ABSTRACT
A second defining characteristic of stalking is that it involves conduct that is not welcomed by the recipient. Reference has been made to the range of conduct that may occur and it has been noted that much of the conduct is, of itself, lawful:
In situations where the conduct is not inherently criminal, the unwanted nature of the conduct delineates stalking from legitimate activities. An analogy can be drawn with rape.36 The conduct element of rape is nonconsensual sexual intercourse – the essence of the wrong is not the conduct itself, but in the fact that it imposes on another that which should only be engaged in voluntarily. The same reasoning can be applied to a significant amount of stalking conduct. Conduct which is prima facie lawful, such as sending flowers or giving another person gifts, becomes regarded as unlawful when it is imposed on another who has no desire to receive such attention. Thus, the wrong in stalking cases may not relate to the lawfulness or otherwise of the actual conduct, but in the persistent subjection of the victim to unwanted attention.
