犯罪學觀點下之跟蹤騷擾─以美國法為中心

跟蹤騷擾，自過去以來一直被視為惡性輕微之行為，儘管被害人向警察求助，執法機關也可能面臨欠缺介入之法源依據。近三十年內，有鑑於由跟蹤騷擾演變為生命侵害之案件一再引起大眾之關注，為回應社會之期待並彌補法律之漏洞，國內外立法者紛紛制定關於跟蹤騷擾之法律規範，將跟蹤騷擾之犯罪化。在犯罪學上，對於跟蹤騷擾行為之探討，自1990年代起各國制定跟蹤騷擾法規發展以來，也隨之受到更多之關注與研究。從行為人、被害人、行為之特性等方面，嘗試多方理解跟蹤騷擾行為之成因，以達到終止跟蹤騷擾行為與預防犯罪之目的，並考量到跟蹤騷擾係被認為與性別有關之犯罪，並與家庭、約會暴力之間具有密切之關連，故犯罪學之研究亦從性別議題出發，針對涉及跟蹤騷擾之行為人、被害人，以及雙方性別之異同為研究。本文之目的，在於考量我國在跟蹤騷擾領域之犯罪學及或實證研究仍非多見，故期望透過外國在跟蹤騷擾犯罪學領域之研究，探究有關跟蹤騷擾行為之成因、行為人之動機、犯罪黑數之形成、司法部門之應對等層面，據此對於跟蹤騷擾之犯罪，有更為全面之理解。此外，本文並以美國法作為比較法之研究對象，以美國反跟追法之制定與修訂之法制層面為基礎，進一步探討美國反跟追法實行之數年間，在法實踐上所陸續發現之問題與困境，以此提出跟蹤騷擾犯罪之相關研究，在未來可能發展之面貌。綜上所述，本文之目的，乃在於期望結合上述實證、法制比較與法實踐之研究，為我國現行之跟蹤騷擾防制法，以及未來之法制與實務發展，提供可能之參考方向，故於最末之章節，本文將檢視我國現行之跟蹤騷擾防制法，自本法之保護法益、各項構成要件，以及跟蹤騷擾法在目前實務之運作為分析，並對於有關本法是否仍存在部分尚待修正之問題的爭議，嘗試以本文見解作為回應。

關鍵字

跟蹤騷擾；反跟追；犯罪學；性與性別；跟蹤騷擾防制法

並列摘要

In the past, stalking often has been taken as petty crime or even unpunishable. When facing stalkers, although victims may turn to the police for help, the law enforcement might be unable to give proper respond. Stepping in the stalking circumstances could be difficult due to the absence of legal resources, leaving victims often unable to receive adequate help from law enforcement. Over the past decades, several stalking cases have escalated to severe violence against the victims in many countries. These cases have not only prompted the public to start paying attention to the stalking phenomenon, but have also contributed to the enactment of anti-stalking laws. In an effort to address the issue caused by stalking, legislators ultimately criminalized stalking behaviors. Besides the research from a legal perspective, the study of the criminology of stalking has also been well developed. The scope of this field includes extensive research on stalkers, victims, stalking behaviors, and the relationships between stalkers and victims. The ultimate goal of studying stalking in criminology is to cease the stalking behaviors of perpetrators and prevent recidivism. Additionally, stalking is recognized as a gendered crime closely associated with domestic violence. Therefore, criminological research on stalking also focuses on the sex and gender dynamics of both perpetrators and victims. Since Taiwan did not enact the Stalking and Harassment Prevention Act until 2021, there was limited research in criminology or empirical studies on stalking. With the law having been coming into effect for only about two years, its effectiveness remains uncertain. Therefore, studying stalking from other countries could potentially serve as a reference point to better understand stalking crimes. Among international anti-stalking legislation, the American Anti-Stalking law was first established in California, which subsequently led to nationwide enactment of anti-stalking laws. This initiative also set a trend for stalking legislation in the 1990s. To assess the effectiveness of anti-stalking laws, the U.S. government and scholars have dedicated to studying practicing law. By examining the application of these laws in practice, the inadequacies and unresolved issues regarding stalking can be identified and applied to revise anti-stalking legislation. The development and predicament of American anti-stalking law may also provides a possible picture for the future development of Taiwan’s anti-stalking laws. In conclusion, the purpose of this thesis is to enhance understanding of stalking through legal research in criminology, comparative law, and practical application of stalking crimes. To achieve this objective, this thesis will revisit the review of Taiwan’s stalking legislation and examine court responses to stalking cases in final section. Additionally, this thesis aims to address ongoing debates surrounding the elements of stalking crimes.