Stalking

Term and Definition: Stalking

The term stalking refers to the persistent and repeated following, harassing, or threatening of a person, which severely interferes with that person’s way of life. Stalking often manifests itself through unwanted contact attempts, persistent following, surveillance, threats, and showing up at the victim’s workplace or home. Stalking includes not only physical following, but also electronic harassment, particularly through digital means of communication such as email, messaging services, or social networks.

In a legal context, stalking primarily refers to criminal acts that violate general personal rights, the right to privacy, and possibly other protected interests.

Historical Development and Societal Background

Stalking, as a social and criminal law phenomenon, has gained international attention since the 1990s. The word originally comes from English (“to stalk”: to sneak up, to prowl) and was at first mainly used in connection with harassment of celebrities. As stalking cases increased in the general population, the need for societal and legal action arose, leading to various legislative measures.

Criminal Law Regulation of Stalking in Germany

Introduction of Section 238 German Criminal Code (StGB)

In 2007, the legislator introduced Section 238 German Criminal Code (StGB) – Stalking to specifically address the dangers posed by stalking. The provision was amended in 2017 to strengthen victim protection and lower the threshold for criminal liability.

Elements of the Offense under Section 238 StGB

Objective Elements of the Offense

Section 238 StGB criminalizes persistent stalking when it severely impairs the victim’s way of life. Several actions can constitute stalking under the law (Section 238 para. 1 StGB). These include, in particular: repeated seeking of the physical proximity of the affected person, attempts to make contact using telecommunication or other communication means, ordering goods or services in the name of the affected person, inducing third parties to make contact with the victim, the misuse of personal data to initiate various actions at the expense of the victim.

Das The Protection Against Violence Act offers victims of stalking extensive protection options. Under Section 1 GewSchG, the court can, upon request, order, among other things, that the perpetrator must refrain from: entering the residence of the affected person, being in the immediate vicinity of the residence or workplace, contacting the person in any way.

Anyone who violates such a court order is criminally liable under Section 4 GewSchG (imprisonment up to one year or a fine).

Injunctive Relief and Compensation for Damages

Victims of stalking can assert civil claims for injunction and removal under Sections 1004, 823 of the German Civil Code (BGB). Under certain conditions, there may also be a claim for pain and suffering and damages.

Police Measures and Victim Protection

Police risk prevention measures, such as warning the perpetrator, issuing restraining orders, or imposing contact bans, can be employed even before the conclusion of criminal proceedings if there is urgent danger.

Affected individuals also have access to victim support services and psychosocial counseling centers offering guidance and support. Victims of stalking may also apply for judicial relief (e.g. interim injunction) and exercise information rights during the investigation.

Stalking in International Law

Stalking is not just a matter of national legislation but has also been recognized as a problem in international documents. Notably, the Istanbul Convention of the Council of Europe (Art. 34) obliges its member states to take adequate action against stalking and harassment and to create effective victim protection measures.

Many countries have enacted specific anti-stalking laws or adapted existing criminal law provisions to address the phenomenon.

Cyberstalking and Digital Harassment

With increasing digitalization, forms of so-called cyberstalking are on the rise. Cyberstalking refers to the targeted and ongoing harassment or threat using digital communication means. This includes the deliberate publication of private data (doxing), identity theft, and digital surveillance. In these cases, criminal liability is also determined according to Section 238 StGB, provided the elements of the offense are met.

Additionally, other provisions may apply, such as Section 202a StGB (data espionage) or Section 201a StGB (violation of intimate privacy by taking images).

Distinction from Other Criminal Offenses and Legal Interests

Stalking overlaps with other offenses such as threat (Section 241 StGB), insult (Section 185 StGB), coercion (Section 240 StGB), bodily harm (Section 223 StGB), or unlawful entry (Section 123 StGB). Section 238 StGB applies especially when the harassment occurs persistently over a longer period and causes serious impairment to the victim’s way of life.

Prevention Measures and Advice for Affected Persons

For victims of stalking, it is essential to document all contacts and incidents comprehensively, seek help early, and file reports. Technical precautions, such as blocking phone numbers and social media accounts, also contribute to prevention. For judicial enforcement of protection orders, comprehensive evidence preservation is crucial.

