Stalking, 'crush' does not justify persistent courtship

The too-pressing and unwelcome courtship of the object of desire is stalking. The Cassal Court thus upheld the precautionary measures against the plaintiff with the charge of stalking, for having directed his attentions with insistence to the director of the prison in which he was confined. Unsuccessfully, the defence played the'lashing out' card on the grounds that the man had acted, not to influence the life of the prison director, but because he was rationally unable to restrain himself. But the judges in the contested order had not grasped the difference between stalking and stalking.

The Supreme Court took a different view, rejecting the appeal against detention, emphasising that the aim of introducing the offence of stalking (Article 612-bis of the Criminal Code) was to fill a protection gap considered unacceptable with respect to conduct that, even if not violent, upsets the victim. The introduction of the offence is an anticipated protection to punish behaviour that, even if it seems mild at first, often degenerates into beatings, private violence, personal injury or sexual violence, when it is not the basis of feminicides.

"Through the case in question it was intended to anticipate the protection of personal freedom and of physical and mental safety, through the incrimination of conduct that previously seemed substantially inoffensive - reads the judgment - and, therefore, not subsumed in any criminally relevant case or possibly integrating minor cases, such as the threat or harassment of persons. This is why the crime of persecutory acts is also conceivable in the case in which the simple courtship translates into approaches and advances, even if not threatening, that, however, due to their frequency and duration over time, induce the recipient of the unwelcome 'attentions' to change lifestyle habits and produce a state of anxiety or fear. The legitimacy judges recall the Supreme Court's ruling 32813/2022 concerning the conviction of a defendant who had limited himself to sending "messages containing love phrases, e-mails containing drawings or phrases of songs" and to making "unwelcome calls".

In the case examined by the Court of Cassation, the judges of the re-examination 'congruously and logically showed that the conduct of the defendant,' wrote the Supreme Court, 'at a time close to his release from prison, engendered in the offended person a severe state of anxiety and fear, all the more so since the same conduct was repeated despite the repeated attempts made by the prison staff to make him desist from his intentions'.

In complaining about the failure to distinguish between stalking and courtship, the Court stated, the defence did not consider "the contextual circumstances in which the conduct took place - having regard to the place and time of the conduct and to the position assumed by the offended person by reason of her position and professional status, as director of the prison in which the applicant was detained for serving his sentence". A 'detail' that had not prevented the applicant from sending the director a letter with one of his hairs. This was in spite of the explicit expression of dislike and rejection by the addressee.