Stalking and domestic violence

In the case of mistreatment against family members or cohabitants (Article 572 of the Italian Criminal Code), the retraction by the injured party does not exclude the existence of the crime. Instead, it may be assessed as a symptom of the persistence of an abusive relationship, particularly when the victim is a woman with minor children or is a minor themselves. The complexity of domestic violence dynamics requires a careful evaluation of the risk of reoffending, even in the presence of retractions or withdrawals of complaints (Court of Cassation, Criminal Section VI, judgment no. 39562, September 27, 2024).

Article 572 of the Criminal Code provides specific aggravating circumstances for mistreatment committed in the presence of minors, pregnant women, or persons with disabilities, as well as for acts of hatred, discrimination, or control over women. Jurisprudence has introduced a gender perspective in assessing the crime, recognizing that domestic violence is often an expression of power dynamics and discrimination. These aggravating circumstances have been interpreted to ensure enhanced protection for the most vulnerable categories, considering the social and cultural context in which the unlawful conduct occurs (Court of Cassation, Civil Section, Labor, judgment no. 31866, December 11, 2024).

The Court of Cassation has clarified the distinction between private violence and unlawful detention, specifying that the former violates the victim's psychological freedom of self-determination, while the latter restricts their freedom of movement. This distinction is crucial for framing domestic violence behaviors, especially when the violence aims to control, dominate, or isolate the victim. Private violence can occur even without a specific purpose, as the awareness and intent to compel someone to do, tolerate, or omit something are sufficient, without requiring a particular goal. Applied to family mistreatment, this principle underscores the generic nature of intent, the relevance of the habitual nature of the conduct, and the actual harm caused to the victim, such as anxiety, fear, and changes in daily habits (Court of Cassation, Criminal Section V, judgment no. 37158, September 10, 2024; Ascoli Piceno Court, judgment no. 273, March 26, 2024).

The jurisprudence has highlighted how domestic violence can be part of a broader criminal design, including violations of domicile and physical violence. The teleological connection between such acts, when committed in the same context, constitutes a relevant aggravating factor, demonstrating the planning and systematic nature of violent actions. This allows the gravity of the crime to be assessed not only based on individual episodes but also on their interconnection and the persecutory intent (Pescara Court, judgment no. 1500, October 14, 2024).

In criminal law, generic intent refers to the will to carry out threatening and harassing behavior with the consciousness that it will cause harm to the victim. In Criminal Cassation ruling no. 32376, the Court declared the defendant's appeal inadmissible on the basis of the subjective element of intent. Contrary to the defendant's claim, the conduct in question was deemed capable of causing harm to the ex-partner, as it was not necessary to plan to cause harm.  The same ruling raises the issue of general mitigating circumstances. The decision on whether or not to recognize them does not necessarily have to take all elements into account; on the contrary, the judge «may limit himself or herself to referring to those considered decisive or in any case relevant» (Criminal Cassation Section, ruling of August 8, 202408/08/2024, no. 32376).

The Constitutional Court (judgment 173/2024 of October 15, 2024) «declares groundless, in the sense of which in motivation, the matters of constitutional legitimacy of Article 282-ter, paragraphs 1 and 2, of the Code of Criminal Procedure [...] of Law No. 168 of November 24, 2023 (Provisions for combating violence against women and domestic violence)», reiterating the priority of safety of the victims. The measures in question concern the minimum distance of 500 meters and the activation of electronic bracelets, considered «mandatory forms of enforcement of the precautionary measure of prohibiting the offender from approaching places frequented by the victim». The issues of constitutional legitimacy raised concern the freedom of movement of the person under investigation and the rigidity of the measures, which would prevent the judge from adapting them to the specific needs of the situation in question. In response, the Court confirms, on the contrary, the necessity of these measures, which perform important functions such as protection against the crime of stalking, as«a relatively sustainable sacrifice for the suspect is counterbalanced by the pressing need to protect the safety of the victim, whose very life is put at risk by the imponderable and not uncommon progression from the warning sign (typically stalking) to manslaughter».

In the case of persecutory acts, the absence of a minor doesn’t determine the applicability of aggravating circumstances, since this offence is not regarded as a non–cuplable crime against life and personal safety and since the act was not committed against the minor (Criminal Cassation Section V, judgment no. 40301 of September 25, 2024).

