Prosecuting Non-Physical Abuse Between Current Intimate Partners: Are Stalking Laws an Under-Utilised Resource?

Abstract

The prevention of family violence — including economic and psychological abuse — is currently a major priority for governments in Australia and New Zealand. Traditionally, the criminal law in those jurisdictions has focused exclusively on physical violence. However, there is increasing interest in also targeting non-physical forms of abuse. Many of these behaviours are indirectly criminalised via family violence legislation, which requires an intervention order to be in place before the behaviour is deemed criminal. This article investigates whether those behaviours are also directly criminalised by stalking laws, particularly in the context of an ongoing intimate relationship, where the partners are cohabitating. The extent to which stalking laws can be, and are being, used to prosecute offenders for psychologically or emotionally abusing their intimate partners is investigated, as well as the broader issue of whether stalking laws are an adequate mechanism for dealing with this form of abuse. We conclude that, although stalking provisions can be used to prosecute non-physical family violence against current intimate<br/ >partners, restricted community and expert understandings of stalking suggest that a more appropriate solution would be to construct a new family violence-specific offence to deal with this form of abuse.