The Law Reform Commission has commenced an examination into the legislative issues that touch and concern stalking in the Cayman Islands.  This examination is aimed at addressing the problems relating to stalking by defining stalking behaviour and identifying appropriate legal remedies to prevent or reduce harm brought about by such conduct.

In this regard, the LRC proposes to respond to the main issues by way of a consultation Penal Code (Amendment) Bill, 2014 and a Stalking (Civil Jurisdiction) Bill, 2014. These Bills seek to criminalise and provide remedies for conduct such as making unwelcome visits, making unwanted communications or silent telephone calls, repeatedly following a person on the streets, watching the victim’s home or place of work, persistently sending unwanted gifts or articles to the victim, disclosing intimate facts about the victim to third parties, making false accusations about the victim, damaging property belonging to the victim or physical and verbal abuse.

The categories of stalkers contemplated by the legislation include the rejected stalker, predatory stalkers, debt collectors, erotomanics, love obsessed stalkers, sociopathic stalkers, stalkers with false victimisation syndromes, disgruntled clients or employees of private or public organisations and cyberstalkers.

Ultimately, the objective of the legislation is to reinforce that actions which constitute stalking may cause psychiatric and psychological harm and may result in serious danger to the person affected.  It is therefore in the best interests of our society to take immediate and effective action when cases of stalking arise.

Stakeholders and the general public are invited to provide comments on the draft legislation. Unless marked to the contrary, the LRC will assume that comments received are not confidential, and that respondents consent to our quoting from, or referring to, their comments and attributing their comments to them, and to the release or publication of their submissions. Requests for confidentiality or anonymity will be respected to the extent permitted by the Freedom of Information Law, 2007.

Submissions should be forwarded in writing by post or hand no later than 21st March, 2014 to the Director, Law Reform Commission, Ground Floor – dms House, 20 Genesis Close, George Town, Grand Cayman, P.O. Box 907, Grand Cayman KY1-1103 or emailed to [email protected].

29th January, 2014 CAYMAN ISLANDS

Supplement No. published with Gazette No. dated ‘ 2014.

NOTE: THE FOLLOWING IS A CONSULTATION DRAFT ONLY

A BILL FOR A LAW TO PROVIDE PROTECTION IN CASES INVOLVING STALKING; AND FOR INCIDENTAL AND CONNECTED PURPOSES

THE STALKING (CIVIL JURISDICTION) BILL, 2014

ARRANGEMENT OF CLAUSES

PART 1- PRELIMINARY

1.         Short title and commencement

2.         Interpretation

3.         Stalking

PART 2 – PROTECTION ORDERS, CONDITIONS AND DURATION

4.         Application for protection order

S.         Application by representative

6.         Involvement in proceedings where representative appointed

7.         Power to consider and make a protection order

8.         Ex parte application for protection order

9.         Protection order conditions and offence

10.       Duration, discharge and variation of a protection order

PART  3 – INVESTIGATION OF STALKING COMPLAINTS AND CONDUCT OF PROCEEDINGS

11.       Court may order investigation to ascertain name and address of respondent

12.       Electronic communications service provider to furnish particulars to court

13.       Attendance of witnesses

14.       Prohibition against publication of information

1S.       Police may release information to enable application for protection order to be made

16.       Defence to prove that specified acts done for lawful purpose

17.       Standard of proof

18.       Admission of evidence

19.       Applications may be heard together

20.       Vexatious proceedings

21.       Costs

22.       Civil remedy

23.       Appeals

24.       Rules

25.       Regulations

26.       Law binds the Crown

A  BILL FOR A LAW TO  PROVIDE PROTECTION  IN CASES INVOLVING STALKING; AND  FOR INCIDENTAL AND CONNECTED PURPOSES ENACTED by the Legislature of the Cayman Islands.

PART 1- PRELIMINARY

1.      This Law may be cited as the Stalking (Civil Jurisdiction) Law, 2014 and shall come into force on such date as may be appointed by order made by the Cabinet.