Literature and Further Legal Foundations

German Criminal Code (StGB), especially Section 238 Stalking Protection Against Violence Act (GewSchG) German Civil Code (BGB) Istanbul Convention of the Council of Europe (2011)
* BKA: Police Crime Statistics – Stalking

This comprehensive overview of the term stalking provides a detailed summary of its legal classification, relevant criminal and civil law provisions, as well as protection options for affected persons. It takes into account current legal developments and offers practical advice on protection against harassment.

Frequently Asked Questions

From when is stalking considered a criminal offense under the law?

Stalking, legally referred to as “Nachstellung” (harassment/pursuit), is punishable under German law according to Section 238 of the German Criminal Code (StGB) under certain conditions. Stalking is criminally relevant when a person persistently follows or harasses someone in a manner likely to seriously affect that person’s life, routine, or safety. This includes repeated harassment, such as loitering, monitoring, unwanted phone calls, harassment via social media, or sending messages. It must also be established that the acts are capable of causing a substantial change in the victim’s lifestyle, such as moving house, changing jobs, altering daily routines, or psychological distress amounting to a substantial infringement of the right to personal freedom. In principle, no explicit consent of the victim is required for criminal liability; it is sufficient if the acts objectively constitute serious impairment. A complaint by the victim is not mandatory for prosecution but may facilitate and speed up investigations.

How can an affected person take action against stalking?

Victims of stalking have various legal options for protection. They can file a criminal complaint with the police or public prosecutor. This launches a formal investigation, during which evidence is secured and the suspected perpetrator is questioned. Alternatively, civil remedies under the Protection Against Violence Act can be pursued. An application for a protection order can be filed with the competent family court. The court can prohibit the stalker from contacting the victim, visiting their home or workplace, and using specific means of communication. Violation of such orders can result in fines or detention. Victims should also consider technical protection measures or contacting specialized counseling centers. Seeking legal advice is often recommended to fully explore the available legal steps.

What penalties may apply for proven stalking?

Stalking under Section 238 StGB is punishable by imprisonment of up to three years or a fine. In especially serious cases, such as endangering the victim’s life or when the perpetrator uses a weapon, the penalty can be increased to up to five years. Repeated stalking or stalking of a particularly vulnerable person (e.g., a child, pregnant woman) are considered aggravating circumstances. Attempted stalking is also punishable. The criminal sanctions always depend on the specific circumstances of the individual case and take into account the intensity, duration, and impact on the victim. In addition, probation supervision and bans on contact or proximity may be imposed as secondary sanctions.

What evidence is relevant in stalking proceedings?

Any evidence documenting the defendant’s systematic, repeated, and persistent actions toward the victim is relevant in stalking proceedings. This includes secured messages (emails, SMS, messaging services), logs of phone calls, witness statements, surveillance recordings, photos, the victim’s diary entries about incidents, as well as proof of GPS tracking or other surveillance methods. Above all, it is important to document the incidents comprehensively in order to demonstrate the extent and impact on the victim’s daily life. Police and courts evaluate this evidence during investigations and trial, so victims are advised to begin collecting evidence as early as possible.

Is there a statute of limitations for stalking offenses?

Yes, prosecution of stalking offenses is subject to a statute of limitations. For stalking under Section 238 StGB, the limitation period is generally five years from the date of the last act. This means the perpetrator can, in principle, only be prosecuted within this period. However, for continuing acts, the limitation period begins when the conduct ceases. If the stalking is carried out over a longer period, prosecution is possible up to five years after the last proven incident. In cases with aggravating circumstances (e.g., serious health consequences or danger to the victim’s life), the limitation period can be extended.

Is it possible to file a report for stalking even without concrete evidence?

A criminal complaint for stalking can be filed even if concrete evidence is not yet available. The report initiates an investigation in which evidence can be gathered. However, solid evidence is particularly important for successful prosecution and for court measures. Law enforcement authorities are obliged to act even in cases of initial suspicion and to conduct appropriate investigations. Nevertheless, accurate documentation of incidents and as many concrete pieces of evidence as possible greatly increase the chances of success and can speed up proceedings. Victims should therefore secure all available evidence in parallel to filing a report.

What role does the victim’s subjective perception play in the legal context?

In the legal context, it is not only the victim’s subjective perception that is decisive but also the objective suitability of the actions to significantly impair the victim’s way of life. Psychological distress and the individual’s subjective experience are taken into account in investigations and court proceedings, but the key legal question is whether a “reasonable average victim” would react similarly and feel significantly restricted in freedom or way of life. Courts therefore assess the overall situation from both subjective and objective perspectives to rule out abuse and to recognize genuine threats.