Pursuing imposition or harassing pursuit?
A lot has been said and written about domestic violence. We know that domestic violence is committed by both men and women; however, regardless of that, the practice of law application is targeted on protection of women at the greater extent than on protection of men. For instance, in case of a domestic fight the legislation is much more likely to proclaim a male liable. But is this situation worth an argument, a fight, involvement of police? Is it possible to prevent domestic violence from occurring before it takes place?
While the matter of violence represents a more or less clear notion and the state reacts on it post factum, a much more complicated pattern can be traced in cases when a victim is already in the state of despair but no formal crime has been committed against such individual.
Is it important to hold an individual who bothers you with offensive texts or concealed threats liable? What about an ‘admirer’ that keeps stalking you even though their attention is oppressive? Is is possible to hold your ex-partner liable if he or she does not let you start a new relationship and keeps track of your each and every step?
What about excessively demanding representatives of encashment companies requiring the reimbursement of your debt? Imagine the situation when you rejected their demands and required to quit the pressure but imposing behavior did not vanish. What shall you do in this case?
For those who have never faced such situations the matter of pursuit might not possess the meaning as deep as it does for the ones that have. Until recent times, not every case of pursuit had been seen as legally punishable.
Consider the following example. After having had a long-term relationship a young woman decided to terminate it and stay friends with her ex-partner. As a result, the couple dissolved but the former partners pursued warm and friendly relationship. During the time of their romantic relationship ex-partners in question shared household as well as friends, acquaintances, job-related connections and other kinds of contacts. At the same time, they both moved on with their personal lives by seeking new partners but the lady seemed to succeed in this matter more than her ex-boyfriend. Having found out about a new subject of her love interest, he started trying to bring her back by sending countless text messages, emails and posts in social media, mailing flowers and even calling her own friends — in other words, doing everything in order to restore the long gone relationship. However, his efforts were met by complete ignorance causing him to alter the way of conquering the lady’s heart. This time, the young man decided to directly threaten her by spreading rumors about her new lover in the Internet, seeking encounters with them both and, generally, turning her life into a real-life hell.
Such situations are not as rare of one may think. However, although in the most number of cases it is a woman who becomes subject for pursuit by a man, men themselves can easily be pursued by a woman.
This issue goes far beyond the borders of Estonia. In 2014, Estonia ratified the Istanbul Convention that established the criminal liability for domestic violence, sexual harassment and pursuit as well as legal framework for protection of domestic violence victims. Women became subjects for protection. Due to the compulsory implementation of Convention into the legislation of the Republic of Estonia, a new article, that had never been perceived in such deep context, was introduced in the Penal Code.
The scope of Convention is to provide its subjects with the right on criminalization of domestic violence and legal protection for its victims, the impossibility of its justification due to religion, tradition or honor, the victims’ access to special means of protection during the stages of investigation and prosecution and the immediate retroactivity of law enforcement agencies with adequate regulation of dangerous situations.
The jokes about extraordinary cases of sexual harassment in the USA are not yet forgotten but now it is time for Estonia to take over the lead. Starting from July 2017 Estonian legislation makes is possible to hold individuals liable for harassing pursuit (as it is roughly translated to English): this means that the liability for such act is charged not for the sole fact of harassment but for the process of pursuing in order to commit harassment. In my opinion, the context of this offence may be really wide.
Article 1573 of Penal Code stipulates that ‘repeated or consistent attempts to contact another person, watching him or her or interference in the privacy of another person against the will of such person in another manner, if the intent or effect thereof is to intimidate, humiliate the other person or disturb him or her in any other manner, if the act does not contain the necessary elements of an offence provided for in Article 137 of this Code, is punishable by a pecuniary punishment or up to one year’s imprisonment.’
What can be seen from this provision is that its scope goes beyond its name of harassment pursuit — assuming that pursuit is only committed for purposes of further harassment. The Estonian version of Article is called аhistav jälitamine that creates a relatively different perception of the Article. Does the name or the scope of the Article, therefore, have a compulsory element of harassment? To clarify this problem, I assume that the Article shall be renamed as pursuing imposition, where ‘pursuing’ obtains the complex character of impact on individual that pursuit causes while ‘imposition’ means constant frequency of occurrence.
