BY: YU REN CHUNG
FEBRUARY 22 — After years of abuse, Nina left her husband. Yet she was not safe.
Wherever she moved, her husband would look her. One time, Nina noticed men taking pictures of her children at her house.
She was being stalked.
Worried, she lodged a police report, but she was not given protection. Soon after, while leaving work, Nina was attacked by two men — acquaintances of her ex-husband. They slashed her with a machete, scarring her cheek and cutting-off her thumb.
If Nina received protection after she had been stalked, her gruesome attack may have been prevented.
Unfortunately for Nina, and thousands of Malaysians like her, stalking is not a crime in Malaysia.
In October last year, the Minister of Women, Family and Community Development, Dato’ Sri Rohani Abdul Karim, made a welcomed pledge: the Domestic Violence Act (1994) (“DVA”) will be amended early this year. Positively, the Minister suggested that among the amendments, stalking may be criminalised.
However — with the next Parliamentary session just two weeks away — nothing is guaranteed. Discussions on whether or not to recognise stalking in the DVA are still on going.
It is crucial that the stalking amendment is not dropped. We urgently need laws to protect against stalking, especially in domestic violence cases. Stalking is widespread in Malaysia, stalking is harmful, and current laws are inadequate.
Stalking is widespread
Nina’s experience is not isolated. Stalking is a common form of domestic violence. We do not have data on the prevalence of stalking by intimate partners in Malaysia, but we can make an educated estimate.
A 2014 Universiti Sains Malaysia study estimated that nine out of every hundred ever-partnered women in Peninsular Malaysia have experienced domestic violence in their lifetime. Extrapolating to the whole country, that’s roughly 900,000 women.
How many have experienced stalking? A 2013 report by Women’s Aid Organisation (WAO) – Malaysia’s largest service provider for domestic violence survivors – documented 34 domestic violence cases, of which nine women (26%) had been stalked by their abusers. In the United States, approximately a third of women domestic violence survivors were stalked by their abusers, according to a 2011 Centers for Disease Control and Prevention (CDC) report.
It is conceivable then, that of the estimated 900,000 Malaysian women who have experienced domestic violence, 26% to 33% were stalked by their abusive partner – around a quarter million women. And that doesn’t include children, men, and never-partnered women.
Stalking is harmful
Stalking causes harm and is indicative of worse. The Joint Action Group for Gender Equality (JAG), a coalition of Malaysia women’s rights groups, has highlighted the evidence in various memorandums to the government since 2005.
Stalking is harmful in itself. A review of more than 20 publications on stalking (by Abrams and Robinson, in the Canadian Journal of Psychiatry in 1998) concluded that stalking “can cause major mental health consequences,” including “anxiety, depression, guilt, helplessness, and symptoms of posttraumatic stress disorder.” Imagine how Nina felt when strangers came to her house taking pictures, after she had just left an abusive situation.
Stalking is also indicative of more severe abuse. A 2012 study by the U.S. National Institute of Justice concluded that an abuser who stalks his intimate partner is likely to be “more controlling and physically and sexually violent” towards his intimate partner, compared to abusers who do not stalk.
Stalking also often precedes murder of a woman by an intimate partner. McFarlane, et al. (in a 1999 article in Homicide Studies) found that around 90% of murder or attempted murder victims (in domestic violence cases) in Canada and the United States had earlier been stalked by the violent partner. Nina’s story illustrates this.
Current laws inadequate
Malaysia’s Domestic Violence Act (1994) (“DVA”) offers some form of protection against stalking through at least two avenues, but these avenues are inadequate.
One avenue is the protection order (PO). A PO can prohibit the accused person from, among others, “going near any protected person” and instruct the accused person to “avoid making communication by any means with any protected person”.
However, the PO often cannot protect against stalking. First, a victim can only apply for a PO if the domestic violence case goes to court; most cases end during police investigations. Next, the court may choose not to include in the PO the specific orders protecting against stalking. Lastly, the PO is only valid for a maximum of 12 months, and can only be renewed once.
The other avenue the DVA protects against some forms of stalking is by recognising psychological abuse as a form of domestic violence. Some forms of stalking can therefore be protected against, provided it can be proven that the victim suffered psychological abuse.
But needing to prove psychological abuse before getting protection is problematic. First, this requirement may delay police investigations and protection. Next, acts associated with stalking (like repeatedly following another person) that are not proven to have caused psychological abuse will not be deemed an offense.
Don’t wait for Penal Code amendments
Stalking is not explicitly listed as an offence in the Penal Code. This raises a problem, as the DVA does not create new offences; rather, it simply states how existing offences in the Penal Code must be dealt with in domestic violence situations.
The obvious solution is to amend the Penal Code to criminalise stalking. However, amending the Penal Code is more challenging than amending the DVA. An amendment to the Penal Code would likely not just involve stalking, but also other – perhaps more technically or politically uncertain – amendments.
Lawmakers could thus decide to drop stalking from the DVA amendments, until the Penal Code is amended accordingly in the future. However, I suggest it would be better to still include stalking in the upcoming DVA amendments, for two reasons.
Firstly, while the Penal Code does not criminalise stalking comprehensively, it does criminalise various acts that are associated with some (limited) elements of stalking. So, including stalking in the DVA now will at least ensure that these (limited) elements of stalking are protected against in domestic violence situations sooner rather than later.
Secondly, there is currently momentum to reform the DVA. There is no guarantee that — when the Penal Code is eventually amended — the DVA will be again amended, to include stalking.
Additionally, the term “stalking” need not be in the Penal Code for the DVA to recognise it. “Psychological abuse” is recognised in the DVA, while the Penal Code uses different terms to describe the offence.
In summary, stalking is widespread and harmful, and existing laws are not enough. Stalking should be recognised as a form of domestic violence when the DVA is amended this year. The Penal Code should also be amended as soon as possible to criminalise stalking comprehensively.
Criminalising stalking is clearly feasible. Stalking is a crime in Singapore, Philippines, United Kingdom, India, and Canada, among others — as noted in a 2013 memorandum by JAG. In the United States, all 50 states, the District of Columbia, and the Federal government criminalise stalking.
Of course, laws alone are not sufficient. Enforcement agencies must be supported with sufficient resources, training, and oversight. Nonetheless, amending the law is a necessary first step, which will better equip enforcement agencies to protect survivors and send a clear signal to society that stalking is wrong. All Malaysians against abuse should support amending the DVA to protect against stalking.
* Nina (not her real name) generously shared her story in the 2013 documentary ‘Survivors Speak Up — Domestic Violence in Malaysia’, which can be viewed on Women’s Aid Organisation’s YouTube page.
** Yu Ren Chung is a Malaysian human rights activist and public policy professional. Follow him @renchung.