New Trends in the Criminalization of Stalking in the EU Member States
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Article 34 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence obliges signatory states to criminalize stalking. This article provides an inventory of criminal anti-stalking legislation in the 28 EU Member States in order to see whether they live up to this obligation. Although the number of Member States with dedicated legislation has increased significantly (n = 21) there are some questionable trends, such as the proliferation of criminal provisions which require the victim to have experienced fear or distress or an inclusion of an exhaustive list of stalking tactics. Although the states are not in evident violation of article 34 their perception of what constitutes stalking sometimes deviates from the intentions of the Convention.
KeywordsStalking Criminal law Criminalization Council of Europe Convention on preventing and combating violence against women and domestic violence EU member states
Stalking can be defined as ‘persistent harassment in which one person repeatedly imposes on another unwanted communications and/or contacts’ (Mullen et al. 2001). What characterizes stalking is the repetitive or systematic nature of the behavior, aimed at a specific person, which is unwanted by the targeted person (Mullen et al. 2001; Van der Aa 2010). The behavior can be perceived by the victim as annoying, threatening, fear-inducing or disturbing.
Although stalking is an ancient phenomenon, it was not until the 1990s before it was recognized as a criminal phenomenon in its own right. In reaction to the physical attacks of two famous actresses by their obsessed stalkers, the North-American state of California was the first jurisdiction to create a specific criminal provision to deal with the problem more efficiently (California Penal Code, Section 646.9). The other American states quickly followed suit, and within three years, all states and the District of Colombia had special criminal anti-stalking laws in place. This Californian law also inspired foreign legislators around the world to criminalize the behavior, including countries such as Australia and Canada.
In many Member States of the European Union, however, the idea of legally codifying against stalking met with resistance and, as a result, many Member States of the European Union remained without dedicated national anti-stalking laws for a long time. Over the years, there have been some studies that aimed to make an inventory of national anti-stalking legislation within the EU Member States. The first of such studies was conducted in 2007 by the Modena Group on Stalking. According to their findings, only eight Member States had introduced specific anti-stalking legislation into their national legal systems (Modena 2007). The other Member States did not feel the need to pass specific legislation, because stalking was not considered a social problem and had not given rise to public debate. A second reason to abstain from adopting dedicated legislation was the conviction that generic criminal provisions — such as assault, threat or coercion — in combination with protection order schemes would provide adequate protection against the behavior.
Another factor that may have played a role in Europe’s hesitance to criminalize the conduct is the strong criticism voiced by some influential criminal lawyers and legal philosophers who opposed the criminalization of stalking and their disagreement about the nature of the actual harm anti-stalking legislation ought to address (e.g., Ashworth et al. 2013; Guelke and Sorel 2016). The controversy on whether stalking warranted redress through criminal prosecution also influenced parliamentary debates, thereby delaying the coming into force of national legislation.2
Despite the controversy, by 2010, the number of Member States with criminal anti-stalking laws had already risen to 13 (Van der Aa and Römkens 2012; Kelly et al. 2010). It appeared that Europe was slowly but steadily warming up to the idea of stalking as a genuine crime in and of itself. A comparative study published in 2012 revealed, however, large national differences in their approach against stalking (Van der Aa and Römkens 2012). Stalking provisions varied, for instance, with respect to the inclusion of a (limitative) list of stalking tactics, requirements for prosecution, requisite mens rea on the part of the perpetrator and penalties imposed.
The accompanying explanatory report to the Convention explains that ‘the threatening behavior may consist of repeatedly following another person, engaging in unwanted communication with another person or letting another person know that he or she is being observed’.3 Other types of behavior are also mentioned in the report as examples of stalking tactics (e.g., vandalizing the property of another person, targeting a person’s pet, creating false identities or spreading untruthful information online).
Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of repeatedly engaging in threatening conduct directed at another person, causing her or him to fear for her or his safety, is criminalized.
At the time of writing of this article — 25 May 2016 — all 28 EU Member States had signed the Convention, and in 14 Member States the Convention had already been ratified and entered into force.4 Only one EU Member State, Denmark, used its right to make reservations to Article 34 and to opt for non-criminal sanctions instead of criminal sanctions to counter stalking behavior. The option to make reservations for the articles 33 (psychological violence) and 34 (stalking) was foreseen in article 78 paragraph 3 of the Convention. This means that — with the exception of Denmark — all other EU Member States are obliged to adopt criminal anti-stalking provisions, now or in the near future.
