Harassment The Protection from Harassment Act Mr Tshisamphiri

Harassment The Protection from Harassment Act Mr. Tshisamphiri Nelson MATIBE Secretary, SALRC

Roadmap. . . • • • Where the Act began – background What harassment is The effect of harassment Who harasses Touch on cyber harassment Extent of the problem Legal response Protection from Harassment Act Flowchart of the procedure Harassment where the harasser is unknown – real time and in cyberspace

Where it began. . . • The Protection from Harassment Act was the outcome of the SALRC investigation on Stalking (Project 130) • Stalking was originally identified in both the investigations into domestic violence and sexual offences • However stalking was found not to be restricted to domestic violence or sexual offences • Independent investigation

A quick background. . . Project 130: Stalking approved by Minister: January 2003 Research commenced: January 2003 SALRC Issue Paper 22 – Stalking: published Aug 2003 SALRC Discussion Paper 108 – Stalking: published September 2004 • The Commission approved the Report on Stalking and proposed Protection from Harassment Bill in November 2006 • On 27 October 2008 the Minister approved the report for publication • The Report on Stalking was released at a media conference on 25 November 2008 • •

• The Protection from Harassment Bill [Bill 1 – 2010] was introduced into Parliament on 5 February 2010 • The Protection from Harassment Act 17 of 2011 was enacted on 5 December 2011 • The Protection from Harassment Act 17 of 2011 became operational on Freedom Day 27 April 2013.

Stalking/ harassment? • Internationally the legal understanding of stalking has evolved to take on an artificial meaning with harassment of another person as its form • Sometimes used interchangeably but harassment is the umbrella term under which stalking is but one of the behaviours, another being bullying • For this reason the SALRC opted for the use of the broader term harassment

What is harassment? • Harassment is distinctive from other criminal activity – not recognised as a crime in its own right • Usually composed of a series of actions • Discrete individual acts, each building on the next • Seen in isolation: harmless and even socially acceptable: sending gifts, letters, following • Seen collectively: pattern of behaviour which annoys, alarms, instills fear or causes harm • Some acts legal and some illegal: gifts vs obscene phone calls or acts of violence • Aimed at specific person or family/friends/property • Precursor to crimes such as assault, wounding, intimidation, sexual offences and even murder

Harassment can instill fear of physical harm: Fatal attraction

It can have a profound psychological effect– mind games Sleeping with the enemy Julia Roberts

It is ‘real’ time and online

Prevalent as the pre-cursor to many violent crimes

The protection from harassment Act defines “harassment” broadly. . . Directly or indirectly engages in conduct which he or she knows or ought to know (a) causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably • following, watching or pursuing the complainant or a related person, • or engaging in verbal, electronic, or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues • or sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects;

Definition continued … • (b) amounts to sexual harassment of the complainant or a related person • Harassment may consist of various acts which, when considered on their own, may not be regarded as an offence or a delict, but the sum total of which may amount to a serious infringement of the rights of a person. • The court weighs up all relevant factors and then decides if certain conduct, which falls within the definition, amounts to harassment • Reasonableness is at the heart of the matter.

Linked definitions • “harm” is also widely defined to mean any mental, psychological, physical or economic harm • “related person” is any member of the family or household of the complainant or any other person in a close relationship with the complainant and is wide enough to cater for a myriad of significant relationships

The effect of harassment • Impaired mental and or physical health and general behaviour • Disruption of daily functioning • Interrupted sleep; hyper-vigilant; suicide • Psychological effect of unpredictable behaviour – Pavlov: inconsistent punishments and rewards • Restricts social activity • Distrustful; restrict movement; socially humiliated • Affects work: absenteeism; resign • Economic impact: upgrading security, changing telephone numbers, screening calls, change work or even move

Who harasses? • Range from lovesick teens to cold-blooded killers • 70% some mental defect vs may act irrationally but most not psychotic or delusional • Male or female • Stalking : primary victims women – and men primary predators • SAPS investigative unit for psychological crimes prototype – older, unmarried/divorced male, better than average education; erratic/unstable work and relationship history

Categories of Stalkers/harassers 5 Established categories • Delusional erotomaniac: relationship with someone unattainable. Celebrities – Richard Gere; Nicole Kidman; Jabulani “weatherman” Sithole • Borderline erotomaniac: Acts on an intense emotional feeling towards a person who they know does not reciprocate their feelings • ‘former intimate stalker: attempting to resurrect a broken relationship or to seek revenge

Categories cont. . . • ‘Sociopathic stalker’: serial murderer/rapist: set criteria for the ideal victim – Nasrec killer • Other categories • Revenge – work colleague • Disgruntled clients/employees: real/imagined grievance – Pick & Pay • Clogging switchboard with calls; following staff home; abusive and humiliating conduct

Still more Categories. . . • Clients of counseling staff: letters; calls –extends to family eg Dr in Lenasia • Political or hit-stalkers or killer for hire - glut of exsecurity and military: follow; enter home; intercept mail; bug phones; surveillance cameras

Anonymity / false security online

Cyber stalking or harassment • Cyberstalking study: 475 000 online victims p. a. • Online stalking can lead to real-life stalking – paedophiles/online sexual predators – FBI “innocent images” 232 convictions since 1998 • Victim does not need to have a computer to be stalked in cyberspace eg LA security guard posted rape fantasies to an on-line forum • Online & Offline stalking – common thread = sequence of behaviour

What do these teens have in common? Http: //www. puresight. com Accessed 10 July 2013

• • All victims of cyberbullying and all dead Cyberbullying can have devastating consequences. Suicide is one. Cases of young kids committing suicide as a consequence of cyberbullying and sexting are increasingly coming to the public’s attention.