Let me recall a case in my career involving a young man that broke off all contacts with his friends. This brought unsatisfactory results — his ex-friends were mentally oppressing him for half a year by sending him messages, mocking him and, in the end, openly threatening him. On their eventual encounter the victim had simply had enough and caused the offenders heavy injuries. May his actions be justified? They cannot be qualified as self-defence because the direct threat from offenders was not present. In this case, could the victim prevent his offenders from sending him messages beforehand? Indeed, the young man reported actions of ex-friends to police but they could not help him.
As long as there is no direct damage to life, health or property, there is no crime. As long as the pursuer does not cause such damage, nothing can be done to prevent him from approaching you. In our case, such desperate situation of defenselessness resulted in use of the only possible means of defence. Will the new Article protect the victims in such cases when no direct harassment is involved and the victim’s gender is not female?
In my career, I have dealt with various cases of such pursuit: phone calls, silence from callers, text messages, letters, emails with inappropriate content, stalking (including GPS devices), presence in places banned from visiting, unexpected and unwanted visits at home or at working place, sending of inappropriate gifts and flowers, spreading of falsified information in the Internet and social media, seeking contacts with friends and family of victims, imposition of unwanted help, tracking of victim’s movement, their phones, computers and even damaging their property.
Pursuit makes the lives of victims unbearable, causes them to experience fear of pursuer and alter the course of their own life or lives of their family members. Therefore, the question arises — why has such behavior not been criminalized before? We must understand that not every threat, in ordinary citizen’s perception, may be seen as threat in the scope of criminal law. Thousands of police reports remain rejected as neither words nor behavior constitutes the threat in scope of criminal law. Some people may refer to the previously used for this matter Penal Code articles on threat or unauthorized surveillance; however, I consider that they only cover an insignificantly small part of the problem.
Differences from Article 120 on Threat
Although pursuing imposition and threat share some common elements, Article 120 does not fully cover the complex matter of pursuit. Threat in scope of criminal law requires a concrete, deliberate, threatening act towards an individual that causes this individual to fear for their own life, health or property and evaluation of such fear is based on average criteria.
In case of pursuing imposition, the victim’s fear can emerge from the complex of actions that affect the victim altogether while the use of the same actions independently from each other may not have any grave meaning for criminal law at all. For instance, such actions are unexpected visits, sending of flowers and gifts, walking by victim’s side, calls and messages. They may create the feeling of dread for yourself or your family. It is important to remember that pursuing imposition is a long-term event that develops into harassing pursuit only over a long period of time.
Differences from Article 137 on Unauthorized surveillance
Article 137 stipulates that ‘observation of another person in order to collect information relating to such person by a person without the lawful right to engage in surveillance is punishable by a pecuniary punishment or up to three years’ imprisonment’. Indeed, at some point the scope of this Article corresponds to the idea of the Istanbul Convention but prescribes the collection of information about a subject to pursuit. In other words, the mere harassment or other forms of imposition that are not followed by collection of information about the victim cannot fall under Article 137.
Given the above-mentioned analysis it is clear why the scope of the new Article 157 will provide the subjects with much greater degree of protection than under previously used Articles. However, one question remains unclear — Article 157 is targeted on protection of women but what about cases when men become subject to pursuit? What about the mentioned above cases of former friends or encashment companies?
With regard to the first part of the scope of the Article, encashment companies may express a certain degree of imposition in the form of calls, letters and other means of communication. However, the purpose of such behavior does not usually aim on humiliation of debtor. What about the second part of the scope that sets forth the sanctions for consistent attempts to distress a person in another manner? I consider that the demand itself cannot be formally qualified as subject to distress as demand constitutes a constantly repeatable but nevertheless fully legal act. More importantly is the manner of expressing such demands. If the debtor explicitly stipulated his attitude towards the demands of the firm and asked to abandon the use of such imposition, the further actions of the firm shall fall under the scope of the Article.
For example, after another call from the encashment company representative the debtor refused to fulfill his demands and advised to address all the issues to court. Hence, the debtor stipulates clearly that he no longer fears the actions of the company and does not consider its demands reasonable. Consequently, if the debtor in question continues to receive dozens of demanding letters, is it possible for the actions of the company to fall under definition of pursuing imposition?
The answer on this question will be given by the case law. At the moment, though, we may derive some hope from the annex to the Article that sets forth the liability for pursuit regardless of offender’s gender and presence of harassment element. Therefore, it is not reasonable to diminish the scope of the Article to the sole harassment. I believe that Article 1573 must be used in other cases of pursuit as well including the ones mentioned above.