The aim of this paper is twofold: First, to make an inventory of any legislative changes that have occurred since the last study on anti-stalking legislation in the EU Member States in 2010. With the help of a comparative study, the current state of affairs on anti-stalking legislation in the 28 EU Member States is mapped (‘Trends in the criminalization of stalking in the EU member states’). Have more Member States passed on dedicated legislation during these past five years? If so, how have they defined stalking in their criminal laws, what approach have they adopted and which trends — if any — can be discerned? The second aim is to establish whether the EU Member States are living up to the obligations stemming from Article 34 of the Council of Europe Convention (‘Conformity with article 34 of the Council of Europe Convention’). At the end, an overall conclusion is drawn in which recommendations are presented that can help Member States bring their national legislation up to par with international standards (‘Conclusion’).
Trends in the criminalization of stalking in the EU member states
Before discussing the results, the methodology used to identify the legislative changes will first be described. In previous overview studies, national legal experts were invited to comment extensively on their respective legal systems. This time, however, there was no ongoing research project that allowed for such an approach. Instead, a mixed-method approach was used, combining online information with (brief) consultation of national legal experts.
As a first step, legal information readily available in open internet sources was consulted with the help of a primary search. This search involved typing in keywords such as ‘stalking’, ‘law’, ‘legislation’ or ‘harassment’ in combination with the names of the EU Member States into the Google search engine and looking for information that had appeared after 2010.5 Both English keywords and translations of the keywords in the native language were used. Because the primary search mainly served to get a basic understanding of the legal situation in a particular country and to identify trustworthy materials, it was indiscriminate regarding the reliability of the initial (‘gray’) sources. This technique revealed press releases, reports, and news items discussing new laws or initiatives, albeit that law-specific details were mostly lacking (e.g., Valente 2014; Finland Times 2015; Balzan 2014).
The second step was to take the generic information from the ‘gray’ sources as a starting point, and then search official sources — such as national Criminal Codes, websites of Ministries of Justice, government websites — in order to obtain more reliable and in-depth information. Sometimes, the official sources could be consulted directly — for instance, when the native legal terminology or the location of the relevant provision in the Criminal Code was known from previous studies — but usually the circuitous approach via newspaper articles and press releases proved invaluable, not only to locate the appropriate authoritative sources, but also to collect relevant information that had not yet been codified or posted on official websites. Eventually, the information on all countries that were classified as having anti-stalking legislation could be traced back to authoritative sources, notably national Criminal Codes or dedicated Anti-Stalking Acts.
Obviously, an online search of domestic legislation involving 28 jurisdictions has serious limitations. Despite the fact that in this day and age a lot of news is mediatized and digitalized — especially information concerning important changes to criminal law — there is always a risk that in some countries these changes have not generated much (online) media coverage. The possibility of underreporting may have resulted in some countries being wrongfully classified as not having dedicated anti-stalking laws, while in reality they have. A second problem involved language and linguistic barriers. While English, German, Dutch, and French websites were accessible, the author’s understanding of information in other native languages is more limited. Chances were that certain facts or legal technicalities had gotten ‘lost in translation’.
The third step, therefore, involved the contacting of national legal experts and asking their help in: a) confirming or negating the findings derived from the internet search, b) translating the found national anti-stalking definitions in English, and c) disclosing whether there were any developments that pointed toward the criminalization of stalking in the near future. National legal experts were only contacted in two situations: 1) in case the internet search had not yielded a (semi)official translation of the anti-stalking provisions or 2) when there was no evidence of stalking having been criminalized. In the first case, the expert input was needed to obtain a more reliable translation of the criminal provision, in the second case, the expert was needed to confirm that stalking had indeed not been codified. Based on these criteria, a total of 18 legal experts were contacted with a request for help, of which 15 replied.6 A (semi)official translation of the stalking provision was available online (see Appendix 2) for eight Member States. This approach only left the Danish, Luxembourg, and Cypriot jurisdictions unaccounted for. Of these three countries, Cyprus and Denmark did not have any dedicated anti-stalking legislation, but a recent press release published on the website of the Cypriot Ministry of Justice and Public Order reported of a new bill that is now before parliament. The national provision of Luxembourg was translated with the help of the author’s non-native knowledge of French, and should therefore be interpreted with care.