2.     In this Law-

“child” means a person under the age of eighteen;

“complainant ‘ means a person who  has applied for a protection order or on whose behalf an application has been made;

“court” means the Grand Court or a court of summary jurisdiction;

“Court of Appeal” means the Court of Appeal of the Cayman Islands;

“electronic  communications identity  number” means  a technical identification label which represents  the origin or destination  of electronic communications traffic,  clearly  identified  by  a  logical  or  virtual  identity number  or  address assigned to a customer of an electronic communications service provider;

(2011 Revision)     “electronic communications service provider” means a person who is licensed, or exempted from being licensed under the Information and Communications Technology Authority  Law  (2011 Revision) to  provide  an   electronic communications service;

“ex parte application” means an application  made  without notice to the respondent;

“harm” means any psychiatric, psychological, physical or economic harm;

“police officer” means a member of the Royal Cayman Islands Police Service;

“protection order” means an order made pursuant to section 4 and includes an interim protection order; and

“respondent” means the person who is alleged to have stalked another person.

Stalking   3.     (1)    A   person   stalks   another   person   if   the   first-mentioned   person intentionally  engages in  a  course  of conduct  specified  under subsection  (2), which-

(a)       is directed towards the other person;

(b)      occurs on two or more occasions;

(c)   causes that other person to fear for his safety or the safety of someone known to him;

(d)      would cause a reasonable person  to fear for his safety or  the safety of someone known to hin1; and

(e)       he knows or ought to know would cause that other person to fear for his safety or the safety of someone known to him.

(2)      For the purposes of subsection (1), a course of conduct in relation to a person includes-

(a)       watching, besetting or loitering near that person;

(b)    watching, loitering near, approaching  or entering a place where that person resides, works or visits;

(c)    preventing or hindering access to or from that person’s place of residence, business, employment, learning or any other location which the person frequents;

(d)      following or accosting that person;

(e)       entering or interfering with that person’s property;

(f)    engaging in verbal, written, electronic or any other form of communication with that person;

(g)    giving offensive, abusive or threatening material to that person or leaving it where it will be found by, given to, or brought to the attention of that person;

(h)    sending, delivering  or  showing to  that  person  letters,  in1ages telegran1s, packages, facsinliles or electronic messages;

(i)    acting covertly in a way that could reasonably be expected to arouse apprehension or fear in that person; or

G)        intimidating, harassing or molesting that person.

(3)   A course of conduct under subsection (2) may be the same course of conduct or different courses of conduct pursued on each occasion in a public or a private place.

PART 2 – PROTECTION ORDERS, CONDITIONS AND DURATION

4.         (1)      A person who is being, or has been stalked by another person may apply to the court for a protection order.

(2)    Every application for a protection order shall be served personally on the respondent and on any other person encouraged by the respondent to engage in stalking the complainant.

5.         (1)      A person may apply to the court to be appointed as a representative for any other person who has been or is being stalked.

(2)      A person appointed under subsection (1) may represent­ (a) a child; or

(b)    a person over the age of seventeen years who, due to  physical incapacity, fear of harm or any other sufficient cause, is unable or unwilling to apply for a protection order.

(3)   Where the person stalked is a child or a person suffering from a mental disability and he wishes to apply for a protection order, an application shall be made on behalf of that child or mentally disabled person through a representative appointed by the court.

(4)      A person is not eligible to be appointed as a representative if­

(a)       he is under eighteen years of age; or

(b)       he is suffering from a disability which impairs his ability to properly  act  on  behalf  of  a  person  seeking  to  apply  for a protection order.

(5)   If a person applying for protection order or his representative is not represented  by  an  attorney-at-law,  the  court  shall  inforn1 that  person  or  his representative of-

(a)    the relief available under this Law; and

(b)    the right to make a criminal complaint for stalking against a respondent  pursuant  to  section   155   the  Penal  Code  (2013 Revision).

(6)   Where an application for the appointment as a representative is made, the court shall make the appointment if it is satisfied-

(a)   that reasonable steps have been taken to ascertain the wishes of the person to whom the application relates;

(b)   that it is in  the best interests of that person to make the appointment;

(c)   that the  proposed  appointee consents  in writing  to  the appointment; and

(d)    that there is unlikely to be any conflict between the interests of the proposed appointee and the interests of the person in respect of whom the application is made.

6.     (1)    A person on whose behalf an application for a protection order is made is not precluded from being heard in the proceedings.

(2)   If a representative applies on another person’s behalf for a protection order  and  at any time before  the application  is determined, the other  person objects to the continuation of the proceedings, then no further steps may be taken in the proceedings, unless the court is satisfied that the objection was made with undue influence.

