“You belong to me”

Anna* and Gian* meet during a group project during their studies. They like each other, and start dating. But after a short time, Anna notices that Gian is possessive and jealous. Anna decides to split up with Gian. He, however, can’t accept her decision and keeps sending aggressive e-mails and text messages every day: “You belong to me.” Anna agrees to meet Gian one more time and makes it clear to him that she feels harassed and doesn’t want any more contact with him.

But a few days later Gian appears in the nightclub where Anna is out with friends. When she goes to a lecture, he is also there and sits right behind her. She moves house, but he suddenly appears outside her door one morning. Anna can’t understand how Gian knows where she is and what her plans are. Then by chance she discovers that Gian has managed to install spyware on her smartphone without her noticing. He is able to read her messages and track her whereabouts. When Anna finds out that Gian has hacked her mobile, she is both angry and distressed. But still she hesitates... should she report Gian to the police?

Her friends and parents urge her to do so. In Zurich, police can issue a contact prohibition and exclusion order, provided the stalker is an ex-partner. Gian is thus issued with a police order prohibiting all contact with Anna. However, the measures available under police legislation are relatively short-term. Gian simply waits until the prohibition order has expired, and starts stalking Anna again.

Not a rare phenomenon

Stalking cases like these are common occurrences. Estimates from other countries suggest that one in six women and one in 20 men have been victims of stalking at least once. The legal provisions relating to stalking are currently being researched at UZH. Aurelia Gurt, former teaching and research assistant at the UZH Institute of Law, has been focusing on the topic of stalking since completing her Master’s thesis. In March, she and Christian Schwarzenegger, UZH professor of criminal law, criminal procedure law and criminology, drew up an expert report on the legal measures available in Switzerland against stalking. The expert report was commissioned by the Federal Office for Gender Equality (EBG).

Position of the National Council Legal Affairs Committee

It has long been discussed at political level whether stalking should be classed as a separate criminal offense. Unlike in Germany and other European countries, stalking is not a criminal offense in its own right in Switzerland. “Here stalking is – as far as possible – dealt with under the existing criminal law provisions,” says Gurt. The National Council Legal Affairs Committee has this month given its opinion on the subject and in the context of a parliamentary initiative (19.433) is calling not for the creation of a separate criminal offense for stalking but for an extension to the existing criminal law provisions.

Is the Swiss legal framework behind the times? Gurt believes that the legal situation for victims of stalking in Switzerland is currently not sufficient. Nevertheless, she foresees considerable hurdles in the standardization of stalking as a criminal offense. For one, there is no conclusive definition of stalking. “The possibilities for stalking someone are almost limitless and are continually changing with new technologies,” says Gurt. “It is difficult to comprehensively include all elements of stalking in one criminal offense, it would need to be formulated in a very open-ended way.”

Need for more consistent police protective measures

“It will be interesting to see whether the parliamentary initiative will also be adopted by the Council of States Legal Affairs Committee,” says Gurt. For the lawyer, however, the most pressing area for action is to create possibilities for immediate intervention, which would have to come under police legislation. Police legislation is regulated at cantonal level and differs from canton to canton.

Thus the legal options available to a stalking victim in Zurich are not the same as those available to victims in Uri or in Appenzell-Ausserrhoden. “Uri and Appenzell-Ausserrhoden actually have the best police regulations in Switzerland in relation to stalking,” says Gurt. In those cantons, all types of stalking can be subject to police protective measures, irrespective of whether a previous relationship exists between the stalker and the victim, i.e. whether the two are ex-partners, acquaintances or strangers. Police measures should be introduced at a uniform minimum standard throughout Switzerland, believes Gurt.

Aurelia Gurt is currently working on her doctoral thesis, with financial support from the Candoc Research Fund of UZH. While working on her PhD, she has also had the opportunity to visit the University of Utrecht on a research stay as part of the LERU doctoral exchange program. She has not yet decided, however, whether she will remain in academia after the completion of her PhD: “After finishing my thesis, I first want to do an internship for the bar examination.”

* Changed names