When it comes to the substantive (content) analyses, these were mostly based on a close reading of the anti-stalking provisions. However, a correct interpretation of the constituent elements usually also depends on case law, national legal practice, and parliamentary documentation. There was no possibility to take into account all those additional sources. Also, the fact that relevant information consisted of legal jargon — the interpretation and meaning of which often varies from state to state — could have had a bearing on the correctness of the interpretations as well. As a consequence, the results presented below, may not reflect the actual situation in a European Member State with 100% accuracy.7
Significant increase in member states with a criminal provision
The first finding is that during the past five years, the number of EU Member States that passed criminal anti-stalking legislation has risen significantly. At this moment, no less than 21 Member States have dedicated criminal provisions in place (see Appendix 1). Compared to the situation in 2010, when only ten Member States had criminalized the behavior, their number has increased substantially.
The seven countries that have not (yet) introduced stalking or harassment as a specific offense are: Bulgaria, Estonia, Denmark, Greece, Latvia, Lithuania, and Cyprus. Regarding the latter, the Cypriot Ministry of Justice and Public Order has stated in a press release that they are currently working on a draft bill as a result of signing the Council of Europe Convention.8 Furthermore, the Latvian legal expert, who was contacted to double-check the findings of the internet search, disclosed that Latvia will introduce direct criminal liability for stalking in the near future as well, again as a result of the Council of Europe Convention. So although multiple factors may have played a role in the current trend to criminalize stalking — e.g., a strong anti-stalking lobby, increased public and political awareness, heightened media attention, and critical reports by CEDAW — the Council of Europe Convention seems to have had a significant impact on national legislators’ willingness to take action.9
This provision was already somewhat ambiguous as to what behavior was criminalized exactly. Was it the intrusive behavior against another person that warranted a criminal justice reaction, or was it the fact that the perpetrator had acted against specific instructions from the police, and had shown contempt of police authority? Also, were the warnings by the police an absolute prerequisite (conditio sine qua non) for prosecution or was the public prosecutor in serious cases allowed to bring perpetrators to justice, regardless of whether (s)he had received previous warnings? With the coming into force of the Act on the Restraining Order in 2012 all these questions were resolved, for, as a result of the Act, article 265 was removed from the Criminal Code and incorporated in the Act on the Restraining order. This administrative Act prescribes that victims first have to procure a restraining order against their assailant from the Chief of Police, who is part of the police and the public prosecution service at the same time. It is only after the stalker has violated the restraining order that criminal prosecution can occur. This approach can, at best, be considered an indirect criminalization of stalking, because it requires one extra incident — a violation of the restraining order — before criminal investigation and prosecution can be initiated. This means that if the stalker abides by the conditions laid down in the restraining order, he cannot be held criminally liable for his previous misdeeds.
Any person who violates the peace of some other person by intruding on him, pursuing him with letters or inconveniencing him in any other similar way, despite warnings by the police, shall be liable to a fine or to imprisonment for a term not exceeding 2 years. A warning under this provision shall be valid for five years.
A second conclusion relates to the countries that had already enacted anti-stalking laws. Many of those countries have not remained inactive, but have amended their previously established laws during the past five years. In five jurisdictions the existing provisions were extended with particular elements (Belgium, Hungary, Italy) or the crime of stalking was introduced as an addition to criminal harassment (Malta, United Kingdom). Apparently, stalking is an elusive concept, challenging national legislators to capture the true essence of the crime, and sometimes forcing them to reconsider and alter laws that had only been in force for a couple of years. The elusive nature of the crime also shows in the fact that there are large differences in the manner in which the Member States have interpreted the crime. All 21 legal definitions differ from each other, and not just regarding the details. Because of their wide divergence, the remainder of the article will not focus on the constituent elements of all the different legal definitions, but highlight instead, what seem to be their most essential and overarching similarities and differences.
