In 2014 a report commissioned by the Welsh Government found that, whilst there are universal barriers to accessing services for domestic abuse, stalking and harassment, a review of the existing evidence demonstrated that LGBT people faced specific barriers. Whilst this article does not seek to summarise the research and evidence, it is written in the hope of being a signpost to some available services.
The report found that LGBT people may face a range of barriers related to their perception of self and the abuse (individual barriers) and the actions of people they have relationships with (interpersonal barriers). The report found that often LGBT people experiencing domestic abuse did not seek help simply because they did not recognise their experience as abuse, and some were unaware that domestic abuse would be recognised in the law. There were further barriers where some abusers used the individual’s negative sense of self to exercise control to seek to stop the individual taking action. Some research (Rowlands, 2006) showed that amongst the sample of gay men who had experienced domestic abuse in Wales, a quarter had experienced stalking from their abusive partner.
There were also intersecting barriers where LGBT people from ethnic minorities faced barriers accessing services due to combined experience of racism and homophobia within institutions and their own communities. There is some evidence to suggest that young LGBT people (under 25) are particularly vulnerable to domestic abuse for multiple reasons, including lacking resources to seek help. Whilst the report identified other structural and cultural barriers in the service provision, those are not addressed within this article.
Whilst there is clearly much that needs to be done in the form of organisational and structural change, awareness raising and perhaps specialist services and programmes, I hope to set out below a short guide on civil legal remedies for harassment, with the aim of helping those in need of every gender and orientation.
What is harassment?
Harassment is when someone behaves in a way which makes you feel distressed, humiliated or threatened.
The statutory definition within s1 Protection from Harassment Act 1997) reads
"a person not must not pursue a course of conduct (A) which amounts to harassment of another, and in (B) which he knows or ought to know amounts to harassment of the other".
The Act creates a criminal offence (section 2 (1)) the penalty for which can be imprisonment for a term not exceeding 6 months or a fine, or both.
It also creates a civil cause of action, namely the ability to go to civil Courts (usually the County Court) to ask for an injunction (more below) and damages to compensate for your losses.
What amounts to harassment?
It needs to be a course of conduct, i.e. more than or least two instances of harassment. The wording of the legislation is rather unhelpful as, with most legislation, it uses "which he knows or ought to know". However:
Harassment legislation applies equally to all people in relation to perpetrators, and everyone has the benefit of this protection regardless of sexual orientation, gender or other characteristics.
Examples of behaviour which could amount to harassment include:-
Unwanted phone calls, letters, emails or visits
abuse and bullying online, including on apps where the contact is clearly unwanted
verbal abuse and threats
smashing windows or using dogs to frighten you
What about stalking?
The Protection from Harassment Act also covers stalking. It creates a criminal offence of stalking if a person pursues a course of conduct of stalking which amounts to harassment. The legislation gives examples of stalking (which is not exhaustive) as:
following a person,
contacting or attempting to contact the person by any means (such as creating a new account on an app each time a user blocks you),
publishing any statement or other material relating to a person including online, in print or otherwise,
monitoring the use of a person of the internet, email or other form of electronic communication,
loitering in a place whether public or private,
interfering with any property in the possession of a person, or
watching or spying on a person.
Not all of these behaviours on their own amount to an offence – it would need to meet the test of section 1(1), namely that the course of conduct amounts to harassment of another and which that person or knows or ought to know amounts to harassment of them. The civil remedies available for stalking are similar to that of harassment.
Should I contact the police?
If you are being harassed and you feel that you are in danger you should contact the police. If you think the harassment is due to your disability, race, religion, gender, identity or sexual orientation you can report harassment the police as a hate incident or crime.
What is a civil remedy?
In addition to speaking to the police and other agencies about criminal behaviour, you can also take ‘civil action’, which means a claim in the County Court against the perpetrator directly. Claims for harassment or stalking are usually brought under the Protection from Harassment Act 1997.
How can the County Court help my situation?
You can go to at the County Court mainly for two reasons.
The first is to ask the Court to make an order that the perpetrator stop harassing you. This type of order is called an ‘injunction’ and means the person must stop doing that behaviour. The court can attach a power of arrest to the injunction order, meaning that if the person breaches the injunction (continues to harass you) they may be arrested. In addition, any breach of the injunction is a criminal offence under section 3(6) which itself could lead to imprisonment for a term not exceeding 5 years, or a fine, or both.
If the matter is urgent (such as if threats have been made, and in addition to contacting the police), you can apply for an ‘interim injunction’ at the start of the case, and if the Court is satisfied that the injunction order should be made to protect you then it can make that order at the start of the case. Once the Court makes an injunction order it needs to be ‘served’ on the perpetrator. You can do this yourself, or via solicitors, a process server, or bailiff.
Once you start your claim, and even if you are granted an interim injunction, the case will proceed to a trial and you will need to prepare a witness statement with evidence for the Court to deal with it at a final hearing. At the final hearing the Court can uphold the injunction order, amend it, or discharge it. In reality, many injunction for harassment cases are dealt with before a final hearing. This can happen where the perpetrator of the harassment gives ‘undertakings’ which are promises to the Court that they will not harass you. Breaching that undertaking can have serious consequences also.
Damages and legal costs
If you have suffered losses, which can be financial, or suffered anxiety and distress, or even personal injury (including psychiatric injuries) you can claim ‘damages’ which is the legal term for this loss, and which is invariably provided in the form of a monetary award.
If you engage the services of a solicitor to help you obtain an injunction and claim for damages, and if you are successful, you will ordinarily receive an order that the defendant pays some or all of your legal costs.
Who can help me?
The law and the Court system can be enigmatic and intimidating at the best of times. More so when you have been subject to abuse or harassment. There are many incredible organisations who provide free advice including Citizens Advice Bureau (who also have some great resources online), Galop, Respect Men’s advice line and local legal advice centres or clinics. There is also the National Domestic Abuse Helpline who are available 24-hours a day.
Some services are available from Solicitors’ firms on the basis of legal aid although you have to check what area of work is covered and whether you are financially eligible. Many Solicitors firms, Allan Janes among them, will provide the service although usually on a fee-paying basis.
You can have family and friends help you in the process even if only for moral support. Usually however, a friend or family member can only speak for you in a Court hearing if the judge gives permission for this. They will usually ask whether the defendant is OK with this as well, but the judge has the final decision.