Harassment within the family
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Harassment within the family

When someone speaks of harassment, one usually thinks of sexual harassment, especially at the place of work. However, harassment encompasses a much wider spectrum and a significant segment of this is harassment within the family, that is, between spouses or between unmarried parents.

Maltese law does not provide an exhaustive list of all the instances of harassment. This is a good thing because if there were such a list there might be incidents which, although they could be classified as harassment, would legally not be regarded as such if they do not fall within that list. However, this peril has been neatly avoided by our legislators. In fact, article 251A of the Criminal Code, which covers harassment (modelled on article 1 of England’s Protection from Harassment Act 1997) does not define what constitutes harassment but leaves it open to interpretation.

In English dictionaries harassment is usually defined as disturbing, bothering, pestering, persecuting or tormenting someone persistently. The English version of our Criminal Code in article 251A uses the term “harassment” but does not define it. In fact it states that “a person who pursues a course of conduct: (a) which amounts to harassment of another person, and (b) which he knows or ought to know amounts to harassment of such other person, shall be guilty of an offence...”. It adds: “...the person whose course of conduct is in question ought to know that it amounts to harassment of another person if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other person.”

As one can see, harassment is truly not defined at all.

What about the Maltese version of the Criminal Code? How does it define harassment? The term “harassment” in the Maltese version is fastidju, which might be described as annoyance. Therefore, harassment has not been defined but, notwithstanding this, it is still a criminal offence. On the other hand, in our Criminal Code there are many provisions which cover instances that might be tantamount to harassment but are still not regarded as harassment. For example, article 339(n) states that whoever “annoys, vexes or scoffs at an imbecile, aged, crippled, feeble or deformed person” is committing a contravention. The Maltese version of the same sub-article states: “idejjaq, jagħti fastidju, jew jiddieħek b’nies boloħ, xjuħ, magħtubin, mifluġin jew immankati”. Therefore, as can be deduced, in this version the term “fastidju” is “vexes” and not “harasses”.

This might be taken that harassment is catered for solely in article 251A and, legally speaking, since harassment is not defined, is open to interpretation which thus makes it is very wide in its scope. However, if there is a clash of interpretations between the Maltese and the English version of the Criminal Code, the Maltese version takes precedence over the English one.

What is understood by the term “fastidju”? Perhaps someone who causes annoyance, causes trouble, makes life difficult for him or her, makes obscene phone calls or sends text messages? It is open to interpretation. However, since article 251A of the Criminal Code is modelled on England’s article 1 of the Protection from Harassment Act 1997, should English case law regarding harassment be taken into consideration when defining harassment within the ambits of Maltese law? When there is a lacuna in Maltese law, the courts usually refer to Italian and even English law; it therefore seems reasonable enough to turn to English case law when it comes to harassment because article 251A is built upon an English legal provision.

For example, in R. v Gardner (John Fredrick), on September 7, 2010, decided by the Court of Appeal (Criminal Division) (2010) EWCA Crim 2154, 2010 WL 3580830, Mr Justice Tugendhat declared “that over a period of time you made the lives of the family living next door to you a complete nightmare. This was a persistent, unrelenting campaign of harassment, during which you lost no opportunity of making insulting remarks to Mrs Phelan...” Therefore, it seems harassment must be unrelenting and over a period of time. He added it is important to take cognisance of “the psychological impact of your behaviour in the family and, finally, the total absence of any remorse”.

Back to the Maltese scenario, if someone stalks another person or makes his life miserable by continuous persecution, this might fall within the ambits of article 251A. Article 251A caters for everybody – not necessarily for spouses or for unmarried parents only. In fact, if such an offence is committed by a spouse or by an unmarried parent, it is an aggravating circumstance which makes him or her liable for a harsher penalty as per articles 221 and 202(h) of the Criminal Code.

Matrimonial and family harassment during a familial breakdown is rife and common with many not knowing the consequences they face when committing such offences and others not even realising such behaviour is tantamount to a criminal offence.

annmarie.mangion@gmail.com

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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