From Grillo’s son to La Russa’s son, including the Genoese businessman, the cases of sexual violence complaints -especially when they are in a context where drugs and alcohol appear – They do not lend themselves to opposing supporters, nor to the prejudicial prevalence given a priori to the denunciation of one or the denials of the other, precisely because of the type of structure of this crime in the code (article 609 bis).
The fact that the girl had I already used cocainelike the issue of who could have made her drink a drugged drink at the disco, or the modalities of the relationship that is more or less harmful to her intimacy, is certainly relevant to the overall assessment of the reliability of the person who made the complaint, but – as has already been commented here several times in recent days – not determinative for criminal relevance or less of sexual intercourse with her.
Article 609 bis of the penal codein fact, it punishes sexual violence not only by coercion (first paragraph) but also (second paragraph) by inductionunderstood as that in which the active subject takes advantage of the conditions of inferiority (physical or mental or both) of the victim to obtain a fictitious consent and therefore carry out the sexual abuse. Physical inferiority is a state (perhaps even only transitory) of physical inability to resist the sexual initiatives of others, while psychic inferiority is a state (perhaps even here perhaps only transitory) of total or partial inability to understand and want: and drugs and alcohol can certainly be the cause of mental or physical inferiority. But why is it a crime of sexual assault? it is not necessary for the person who then performs the sexual act to administer the drug on the person in conditions of mental or physical inferiority.
This becomes, in any case, an aggravating circumstance of the crime. But among the conditions of mental or physical inferiority, for some time the jurisprudence of the Cassation includes those determined precisely by the possible voluntary consumption of alcohol or drugs by the victim herself, because even in these cases the situation of disability of the victim, regardless of who provokes it, it can be harnessed to satisfy the actor’s sexual urges. And this is a point that, beyond the weight in individual court cases like this, must find its way culturally among young people and families: having sexual relations with a person who is not present for them at the time, even if it is their responsibility. . for having used drugs or alcohol, besides being unfair, however, it exposes them to the risk of a sexual assault investigation.
The distinction is the conscious consent of the couple, which is the most difficult thing for the judges of a trial to establish on the basis, case by case, of the elements and indices of behavior obtained from the preliminary investigation. There is no favor granted prejudicially to the one who denounces and specularly a disfavor practiced a priori to the one who is denounced; but equally the actors in the process must avoid any form of secondary victimization of the offended party, all the more depending on their sexual habits, their lifestyle, the use of drugs.
To assess consent on a case-by-case basis, judges generally start from the legislative framework in which the crime of sexual violence can be integrated. not only of conduct that violates the sphere of freedom and sexual integrity of others before the manifestation of a clear dissent on the part of the victim, but also for prevaricating conduct carried out in the absence of tacit consent (not even tacitly) by the partner. According to the jurisprudence of Cassation, therefore, consent to perform sexual acts must not only exist at the beginning but also persist throughout the relationshipand at any time it can fail due to a later rethinking, or perhaps even not having shared the ways to consummate the relationship.
This demonstration of dissent it can also be non-explicit but communicated for conclusive facts, that is, clearly when indicating the will to the contrary. Therefore, to configure the subjective element of the crime of sexual violence, it is enough that the one who works is aware of the fact that the couple has not clearly expressed their consent to perform sexual acts, and the error in the expression of dissent is even irrelevant even if it has not been made explicit. So you can’t even be wrong in good faith? Yes, but the doubt about the occurrence of the valid consent of the other assumes favorable weight in a process only when the misunderstanding has been determined (at the time). with an expressive and equivocal content about the positive manifestation of the will for whom he now declares himself offended.
lferrarella@corriere.it