7.    (1)   The court shall, as soon as is reasonably practicable, consider an application submitted to it for a protection order and may consider any additional evidence it deems fit, including oral evidence or evidence by affidavit, which forms part of the record of proceedings.

(2)   If the court makes a protection order against a respondent,  the court may direct that the order also apply against any other person if it is satisfied that the respondent is encouraging, or has encouraged that other person to engage in stalking the complainant.

(3)   A direction shall not be made under subsection (2) unless the court is satisfied that-

(a)       the person is stalking or has stalked the complainant; and

(b)    the making of a direction is necessary to protect the complainant from further stalking conduct.

(4)   A protection order may be made for the same course of conduct, or different courses of conduct, committed on each occasion in a public or a private place.

8.     (1)   A protection order may be made on an ex parte application if the court is satisfied that the delay that would be caused by proceeding on summons may result in a risk to the personal safety of the complainant or the safety of a person known to him.

(2)   A protection order made on an ex parte application shall be an interim order.

(3)   Where a protection order is granted on an ex parte application, it shall be served personally on the respondent who may apply to the court for it to be discharged.

9.     (1)   A protection order shall, for the purpose of protecting the complainant or any other person mentioned in the order from conduct which amounts to stalking, prohibit the respondent from-

(a)   engaging in or attempting to engage in a course of conduct which constitutes stalking;

(b)    enlisting the help of another person to  engage in  a course of conduct which constitutes stalking;

(c)       committing any other act as specified in the protection order.

(2)   The court may impose any  additional conditions on the respondent which it deems reasonably necessary to protect and provide for the safety of the complainant or a person known to him.

(3)      The court may order a police officer to-

(a)   seize any weapon in the possession or under the control of the respondent;

(b)    accompany  the  complainant  or  a  person  known  to him  to  a specified   place  to   assist   with   arrangements  regarding   the collection of personal property identified in the application for the protection order; or

(c)       investigate  the complaint of stalking with a view to instituting a criminal prosecution against the respondent.

(4)   If the court is of the opinion that any provision of a protection order deals with a matter that should, in the interests of justice, be dealt with further in terms of any other relevant law, the court may order that the prohibition remain in force  for  a  determined  period  in  order  to  afford  the  person  concerned  the opportunity to seek appropriate relief in terms of that other law.

(5)   A person who acts in contravention of a protection order conunits an offence and is liable on sununary conviction to a fine of five thousand dollars or in-prisonment for a term of one year or both.

(6)   In the case of a continuing breach of a protection order, a person may be ordered by the court to pay a further sum of one hundred dollars for each day that such breach continues after the date of its proof.

10.   (1)    A protection order may be made for such period as the court considers necessary to protect the complainant from further stalking and continues in force until the expiry of that period or in the absence of a specified period, after the expiry of one year from the date on which the order is made.

(2)   A complainant or a respondent may, upon notice to the other party and the court, apply for the variation or discharge of a protection order.

(3)   If the court is satisfied that circumstances have  materially changed since the granting of the original protection order and that good cause has been shown for the variation or discharge of the protection order, it may issue an order to this effect.

(4)      The court shall-

(a)    grant  an  application  made  under  subsection  (2)  only  if  it  is satisfied   that   the  application  is   made  without  any   undue influence; and

(b)   forward a notice to the affected parties if a protection order is varied or discharged.

PART  3 – INVESTIGATION OF STALKING COMPLAINTS AND CONDUCT OF PROCEEDINGS

11.   If an application for a protection order is made under section 4 and the court is satisfied that a protection order is justified as a result of the stalking of the complainant and the identity or address of the respondent is not known, the court may issue a direction to a police officer to investigate the matter with a view to determining the name and address of the respondent or obtaining any other information which may be required in order to identify or trace the respondent 12.   (1)    If an application for a protection order is made pursuant to section 4 and the court is satisfied that a protection order must be issued as a result of the stalking of the complainant by means of an electronic communications system of an electronic communications service provider and the identity or address of the respondent is not known, the court may issue a direction which requires an electronic communications service provider to provide the court with-

(a)       the electronic communications identity number from where the stalking conduct originated;

(b)      the  name, surname,  identity  number  and  address  of  the

respondent to whom the electronic communications identity number has been assigned;

(c)       any information which indicates that electronic communications were or were not sent from the electronic communications identity number of the respondent to the electronic communications identity number of the complainant; and

(d)      any  other  information  that is  available  to  the  electronic communications             service   provider   which   may   be   of assistance to the court in identifying the respondent or the electronic c communications service provider which provides a service to the respondent.