Negative consequences for the victims
In the 2012 article, certain trends had already been identified based on the comparison of the national anti-stalking laws in 13 EU Member States. Now that the number of countries with dedicated legislation has increased, resulting in more comparative material to analyze, some of these trends have become even more evident. One such trend is the inclusion of the negative consequences of the stalking for the victim as a constituent element of the crime, for instance, requiring the victim to have experienced fear as a consequence of the stalking.
This can be considered a questionable development, one that has generated much debate (see Owens 2016 for an overview). On the one hand there are academics who claim that ‘fear’ is an essential element of stalking. Without fear, the behavior might qualify as harassment, but not the crime of stalking. Allowing fear-neutral definitions would result in (over)criminalization of annoying behavior, thereby violating the ultimo ratio principle (criminalization as a measure of last resort).
Others, on the other hand, argue that an exclusive focus on fearful victims is unnecessarily restrictive, leaving certain groups of victims unprotected, especially in the phase where the stalking has not escalated yet and early criminal law intervention might prevent the further exacerbation of the situation and increase the likelihood of physical violence. In addition, other crimes do not require victims to have experienced subjective fear, and survey studies have indicated that the experience of fear is not seen as an indispensable feature of stalking in the perception of the general public either (for examples of such studies, see Dennison and Thomson 2005).
A consequence-specific provision excludes unusually equable or resilient victims, who do not feel threatened or frightened, from protection. Empirical research suggests that this may affect a large proportion of people who suffer from repeated stalking tactics. Of the 1430 respondents who had been identified as (potential) stalking victims on the basis of behavioral screening questions, only 36% reported having experienced subjective fear (Owens 2016). Another survey study (Tjaden et al. 2000) also indicated that the percentage of self-defined stalking victims was substantially higher than the percentage using legislative-based criteria (12.1% versus 8.1% of the female participants; 6.2% versus 2.2% of the male participants). Over 60% of the self-defined victims did not meet the legal threshold, because they did not meet the legal fear requirement. Owen’s (2016) results furthermore suggested gender differences, with women being much more fearful than men, making fear a gendered construct (see also Sheridan and Lyndon 2012; Wigman 2009; Langhinrichsen-Rohling 2012). The same gender-divide can be seen when it comes to cyberstalking (Pereira and Matos 2015).
Another problem is that once the negative consequences are included in the criminal provision, they need to be established in court and substantiated by evidence. This means, for instance, that in Germany, a prosecutor needs to prove that the behavior has ‘seriously infringed on the lifestyle of the victim’, while in Poland the stalking should have raised in the victim ‘reasonable fear’ or it should have ‘significantly violated his peace’. In Italy, the stalking must have caused the victim to experience certain levels of anxiety or fear — assessed through forensic examination or externally discernable acts — it must have resulted in reasonable fear for the victim’s safety or the safety of his or her relatives and loved-ones, or the stalking must have resulted in lifestyle changes (De Fazio 2011).
In contrast, there are also countries that do not require the victim to have experienced fear, distress or any other negative consequence as a result of the stalking. Such a consequence-neutral provision is to be preferred, at least from a victim’s perspective, for it substantially alleviates the evidentiary burden: The public prosecutor does not have to prove what exact impact the stalking had on the victim. Especially when evidence of mental impact is required, this can be quite a challenge.
It is for these reasons, that in the United States, more and more states have objectified this element by introducing the reasonable person standard (National Center for Victims of Crime 2007, p. 48). It is no longer relevant whether the victim has actually suffered a certain level of fear — this does not have to be established in court — but whether a reasonable person would have suffered emotional stress because of the repetitive conduct.10
Now at the time of the 2010 comparison, there was almost an equilibrium in Member States that had included or excluded the impact on the victim as a constituent element. Five Member States had a consequence-specific provision,11 while seven Member States were consequence-neutral. From the perspective of stalking victims, it is disconcerting to see that at least four Member States with new anti-stalking laws have now adopted a consequence-specific approach nonetheless (Croatia, Spain, Romania and Slovenia). Possibly, this preference for a consequence-specific provision is related to the fact that article 34 of the Council of Europe Convention also requires the victim to have experienced negative consequences as a result of the stalking (‘causing her or him to fear for her or his safety’).
