Commentary on Judgment No. 21641 of 2023: Stalking and Affective Relationship

Judgment No. 21641 of March 2, 2023, issued by the Court of Cassation, addresses a highly relevant issue in criminal law: the definition of "affective relationship" for the purpose of establishing the aggravating circumstance under Article 612-bis, paragraph two, of the Italian Penal Code. This decision is part of a complex legal context where the distinction between stalking and lawful conduct requires careful analysis of the bond between the parties involved.

The Regulatory Context

The relevant provision, Article 612-bis of the Penal Code, governs stalking, i.e., conduct that causes distress and fear to the victim. Specifically, the aggravating circumstance under paragraph two applies when an "affective relationship" exists between the perpetrator and the victim. The Court has clarified that such a relationship does not necessarily have to be understood as a stable cohabitation, but it implies a bond of trust that generates expectations of protection in the victim.

The Ruling's Headnote

Stalking - Aggravating circumstance under Article 612-bis, paragraph two, of the Penal Code - "Affective relationship" - Notion. In matters of stalking, for the purpose of establishing the aggravating circumstance under Article 612-bis, paragraph two, of the Penal Code, the "affective relationship" between the perpetrator and the victim, even if not necessarily understood solely as "stable cohabitation," postulates at least the existence, to be verified in concreto, of a bond characterized by a relationship of trust, such as to generate in the victim expectations of care and protection, with the abuse or exploitation of such a bond constituting the foundation of the "ratio" for the aggravation of the provision in question.

This headnote highlights how the bond of trust between the parties is crucial for establishing the aggravating circumstance. It must be verified on a case-by-case basis, examining the specifics of the relationship between the perpetrator and the victim.

Practical Implications of the Judgment

• Clarity on Affective Relationship: The judgment clarifies that an affective relationship does not necessarily have to be romantic or cohabiting, but requires a bond of trust.
• Protection Tools: This definition broadens the scope for recognizing conduct as stalking even in non-traditional contexts where expectations of protection exist.
• Relevant Case Law: The judgment aligns with an established line of case law, as demonstrated by previous headnotes from 2018, which had already begun to explore this issue.

Conclusions

Judgment No. 21641 of 2023 marks an important step in the interpretation of the stalking provision, providing clear guidance on the notion of "affective relationship." This regulatory clarity not only helps delineate the boundaries between acceptable conduct and criminal offenses but also offers greater protective tools for victims of stalking and persecutory acts. It is essential for legal professionals to consider these guidelines in their practice, thereby contributing to greater safety and protection for individuals involved in such situations.