When Does Texting Become Stalking in NSW? The Legal Risk Behind “Just One More Message”

It rarely begins with anything that looks like a criminal offence.

A message goes unanswered. Another follows. Then a call. Then a longer message asking for an explanation. Hours later, perhaps another attempt: “Can you just respond?”

And then a final message expressing frustration or confusion.

From the sender’s perspective, this may feel entirely reasonable. Perhaps even justified. After all, relationships — whether romantic, personal, or professional — do not always end neatly. People want closure. They want clarity. They want a response.

But New South Wales law does not assess this conduct through the lens of emotional intention. It assesses it through the lens of impact, persistence, and context.

And in that legal framework, repeated texting can cross the line into criminal conduct far earlier than most people expect.

The Legal Starting Point: Stalking and Intimidation in NSW

The relevant offence is found in section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which makes it a criminal offence to stalk or intimidate another person with the intention of causing that person to fear physical or mental harm. The provision carries a maximum penalty of five years’ imprisonment, reflecting the seriousness with which this conduct is now treated.

It is worth noting that the section does not require proof of physical violence, nor does it require that the complainant actually experience fear in every case. That is often counterintuitive. Many assume that unless someone is demonstrably terrified, the conduct cannot be criminal. The statute does not adopt that narrow view.

To understand how texting fits within this framework, it is necessary to look at how the Act defines both “intimidation” and “stalking”.

Why Text Messages Fall Squarely Within the Law

Under section 7 of the same Act, intimidation is defined broadly to include conduct amounting to harassment or molestation, as well as any approach made by telephone, text message, email, or other technologically assisted means that causes a person to fear for their safety.

This is not accidental drafting. Parliament has deliberately ensured that modern communication methods (including texting and social media) are captured within the scope of the offence.

Similarly, “stalking” is defined to include following, monitoring, or contacting a person repeatedly, including through digital means. This means that behaviour which might once have required physical proximity can now occur entirely through a smartphone.

So the legal issue is not whether the conduct occurred online. It is whether the conduct, viewed as a whole, amounts to harassment, intimidation, or persistent unwanted contact.

There Is No “Magic Number” of Messages

A common misconception is that there must be a specific threshold, for example, a certain number of messages, before the law is engaged.

There is not.

The legislation does not prescribe any numerical benchmark. Instead, courts assess the overall pattern of conduct, taking into account factors such as frequency, persistence, and context.

This is where many individuals misjudge their position. A person may think: “It was only a handful of messages.”

But the court may instead ask: Were those messages sent after a clear request to stop?

Did they escalate in tone or urgency? Were they part of a broader pattern of contact?

The absence of a fixed threshold means the legal analysis is inherently fact-specific.

The Importance of Being Told to Stop

One of the most significant turning points in these cases is whether the recipient has clearly indicated that they do not want further contact.

Once that occurs, continued messaging takes on a very different legal character.

A single unanswered message may be innocuous. Continued attempts after an explicit “do not contact me again” can be interpreted as deliberate persistence in the face of objection.

From a legal perspective, that persistence is often central to establishing both the conduct element and the necessary intention.

Intention: It’s Not About What You Meant

Many people assume that criminal liability depends on their subjective intention (what they personally meant or felt). In reality, the law takes a more objective approach.

Under section 13, a person is taken to intend to cause fear if they know that their conduct is likely to have that effect. This means that intention can be inferred from the circumstances.

For example, if a person continues to send messages despite being:

• Ignored
• Blocked
• Explicitly asked to stop

…it becomes increasingly difficult to argue that they did not realise their conduct might cause distress or fear.

This is where many defendants encounter difficulty. The argument “I was just trying to talk” does not necessarily negate intention if the surrounding circumstances suggest otherwise.

The Role of Context: Relationships Matter

Context is critical in these cases.

The same conduct may be interpreted very differently depending on the relationship between the parties and the surrounding circumstances.

For example:

• Communication between close friends may be interpreted differently to communication between estranged partners
• Messages sent during an ongoing dispute may be viewed differently to messages sent after a clear breakdown of contact
• Prior incidents, including allegations of domestic violence, may significantly influence how conduct is assessed

The legislation itself allows courts to consider patterns of behaviour, particularly in domestic contexts, when determining whether conduct amounts to intimidation or stalking.

When an AVO Changes Everything

The legal landscape changes dramatically if an Apprehended Violence Order (AVO) is in place.

Once an AVO prohibits contact, even a single message can constitute a breach of the order, which is itself a criminal offence. This is separate from, and in addition to, any allegation of stalking or intimidation.

Further detail on how AVO conditions operate in practice can be found here.

This is a point where many people make serious errors in judgment. A message that might otherwise seem harmless — “Can we talk?” — may become legally significant simply because it contravenes the terms of an existing order.

The Broader Policy Context: Why Enforcement Has Tightened

The increased enforcement of stalking and intimidation laws reflects broader trends in criminal justice policy.

Data from the NSW Bureau of Crime Statistics and Research (BOCSAR) indicates that domestic violence-related stalking and intimidation offences have increased significantly over time, with corresponding rises in police proceedings.

This reflects a shift towards recognising:

• The seriousness of psychological harm
• The impact of coercive or controlling behaviour
• The cumulative effect of repeated unwanted contact

In practical terms, this means that conduct which may once have been dismissed as merely “annoying” is now more likely to be treated as criminal.

Digital Behaviour Is Not a Safe Alternative

Some individuals attempt to avoid legal consequences by shifting communication to different platforms.

For example:

• Messaging through social media after being blocked on a phone
• Using alternative accounts
• Contacting through third parties

However, this does not reduce legal risk.

As discussed here: digital conduct is assessed holistically. Changing the medium of communication does not change the underlying legal analysis.

The Grey Area Where Most Cases Arise

It is important to recognise that the law is not limited to extreme cases.

It is designed to capture behaviour that sits in a grey area:

• Not overtly violent
• Not explicitly threatening
• But persistent, unwanted, and distressing

This is precisely where many individuals underestimate their exposure.

The legal system is less concerned with whether the conduct appears dramatic, and more concerned with whether it forms a pattern that the law recognises as intimidation or stalking.

A Practical Reality Check

If you are unsure whether conduct may cross the line, consider the following questions:

• Has the other person clearly asked for no further contact?
• Are you continuing to initiate communication regardless?
• Would a reasonable person view your conduct as pressure or harassment?

If the answer to these questions is “yes”, the situation warrants careful consideration.

Final Thought

Texting, in itself, is not unlawful.

But texting can become unlawful when it forms part of a broader pattern of behaviour that the law identifies as stalking or intimidation.

The difficulty is that this transition is rarely obvious at the time it occurs.

It often becomes clear only in hindsight — when police become involved, or when a matter reaches court.

A Question Worth Considering

If someone repeatedly contacted you after you had clearly asked them to stop:

At what point would you consider that behaviour intimidating?

The answer to that question is often very close to the point at which the law intervenes.