Extent of problem • Unknown: no statistics • Numerous sensational newspaper reports: – – “husband terrorised by scorned wife”; “stalking is a growing menace in South Africa”; “rapist ‘predator’ sent for observation”; “nasrec killer gets 17 life terms”

Extent of problem • Indication of prevalence from DV Protection Orders (former intimate stalkers) • 2001: 15931 applications for domestic violence protection orders • High percentage of applications based on identified stalking, harassment or intimidation

International statistics • USA statistics: 90% of 1300 women murdered were stalked/harassed • British Crime Survey: 1998 – 3. 53 Million adults 16 – 59 – “persistent and unwanted attention” • Canada: 1996 – 4450 victims 80% women • USA: 1 million women and 371 000 men

Legal Response • No legal remedy for ‘crime of harassment’ or ‘stalking’ • Civil and criminal law remedies for individual acts which may form part of the pattern of stalking • Prior to the Protection from Harassment Act • Civil law remedies available: • High Court interdict - delictual claim: action for damage for loss suffered & application for an interdict restraining the further commission of wrongful conduct

Civil law Prerequisite: clear right; actual or threatened invasion of a right; absence of another suitable remedy Drawback: – Harasser/Stalker unkown - Notice cannot be given. SAPS cannot assist – civil matter – Civil procedure: cumbersome, expensive and less appropriate where emergency protection is required – Initial costs prohibitive: may be for own account

Civil law • Binding over of persons to keep the peace ito s 384 CPA 56 of 1955 – Contained in CPA – but civil judgment – Violent conduct, threats of injury to person/property, use of language/behaviour likely to provoke a breach of the peace/assault – Complaint on oath: magistrate will order the parties to appear before him/be arrested – Enquiry – order recognizances to the amount of R 2000 – Breach – forfeit the money and civil judgment – Drawback: fallen into state of disuse – impractical nature of the sanction-affordability

Civil law • Sexual harassment: Labour Relations Act; Employment of Educators Act etc – disciplinary methods for noncompliance by officials bound by the Acts • Drawback: exhaust internal remedy – no emergency intervention/civil claim • Must be a co-worker or an employee of same organisation • Remedies not enforceable outside the organisation

Civil law • Domestic violence protection order – Apply for a protection order – If granted: aim = to prevent further harm & suspended warrant of arrest – Breach – offence – Drawback: scope of Act: • only in domestic relationship –not strangers or colleagues; • no immediate protection if no clear element of violence – SAPS cannot arrest.

Criminal law • Punish individual criminal acts, which may seem to be petty or serious seen on their own • Trespassing • Defamation: publication which may injure reputation • Crimen Injuria: serious invasion of dignity (peeping toms, eavesdropping) • Common assault • Assault GBH • Malicious injury to property • Public nuisance

Criminal law Drawback: • Little can be done to deter a harasser/stalker until direct harm to person/property ensues • Chops up the continuous film of behaviour into discrete snapshots: the whole is worse than some of the parts or any individual part • If the person is found guilty: usually a fine, short or suspended sentence – will just continue but may be incited to cause further harm – escalation of violence.

Options for reform • Independent legislation - different conceptual and legal framework needed: treat one or a ‘series’ of acts as a more serious event or crime, rather than a stream of minor offences • International trend: anti-stalking legislation • Object: Interrupt the pattern of behaviour before physical harm • prevent/reduce violence; • effective legal protection; • acknowledge mental, physical & psychological harm • Generally: actions which cause fear of physical or mental harm

Specific civil remedy. . . • Mirrors DVA – protection order coupled with a suspended warrant of arrest • Harassment = unreasonable, non-physical and low-key intrusion by way of the listed behaviour • Harm not restricted to physical harm: mental, psychological, physical or have the belief that harm may be caused • Direct or indirect conduct • A single act is sufficient • Redress on behalf of victims of harassment

The Protection from Harassment Act affords • Victims of harassment in real time or online with an inexpensive civil remedy. • Harassment includes abusive electronic communication via social media platforms, such as Twitter, Facebook and Mxit; as well as sexual harassment, stalking and school bullying • The actions may not amount to a crime but the acts affect a person’s right to privacy and dignity

Court may order. . . an assessment of the risk of future violence or participation/ completion/ instruction/treatment as part of the conditions of the protection order

. . . • Courts discretion to order seizure of a firearm or a dangerous weapon • Amends Firearms Control Act – if breaches PO obliged to enquire fitness to possess a firearm • Policy directives to be issued by SAPS and NPA – emphasise the seriousness of certain incidences and the safety of victims iro bail proceedings

Practical, non-legislative mechanisms. . . • SAPS and NPA called to effectively utilise existing common law crimes i. e. assault, crimen injuria, trespassing or malicious damage to property • Public awareness • Training of officials and development of guidelines and protocols.

Anonymous harassment. . . • The phenomenon of anonymous harassment especially by way of technology remained problematic • The DOJCD was very innovative in this regard and proposed a remedy which was included in the Bill by Parliament. • More on that later. . .