For talking, read stalking

Two lovers split up. One follows the other, demanding an explanation. The police are called; the spurned lover is arrested. His offence? Stalking.

Stalking - the crime of 1996 - is under fire in the House of Commons, where MPs are expected to pass the Government's Protection from Harassment Bill tomorrow. We have all read about the horrors endured by those (mostly women) who, for months, even years, are followed or telephoned, or sent flowers, taxis or take-aways, or who, in the worst cases, are attacked, even killed. And we all want to put a stop to that.

But what does "harassment" mean? And how do we distinguish between the dangerous stalker and the misguided fool wallowing in the agony of unrequited love or the anguish of betrayal?

It took me five minutes to unearth two friends - one male, one female - who admit to having acted rashly in that fevered moment that follows the end of an affair.

"I wrote three angry letters that, with hindsight, were rather ugly, after we split up. It was unresolved, and I kept writing till I got some kind of response. I used to drive past her house, which was out of my way, just to see if I could see anything. She could have felt threatened by the letters because even though I didn't threaten her, they did express a lot of rage," says David, who seems an eminently reasonable person when not in the throes of tormented love.

"I did ring her up at 11 o'clock one night and said that unless she gave me an explanation there and then I'd be round in 40 minutes, which is the time it would have taken to get there. She had her new squeeze there and I was ready to go. There was a verbal scene, on the phone, and she was forced into giving some kind of explanation, which allowed me not to go around. She could have interpreted that as a threat, though she knew me well enough to know I'm not a violent man."

Sarah, rational and composed, also wanted, needed, an explanation for her beloved's betrayal, a feeling that exploded the day she learnt he was now going out with the woman he had slept with while dating Sarah. "I kept getting in touch with him in various ways, and he would not get back to me - I'd phone and he'd say he'd call back, and then wouldn't. So that day, I rang him, then paged him and then paged him again. And I just felt absolutely furious about the fact that he had not rung back."

She knew he was due on stage (he's an actor) so she left "a very pleasant message" at the stage door asking him to come to the pub next door for a drink. "I was plotting my next move," she says, which was to enter the theatre and find him, while she fantasised about him ordering the staff to stop her. If that happened, "I planned to buy a ticket and shout abuse from the stalls".

Fortunately for all concerned, he came to the pub and they had a huge row. "He did face me. It was fine then, and I've felt fine about it ever since. I really needed a stand-up, face-to-face row with him."

There is nothing terribly dramatic about either of these stories - but Sarah and David could, in theory, go to prison for their actions if the Protection from Harassment Bill, intended to punish stalking, racial harassment and bad behaviour by neighbours, is passed as it stands.

It creates two new criminal offences: a course of conduct which amounts to harassment of another, and a course of conduct which causes a person to fear, on at least two occasions, that violence will be used. In both cases, the test would be that "a reasonable person" would see the conduct as harassment, or as causing fear of violence.

As the Home Office press release helpfully notes: "Importantly, for these offences to have been committed, there does not have to be an intention on the part of the harasser to cause the victim to fear violence or feel harassed." This means that the prosecution need not prove that David or Sarah, for example, wanted or meant to upset their former partners, merely that their behaviour had this effect.

One problem with the Bill, according to the civil liberties group Liberty and the Labour Party, which has tabled several amendments, is that the Bill is so widely drawn that it might be used against the wrong people. Labour is seeking to define more clearly the terms "harassment" and "fear of violence", to give the courts greater guidance in applying the law and to avoid criminalising behaviour that we might term "normal".

"Obviously when they break up people often behave very badly," says Virginia Ironside, The Independent's agony aunt. "People go round and throw things through windows, or write nasty remarks on cars, but usually, unless it's going to be persistent, I don't see how anyone could see that as anything but angry, broken-hearted behaviour."

And as Penny Mansfield, director of the counselling charity One Plus One, points out, "Harassment may be in the mind of the beholder." From experience of counselling couples, she says that "one of the classic complaints of women is that they have to pursue men to get them to talk about their feelings", and, conversely, "many men complain that part of the problem of intimate relationships is that they feel harassed by women".

If the Bill becomes law, it will be the job of the police and the Crown Prosecution Service to decide whether a case merits prosecution - a role that could require PCs on the beat to double as counsellors.

Let us say, for example, that David's ex-lover complained about his behaviour; would a "reasonable person" decide that, having betrayed David, she owed him an explanation, or would they think he had gone too far in phoning her at night? And should the police really be expected to make such a decision?

"It's an exercise in judgement," says Paul Gibson, chairman of the Chief Superintendents' Association Crime Advisory Committee. "It's the reasonable man test. Most of us would say when your emotions are in such turmoil, your idea of reasonable might not be mine." In the case of a break-up, "the average person would expect the individual to be allowed to reasonably express that hurt ... we need to apply common sense".

No one approves of violence against women (or men), be it physical or psychological, but there seems to be a real danger that this Bill could catch the misguided or the foolish. "It would have been completely unfair to prosecute me because she wasn't playing fair with me," David says. "She wasn't giving me a full and frank explanation of her behaviour." He does, however, believe that his behaviour robbed him of the moral high ground he had previously occupied.

Timothy Lawson-Cruttenden, a lawyer who specialises in harassment cases, is hoping that MPs will adopt several amendments to the bill tabled by Janet Anderson. "We think a sense of harassment has got to be properly defined to a far more classic stalking offence," he says, including examples of typical stalker behaviour such as loitering, following and sending offensive material.

As it stands, "it is widely open to abuse by bad policing". And, he adds, "they're trying to lower the criminal burden of proof. It is open to abuse by the infatuated making false allegations ... and we are entering an area where there is a lot of infatuation and psychological disturbance".

Chief Superintendent Gibson agrees that it is hard to legislate in such an emotional area, but emphasises the frustration felt by police when they cannot help victims of harassment. "There has to be something there to enable us to take action," he says. "At least with specific legislation we've got a starting point."

Sarah, who felt she understood "that huge fury" that might drive one to extreme measures, also feels that her lover wronged her first. "I think that in cases like mine, which definitely could have got more extreme, it takes two to stalk, because you come up against a brick wall and you have so much you need to get off your chest," she explains.

"Sometimes people deserve to be harassed. He'd lied to me, and suspecting he'd been found out, he avoided me. We had been going out for two and a half years. I think he owed me that."

Let's hope the courts and the police agree with her