(2)    If the court issues a direction under subsection (1) it shall order that the direction be served on the electronic communications service provider.

(3)   The information referred to in subsection (1)(a), (b), (c) and (d) shall be provided to the court within five days from the time that the direction is served on an electronic communications service provider.

(4)  An electronic communications service provider on which a direction is served may apply to the court for-

(a)    an extension of the period of five days for a further period of five ordinary days on the grounds that the information cannot be provided within the time directed; or

(b)      the cancellation of the direction on the grounds that-

(i)        it does not provide an electronic communications service to either the respondent or complainant; or

(ii)       the requested information is not available in the records of the electronic communications service provider.

(5)      After receipt of an application made under subsection (4)(a) and (b), the court-

(a)       shall consider the application;

(b)      may request any additional evidence by way of affidavit from the electronic communications service provider as it deems fit;

(c)       shall give a decision in respect of the application; and

(d)      shall inform the electronic communications service provider of the outcome of the application.

13.   (1)    The court may, at any stage of proceedings under this Law, order any person  to  attend  as a  witness  at  those proceedings or  to  provide any  book, document or object,  if the evidence of that person appears to the court to be essential in arriving at a just decision.

(2)      A person who is ordered by the court to remain in attendance at the proceedings shall remain in attendance unless he is excused by the court.

(3)      Any person who is ordered to attend proceedings and fails to­

(a)       attend or to remain in attendance;

(b)      appear  at  the  place  and on  the proceedings relate; or          date  and  time  to  which  the

(c)       produce  any book,  document  or

court,  object  specified  by  order  of

commits  an  offence  and  is  liable  on  summary conviction  to  a  fine  of  two thousand dollars or imprisonment for a term of one year or both; and in the case of a continuing breach, a person may be ordered by the court to pay a further sum of one hundred dollars for each day that such breach continues after the date of its proof.

14.   (1)    In any proceedings under this Law and having regard to the interests of any person and to the public interest, the court may make an order-

(a)   prohibiting the publication of any report or account of the whole or any part of-

(i)        the evidence adduced;

(ii)       the submissions made; or

(b)      prohibiting the publication of-

(i)        the name of any person, or any name or particulars likely to lead to the identification of that person; or

(ii)       the affairs of any person; or

(c)   excluding  all  or  any  persons  other  than  the  parties   to  the proceedings,  attorneys-at-law  involved  in  the proceedings  and any officer of the court, from the whole or any part of the proceedings.

(2)      The court may make an order under this section on its own motion or on the application of any party to the proceedings.

(3)   An application to  the court for an order under this section may be heard in open court or in chambers.

(4)      An order made under subsection (1)(a) or (b)-

(a)       may be made for a limited period or permanently;

(b)      may be renewed for a further period by the court; or

(c)       may be reviewed by the court at anytime.

(5)      Nothing in this section limits or restricts any other power of the court

­ (a)     to  prohibit  or restrict  the publication  of  reports or  particularsrelating to the proceedings; or

(b)      to hear proceedings in private or to exclude any person from the court.

(6)   Where a witness in proceedings under this Law is a child, the court may direct that no person, other than the witness and his parent or guardian or a person in loco parentis, may be present at the proceedings, unless that other person’s presence is necessary and is authorised by the court.

(7)   A person who contravenes this section (1) commits an offence and is liable  on  summary   conviction  to a  fine of two thousand dollars or  to imprisonment for a term of six months or both.

15.   (1)   Where a police officer has knowledge of the name or address, or both, of a person who is alleged to be stalking another person or has stalked another person, he may, at the request of the other person or, if a representative of the other person has been appointed, at the representative’s request, disclose that information to the court.

(2)    If information is disclosed to the court pursuant to subsection (1), the court staff shall treat that information as confidential and shall not disclose the information other than for purposes of subsection (3).

(3)   The court may, on request, disclose the information to the other person or  his  representative  only  if  it  is  satisfied  that  the  other  person  or  his representative is eligible to apply for a protection order against-

(a)       the respondent; or

(b)      a person being encouraged by the respondent to engage in conduct which constitutes stalking.