A limitative list of stalking tactics
The EU Member States also diverge in their choice to include or exclude a list of possible stalking tactics in their criminal definition. While the inclusion of a list of behaviors can be useful in providing civilians and criminal justice authorities some guidance in their interpretation of the otherwise vague concept of stalking — thereby diminishing problems with the lex certa principle — this list should not be limited. Stalkers are creative and able to devise manners to circumvent a criminal offense that has incorporated a limitative list of stalking tactics. An exhaustive account of stalking behaviors furthermore limits the possibility to react to new technological developments that facilitate new forms of stalking (e.g., GPS tracking devices). Given the above limitations, it does not come as a surprise that a large majority of Member States have opted for a criminal definition without listing possible stalking tactics, or for a non-exhaustive list that merely serves as an example. Back in 2010, there were only two Member States that provided a limited list: Austria and the Czech Republic. In the meantime, their numbers have increased and now include Romania, Spain, Sweden, Slovenia, and Malta as well.12 In these countries, the lex certa argument and the desire to create unequivocal laws has prevailed over the need for flexibility.
Aggravated sentencing in the case of ‘qualified’ victims
Another trend is to make stalking against certain groups of ‘qualified’ victims subject to aggravated penalties. Possibly, this has to do with increased attention to violence against ‘vulnerable victims’ in general. The 2012 EU Victim Directive, for instance, stipulates that EU Member States have to develop extra protection measures for vulnerable victims.
Back in 2010, only Italy and Hungary had included a reference to qualified victims in their criminal anti-stalking provisions. In Italy, the maximum penalty increased if the victim was an ex-partner, a minor, a pregnant woman, or a person with disabilities. In Hungary, stalking a former spouse or registered partner or a person under his care, custody, supervision or treatment worked as an aggravating factor. While the Italian stipulation on qualified victims remains unchanged, the Hungarians implemented a new Criminal Code in 2013 that contained an altered anti-stalking provision. The group of qualified victims was expanded and now includes current spouses and current and former domestic partners as well. The Hungarian law, furthermore, stipulates that stalking involving abuse of a recognized position of trust, authority or influence over the victim also warrants aggravated sentencing.
Meanwhile, the practice to single out particular victims and imposing increased (maximum) penalties on whoever targets them is spreading quickly across Europe. Not only Member States that were in the process of drafting new legislation have adopted ‘vulnerability’ clauses, but also States with long-standing anti-stalking provisions have made changes to their laws. At this moment, a total of nine countries have included the quality of the victim as an aggravating factor in their anti-stalking provisions: Belgium, Croatia, the Czech Republic, France, Hungary, Malta, Slovakia, Slovenia, and Spain. Probably, there are even more Member States that prescribe higher sentences for qualified victims, but these prescriptions are not included in the stalking-provision itself (but could, for instance, be articulated in a general clause instead).
There does, however, seem to be a divide as to the exact victim characteristics that warrant the extra penalty. While in some countries the victims’ physical and mental features and abilities are key — e.g., if the victim is a child, pregnant woman, or person suffering from physical or mental disabilities — other countries have introduced higher maximum penalties for perpetrators targeting victims with whom they share(d) a particular relationship. In these countries, stalking a(n) (ex) spouse or other (former) romantic partner, family members, or persons under their care or authority leads to elevated sentences.
Sometimes targeting a vulnerable victim not only influences the sentence, but it also changes the manner in which the crime has to be reported to the police. In Belgium, Spain and Italy, where stalking is usually only prosecuted upon the complaint of the victim, some vulnerable victims are exempted from this requirement. In their case, criminal prosecution can be initiated by the public prosecution service ex officio.
From harassment to stalking
A final development — one that is mostly confined to the common law countries — is to introduce a specific stalking offense in addition to the harassment provisions that had already been in place. For the purpose of this study, stalking and harassment are equated, with both crimes being classified as a criminal law solution to stalking, but in reality, there are differences between stalking and harassment. While both offenses usually require a course of conduct, harassment is often used as a more general, umbrella concept, one that includes stalking behavior, but that is not synonymous with stalking (e.g., Dennison and Thomson 2005). Furthermore, stalking has a more serious connotation than harassment, which can include milder forms of pestering as well (e.g., Owens 2016).
