Switzerland’s New Stalking Offence Is More Than a Symbolic Reform

Why Art. 181b of the Swiss Criminal Code matters — and why its real test will be in judicial interpretation

By Dario Item*

For years, Swiss criminal law treated stalking as a serious problem without giving it a clear criminal-law identity.

Victims were not left completely unprotected. Individual acts could already be addressed through a mix of offences such as threat and coercion, while civil-law measures offered additional tools. But the overall legal response remained fragmented. What made stalking distinctive — its repetitive, cumulative, and often escalating nature — did not fit neatly into a system built around isolated acts.

That is precisely what the new Art. 181b of the Swiss Criminal Code changes.

With this provision, Switzerland has finally introduced an autonomous offence of stalking. The new article punishes anyone who persistently follows, harasses, or threatens another person in a manner capable of considerably restricting that person’s freedom to shape his or her life. In doctrinal terms, this is not just a new label. It is a shift from a piecemeal approach to a unitary understanding of persecutory conduct.

And that shift matters.

From legal patchwork to a coherent offence

The strongest rationale behind Art. 181b is not only symbolic recognition, although symbolism has its place. It is dogmatic coherence.

Before this reform, stalking cases were often forced into neighbouring offences, especially coercion. Courts and practitioners sometimes had to build criminal relevance by aggregating many acts that, taken one by one, might seem legally minor or even socially ambiguous. The result was often unstable: the law was trying to capture a pattern through categories designed for something else.

The new provision responds to that structural problem. Instead of asking whether a single phone call, message, appearance outside a home, or online contact is independently criminal, Art. 181b focuses on the overall course of conduct. The offence is tailored to repeated intrusion as such.

That is a major conceptual improvement.

Why this reform arrived so late

The path to codification was anything but linear.

For years, the Federal Council resisted the introduction of a specific stalking offence, arguing that existing criminal provisions and civil-law remedies were sufficient. Meanwhile, parliamentary initiatives kept returning to the issue, reflecting a growing awareness that the legal system was not fully capturing the lived reality of stalking.

International law also played a role. The Istanbul Convention, which requires the criminalisation of stalking, became an important reference point in the Swiss debate. Even if Swiss law was long considered functionally adequate through a combination of existing norms, the pressure for explicit typification increased.

The turning point came when the discussion moved beyond the question of whether stalking could be punished in some way, and toward the question of whether it should be recognised as a distinct wrong. Once the issue was framed that way, the case for Art. 181b became much stronger.

What the law actually protects

The new offence is located among crimes against liberty, next to threat and coercion. That placement is not accidental.

The protected interest is not simply peace of mind in an abstract sense. It is the victim’s personal freedom to organise daily life without being reshaped by another person’s persistent intrusion. In stalking cases, the harm often lies in the gradual erosion of autonomy: changing routes, avoiding places, altering routines, limiting social interactions, or living under a constant sense of surveillance and pressure.

In other words, stalking attacks freedom before it necessarily produces other harms.

That is why the new provision is so important. It recognises that repeated harassment is not merely annoying behaviour that becomes relevant only when it turns into something else. It can be, in itself, an assault on liberty.

The key idea: persistence, not isolated misconduct

One of the most important features of Art. 181b is that stalking is conceived as a legal unity of acts.

The offence is not exhausted by a single incident. It requires a plurality of acts connected by persistence. This is more than simple repetition. The legislative logic captures obstinacy: the repeated disregard of the victim’s wishes, boundaries, and freedom.

That means courts will not be able to reduce the analysis to a checklist. There is no fixed minimum number of messages, appearances, or threats that automatically turns conduct into stalking. Context will matter. Duration will matter. Escalation will matter. So will the cumulative intensity of the conduct.

This is both the strength and the difficulty of the provision.

Its strength lies in realism. Stalking is rarely one dramatic act; it is often a sequence. Its difficulty lies in legal certainty. The more a provision depends on the totality of the circumstances, the more responsibility falls on courts to develop principled thresholds.

The most delicate issue: the threshold of punishability

The real doctrinal heart of Art. 181b lies in its threshold of criminal relevance.

