no-contact order
in an effort to end Moul's unwavering harassment. But it didn't deter Moul. In 2001,
Moul was convicted of stalking Lundeen and repeatedly violating the order. He spent
nearly eight years in prison. Two years after his release, Moul resumed his efforts to
contact Lundeen. A jury convicted Moul of two counts of felony stalking and 19
counts of violating an anti-harassment order by sending letters to Lundeen and her
sister.

State v. Hardy, 279 P.3d 147 (2012)67: The defendant was convicted of stalking and
appealed his conviction based on lack of evidence introduced at trial. The defendant
was convicted of violating K.S.A. 2009 Supp. 21-3438(a)(3), that after being served
with, or otherwise provided notice of, any protective order included in K.S.A. 21-
3843, that prohibits contact with a targeted person, intentionally or recklessly
engaging in at least one act listed in subsection (f)(1) that violates the provisions of
the order and would cause a reasonable person to fear for such person’s safety, or
the safety of a member of such person’s immediate family and the targeted person
is actually placed in such fear. In this case, the protective order indicated that the
defendant could not have contact with the victim directly or indirectly except to
communicate about their joint children. The state did not produce a transcript of the
messages that the defendant had sent to the victim. The defendant testified that all
of the text messages he sent to the victim concerned their joint children. The court

67<http://www.victimsofcrime.org/our-programs/stalking-resource-center/stalking-laws/stalking-case-
summaries/violation-of-protection-orders>

held that the state failed to produce any evidence of the presence of a protective order
stating that the defendant was prohibited from having any contact with the victim.
The protective order that was in place did not prohibit any and all contact. Instead,
the protective order allowed contact concerning the joint children.

December 2012: A music theater student won a stalking order against her parents
who admitted they installed monitoring software on her computer and phone to
ensure that she succeeded. The unusual case concerns Aubrey Ireland, a musical
theater major who regularly filled lead roles at Cincinnati's prestigious College-
Conservatory of Music. Despite this success, her parents often drove 600 miles from
their home in Kansas, to visit her unannounced and to accuse her of promiscuity, of
using drugs and of having mental issues.

1.4.4 ESSENTIALS TO PROVE STALKING IN INDIA

● The stalker follows or spies on the victim, contacts or attempts to do so.
● Attempt is physical or by Internet, e-mail or any other form of electronic

communication
● Ignorance of a strong signal to stop
● Victim feels threatened, scared and loses his/her peace mentally, emotionally

and physically.

1.4.5 DEFENCES

Every person is innocent until proven guilty- it is an ideology that has been followed
by the courts of law. Every party has the right to put forward their side of the story.
The court has a duty to hear the parties, and only then give the judgment.

Onus of proof

The onus of proof is on the plaintiff to establish all the essentials of the crime. The
essentials are mandatory and not optional. Therefore, the first way to defend would
be to stop the plaintiff’s attorney from establishing the crime.

Duress

One of the defences can be that the act of stalking was done due to pressure. It has
to be established that the person was forced to commit the crime. He/she did it
unwantedly under any kind of force, danger or threat. For eg: A’s family is
kidnapped by B and their life is under risk. B forces A to spy on C everywhere and
bring all the information related to C, and for each mistake committed, B will harm
one member of the family. In such a case, A is under pressure.

Intention

There has to be a specific intent that is needed to be proven to charge a person for a
criminal act. Therefore, if the defendant proves that the alleged act was done
unintentionally without the purpose of harming the other person, he can be freed
from the charges. The defendant needs to establish that the alleged stalking was an
unintended consequence of the defendant’s actions. For eg: Two unknown people
follow the same route every day, by mistake one of them feels that the other person
is following the first one. This would not constitute the crime of stalking.

Legal purpose

If it is proven by the defendant that the alleged act was done for a lawful purpose
and not to harass the victim mentally or emotionally or physically, then he/she can
be freed of the alleged crime. For example: if a person constantly calls a person on

his/her phone, within the boundaries of reasonability, in an effort to collect a valid
debt won’t come under stalking, but at the same time if the first person threatens to
harm the second person’s family, it would constitute the act of stalking.

1.5 SEXUAL HARASSMENT, VOYEURISM & STALKING

● Harassment can be understood as an act or behaviour that is offensive in
nature. The word sexual can be defined as ‘relating to the instincts,
physiological processes, and activities connected with physical attraction or
intimate physical contact between individuals’. Therefore, looking at these
explanations, it becomes clear that voyeurism and stalking are branches of
sexual harassment.

● Workplace is considered a safe place. But sexual harassment is today’s most
common problem at the place of work. Sometimes, the harassment takes the
form of voyeurism and stalking. For example: it is a rule in a company that
the office will provide transportation to its employees for their benefit. Now,
the cab or the bus driver is fully aware of the routes of the employees. One
day the driver starts stalking one of the employees. What is the recourse?
The company will become vicariously liable for the act of the driver if it’s
done during his office hours (Course of employment).

● Consequently, it becomes important for the employer to find out ways to
combat these crimes also. Hence, the employer can take following steps as a
precautionary measure:

- There should be a reference guide in every company which should state all
the policies related to the offence of voyeurism and stalking. It should contain
rules like:

o general anti-harassment policy,

o policy about how investigations would be conducted and by whom.
o state in no uncertain terms that voyeurism and stalking will not be

tolerated.
o state that any wrongdoers will be fired or disciplined
o state that retaliation against the complainant will not be tolerated.

- Take care that whatever facilitates the company is providing is safe and
secure. Like in the above example, before hiring a driver his full details are
taken and his background is checked properly.

- The company should, from time to time, organize workshops and awareness
programmes. This session should educate the employees and supervisors
about all the aspects related to voyeurism and stalking. The remedial measures
that the company has, in case such an offence occurs, should be explained to
them and they should be encouraged to use it.

- Apart from this, the seriousness of the offence of voyeurism and stalking and
violations of the rules should be explained properly. Everyone should be made
aware of the consequences of their illegal act. Supervisory personnel should
be educated about their specific responsibilities.

- The company should provide assistance to the victim if he/she chooses to file
a criminal complaint against another employee.

- The company should, from time to time, check their workplace by talking to
employees, taking their feedback. If a complaint comes to them, they should
take it seriously without any prejudice towards anyone.

Everyone needs to be aware of the law and know their rights. In case of an offence,
they should collect all possible information and inform the authorities about it. The
victim can also develop a safety plan by informing and taking help from colleagues,

friends, family etc. It is also important for the authorities to take the complaints
seriously.

While the central POSH law protects women against sexual harassment, it is
important that an anti-sexual harassment policy of a company uses terms that are
gender neutral. While most laws are framed to protect women, men too are victims
of sexual harassment, stalking and voyeurism.


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