El The crime of harassment from the perspective of induced vulnerability: interpretive criteria for distinguishing it from interpersonal conflicts

Abstract

The crime of harassment, incorporated into the Penal Code by Legislative Decree n.º 1410, has presented significant interpretive challenges due to the broad concepts of the typical verbs and the normative reference to endangering or disrupting the victim's daily life, especially since these scenarios are linked to situations of vulnerability or dynamics of gender-based violence. This academic paper analyzes Article 151-A of the Penal Code in light of the induced vulnerability approach, as well as the principle of harm, based on the protected legal right, starting with personal freedom understood as self-determination in the development of the victim's daily life. Under this approach, a distinction is made between the scenario of danger described in the first paragraph, characterized by the repetition, continuity, or habitual nature of intrusive behaviors capable of compromising said self-determination; and the scenario of harm contemplated in the second paragraph, in which a single act can even produce an actual disruption of the victim's daily life. The role of consent is also analyzed, along with the need to interpret its absence based on objective signs of rejection, thus preventing the elements of the crime from depending solely on the subjective perception of the victim. Finally, interpretive criteria are proposed to define the scope of the crime of harassment, in accordance with the principle of minimum intervention. This ensures that criminal intervention provides an appropriate response to intrusive behaviors that affect individual freedom, especially in contexts of gender-based violence or vulnerability, without resorting to expansive interpretations that lead to the criminalization of interpersonal conflicts inherent in social coexistence.