Who hasn’t done a little bit of ‘stalking’?

In the 1960 psychological thriller Peeping Tom, in which a lonely amateur filmmaker called Mark Lewis stalks women before filming himself killing them, Lewis captures what is scary about the idea of a stalker. He is talking with Vivian, a hot female colleague at the studio where he works, when she asks: ‘What would frighten me to death?’ He says: ‘Imagine, someone coming towards you… who wants to kill you… regardless of the consequences.’ She says: ‘a madman?’, to which Mark responds, ‘Yes. But he knows it, and you don’t.’ Needless to say, she ends up dead in a fake treasure chest.

This idea of the stalker, the creepy loner who follows you around before doing you some serious harm, has clearly captured the UK Lib-Con government’s imagination. Today, timed to coincide with International Women’s Day, the government is expected to announce that ‘stalking’ will become a criminal offence with a maximum sentence of five years and the possibility of an unlimited fine. The reform follows tragic cases such as the killing of 22-year-old Clare Bemal in 2005, by her former boyfriend Michael Pech, who had pleaded guilty to harassing Bemal two weeks before he killed her.

Notwithstanding horrific cases like this, the introduction of such a nebulous and broad crime on to the statute books should be a real concern. After all, who hasn’t done a bit of stalking in their time? While the legal definition is not fixed, we should consider the academic opinion on what constitutes stalking. In 1994, an influential study from New Zealand identified the following as stalking behaviour: ‘desiring a mixture of reconciliation and revenge… as a result of a relationship dissolution’; ‘[pursuing] an intimate relationship with an individual perceived as their true love, but their attentions are not wanted’; and, perhaps most worryingly, ‘intellectually limited and socially incompetent individuals desiring intimacy… [but who] lack sufficient skills in courting rituals’. This sounds nothing like the lone psycho Mark Lewis. Based on these definitions, I know loads of stalkers. Who am I kidding, I am a stalker. Falling into one of these categories is not a sign that you are deranged or should be locked up, it’s a sign that you have lived.

These academic definitions coincide with our own broad cultural understanding of what constitutes stalking. Think of terms like the Fatal Attraction-derived ‘Bunny Boiler’, which is flippantly used to describe women obsessed with controlling the objects of their affections. Or a ‘Facebook stalker’, which refers to those who use social-networking sites to find out whether someone they fancy is shacking up with anyone. Outside the towers of Westminster, it’s considered pretty standard fare to act like a bit of a freak when courting or getting over a relationship.

Far more predatory than most alleged stalkers are the pressure groups which, in trying to push stalking on to the statute books, encourage mistrust and suspicion. In March 2011, one such pressure group, called Network for Surviving Stalking, launched a campaign encouraging ‘victims’ to ‘trust their instincts’ when they think they are being stalked. On launching the campaign, its chief executive Alexis Bowater said: ‘we know people still don’t recognise stalking behaviour when it is happening to them… We think stalkers are sinister figures – like in films. In reality, stalkers can be ex-partners, friends or people you know.’ The group’s website includes a quiz to help you identify when ‘creepy’ behaviour becomes ‘stalking’. A word to the wise: do not let any ex-partners take this quiz. You may end up with a truly ‘creepy’ surprise.

This incessant drive towards criminalising what is, on the most part, completely ordinary behaviour is a worrying trend. It began under New Labour which, between 1997 and 2010, introduced over 3,600 new criminal offences on to the statute books. The offence of harassment, bemoaned by pressure groups as failing victims of stalking because of the low conviction rates, was an early example of what Jack Straw described as ‘victim-centred’ offences. That is, the key proof needed for a conviction was how the complainant perceived the behaviour and not the behaviour itself.

The introduction of a victim’s subjective experience into the criminal law set the scene for many similar offences which were used to prosecute what used to be known colloquially as ‘acting like a weirdo’. For these new offences, it was sufficient to show that the defendant’s behaviour had caused some subjective ‘harm’ to their complainant, rather than some objective harm provable in independent evidence.

This draconian development culminated in the introduction of anti-social behaviour orders (ASBOs) which allowed the authorities to impose significant restrictions on people’s liberty if their behaviour has caused ‘harassment alarm or distress’. These subjective criteria have been held to be equally applicable to a huge range of behaviours, from setting cars on fire to feeding pigeons. So, through its frantic law-making, New Labour oversaw a huge expansion of the criminal law into hitherto unregulated areas of everyday life. Squabbles and conflicts, which may at one time have been settled informally over a stiff drink or with a few neighbours ‘having a word’, have become matters for state intervention.

It is important to recognise that the introduction of stalking as a criminal offence is an extension of this victim-centred criminalising impulse, which will undoubtedly see more people being prosecuted who, more than likely, just need someone to sit with them while they throw darts at pictures of their ex. Proponents of reforms will say that the difference between soppy break-up behaviour and stalking is vast, but, if we are honest, we all know that is simply not true. We have all been there.

So let’s fight back against the fearmongers and the law-makers who want to rob us of our right to stalk. We should all be able to call an ex late at night and give her a piece of our drunken (and temporarily stupid) mind. Or to send photographs of some new man with his head buried in our breasts, over and over again if necessary. It will be a truly sad development if stalking makes it on to the statute books, because being a bit of a stalker is part of all of us. It’s a part of coming to terms with the complexity of other human beings, a part, that is, of what make our relationships uniquely human.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.