The final wording does not require proof that the victim’s lifestyle was already and visibly changed in a dramatic way. Instead, it refers to conduct that is capable of considerably restricting the victim’s freedom to shape his or her life.

That choice is crucial.

It moves the offence away from a model based purely on actual result and closer to one based on concrete harmful capacity. In practical terms, this may make the law more workable. Victims do not always externalise the full impact of stalking. Sometimes they adapt quietly, or the harm is real before it becomes outwardly obvious.

But this same drafting choice creates interpretive pressure. If the threshold is defined in terms of harmful capacity, how should courts distinguish serious stalking from conduct that is persistent yet still falls within the range of social friction, emotional immaturity, or unwanted — but not criminal — contact?

That line will be decisive.

If interpreted too broadly, Art. 181b risks becoming a vehicle for penalising behaviour that is unpleasant but not sufficiently grave. If interpreted too narrowly, it may repeat the practical weaknesses seen in other jurisdictions where stalking laws existed on paper but produced few convictions.

Not every unwelcome contact is stalking

This is where proportionality becomes central.

The new offence cannot be read as criminalising every insistent attempt to re-establish contact, every conflict after a breakup, or every socially awkward pursuit. Criminal law must still distinguish between behaviour that is inappropriate and behaviour that is persecutory in a legally relevant sense.

The provision itself contains the beginnings of that filter. The conduct must be persistent, and it must be capable of considerably restricting the victim’s freedom to live as they choose. That qualifier matters. It signals that the law is aimed at serious interference, not ordinary interpersonal tension.

Still, the statutory language alone will not solve the problem. Doctrine and case law will need to articulate robust interpretive criteria. Without that work, the offence risks either overreach or underuse.

The relationship with threat and coercion

Art. 181b does not eliminate neighbouring offences. It reorganises them.

Its most natural role is as a lex specialis for stalking as a course of conduct. Where criminal relevance depends precisely on the persecutory sequence as a whole, the new provision offers the correct frame. But where individual acts within that sequence independently amount to serious threat or coercion, those offences may still stand alongside Art. 181b.

This makes concurrence issues inevitable.

The challenge will be to avoid double counting. The plurality of acts is already built into stalking as an offence. Courts will therefore need to distinguish carefully between the cumulative pattern that defines stalking and the individual acts that retain autonomous criminal significance.

Why the digital dimension makes the law even more necessary

The reform is also highly relevant in the age of cyberstalking.

Today, stalking often unfolds across platforms, devices, and channels: messages, emails, social media interactions, location-based monitoring, publication of content, and forms of online surveillance that can be relentless without always being spectacular. Digital conduct can amplify pressure while making evidentiary reconstruction more difficult.

The new provision does not solve those evidentiary challenges. Data may be stored abroad. Platforms may not cooperate quickly. Mutual legal assistance remains slow. And the burden on prosecutors and courts may increase.

But the offence does something important: it gives legal systems a concept that matches reality better. In digital stalking cases especially, the cumulative pattern often matters more than any single act. Art. 181b is built for that logic.

A good reform whose success will depend on interpretation

Switzerland’s new stalking offence is, at bottom, a welcome and overdue reform.

It gives normative visibility to a form of harm that was long socially recognisable but legally awkward. It also offers a more coherent dogmatic framework for conduct that escapes the logic of one-off offences. In that sense, Art. 181b is more than symbolic. It is an attempt to align criminal-law structure with the lived reality of repeated intrusion.

But the hard work starts now.

The future of this provision will depend less on its political appeal than on its judicial calibration. Courts will have to define what counts as persistence, what makes a restriction “considerable,” and when conduct is truly capable of undermining a person’s freedom to shape their life. They will also need to keep the offence within rule-of-law boundaries, ensuring that criminal punishment remains reserved for genuinely serious interference.

That is the real test of Art. 181b.

If Swiss case law gets that balance right, the new provision may become exactly what stalking law should be: not an expansive moral tool, but a precise legal response to cumulative coercion in modern life.

*PhD Dr. iur. Dr. rer. pol. LLM

Source note: This article is a synthesis of a doctrinal contribution by Dario Item on the new Art. 181b SCC, including its legislative genesis, dogmatic structure, threshold of punishability, relation to Arts. 180 and 181 SCC, and digital-evidence implications.