Ireland, Malta, England, and Wales are jurisdictions that initially tried to combat the new phenomenon of stalking with anti-harassment provisions. Although the harassment articles were always meant to cover all forms of harassment, including stalking, in practice victims of stalking were dissatisfied and felt that they were not taken seriously by the criminal justice system.13 In England and Wales (2012), and Malta (2015), the national legislators succumbed to public concerns and eventually introduced a specific stalking provision in addition to the anti-harassment laws. Under the offense of harassment, stalkers can only be prosecuted under a summary offense when the behavior falls short of causing fear of violence. This was considered an important lacuna in the English law. Thanks to the new offenses it is possible to prosecute a suspect for stalking and to impose more serious penalties, even when the course of conduct fails to inspire fear of violence in the victim, but only causes serious alarm or distress. In addition, it provides victims with more protection.
In Ireland, on the other hand, the Law Reform Commission recently concluded that existing harassment laws were adequate enough to deal with stalking. Still the debate has not been silenced by this decision, and lobbyists continue to campaign for a specific stalking offense.14 Whether the development of complementing harassment laws with dedicated anti-stalking provisions will spread to civil law jurisdictions that have placed the combat against stalking in the harassment key as well (e.g., France, Luxembourg, Hungary) remains to be seen.
Conformity with article 34 of the Council of Europe Convention
The Council of Europe Convention seems to have been an important catalyst in the progressive codification of stalking as a crime within the EU Member States. Since its coming into force in 2013, the number of countries with dedicated legislation has increased substantially and some (online) sources report of the direct link between the criminalization of stalking and the obligation stipulated in article 34 of the Convention (e.g., Pereira et al. 2017). The expectation is, therefore, that the other Member States — with the exception of Denmark — will soon follow suit (at least upon ratification).
Despite the fact that all ratifying countries have implemented anti-stalking laws, this does not mean that they are all 100% compliant with the Convention or its rationale. Some Member States have such a narrow definition of stalking that not all examples of stalking behavior mentioned in the explanatory report to the Convention are covered. The Romanian definition, for instance, only criminalizes stalking that consists of the repeated pursuit of an individual, the surveillance of this person’s home, working place or other places, and unwanted (tele)communication with this person. Other stalking tactics mentioned in the Convention’s explanatory report, such as vandalizing property or spreading untruthful information online, fall outside the scope of the Romanian definition. Similar difficulties may arise with other ‘limitative’ legal definitions, such as the Spanish, Austrian, Slovenian, and Czech definitions.
Another Member State that deserves closer attention is Sweden. A distinctive characteristic of the Swedish anti-stalking provision is that it appears to contain a limitative list of stalking tactics that consists solely of other crimes, such as assault, threat, unlawful entry, and vandalism. In other words, in Sweden, the constellation of behaviors that amount to stalking is exclusively made up of behaviors that had already been criminalized. If this interpretation is correct, it means that the criminal courts are not allowed to take ‘mild’ (in the sense of non-criminal) stalking tactics, such as making repetitive phone calls, sending unwanted gifts or posting in front of someone’s home, into account. Although these seemingly innocuous behaviors have not been criminalized separately, research has demonstrated that stalkers make avail of them very often, and their repetitive nature and the specific circumstances in which they are applied makes them much more menacing than they would have been outside the stalking context. As a result, the Swedish provision may not reflect the full breadth and seriousness of the stalking experience that the victim has suffered.
Nevertheless, concluding that these Member States are in evident violation of article 34 of the Convention would be an overstatement. The signatory states have a margin of appreciation when it comes to their exact interpretation of the ‘intentional conduct of repeatedly engaging in threatening conduct directed at another person’ as stipulated in article 34. But judging by the examples provided in the Convention’s explanatory report, some Member States’ perception of what constitutes stalking does seem to deviate from the perception held by the initiators of the Convention.
All in all, it is safe to conclude that the European Member States have made significant progress and taken some long overdue steps in addressing the crime of stalking. Through this comparative analysis trends and best practices were identified. Some of these trends form a continuation of developments that had already been identified in the 2010 study. However, there are also entirely new developments — or developments that hitherto had been latently present, involving only one or two jurisdictions — that have only recently materialized in clearly distinguishable trends.
