Going to the police: When the criminal law can help with harassment
Overview
The worst kinds of harassment – including cyberbullying – can be a crime, and therefore you may be able to make a criminal complaint to the police.
There are a number of different Acts that include criminal offences in this area. Some of them, like the Harassment Act, deal with harassment, bullying and intimidation regardless of the form of the behaviour – that is, whether it’s face to face, or through a note in your letterbox, or through texts, emails and online posts.
The Harmful Digital Communications Act deal with offences specifically aimed at cyberbullying or other online harassment (see: “Cyberbullying”).
Criminal harassment (Harassment Act)
The Harassment Act makes the most serious kinds of harassment a criminal offence. If you complain to the police and they believe the harassment is criminal, they can arrest and charge the harasser.
The Act says it’s a criminal offence for someone to harass you, if they intended to make you fear for your safety or if they knew that what they were doing was likely to make you fear for your safety.
Note: If what happened doesn’t meet the test for criminal harassment, you may still be able to use the non-criminal process under the Harassment Act against the other person. This involves going to the District Court to get a Restraining Order (see: “Getting protection under the Harassment Act”).
When does behaviour amount to criminal harassment?
Harassment Act 1997, s 8(1), (2)
First, the behaviour must amount to “harassment” as that word is defined in the Harassment Act. This means there must be a pattern of behaviour involving the specific kinds of acts set out in the Act:
- The specific acts include a range of behaviour, like hanging around outside your house or work, or following you, or contacting you by phone, letter, email, text, online post, or any other way.
- A “pattern” of behaviour can consist of two or more acts of harassment within 12 months, or one continuing act over a period of time, like posting material online and leaving it there.
Second, the harassment must meet the specific test for “criminal” harassment, which depends on the harasser’s intention and state of mind. For the behaviour to be criminal, the harasser must either:
- intend to make you fear for your safety, or the safety of your partner or a family member, or
- know that the harassment is likely, given your particular situation, to make you fear for your safety or the safety of your partner or family member.
If a person is convicted of criminal harassment, they can be jailed for up to two years.
If they are convicted, but are awaiting sentencing on bail, the court will usually make it a condition of bail that the harasser must not contact you in any way.
Bail Act 2000, ss 21B, 30 Crimes Act 1961, ss 179, 306 Summary Offences Act 1981, s 21 Telecommunications Act 2001, s 112
Someone who is harassing you might also be committing another offence.
For example, it’s a criminal offence if someone is:
- Encouraging suicide – It’s a criminal offence for someone to tell you that you should kill yourself. They could be jailed for up to three years for this or, if you do in fact try to kill yourself, for up to 14 years.
- Threatening violence or damage – It’s a criminal offence for someone to threaten to kill you or threaten to seriously injure you (cause you “grievous bodily harm”), or to send you a letter, text, email or other written material containing this kind of threat. They could be jailed for up to seven years.
- Intimidating you through threatening injury or property damage – It’s a criminal offence for someone to threaten to injure you or damage your property, if they intended to frighten or intimidate you or knew that these were the kind of threats likely to frighten or intimidate any reasonable person. They could be jailed for up to three months or fined up to $2,000.
- Using a phone to harass you – It’s a criminal offence for someone to use a phone to disturb, annoy or irritate you, if their intention was to offend you. It’s also an offence to use “profane, indecent, or obscene” language over a phone, or to suggest something that’s profane, indecent or obscene, if this is done with the intention of offending you. They could be jailed for up to three months or fined up to $2,000.
