It is an offence to unlawfully stalk another person. Stalking as defined by the Criminal Law Consolidation Act 1935 (SA) includes where a person, on at least two occasions:
[Criminal Law Consolidation Act 1935 (SA) s 19AA(1)]
The offence can be aggravated if:
Maximum penalty: 3 years imprisonment (basic offence); 5 years imprisonment for an aggravated offence.
Alternative charge of offensive behaviour
Where a person is charged with stalking they are taken to have been charged in the alternative with offensive behaviour. This means that if the court is not satisfied that the offence of stalking has been made out but there is sufficient evidence to establish an offence of offensive behaviour, the court may convict the person of offensive behaviour [Criminal Law Consolidation Act 1935 (SA) s19AA(3) - see also Summary Offences Act 1953 (SA) s 7]
Cyber stalking and Cyber bullying
Cyberstalking is the use of information technologies to harass and intimidate an individual. In many ways it is similar to traditional forms of stalking but the use of sophisticated technology can make intrusions into a victim’s life far beyond those made possible by physical harassment.
Incidents of cyberstalking are recognised under the definition of stalking used in South Australian legislation (i.e. the inclusion of offences relating specifically to the use of internet and electronic technologies to communicate in an intimidating manner or to publish offensive material). However the prosecution of such offences, as with the traditional stalking offences, is rare.
Cyber bullying may be assault under the Criminal Law Consolidation Act 1935 (SA) [s 20] if there is a threat by the bully that they will physically hurt the victim, and either there is a real possibility that the bully will carry out the threat or is in a position to carry out the threat and intends to do so.
Under Federal criminal law cyber bullying and trolling may be illegal. This is because there is a law which makes using the internet to menace, harass or cause offence, illegal [Criminal Code Act 1995 (Cth) s 474.17]. The maximum penalty for this offence is three years imprisonment. Where the use of the internet to menace, harass or cause offence also involves sharing private sexual material, the maximum penalty is five years imprisonment. See: Distribution of Invasive Images ('Revenge Porn').
Despite the provisions of the legislation, the prosecution of stalking-type offences is very difficult. Not only must there be at least two proven instances of the behaviour but the mental element of intention to cause harm or create fear must be established by the prosecution (in each instance being relied upon). Police policy is to caution or warn an offender in the first instance and this, in a majority of cases, is an effective way of dealing with the problem.
The expansion of legislation to allow for intervention orders on the basis of cyberstalking provides an alternative to prosecution [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8(4)]. As with any criminal offence, a charge of stalking/cyberstalking must be proved beyond a reasonable doubt. In contrast, an application for an intervention order requires only that it can be established that a danger exists on the balance of probabilities. In addition, given terms of imprisonment for stalking are rare, an intervention order potentially offers a longer period of protection than a conviction could (see Intervention orders).
Many websites, such as Facebook, will remove pages and content that is offensive and can also ban cyber bullies from using the site. Contact the website administrator or company to request material to be removed. Alternatively, a report may be made in some circumstances to the Office of the eSafety Commissioner, see Office of the eSafety Commissioner.
Cyber bullying and trolling may also be defamatory (damaging to a person’s reputation) – see Defamation.