Keeping the methodological limitations of the study in mind, the analysis first demonstrated that since the coming into force of the Council of Europe Convention, there has been a sudden proliferation of Member States with dedicated anti-stalking laws. Within a timespan of only six years, their number has increased from 10 to 21, and anecdotal evidence suggests that at least two more Member States are in the process of adopting anti-stalking legislation as well. The exact extent to which the Convention contributed to this proliferation is unclear, but there seems to be a causal connection between the coming into force of the Convention and the rapid increase in countries with dedicated legislation, a finding substantiated by several news items that explicitly link the two phenomena. It shows that the Convention was an important impetus to the criminalization of stalking on the European continent. In this respect, the Convention has been a success, and it will continue to be an important factor in the years to come, when the other Member States ratify the Convention.
When it comes to the question of the countries’ full compliance with article 34, the first conclusion is that all countries that ratified the Convention have also criminalized stalking. From that point of view, there is no apparent violation of article 34. Whether all of them adopted legal definitions that cover stalking to the full extent that the initiators of the Convention had in mind is debatable. The scope of certain anti-stalking laws with a limitative list of stalking tactics may be too narrow. However, the Convention’s demarcation of stalking is not without controversy itself. The wordings of article 34 of the Convention can be considered somewhat ill chosen, especially regarding their emphasis on the consequences of the stalking for the victim. The requirement that the stalking should have caused the victim to fear for his or her safety perpetuates stereotypical ‘classical stalking scripts’ (Cuevas and Rennison 2016) and is a particularly high threshold that leaves many victims unduly unprotected.
In addition to the arguments discussed in paragraph 2.1.2, there is an even more important argument for leaving the impact on the victim out of the equation. Arguably, it is not necessarily the causing of fear for physical safety that should be considered the core wrong of stalking, but the intrusive invasion of psychological space or mental privacy that warrants a criminal justice reaction (Guelke and Sorel 2016). In fact, there are multiple examples of stalking cases where no violence is threatened or feared, but where the victim’s mind is nevertheless constantly occupied — and thereby debilitated — by the perpetual presence and invasive calls for attention of the stalker. Often the emotions experienced by the victims ‘only’ amount to feelings of alarm, anger or serious distress, rather than actual fear of physical harm, but when these emotions are experienced during a protracted period of time, pervading the victim’s everyday life, they too can have an enormous negative impact on the victim’s well-being. It is for this reason that it is troubling to see that many of the Member States with new legislation have opted for a consequence-specific definition of stalking, although their threshold is — thankfully — often lower than the one expressed in the Convention.
The trend to impose aggravated penalties in the case of vulnerable victims is also an interesting development. In the case of stalking, being labeled ‘vulnerable’ can have important implications. It can determine what penalty the offender will receive, but it can also impact victims’ access to support services. Given these implications, the delineation between ‘vulnerable’ and ‘normal’ victims should not be taken lightly. From the legal definitions, however, it showed that there are large national discrepancies between the groups that are considered vulnerable, with some definitions focusing on the victims’ mental and physical incapacities, and others on the (prior) stalker-victim relationship. Without a proper consideration of and justification for these choices, there is a risk that certain groups are unjustly overlooked or even discriminated against. Although an in-depth discussion of the concept of vulnerability and its relevance in the context of stalking falls outside the scope of this article, it does deserve further study.
As for the final two trends — an increased number of countries with exhaustive definitions and stalking laws in addition to harassment provisions — these have all been sufficiently discussed in the previous sections and will not be elaborated upon here. The unpredictable expressions of stalking, and the infamous ability of stalkers to find new ways to target their victims, demand that some flexibility is built into the criminal definition. From a victim’s perspective, an exhaustive list of stalking tactics is therefore advised against. Adopting a non-exhaustive, illustrative list of tactics could be a way to reconcile lex certa with flexibility. The opposite is true for the trend to adopt special stalking laws in addition to harassment provisions. It is interesting to find that most common law jurisdictions that initially tried to combat stalking under the general flag of harassment have revised this choice and opted for specific legislation after all. Hopefully, this trend will soon inspire other harassment-oriented jurisdictions, because stalking and harassment, although related, are in the end different phenomena and warrant separate criminalization.
