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Re-enacted stalking scene (symbolic image)
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Terms
25 years ago, before the offense of "stalking" was introduced in Section 238 of the Criminal Code, the term "stalking" was known but not popular.
Until the end of the 1990s, the phenomenon of "stalking" was more of a problem for film and pop stars, racing drivers and other celebrities than an annoying, but difficult to avoid, harassment of people in public by so-called fans.
The persecution of the American actress Jodie Foster became known by a so-called fan, who pursued her for years out of alleged love and finally committed an assassination attempt on the then American President Reagan in 1981 in order to impress her.
Foster's life was massively affected by the perpetrator's stalking.
The film »Stalker« (by Andrei Tarkowski, USSR 1979), on the other hand, has nothing to do with reenacting.
The term adopted from the American is as popular today as that of "bullying" and is used just as indifferently.
Just as many people talk about "bullying" as soon as a socially uncomfortable situation arises in which their position appears to be endangered, rightly or wrongly, many people talk about being "stalked", that is, they are being given a form and an extent simulated that is no longer socially acceptable, perhaps already forbidden or even punishable.
Thomas Fischer, arrow to the right
Born in 1953, is a legal scholar and was chairman of the 2nd criminal division of the Federal Court of Justice.
He is the author of an annually revised standard short commentary on the criminal code and numerous other specialist books.
Such representations corresponding to the tendency towards dramatization and excitement have different roots and effects.
The unusual popularity of the "stalking" behavior and the high level of attention it receives from general observation is due on the one hand to the fact that "re-enactment" behavior is rooted in a great many people and is obvious in its main features and therefore appears familiar .
On the other hand, it has something to do with changing social boundaries and the perception of border violations.
The term "stalking", which the law uses in Section 238 of the Criminal Code, comes from the hunter's language: poaching (Section 292 of the Criminal Code) is when one "pursues the savage" without authorization.
This already reveals essential features of the behavior in question: It can be open or secret, designed for confrontation or unilateral access.
It is aimed at tracking down and chasing, harassing and, if necessary, "killing" or destroying.
The term »chasing« is used because the behavior does not just refer to a certain success (in the case of poaching, the killing of game), but includes the whole process of »hunting«: when the hunter enters the forest with the intention of hunting, it begins Readjusting;
it is complete even if the hunter never sees the game.
Applied to "stalking": Not all of these actions are aimed at causing harm or even violence to the person concerned.
In the line of sight of the perpetrator, it is often perceived or issued as the exact opposite: Alleged "love", admiration, personal interest, protection and other things can appear as (alleged) motives.
The reason or the original cause can be very different;
it also only superficially depends on who set an initial condition.
Especially with stalking perpetrators out of alleged love, it is very often part of the self-exonerating story that the victim originally took an initiative and "encouraged" them.
One has to know that this is a
typical
self- and deceitful narrative of such perpetrators;
Therefore, it is generally a mistake to first and intensively search for such alleged "encouragement" in the case of reporting crime victims and thus to reverse the accusation.
If you talk to victims of reenactments who have turned to the police, you learn that such "dodging" reversals occur quite often, especially during initial contact.
reasons
The range of perpetrator motives is basically unlimited, but has typical emphases: »love«, hatred, revenge, control, suspicion, intimidation.
The occasions are interchangeable, stereotypical and ultimately banal: being abandoned, being rejected, being preferred.
Every reader may rummage briefly in their memories and past: How was it when you were abandoned or disappointed for the first, second or "worst" time?
Have you ever sought the other person's closeness after a breakup?
Did you sneak around her apartment, "accidentally" drive past it?
have you gone to places where you could "happen to" meet them?
Did you determine who the new partner was?
Or on an even higher level: Have you ever researched someone else's secrets?
Foreign post open?
Tried sustainably to harm someone indirectly and secretly?
If you answer "no" to all of these questions, you are likely to be beatified.
Everyone else will remember individual embarrassments more or less guiltily and be happy that the grass of oblivion has grown over them on all sides.
Jealousy in particular is a very powerful devil.
This is, so much for your comfort, quite inevitable and normal.
Therefore, one does not have to speak of unbearable, traumatizing stalking if the "ex" partner calls five times within two months and allegedly wants to clarify important organizational issues.
On the other hand, serious readjustment is by no means "normal";
In addition, it is part of the concept that such perpetrators suggest to the victim (and often to themselves) that it is a question of socially adequate, appropriate, at least rationally understandable and justified behavior.
