The difficulty of typing stalking in the Italian and comparative law

Abstract

The comparative analysis revealed the difficulty in describing the so-called phenomenon of stalking, considering that the acts constituting stalking are behaviors generally and socially accepted and considered normal, whose stubborn and persistent repetition enables them to injure the freedom of self determination of the victim, its tranquility, mental and physical health. In connection with the adoption of a model that requires the generation of a specific psychological fact (event), the comparative examination showed an awareness of the difficulty of its investigation, that has led some legislators to adopt objective parameters or even problematic presumptions.

In the Italian legal system the interpretation of “atti persecutori” (art. 612 bis c.p.) as a crime that needs the generation of the psychological event, which should ensure greater respect for the principle of offensiveness, could paradoxically lead to the violation of the same principle and of the principle of legality, where the investigation deals with events uncertain and particularly difficult to verify under an empirical perspective. Actually, this interpretation could allow the application of the crime against act objectively inappropriate, but that would have caused such psychological events, based on subjective interpretation of the victim; and this interpretation allows the Supreme Court to require only two acts in order to commit the crime, not taking into consideration the importance of the repetition on which the offensive capacity of this crime must be based. The interpretation of the new crime as a crime of “danger”, better comply with a more objective assessment of the disvalue of conduct in respect of the principle of offensiveness and legality.