16.   It is a defence for a respondent to show that-

(a)       his course of conduct was pursued for the purpose of preventing or detecting a crime;

(b)      his course of conduct was pursued under an enactment or a rule

of law;

(c)    his course  of conduct  was pursued  in order  to comply  with  a condition or requirement imposed by a person acting under an enactment;

(d)      his  course  of  conduct  was reasonable for the protection  of himself or another person or for the protection of his property or the property of another; or

(e)       he had no  reason  to believe that  there was  any person  within hearing  or  sight who was likely to be put in fear,  alarmed  or distressed as a result of the commission of a specified act.

17.   A question of fact arising in  any proceedings under  this Law, other  than criminal proceedings, shall be decided on a balance of probabilities.

18.   In any proceedings under  this Law, other  than criminal  proceedings, and whether by way of hearing in the first instance or by way of appeal, or otherwise, the court may receive  any evidence that would not otherwise be admissible in a court if the court is satisfied that the admission of the evidence is required in the interests of justice.

19. A court may hear and determine an application for a protection order  in conjunction  with one or more other applications for a protection order in any case where all the applications are made against the same person.

20.   (1)    A court may dismiss any proceedings instituted under this Law if it is satisfied that those proceedings are frivolous, vexatious or an abuse of the process of the court.

(2)    If a court is satisfied that a person has persistently instituted vexatious proceedings under this Law, whether against the same person or against different persons, the court may make an order prohibiting that person from commencing any  further  proceedings  or  proceedings  of  any  specified   kind  against  any specified person, without the leave of the court.

(3)    A court  shall not make an order  under subsection  (2) without  giving that person an opportunity to be heard.

(4)      Nothing in this section applies in respect of criminal proceedings.

(5)   Nothing in this section limits any other power of the court  to dismiss proceedings.

(6)   A person who, in the opinion of the court knowingly or wilfully makes a false, vexatious or frivolous complaint against another person for an alleged contravention of any provision of this Law commits an offence and is liable on summary conviction to a fme of five thousand dollars or in1prisonment for a term of one year or both.

21.   The court may only make an order as to costs against any person if it is satisfied that he-

(a)       acted frivolously or vexatiously; or

(b)      abused the process of the court.

22.    (1)    A person who is being or has been stalked by another person may institute civil proceedings in order to claim damages for any anxiety or distress caused by the stalking, any financial loss resulting from the stalking or for any other matter which the court believes justifies an award of damages.

(2)    A  person  who  has  been  the  subject  of   frivolous  or  vexatious proceedings involving allegations of stalking may institute civil proceedings in order to clain1 damages for any anxiety or distress caused by those proceedings, any financial loss resulting from the proceedings or for any other matter which the court believes justifies an award of damages.

PART 4 – GENERAL

23.    (1)    A person aggrieved by-

(a)       the making of an order or the issuance of a direction by the court;

or

(b)      the refusal of the court to make an order or issue a direction, may appeal, where applicable, to the Grand Court or the Court of Appeal.

(2)   The operation of an order shall not be stayed pending an appeal unless the court, upon an application and having regard to the circumstances, otherwise directs.

24.   (1)    The Rules Committee, constituted under section 19 of the Grand Court Law (2008 Revision) may make Rules of Court under that section or make Summary Court Rules under section 44 of the Sunm1ary Jurisdiction Law (2006 Revision) for the purpose of giving effect to this Law.

(2)   The Rules Committee may in particular, but without prejudice to the generality of subsection (1), make provision for the hearing without delay of any application  for  an  order  and  the procedure  upon  giving  notice  of appeal  from decisions  of a court and the giving of any recognisance thereupon.

25.       The Cabinet  may make regulations for the effective  in1plementation  of this Law.

26.       This Law binds the Crown.

Passed by the Legislative Assembly the     day of             ‘2014.

Speaker.

Clerk of the Legislative Assembly

TO DOWNLAOD THE ORININAL GO TO: http://www.lawreformcommission.gov.ky/pls/portal/docs/PAGE/LRCHOME/PROJECTS/STALKING-LEGISLATION/STALKING-%28-CIVIL-JURISDICTION-%29-BILL-2014-CONSULTATION-DRAFT-29-TH-JANUARY.PDF