According to the Article 612 bis of the Italian Penal Code, the crime of stalking involves recurring conduct, even if perpetrated at intermittent intervals over time. In case of a warning being issued, the time elapsed since the police commissioner's order is not considered relevant for the purposes of automatic prosecution, but the crime of stalking can be established even if the acts are distant in time (Criminal Cassation Section V, judgment no. 40304 of September 17, 2024). Similarly, if the conduct is «limited in number» and repeated within a «short period of time», it is also considered stalking if it causes the victim the consequences identified in the current legislation on stalking. The same judgment also clarifies the irrelevance of the defendant's cultural origin in reducing the severity of the stalking acts (Criminal Cassation Section I, judgment no. 41873 of October 4, 2024).

Sexual violence 

The Criminal Cassation Court has upheld recent case law regarding the crime of sexual assault (Art. 609-bis of the Criminal Code), reiterating that explicit consent is essential and must be maintained throughout the entire sexual act; therefore, if any expression of dissent occurs during the act—even implicitly, such as a state of thanatosis—the crime is still established. The Criminal Cassation Court also confirmed that it is not necessary for the victim to always explicitly express dissent throughout the entire sexual act, as it may be presumed. Even the victim’s lack of reaction and the absence of outward signs do not prove that the act was consensual, as the victim may not react due to fear or a state of shock. In the present case, the victim was forced by the defendant to have sexual intercourse and was not believed despite the external signs of violence. (Criminal Cassation, Section III, Judgment No. 13222 of February 2, 2024)

In cases where, despite dissent, the victim exhibits behavior that might appear cooperative, the perpetrator cannot consider the initial dissent to be false or superseded. In the present case, the Court of Cassation rejected the appeal of the defendant convicted of sexual assault because the victim had clearly expressed her dissent (Criminal Cassation, Section III, Judgment No. 29356 of July 19, 2024). The same applies when, during sexual intercourse, a non-consenting victim utters declarations of love. In the case at hand, the victim made such declarations after having been previously threatened. (Criminal Cassation, Section III, Judgment No. 31106 of July 30, 2024)

The Criminal Cassation Court has reaffirmed that the crime of sexual violence can be established even without physically aggressive acts; for the crime to occur, it is necessary to invade the victim’s sexual sphere or influence their freedom of choice regarding a sexual act. In any case, the context in which the act occurs and the relationship between the perpetrator and the victim are also carefully evaluated.

Sexual violence can occur even in the absence of physical contact, when the victim no longer has the freedom to make choices regarding their own sexuality and is coerced or psychologically manipulated into performing sexual acts against their will. This can also occur remotely, through means such as the telephone, chat, or video calls. In the present case, the defendant threatened the victim to have her resend intimate images that the victim had previously sent freely and without coercion. (Criminal Cassation, Section III, Judgment No. 10692 of March 14, 2024)

The Court of Cassation reiterated that for the crime of sexual assault to exist, it is not necessary to prove that the perpetrator committed the act to derive sexual pleasure; it is sufficient that the act be voluntary and that the act be of a sexual nature.

In cases where the defendant comes from a different cultural background, their cultural background may be considered only to contextualize the case but may never be used to justify the crime committed. In the present case, the defendant was found guilty despite his cultural background, for having engaged in violent and abusive conduct toward his wife. (Criminal Cassation, Section III, Judgment No. 37929 of October 16, 2024)

The Criminal Cassation Court confirms the possibility of prosecuting the crime of sexual violence ex officio when the perpetrator is a public official or a public service employee and holds a position of power over the victim. In the case at hand, the court recognized the grounds for ex officio prosecution regarding the sexual violence inflicted by a Red Cross employee against two women, since a relationship of power or control existed between the defendant and the victims, causing the victims to fear negative consequences. (Criminal Cassation, Section III, Judgment No. 16698 of April 22, 2024)

Regarding the crime of sexual violence within the healthcare professions, the Court of Cassation reiterates that a physician who, during an examination, performs acts that affect patients’ sexual autonomy must clearly explain the reason for such acts. The crime is committed when inaccurate or incomplete information is provided, when no information is provided at all, or when the patient’s consent is absent. In the present case, the doctor was convicted of sexual assault against a patient who had not been properly informed about the act the doctor was about to perform and therefore could not give genuine consent. (Criminal Cassation, Section III, Judgment No. 47582 of October 15, 2024)

In cases of gang rape, it is not necessary for all members to participate in the sexual act; one is still liable for the crime if one’s presence plays an active or supporting role. In the present case, two defendants were convicted because one of them committed sexual assault on the victim by groping her, while the other filmed the abuse. (Criminal Cassation, Section III, Judgment No. 28723 of July 17, 2024)