Stalking: the crime of “persecutory acts”

Stalking consists of a set of persecutory behaviors repeated over time (such as harassment phone calls, stalking, threats) that cause damage to the victim by affecting his life habits or generating a serious state of anxiety or fear, or, still causing the fear for one’s own safety or that of a loved one.

The crime of stalking (from English to stalk, literally “making mail”) has become part of the Italian criminal law by means of Decree Law 11/2009 (converted from Law 38/2009) which introduced art. 612-bis of the Criminal Code, the offense of “persecutory acts”, which punishes anyone ” with repeated conduct, threatens or harasses someone in order to cause a lasting and serious state of anxiety or fear or to generate a well-founded fear for safety own or of a next relative or of person to the same tied up by affective relationship or by forcing the same to alter their own habits of life “.

As can be seen from the letter of the legislative provision, included in Chapter III of Title XII of the Criminal Code, in the section on crimes against moral liberty, with this new type of crime, the legislator, taking note of the requests formulated loudly in this regard from many quarters, has tried to give an appropriate sanctioning response to the conduct that until 2009 was framed in other less serious crimes (of threat, private violence, etc.); cases that had often proved to be unsuitable for guaranteeing adequate protection for the victims in the face of illicit conduct characterized by greater severity, both due to their repetition and because of their negative effects on the private and family sphere of the offended persons.

Difference between stalking and abuse in the family

Difference between stalking and abuse in the family

Although the case studies in the abstract can be shown that often there is an affective, sentimental or in any case qualified relationship that binds the acting subject to the victim (eg jealous boyfriends or ex-husbands, or even a “commission” stalker who commit the crime instead of another, etc.), for the art. 612-bis of the Criminal Code stalking is a common crime that can be committed by anyone, even by those who, therefore, have no connection whatsoever with the victim, without presupposing the existence of specific subjective interrelations (Cassation No. 24575/2012 ).

This therefore constitutes the distinction with the most serious crime of ill-treatment in the family (unless the so-called “subsidiarity clause” provided for by Article 612-bis, paragraph 1, of the Criminal Code, “unless the fact constitutes a more serious offense “that would make the offense referred to in Article 572 of the Criminal Code applicable, a crime that can only be committed by a person who plays a role in the family context (spouse, parent, child, etc.) or a position of authority or particular reliance in the community aggregations assimilated to the family by art. 572 of the Criminal Code (as educational, education, care bodies, etc.) (Cassation No. 24575/2012).

However, it is necessary to underline, as also the crime of which in the art. 612-bis of the Italian Criminal Code in the hypothesis envisaged by the second paragraph refers to areas that are latently linked to the family community, since the active subject of this aggravated form, having the nature of a proper crime, is identified as the “legally separated or divorced spouse or a person who has been bound by emotional relationship to the injured person “.

The passive subject (the victim)

The passive subject (the victim)

As for the passive subject, in addition to protecting the “main” victim, object of the stalker’s harassment, the rule extends its protection also to those who are related to it by kinship relationships (joint relatives) or by emotional relationships.

The protected legal asset

The protected legal asset

Finally, as regards the protected legal asset, as can be seen from the same location, in Chapter III of Title XII among the crimes against the person, i the offense of persecutory acts primarily protects moral freedom, understood as the faculty of the individual to self-determine himself.

The incriminating case is also aimed at protecting the additional legal assets of the individual and health, as well as according to different theses, the psychic tranquility and the privacy of the individual, given that for the purpose of configuring the crime “it is sufficient that the acts considered persecutors have a destabilizing effect of serenity, of the psychological balance of the victim “(Cass. n. 8832/2011).

The aim pursued by the legislator in 2009 would therefore be to protect the subject “from behaviors that heavily condition his life and personal tranquility, giving him anxieties, worries and fears, with the aim of guaranteeing the personality of the individual isolation from disturbing influences “(Cass. n. 25889/2013).