Stalking (atti persecutori, Article 612-bis of the Italian Criminal Code) is a relatively recently defined criminal offense. The offense concerns repeated conduct of a harassing or threatening nature that causes the person subjected to it a persistent and significant state of distress, centered on fear that the harassment itself will recur, or on the distress caused by having experienced it; alternatively, it may give rise to fear of something more serious, such as for one’s own safety or that of a loved one; or it may force the person to change their habits and lifestyle in order to escape the harassment.
There are two types of harm and three types of consequences, to which may be added other forms of harm resulting, for example, from defamation, damage to property, trespassing, etc., which may constitute additional criminal offenses.
The perpetrator is understood to act knowingly, aware that their behavior is unwanted, feared, or being avoided. This may be inferred, for example, from messages or various explicit requests to “stop” communicated directly to the person who continues with the unwanted behavior. Indeed, the perpetrator may act precisely with the aim of provoking these unpleasant feelings in the victim—fear, nervousness, anger. This may be demonstrated both by documented psychological conditions affecting the victim and by messages or threatening conduct in which the perpetrator consciously assumes the role of persecutor, takes satisfaction in it, or expressly declares an intention to obsess, terrorize, or keep the victim in a state of distress, even without making any material demand or request and purely for the purpose of causing harm or discomfort.
The perpetrator’s intent, that is, the intention to cause harm, therefore concerns not only the persistence of the behavior but also the effect that this persistence has on the victim.
When assessing the harm, it is essential to define the conduct in terms of its “capacity to cause harm,” that is, the inherent ability of the harassment to cause harm to any person, or to that particular person because of their specific circumstances. The mere fact that harassment may cause distress that varies greatly from one person to another, and that is not specifically related to the person at whom it is directed, has less evidentiary value in establishing the harm.
Since the capacity to cause harm is the determining factor, it is also possible to conceive of an offense involving “attempted” persecutory acts, where the conduct was directed toward and capable of causing harm but did not in fact succeed in producing its full effect.
The victim’s condition should be documented as thoroughly as possible. A generic description of “psychological distress,” which might be expected in response to relatively nonspecific harassment, is much less clear than a psychiatric diagnosis supported by documentation of examinations, critical episodes of distress, ongoing treatment, and objective signs of impairment in functional abilities related to anxiety, depression, and so forth.
Aggravating circumstances in stalking
The following are considered aggravating circumstances:
The fact that the two people know each other, have previously been in a relationship, or interact regularly because of habit or necessity, for example in a work-related context.
The fact that the harassed person is in some way “vulnerable” because of a physical or mental condition, making them more easily approached or attacked—for example, because they are unable to react effectively or intimidate the persecutor, or because they are unable to proceed with reporting the conduct to the authorities.
The offense is generally prosecutable upon a complaint (querela) filed by the victim, subject to certain exceptions (such as when the victim is a minor or a person with a disability, or when other associated offenses are involved that are automatically prosecutable by the authorities).
The victim therefore cannot assume that they can avoid reporting the matter to the authorities if they want the authorities to intervene. Reporting is also one of the actions that makes the victim’s distress and their intention not to interact with the person insisting on maintaining contact clearly apparent—at least from that point onward.
Conversely, responding to the harasser, speaking with them “to clarify things,” meeting them, agreeing to communicate with them through third parties, or accepting gifts from them could potentially be interpreted in the opposite direction. A person who has continued interacting with the alleged harasser might give the impression that they actually welcomed or accepted the contact and may even have encouraged or reinforced it.
Even when the harassed person responds with provocative behavior, insults, or references to past events—as may occur in the case of former romantic relationships—this can be interpreted as an ambiguous position, suggesting a reciprocal dispute in which the victim may be willing to “play” with the harasser’s feelings, including feelings of anger or resentment.