A final recommendation concerns the dearth of comparative and academic materials in the field of anti-stalking laws. Due to the lack of such sources, this study had to rely on a literal reading of national anti-stalking provisions. Additional sources, such as parliamentary documentation and case law could not be accessed. In combination with the linguistic limitations, this may have led to invalid conclusions. Because of these limitations, the current study is only explorative in nature and further research is highly recommended.
A German version of this text will appear as a contribution in the following handbook: W. Ortiz-Müller (ed.), Praxis-Handbuch Stalking. Stuttgart: Kohlhammer (March 2017).
See explanatory report to the Council of Europe Convention on preventing and combating violence against women and domestic violence (CM (2011) 49 final) at: www.coe.int/conventionviolence.
These Member States were Austria, Belgium, Denmark, Finland, France, Italy, Malta, the Netherlands, Poland, Romania, Slovenia, Spain, Sweden, and Portugal. In addition, the European Union itself will soon approve the text of the Council of Europe Convention adding even more (see the Proposal of 4 March 2016 for a Council Decision on the conclusion, by the European Union of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Brussels COM(2016) 109 final).
For the purpose of this study, anti-harassment laws were also considered anti-stalking measures, as long as their scope exceeded the work floor. Although harassment does not fully equate with stalking, some Member States place anti-harassment legislation in the stalking key. As long as the repetitive or systematic harassment of another person in general is criminalized, it will be considered as a form of anti-stalking legislation, regardless of the precise label that was used (more on the difference between stalking and harassment in paragraph 2.1.5).
The author would like to thank Sara Thunberg (SE), Jens Henrichs (DE), Lachezar Yanev (BG), Reana Bezic (HR), Vadim Poleshchuk (EE), Laetitia Ruiz (FR), Efstratios Papanis (EL), Chiara Raucea (IT), Iveta Brinuma (LV), Rita Zukauskiene (LT), Slawomir Buczma (PL), Ana Ferreira (PT), Martin Buzinger (SK), Pomoc Obetiam Násilia (victim support Slovakia), Nina Persak (SL), and Ana Isabel Cerezo Domingues (ES) for their help in translating the national provisions. The Dutch and Belgian provisions were translated by the author herself.
All suggestions to make the interpretation more accurate are highly appreciated and can be sent to firstname.lastname@example.org.
See the press release on the website of the Cypriot Ministry of Justice and Public Order of 5 January 2017 in which they report that the bill has now proceeded to the House of Representatives for approval (http://www.mjpo.gov.cy/mjpo/mjpo.nsf/All/54B7BD4A259EF153C22580A5003FFA9E?OpenDocument&highlight=stalking, last accessed 27 March 2017).
In fact, Portuguese news bulletins also mention the statutory obligation under the Convention as an important contributing factor (Valente 2014). For Cyprus, the Convention was a source of inspiration as well (see http://www.mjpo.gov.cy/mjpo/mjpo.nsf/All/54B7BD4A259EF153C22580A5003FFA9E?OpenDocument&highlight=stalking).
An evaluation of the Czech anti-stalking law nevertheless revealed difficulties in legal practice with the requirement of the behavior being ‘capable of raising fear for his/her life or health or the life or health of persons close to him’ [italics – SvdA]. Even though the Czech legislator has objectified the fear requirement, the evaluation still reported problems in cases where the victims had not experienced subjective fear as well (Horakova 2012).
These Member States included Malta, the UK and Hungary, albeit that their situation was somewhat more nuanced. These countries had created two primary offenses, both involving a course of conduct, but while the first offense did not have negative consequences included in its definition, the other (qualified) offense did require proof of the negative impact on the victim’s life.
In the case of Malta, only the new stalking provision contains a limitative enumeration of eligible behaviors. The harassment provision leaves room for other, non-exhaustive behaviors.
For more background information, see the official website of the UK government on stalking and harassment: http://www.cps.gov.uk/legal (last accessed 31 May 2016).
See, for instance, the news item of 26 November 2015, in which the director of Women’s Aid, Margaret Martin, calls for the creation of a specific stalking offense: http://www.scottishlegal.com/2015/11/26/scots-anti-stalking-legislation-hailed-as-model-for-ireland/ (last accessed 31 May 2016).
Article 1(1) of the Protection from Harassment Act 1997 contains the prohibition of harassment. Harassment is defined as ‘a course of conduct (a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other’.
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