That is why occasions are constructed, pretexts sought or conflicts staged from which allegedly justifications can be derived.
At the end and at the bottom there is always a motive: It's about power and powerlessness, fear and aggression.
Stalking perpetrators perceive themselves as powerful in their behavior because they cross the boundaries of the person concerned at will and can influence their lives by providing information, frightening them or causing harm.
This feeling of power can be linked to the subjective idea of being a "victim" yourself: not recognized, not loved or treated unfairly.
This is often caused by massive fear, self-insecurity, and not very rarely personality disorders that require treatment.
However, it would certainly be wrong to see stalking as an "illness" per se.
In individual cases it may be a symptom of a mental illness;
Nevertheless, the image of a stalker who sneaks through the night with a crazy look, conveyed primarily through feature films, is extremely seldom correct.
to form
"Re-adjusting" is a description of the action;
but it is not made concrete.
Anyone who wants to "stalk" has to do something concrete in order to fulfill the concept of action, formulated legally: in order to realize the offense (of § 238 StGB).
The law formulates four variants:
Seeking spatial proximity
Establishing contact via telecommunications or other means or via third parties
Misuse of personal data for orders or causing third parties to contact you
Threats to the very personal legal interests of the data subject, their relatives or persons close to them.
These variants include almost all conceivable actions by which one can harass and harass other people.
For individual cases that have not been recorded, the legislature has added a fifth variant: "Other comparable acts".
Anyone who has ever dealt with the constitutional guarantee of the certainty of criminal offenses will winced: To make "similar acts" of anything under threat of punishment is highly problematic;
this part of the provision is therefore viewed as problematic in jurisprudence.
There are also no known court decisions on this.
In practice, this is not a bad thing, because the »similarity« variant is actually not required to record behavior that is worthy of punishment.
If you read through the variants, you will see that they all describe actions that, of course, cannot always be punishable.
Some of them also describe behavior that is common socially.
Therefore, the criminal offense also requires the special context and effect of the "chasing": on the one hand, the act must be carried out "persistently".
This is especially true with frequent repetition.
If there is a warning, it does not require a large number of repetitions;
it is sufficient if a certain "unteachability" becomes visible.
"Persistence" does not exist in itself if someone tries again after the hint: "Don't call me anymore".
One-time actions are never enough.
Perseverance need not always refer to the same action;
a mixture of the variants is sufficient.
The last characteristic, which is important in practice, is that of »aptitude to seriously impair the way in which the person concerned lives«.
When the offense was introduced in 2004, the criterion was "... and the way of life ... seriously impaired", so this crime must have really been successful.
On the other hand, the objection was raised that it disadvantages those victims who do not allow themselves to be impaired by the perpetrator but who resist him;
that is unjust.
One can argue about it, because if a certain success occurs, it is just not the same as if it does not occur, and countless other facts are also not held against that they can only be realized because the victim is in a certain position of weakness .
On the other hand, it goes without saying that the perpetrator's ability to resist is not due, and in practice it was the case that the serious impairment was usually determined on the basis of very formal criteria, e.g. the change of apartment.
However, this puts potential victims under additional pressure to only be able to criminally counter the harassment if they accept serious disadvantages.
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Thomas Fischer
About punishment: law and security in a democratic society
Published by Droemer HC
Number of pages: 384
Published by Droemer HC
Number of pages: 384
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That is why the facts were changed in 2017: "Eligibility" is now sufficient for impairment.
It depends on an objectified view from the point of view of the (concrete) victim;
which leads to borderline areas: incomprehensible oversensitivity of a person does not lead to criminal liability;
on the other hand, it doesn't matter how a particularly robust personality would perceive the stalking acts.
The case law here is much more victim-oriented today than it was a few decades ago.
In general, it can be said that people who are the target of stalking cannot be expected to change their apartment, severely restrict social contacts, give up leisure activities (sport, clubs), change jobs or even give up.
Repeatedly entering the property, observing or following in public are also usually suitable for impairing the way of life.
This also applies to repeated harassment by mail or telecommunications.
Defense
"Stalking" is, even if this is claimed, not a giving, but crossing borders for demonstrative purposes in order to gain or retain power.
Victims of crime must ask themselves at an early stage whether and to what extent the evasion and avoidance strategies that they regularly pursue are compatible with their personal limits and correspond to their wishes.
Ambivalence is quite common here;
you have to take into account that it is exactly what the perpetrators are looking for, feeling and (wanting to) exploit.
In stalking - as in all crimes that have to do with aggression and power on the one hand, and insecurity and powerlessness on the other - there are “typical” perpetrator-victim constellations, so to speak.
Establishing this does not mean that the victims are held "responsible" in a reproachful sense.
It only indicates that often (not always!) "Two are part of it", as an ambivalent, defensive, self-insecure attitude almost regularly does not reassure the perpetrators, but rather reinforces their actions: it is a step towards what they are striving for Success.
Therefore, it is generally not advisable and makes sense to accept contacts on the level and according to the rules that are specified by the perpetrator: No "debates" (especially no so-called "last debates") in pairs or in places which are given by the perpetrator.
Unfortunately, it has to be said that experience has shown that new problems, dramatic events and acts of violence often follow from so-called “final debates”.
Of the countless homicides and particularly serious bodily harm that I have tried in my professional life, a large number occurred in the context of such situations.
Even asking your proverbial "best friend" to meet you in the former apartment is of little help in case of doubt.
Stalking offenders gain all the more power the more unrecognized they remain and / or the more limited the visible range of their pursuit is.
You have to (unfortunately) "expect everything" with the perpetrators in question: Of course, it depends on the individual case and the individual personality, but certain structures, behaviors and explanatory patterns are repeated quite stereotypically: a mixture of self-pity , Pleading for help or reassurance;
reproachful whining, threatening and "I can do it differently".
Stalking perpetrators are often repeat offenders in the sense that the structures of stalking behavior are recurring in different situations, for example in previous partner relationships or social conflicts.
Stalking offenders gain all the more power the more unrecognized they remain and / or the more limited the visible range of their pursuit is.
It is precisely this close relationship between fear and inevitability that is the fodder from which they draw energy.
Therefore, in many cases, the situation can be cleared up and ended abruptly when the bell of secrecy is broken and the perpetrator is confronted with the "public".
For this reason, so-called dangerous approaches by the police are effective, and in many cases it makes sense to involve a lawyer.
This person can easily make it clear to the person who is pursuing what rules to comply with and what consequences can be expected in the event of further violations.
On the one hand, there are orders under the Protection against Violence Act: Proximity prohibitions of any kind, which in turn are punishable by punishment.
There are still claims for damages that result from damaging impairments.
After all, it is criminal proceedings under Section 238 of the Criminal Code that lead to painful penalties, especially in the case of recurrence, to imprisonment without parole.
The usual assertions by perpetrators that they - in their dire suffering - »don't care anything« are fortunately generally just as incorrect as the dramatic announcements of self-damaging acts.
When in doubt, the abandoned, betrayed or otherwise disappointed decide not to go to jail for three years, to lose their job or to make themselves absolutely impossible socially.
In this way, legal advice is often very helpful.
Those who are permanently caught in emotional loops may also need psychotherapeutic help, provided that they are open to it at all and do not remain in egocentric self-reflection.
Such help can in no way come from the victim;
corresponding appeals are just new pirouettes.
In rare cases there are serious acts of violence in connection with stalking, as is currently the subject of a jury trial and is the focus of public reporting.
In retrospect, the question always arises as to whether such an act could have "foreseen" and prevented.
The question is banal insofar as afterwards almost everything could almost always have turned out differently.
This does not mean that serious acts of violence and dangerous situations that could lead to them should be taken fatalistically or indifferently.
But you have to know that they cannot be safely prevented.
There are personalities, developments, constellations that turn out to be uncontrollable.
It is all the more important to reduce the number of dangerous situations and to counter or avoid hazards in good time.
In a time and life situation in which the observance and adherence to the individual limits of self-determination, privacy and intimacy have gained outstanding importance, on the other hand the public presentation of privacy in »social media« and the leisure industry is omnipresent and almost as evidence of social existence, it is often difficult to reliably define, perceive and adhere to the boundaries of personalities and privacy.
This applies not only to "stalking" perpetrators, but in general and therefore also to potential victims;
it is not uncommon for these roles to mix.
Dramatization is inappropriate here too: Society is not a darkness of stalking, border violation and persecution.
But it is also not a toy world in which everyone should constantly invite each other into their lives so that they can participate in the social.
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